Appropriation and Invention of Tradition (The East India Company and Hindu Law in Early Colonial Bengal)

The beginning of Anglo-Hindu jurisprudence was occasioned by decisive development in the cultural, intellectual, and legal history of India. This book deals with the appropriation of the Dharmasastras-a powerful written tradition and its codification, in the construction of Hindu law. It explores the significant connection between this process of formalization and the consolidation of the empire in Bengal.

Bhattacharyya-Panda analyses the shifting administrative and political needs of the colonial regime as well as the perceptions and attitudes of the officials in this process of codification. Through a careful study of the compilations. Vivadarnavasetu and Vivadabhangarnava, alongside their late eighteenth-century colonial translations, she brings out the ways in which ancient textual traditions-the prescriptive, normative, and moralistic rules of the Dharmasastras-were metamorphosed into legal rules to be directly administered in courts.

The author explores the historiographical debates regarding continuities and change in legal tradition. She argues that the selective appropriation of Dharmasastras regarding division of property and inheritance-to construct a 'Hindu law'-marked a fundamental intellectual break form the past. In the process of representing and manoeuvring them, the colonial government actually invented these traditions. Investigating the intricate and dynamic links between power and knowledge in the evolution of institutions under colonial rule, this book underlines innovative ways of looking at the legal history of colonial India. Strongly grounded in primary sources, it will be a useful read for scholars and students of modern Indian history, sociology, and law. It will also interest those concerned with intellectual and cultural history of Bengal.

About The Author

Nandini Bhattacharyya-Panda is Senior Fellow, India Council of Historical Research, New Delhi.

Introduction

This book is about the formulation and formalization of Hindu law in the early days of British rule in India. It is generally believed that the codification and translation of Hindu laws by the Company's government, especially the rules relating to property and inheritance, were intended to give their Hindi subject their own laws as recorded in their sastras written in Sanskrit. The exercises involving the codification and translation of traditional Smriti literature were integral part of the early colonial efforts to lay the foundation of a colonial system of justice in Bengal. The codes or compendia, it was stated, were authoritative digests of the traditional laws preserved in the Dharmasastras and the fruits of colonial collaboration with the local scribal communities. The digests were prepared by the pundits, who were projected as 'lawyers' and 'jurists', and indeed as experts on the legal system of the Hindus. It was also asserted that such codification epitomized remarkable continuity and that the translation were epitomized remarkable continuity and that the translation were faithful renderings of the Sanskrit digests.

This book examines the validity of this received wisdom and explores the real nature of 'Hindi law' as formulated by the company's government and the motives behind its construction. The book does not claim to trace the formulation of colonial period. It only deals with the initial appropriation of the Dharmasastra tradition and the construction of Hindu law primarily the codes relating to property and inheritance through two codifications and their translation. It discusses the processes leading to significant developments within this tradition that marked the beginning of Anglo- Hindu jurisprudence in India-indeed a complex but decisive development in cultural, intellectual, and legal history of India. This study also analyses the intrinsic line between the consolidation of empire in Bengal and the codification and appropriation of a powerful written tradition-that of the Dharmasastras-largely by focusing on issues such as right to property, inheritance, succession, adoption, and so on. These matters were central to the construction of the 'Hindu law'. It will further explore the mode of appropriation of the Dharmasastras by the colonial rules, which directly integrated this tradition with the state apparatus . I disuses the extent to which such transformation was authorized by the tradition itself. This study will demonstrate that the 'Hindu law' as administered by the British to be the civil and personal laws of the Hindu did by no means represent any 'authentic indigenous tradition '. It was, on the contrary, a colonial construction meant to accommodate the economic interests and imperial designs of the new rules in Bengal.

This book analyses both the shifting administrative and political needs of the colonial regime as well as perceptions and attitudes of the officials concerned in this codification, all of which went into the making of 'Hindu law'. Warren Hastings, the first Governor-General of Bengal, sponsored the first compilation-the Vivadarnavasetu ('bridge over the ocean of disputes')-in the year1772. It was subsequently translated into Persian, which N. B Halhed than translated into English and published in 1776 under the tile-A code of Gentoo Laws The second compilation-the Vivadadhangarnava ('ocean of solution to disputes'), was a project conceived of and a Supreme Court judges in Bengal. Jones appointed Jagannath Tarkapanchanan, the legendary scholar of the Nyaya-Mimamsa tradition, to compile it. Jones begins the work of translation himself. However, upon his untimely death, It was finished H. T Colebrooke. The translation was published under the title A Digest of Hindoo Laws in 1801.The original text is yet to be edited and published. These two text and their translation are the central focus of the present study because they illustrate most crucially how the colonial regime used an ancient textural tradition for hitherto unintended purposes and, in the process deviated significantly from the tradition itself. The sources I have drawn upon, however, include colonial codes and pre-colonial discourses on the Dharmasastras, early writing of the British ideologues and officials, revenue and judicial documents, courtroom proceedings, the manuscript diaries of Justice Hype (the first judge of the Supreme court in Bengal) and William Jones, contemporary literature, collections of private letters, and various secondary works.

