South Asian Legal Traditions

Cite as De, R., 2015. South Asian Legal Traditions. In: James D. Wright (editor-in-chief), International

Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Vol 23. Oxford: Elsevier. pp. 58–62.

South Asia (comprising of the present states of India, Pakistan, Afghanistan, Nepal, Bhutan,

Bangladesh, Sri Lanka and the Maldives) is marked by the diversity of its legal traditions. The

founders of comparative law, when dividing the globe into different legal systems of describe

South Asian legal culture as Hindu law. However, South Asia is the site for Hindu, Muslim,

Buddhist, tribal, British colonial and postcolonial legal regimes, along with the presence of Jain,

Zoroastrian, French, Portugese and Roman-Dutch legal systems. Unique to South Asia is the fact

that while these legal traditions appeared at different points of time, none was able to supplant the

others completely and had to evolve a relationship of coexistence.

Ancient Indian Legal Traditions

The period from 600 BCE till about the 12th century AD has been described as the heyday of Hindu

law, evidenced by the proliferation of Sanskrit legal texts and commentaries. However, Hindu law

stands as markedly different from other religious legal traditions. There is no definite starting point

or any doctrinally central event and no central text or figure of a law-giver (Menski, 2003). Hindu

law is better understood as a family of laws rather than a single unit, functioning at several different

registers. (Menski, 2006). Orientalist scholars searching for a code of Hindu law would turn to

the large corpus of Sanskrit texts (numbering in the hundreds) that were collectively known as the

Dharmasastra (Kane, 1968). The Sanskrit word dharma has often been translated as law, though
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in reality it’s a more complex concept evolving from the root dhrt which means to “hold, maintain

and keep”. Dharma signified appropriate behavior and encompassed duties, rights, moralities,

conduct, virtues and obligation. The Dharmasastra texts addressed three major topics; achara or

appropriate behavior and rituals for different castes and different stages in one’s life, vyavahara,

the rules for resolving doubts about duties and finally prayaschitta or rules about penances for

violating dharma. While the earlier dharmasastras assumed compliance, the later texts emphasized

punishment or deterrence to ensure that obligations are fulfilled. Rights, obligations and

punishments were all determined by caste, age and status. Arguably the most famous of the

Dharmasastra is the Manusmriti, or the Code of Manu, which was translated by the orientalist Sir

William Jones in 1794. The Manusmriti, which laid down elaborate rules governing the behavior

of castes and social groups, was celebrated as a compendium of laws because it was one of the

first texts that drew authority from dharma itself rather than the gods. However, the primacy given

to the Manusmriti, has more do with the limits of colonial imagination which was seeking for a

law code rather than its actual reach and influence. Written at the time when organized Hinduism

was being challenged by Buddhism and Jainism, this Manusmiti was seeking to shore up the

authority of the caste system.

Despite the sophistication of the Dharmasastras or the prestige of their authors, it is unclear

how much influence they had on governing everyday lives. These texts propose ideal models of

social reality and there is limited evidence on the lived experiences of law. Historical accounts

suggest that in most cases, local communities, caste groups and villages retained considerable

autonomy to decide disputes on custom or conventions that they could themselves evolve. Appeals

from these did go to royal authority, but most state courts also decided the dispute relying on the

community’s practices.

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 Unlike its contemporary civilizations, there is nothing to suggest that there existed any

class of persons versed in the Smriti whose profession was similar to that of modern lawyers.

(Kane, Vol.3, 1946, 288). There are only isolated references to the term niyoga (or appointed in

lieu of) which is the closest one can get to a professional class of lawyers, however the main

requisite here was a personal connection to the petitioner and not legal competence. Some classical

scholars have argued that the class of lawyers was not required in Hindu law, because the

administration of justice was the concern of the kind, who had to ensure not only that the guilty

were punished but also that the innocent were not prosecuted. (Rocher, 1969).