The little of this book, Appropriation and Invention of Tradition, refers to a seminal discussion (dated, yet the subject of a live debate) on the representation of indigenous knowledge in the colonial discourses as an instrument for subordination the subject people. The debate has its origin first in Edward Said' s Orientalism (1978) 1 and subsequently in the writings of Ronald Inden (1990),2 Terence Ranger (1987)3 and a host of other scholars (for example, Martin Chanock, Kristin Mann, Sally Falk Moore, Jan Vansina) working on Africa.4 In the India context,5 a number of social anthropologists and historians have referred to this paradigm either to explain certain societal or ethnic developments or to produce critiques of such theoretical formulation.

The 'inexorable nexus' between knowledge and the power and the dichotomy between the 'superior' imperial Occident and 'inferior' subject Orient were for the first time highlighted and examined by Edward said. He Observed that the nexus was clearly manifest in various kinds of literary discourses, especially colonial codifications and translations of relevant literature on the law, custom, and manners of people.6 The rulers generated the relevant 'power-knowledge' through various codes and translated materials and than used them as important instruments for overall political domination.7 Said saw such a nexus between knowledge and power in efforts Warren Hastings and William Jones to codify Hindu laws and customs. In his view, Jones', 'official work was law, an occupation with symbolic significance for the history of Orientalism'. His cherished goal was to 'rule and to learn' but he displayed 'an irresistible impulse always to codify to subdue the infinite variety of the Orient to a 'completed digest' of laws, figures customs, and works .8 In fact, his ambition to become the new Justinian of India was proclaimed in his discourses before the Grand Jury in the Supreme Court.9

The basic nature of colonial knowledge, according Said, was representative-that is, the knowledge was manipulated to convey the ideas and ideologies of the colonial rulers and to ensure power for letter. The entire discipline evolved through 'continuous investments' or patronage form the colonial state or from the metropolis, and the exponents of imperial ideology were affiliated to imperial institutions such as schools, colleges, foreign services, libraries or other administrative network.10 Thus, in his view, the Orientalist discourses underwent a self-metamorphosis, changing form a literary enterprise into an imperial institution. Accordingly, Orientalist representations produced a 'system of knowledge' or a family of ideas' reflecting a common ideology of imperialism.11 The element of authority and domination were presented in the typical style of narrative and representation developed by the Orientalist discourses. The Orientals authors chose ' deliberate ways' of informing the readers about the indigenous tradition and culture. They took upon themselves the task of speaking on behalf of their native subject on the assumption that the latter were utterly incapable of speaking for themselves, such liberty representations by Orientalist scholars and administrative created almost a hypothetical and indeed an inferior image of the Orient.12 This inferior image and a correspondingly superior image of the Occident legitimized their position as ruler over millions of colonial subject. The contrasted images becomes an instrument for the acquisition of authority and power through peaceful means, that is, through the acquiescence of the indigenous people.13 The knowledge of indigenous tradition and culture, especially the codifications and translations of indigenous laws and custom also informed colonial intention to safeguard the authentic traditions of the county.

This argument implies that the colonial discourses in some ways 'invented' the culture and tradition of the colonized people to suit the rules purpose. This notion becomes explicit in his assertion that the 'Orient was orientalised' and the 'Orient was almost an European invention'.

Said' s study of Western domination of cultural forms extends across a large canvas: it covers four vast regions-India, the Middle East, Africa, and China His generalizations are correspondingly large. The present study of a limited colonial enterprise to codify Hindu laws of property and inheritance in Bengal during the letter half of the eighteenth century will test their validity, especially on the subordination of indigenous knowledge to mould instruments of authority and power in the hand of the colonial rules. I hope to show that colonial knowledge and Western domination transformed some element of the Dharmasastras into 'Hindu law' through their codification and the integration of arbitrarily selected components of this pre-colonial tradition into the state apparatus.

There have been a number of studies exploring the nexus between colonial knowledge and imperial purpose on somewhat similar lines. Ronald Inden 's studies 15 discuss the notion 'imagined knowledge', which by no means, contains 'mirrors' or 'true knowledge' about India, as the rulers claimed.16 The acts of imagining were meant to create an India that could be easily understood and controlled. This imagined India was kept 'eternally, ancient by inferior attributes-caste divine kingship, irrationality, lack of scientific spirit, and so on: one object of the exercise was to elevation the ruler's position by comparison .17 In Inden' s view, this process 'entailed the wholesale deconstitution of India 's economic and political institutions.' 18 Simultaneously, this imagined knowledge contributed to the loss of the autonomous domains of the indigenous power elites and helped transfer authority and power into the hands of the colonial rulers:

The agency of Indians the capacity of Indians to makes their own world, has been displaced in those knowledge on to other again. The makers of these knowledge have in the first instance, displaced the agency of the Indians on to one or more 'essences', and in the second instance on to themselves .19

My study examines inter alia how for the codification of the Hindu law displaced India agencies.