Islamic Polities

While Muslims have been present in the subcontinent since the 8th century, it was in the 11th

century when the first Islamicate polities were established in the subcontinent following conquests

in North India by Persianized Turks. During a period of turmoil in Central Asia, these rulers drew

legitimacy from the fact that they provided order and allowed Islamic life to flourish. Most courts

patronized Sufi shaykhs and royal authority was closely tied to their shrines. A number of Muslim

dynasties established control over large parts of north, west and central India, the largest and most

influential being the Mughal empire which during its heyday (1526-1707) extended over most

parts of contemporary South Asia.

Notionally, much of the subcontinent was governed by sharia law. However, in practice

the sharia was not a rigid legal sacral system in South Asia. While Mughal commentaries on shariat

law, such as the Fatwa-e-Alamgiri, explicitly state that the sharia was not applicable to non-

Muslims in the subcontinent, historical evidence suggests that it came to be appropriated by all

sections of society and formed the basis of a shared normative system. As Farhat Hasan shows

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Hindu merchants frequently invoked provisions of Islamic law on the sale of property when

dealing not just with Muslims but also with other Hindus. More strikingly, Hindu and Muslim

women frequently appealed to Sharia principles and moved state authorities to secure their claims

to property and guardianship. (Hasan, 2004). The shariat through the Mughal period was tied to

local power relations, and became the arena of conflict of different social groups. Similar to studies

of Ottoman territories, women seem to possess a high degree of legal consciousness and were

frequent actors in the courts. As Hasan has argued, several marginal groups resisted the powerful

through “an insurrectionary awareness and acquisition of the dominant legal discursive system”.

(Hasan, 2004, 75).

It is important to note that even under Mughal rule, which saw a higher degree of

centralization than earlier states, the state legal system barely permeated rural areas. The courts,

the qazi (Islamic judge), the faujdar (constable) and other legal institutions were primarily urban.

Disputes and law enforcement in rural areas continue over the centuries to be dealt with by bodies

called panchayats or local assemblies of notables. These could exercise jurisdiction over a territory

like a village, a caste group or a kin group.

While most litigants appearing before the courts represented themselves by the 17th century

there is the emergence of a class of men called vakils, who resembled modern lawyers. However,

a vakil was usually invested with the authority to act for another but not necessarily plead for him

before a court of law. European travelers commented both on the absence of lawyers from

courtrooms and for the relative simplicity and efficacy of state courts. Under Emperor

Aurangzeb’s reign, the state began appointing vakils to look after various interests including to act

as legal advisors to the poor (Calkins, 1969).

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The Company Period (1601-1833)

In 1601, Queen Elizabeth I granted a charter to the English East India Company (EEIC) giving

them the monopoly over trade with India. The EEIC successfully negotiated permission from

Indian rulers to set up factories and port towns in Surat, Bombay, Calcutta and Madras. The royal

charters empowered the EEIC officials to administer justice in their territories. The charters

required that all company laws had to be “reasonable” and not contrary to the laws and

customs of the English realm. The charters had only granted the company the jurisdiction over

English subjects, but it soon found itself dealing with Indians who pursued claims in the Company

courts as well. The Charter of 1726 established an “Anglo-centric” legal order in Madras, Bombay

and Calcutta, which brought the Indian territories firmly into the British legal world. It explicitly

provided that the law of the company settlements in India was to be that of England, to the extent

that circumstances would permit. It set up Mayor‟s courts headed by aldermen who were tenured

for life, guaranteeing a degree of independence and explicitly provided for appeals to the Privy

Council. As recent scholarship has shown, judges and juries in these company towns frequently

protested the deviations from English law and the arbitrary authority of the Company officials.

(Fraas, 2014).

However, both the nature of colonial rule and the legal system were transformed following

the victories of the EEIC in the battles of Plassey and Buxar. From being an armed trading power,

the Company found itself sovereign over territory greater than the size of Germany. Over the next

fifty years, the company state made three interventions that had transformed South Asian legal

cultures completely.