The invention of 'tradition' a paradigm developed by Eric Hobsbawn and Terence Ranger 20 with reference to colonial and non-colonial context, conceptualizes another dimension of the link between colonial power and indigenous knowledge. The term 'invention, as defined by them, is used in this book to describe passage from traditional normative texts on correct conduct for the twice born to clearly defined colonial legal codes .The term 'invented' tradition, Hobsbawn noted, has been used in different societal context in a broad and imprecise sense. It includes both tradition actually invented, constructed, and formally instituted and those emerging in a less traceable manner within a brief and dateable period-and establishing themselves with great rapidity 21.

Some traditions are consciously devised or constructed, presumably to accommodate the interests and aspirations of a given community or group. Another 'set' of practices', usually governed by overtly or tacitly accepted rules, seeks to inculcate certain values and norms of behaviour by repetition, which automatically implies continuity with the past 22. The invented traditions normally appeal to continuity with a suitable historic past. To sum up, the process of 'inventing tradition' has to be traced through 'formalisation and ritualisation by reference to the past.23

The term 'invention' will be used in this study within this broad framework of 'actually invention, constructed, and formally instituted' tradition in the specific context of late 18th century Bengal. I hope to show that in Bengal, 'Hindu law' on civil and personal matters was instituted through appropriation and redefinition of the Dharmasastras. The colonial official intervened in a vast written tradition that addressed a significant section of the subject people. This tradition was not static-the evolution of the tradition followed certain patterns, establishing a set of flexible, but not flied rules. Such rules varied from region, but were committed to certain basic principles, mostly enshrined in written form.

In the Indian context, Neeladri Bhattacharya has studied the remaking of customary law in the Punjab under the colonial regime during the latter half of the nineteenth century.24 His theoretical for our purpose. He identified a 'shift' in the official policy from codifying sastric texts as was done in Bengal to codifying custom on the basis of 'actual practice'25 In the Punjab as a result of the changing ideology of the colonial administrators.26He argued that the Orientalist policy makers and administrators of Bengal, such as Warren Hastings and William Jones codified Hindu law on the basis of the Dharamasastras out their veneration for the ancient and sacerdotal texts. on the other hand the officials in the Punjab were influenced by the utilitarian ideology, and therefore undertook codification on the basis of 'actual practices'.27 The social order of pre-colonial Punjab, being primarily tribal, was not governed by sastric rules, nor did the sastras enjoy a significant role in that region, which helped.

Hence, codification of law in late nineteenth century Punjab were produced mainly on the basis of folk tales, ballads, songs, and proverbs. 28 And were the product of dialogue or discourse between colonial official and were the indigenous informants-village headmen and elders29. The official attitudes were not unilinear. There was always a conflict between the urge preserve the old system and the urge to reform with occasional pressure to introduce textual rules as found in the Sastras. 30 The local informants were not homogenous groups and they produced varied discourse on the customary practices of the land.

The colonial masters of the Punjab directed and overwrote the utterances of the local informants in the process of 'remaking' the custom. 32 The local informants projected their own perception of the tradition and resisted imperial interpretations as they reacted to the changing social contexts, especially scarcity of land and increasing, population.33 As a result, the codes becomes the product of discourses, not a textural process, nor simply the fruit of imagination. Finally, the codes in the Punjab echoed the 'patriarchal voice of property-owning elites, a voice neither inherited nor borrowed, but something creatively produced through dialogues'34.

Rosalind O' Hanlon and David Washbrook have produced a critique of the representation/ imagining/ invention paradigms and proposed a counter-argument.35 Primarily drawing on Christopher Bayly's analysis of the nature and impact of colonial intervention on the indigenous tradition, 36. They argued that the colonial rule did not substantially alter the basic structure and functions of the pre-colonial traditions.37They emphasized the 'deliberately self-imposed limitations' and 'fallacies' inherent in such paradigms as 'no really dominant new framework or direction for research has emerged' form such intellectual exercises. They defined such approaches as 'experimentations and innovations' that produced 'false start, uncertainty and fragmentation'. 38 In their view, if Oriental representation was purely a European construct' imposed on Asian societies, than such constructs possessed 'an extraordinary power to elicit recognition and acceptance form the subject people'39. Also, if the colonial knowledge could be considered fictitious, than the 'authentic' and other India would emerge once these alien representations of the Orientalist scholars had been stripped away. They argued that the image of that 'unrepresented, unimagined and uninvented India' would again reflect 'the older stereotypes of India's cultural uniqueness and changelessness'40.