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 The colonial state, with its investment in creating a rule of law, displaced local authorities

through new civil courts and formal procedures. Litigation became central to the creation of the

colonial state. British legal procedure was based on the normative idea of equality, understood

relationships in contractual terms, sought to arrive at a specific decision and saw a dispute as a

discrete problem (Cohen 1987). Indian society was not premised on equality or contract between

individuals, but sought to locate them within a network of social relationships. Indigenous forms

of dispute resolution instead postponed clear cut decisions and aimed at compromise. Cohn argued

that this made courts the site of a direct clash of the values between British and Indian society.

Indians used the courts as a form of speculation or gambling. Given the cost and time involved,

litigation was often a threat, rather than a method of resolving disputes. With the demilitarization

of society, litigation became the new battleground and a form of public entertainment (Ibid: 573).

This view was shared by colonial administrators who sought to police the ‘lying, litigious native’

by increasing court fees, punishing perjury and changing evidentiary practices (Raman 2012).

Secondly, despite the promise of the rule of law, it was marked by its absence in many

aspects of colonial government. Scholars have argued that the rule of law was bound to fail in a

colonial context, since colonial difference marked by race determined the relationship between the

state and the individual. Legislation that sought to allow Indian judge to try Europeans was face

with widespread protests and had to be withdrawn. Executive authority was shielded from judicial

oversight and the powers of the appellate courts were trimmed over successive years. Attempts to

rationalize the administration and make it less arbitrary would constantly run up against the

question of race and the relationship between the colonizer and the colonized. Indeed logic of the

colonial state can be demonstrated by the way in which the provision for exercise of arbitrary

power was incorporated into legal codes and normalized.(Kolsky 2005)

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 Finally, the colonial state created the domain of personal law. In an attempt to maintain the

veneer of legitimacy granted by the Mughal state, the British administration had continued apply

the law of Hindus and Muslims to matters of inheritance, marriage and religious institutionsi.

Under the 1772 Regulations, Governor-General Warren Hastings stated that “ inheritance and

succession to lands, rents, and goods, and all matters of contract and dealing between parties,

shall be determined in the case of Mahomedans by the laws of the Mahomedans, and in the case

of Gentoos (Hindus) the laws and usages of the Genteeos,. Hastings believed he was continuing

the practice of the Mughals, who had left each non-Muslim communities the right to administer

its own law to its own members as long as their met certain conditions. However, the analogy was

false since the Company state itself administered the law of each religious group. This

magnanimity towards preserving indigenous law was selective. Initially, English judges were

assisted by Hindu pundits and Muslim qazis in administering personal laws. However, the distrust

of native judges led to their gradual removal from courts and the dependence of English judges on

translations and volumes of precedence. The conversion of a relatively fluid localized system of

Islamic law through to a reified and static entity through the ‘translations, codification and

adjudication” has been documented extensively by scholars. (Anderson, 1993; Kugle, 2001). The

British saw the shariat as analogous to canon law in Europe and attempted to discover an authentic

code in an authoritative text. Thus, British courts narrowed down the number of precepts accepted

as Muslim law while simultaneously giving finality to sharia which it could not attain when the

authority was localized and distributed amongst the many jurisdictions and individuals. Similar

interventions by the colonial government created a body of law often described as Anglo-Hindu

law.

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 Similar processes were observed when the colonial state sought to apply customary law,

particularly areas inhabited by the thousands of tribal communities. However, the process of

recording, translating and adjudicating custom for the colonial law courts the nature of customary

practices were transformed. Tribal groups remained ambivalent about the colonial readings of their

customs, and on several occasions, asserted their customary rights over land and forests through

demonstrations or open rebellion.(Bhattacharya, 1996).

Similar processes also took place in Sri Lanka, which had first come under European

control by the Portuguese and then by the Dutch. On gaining control of the coasts, the Dutch

introduced Roman-Dutch law. Dutch courts, like English ones in India, also administered

customary and religious laws of the local Sinhalese and Tamils. The Dutch officials sought to

codify these bodies of law and produced the Thesawalamai, or a treatise on the laws and customs

of the Tamils of North Sri Lanka in 1794. With the British conquest of Sri Lanka, the existing

framework of laws was continued and Roman-Dutch law coexisted with English common law and

customary law. The British conquered Kandy, the last autonomous state in Sri Lanka and applied

Kandyian law to the people from the region. (Cooray, 1974) Like the Indian system of personal laws,

the Sri Lankan laws are also applicable to people based on their origins. So a person who is originally from

Kandy will continue to be governed by Kandian law even if she resided elsewhere.

As the above processes demonstrate, the colonial state had transformed localized legal

systems into overarching, textual bodies of law through a process of translation, codification, and

adjudication. However, forum shopping continued to be a way through which litigants continued

to maneuver the system. Groups resisted by categorization into religious communities by claiming

customary practices that differed, for instance the Khoja Muslims of Bombay were successfully

able to claim that they were governed by Hindu family law. In the absence of divorce provisions

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women would convert to other religions in order to divorce their marriages. Businesses and

individuals would take advantage of the semi-autonomous princely state that were not directly

governed by the British to escape onerous legislation (Sharafi, 2010; De, 2010).

In these maneuvers the litigants were helped by the rapid growth of the modern legal

profession in India. Indians had staffed the lower level legal positions from the earliest days of the

Company rules by the end of the 19th century came to dominate the bar and rise to the bench. The

explosion in the number of lawyers led to complaints about brieflessness and unemployment. As

figures familiar with the colonial state, and one of the few groups not dependent on them for their

income, lawyers also began to dominate the Indian national movement.

High Colonial State and the Codification Projects

While religious laws continued to govern areas like marriage and inheritance, Islamic civil,

criminal and commercial laws were rapidly replaced by British legislation, given that law and

order and commerce were both critical aims of the state. However, it was in the mid 19 th century

that utilitarian minded bureaucrats were able to start a mammoth project of codifying civil and

criminal law. Successive law commissions headed by Lord Macaulay, James Fitzjames Stephens

and Henry Maine, enacted the Indian Penal Code, the Codes of Civil and Criminal Procedure, and

the Evidence Act. The codification of procedural laws could encompass the utilitarian desires of

unity, precision and simplicity without intervening with the substantive content of the law.

(Metcalf 2000). As utilitarian attempts to codify the law in the UK had been fiercely resisted in

parliament, therefore the South Asia came to serve as a laboratory. These codes that were originally

written for India were exported to other British colonies in Asia and Africa. Entrepreneurial Indian

lawyers who had gained experience with these legislations would set up practice in colonies like

Fiji, Malaysia or Kenya. Many of these colonies also had growing population of South Asian

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immigrants, either in the form of merchants or as coolie labor. M.K Gandhi was one of the most

prominent of these diasporic lawyers. Thus, South Asian legal culture, including the system of

personal laws was also exported through imperial networks.

Postcolonial Legal Orders

India and Pakistan became independent in 1947, Sri Lanka in 1948. At various dates, each state

adopted a republican constitution, including a judicially enforceable bill rights. Unlike the colonial

state, the new states explicitly granted courts the power of judicial review and the ability to strike

down legislation and administrative orders as unconstitutional. Unsurprisingly, in both democratic

India and increasingly authoritarian Pakistan, tensions arose between the judiciary and the

executive over the ability of the state to amend fundamental rights or the legality of marital rule.

(Austin, 1999; Newburg, 2004). While creating a powerful set of constitutional remedies, the new

constitutional orders retained several techniques of colonial governance. For instance, the colonial

institutions of the police, the army and the bureaucracy remained structurally largely unchanged.