According to them, colonial knowledge should not be considered as the product of unilateral European enterprise. For this knowledge emerged as a product of collaboration between the European rules and their 'chosen and interested indigenous informants'41 and because most of the developments in the sphere of indigenous tradition and culture during the colonial period had their continuities with the pre-colonial past.

On very similar lines, Bayly suggested that the preparation of legal codes by the early officials of the Company only continued the practices followed by the previous rules.42Tracking the formidable power of the brahmins in Bengal, Tanjore and the Benaras region during the period immediately preceding the colonial rule, he observed that the regional rules in those places also appropriated this growing power as well as that orthodoxy during the sixteenth and seventeeth centuries. 43 He also noted that orthodoxy was accepted as the ideal order of society. However, even within this milieu of orthodoxy, 'deep-rooted social changes and conflicts of interpretation' characterized pre-colonial India society. 44 consequently, the textual and scribal traditions were involved in the 'process of constant inventions and reinventions' no to accommodate the growing power of the brahmins and aspirations of the new rules 45.The early colonial rules of Bengal derived both 'material and ideology for preparing the Hindu law code form this tradition and Colebrooke' s Code (Digest of Hindu Laws) was just another product of that interaction as it was prepared in collaboration with the pundits form Nadia for the use of Warren Hastings' 'neo-traditional' administration in Bengal 46. The new code, embodying a 'revised Hindu law in favour of contract private property'47 engendered by of Western administration, acted in favour of commercial men landed social group. Bayly suggested that through this process Islamic shariat law and Hindu customary jurisdiction' were pushed to the edge of the formalized legal and administrative system. 48 He emphasized that the colonial rules did not have to invent a new tradition to codify the indigenous laws for their own pragmatic uses.

These observations on colonial invention centre around four major assumptions. First, that the Dharmasastras incorporated laws for the Hindus. Second, that the pre-colonial Dharmasastras established orthodoxy as the order of society. Third, that the pre-colonial tradition also grew through conflicts of interpretation or constant 'inventions or reinventions' to accommodate the growing power of the brahmins and the aspirations of the regional rulers. Finally, that the colonial appropriation of this tradition only continued this trend without causing any fundamental deviation form thepre-colonial practice.

Reinforced by Bayly' s assumptions, O' Hanlon and Washbrook identified four basic fallacies in the colonial discourse argument:(a) that the colonial discourse argument underplayed the capacity of the subject people for agency and change;(b) that the argument traced the flow of power in one direction: that colonial Knowledges intervened form of above and outside to transform India culture and, social relations; (c) that such paradigms, especially Said' s argument tented to open up afresh suggestions of Indian 'otherness' and stasis 49.In sum they felt colonialism in India did not abruptly introduce new processes of rule .It inherited the basic framework and all the instrument for penetrating rural societies, form the earlier regimes especially form the princely states of the eighteenth century.50

In the context of such theoretical generalization, the present study will asses the impact of a colonial intervention on the pre-colonial Dharmasastras tradition and trace the emergence of civil and personal laws in the initial period of British rule. It will analyse the ideologies circumstances, compulsion and perception of the early colonial officials that produced Hindu law. It will discuss the basis content of the indigence tradition and show it was invented for colonial purpose. The discussion will specifically demonstrate that the literature of the Dharmasastras did not contain a synonym for the term 'law' as the eighteenth century British officials understood the term .It will be pointed out that pundits were not taken into full confidence in performing the role of 'collaborators' Indeed, the early officials undertook the legal codifications primarily to break the pundits', 'monopoly of knowledge over sastric rules. This book will analyse the slow but sustained enrichment of this tradition through intellectual exercises over centuries-Indeed, over two millennia in several region of India. The tradition espoused certain social philosophies, moral guidelines, and prescriptive norms that were not equivalent to 'laws'. But this tradition lost its significance and become extinct after the colonial intervention and appropriation of arbitrarily selected rules to produce 'Hindu law'-an irreversible development in India's socio-legal history. 'Hindu law' emerged as an established category in the legal administration during British rule. It is still used in the legal terminologies of India to define the personal laws of the Hindus

Codification almost always involves reduction of laws customarily observed by a particular set people to a more or less permanent organized, and written form through a comprehensive, piece of legislation. It has been emphasized that an act of codification is always a somewhat revolutionary step in the sense that it represent a certain intellectual break with the past. It may be observed that all government have used the opportunity of codification to make innovation and changes in old laws, using them as channel to perpetuate their authority. However, the colonial codes of Hindu law were not simply an organized, written, and perhaps reformed version of a existing set of laws. Instead, they transformed the prescriptive, normative, and moralistic rules embodied in the Dharmasastras into legal rules to be directly administered in court. This book will narrate the process of this metamorphosis.