The constitution recognized provisions where the executive could declare emergency and suspend

fundamental rights. Even the fundamental rights that were granted were subject to certain textually

inscribed limitations, for instance, the freedom of speech was subject to the grounds like public

order, decency and morality, incitement to offence, sovereignty and integrity of the state etc.

Unlike the American constitutions which sought to protect its citizens from the government, South

Asian (particularly the Indian constitution) sought to empower the state. This is partly because the

authors of the constitution envisioned it as a document that would bring about social

transformation and economic redistribution.

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 Finally, the constitutions for the first time in South Asian history declared all citizens to be

equal before law. The most drastic change from the precolonial system was the displacement of a

normative inequality as the ground for conceptions of rights in India . Rights under colonial

government were determined by caste, class and gender and drew upon ‘custom’.1 The

Constitution however heralded a formal equality between all citizens, and created a common

source of rights for all. The Indian constitution specifically abolished untouchability, and also

provided for a wide range of affirmative action programs for certain castes and tribes, as well as

women. The states of Pakistan and Bangladesh would also come to recognize the principle of

substantive equality and provide for affirmative action for women in legislatures.

All South Asian states have tried to reconcile the existence of personal laws (which are

often highly discriminatory) with constitutional equality. It has been suggested that the codification

and control over the interpretation of the shari’a mirrored the process of vesting political power

away from Muslims. Not surprisingly, a significant component in the growth of Muslim

nationalism was the attempt to regain control over this system. The early legislatures had attempted

to reform family law in the 1930s, often to address questions of gender justice. In 1939, the

Dissolution of Muslim Marriages Act provided Muslim women limited grounds for divorce. (De,

2009) After independence, the Indian government in face of much opposition from Hindu

conservatives was able to push through the Hindu Code bill which replaced Hindu family law with

statutory law. While codifying elements of Hindu law, the code provided for divorce and gave

certain inheritance rights to women. Similarly, in Pakistan the Family Law Ordinance of 1961

attempted to temper sharia law by making it institutionally difficult to practice polygamy,

1
Sumit Guha, “Wrongs and Rights in Maratha Country: Antiquity, Custom and Power in Eighteenth Century India,”
in Changing Concepts of Rights and Justice in South Asia, M.R Anderson and Sumit Guha, eds. (New Delhi: Oxford
University Press, 2000), 14-29.

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restricting the man’s unilateral right to divorce and improve women’s rights to maintenance and

control over her dower. Ironically, while each state was able to reform the law of its majority

community, for reasons of legitimacy it left the laws governing minorities largely untouched.

In the 1970s, following the independence of Bangladesh, the Pakistani state came to rely

more on Islam as a source of legitimacy. General Zia’s government introduced the Hudood

ordinances which for the first time in two centuries introduced criminal law based on the shariat.

The most controversial provisions dealt with rape which required four adult male eyewitnesses to

establish the charge. If a female victim admitted to sexual intercourse, but was unable to prove that

it was rape, she was liable to be sentenced for the offence of zina or illicit sex. Despite vociferous

opposition from women’s groups and human rights organizations the oridnances were finally

repealed in 2006. (Lau 2007)

The 1970s in India saw the growth of public interest litigation urged on by the Supreme

Court. PILs were marked by the lowering of requirements of locus stani allowing various public

spirited persons to appear on behalf of those who couldn’t reach court, the creation of innovative

legal remedies including the setting of monitoring commissions by the court and the suo moto

taking up of issues by the court. The courts interpreted the constitutional right to life broadly to

include the right to food, the right to education, the right to information, the right to healthcare and

to clean environment, creating the basis for new legislation. In many of these cases the courts

worked closely with NGOs and social movements, transforming the relationship between law and

politics. PIL doctrines have been readily adopted in Pakistan, Bangladesh, Sri Lanka and Nepal

with the courts bolstering their public legitimacy. Unsurprisingly, judges have emerged as the main

site of opposition to governments and the dismissed Chief Justices have led opposition movements

in Pakistan and Sri Lanka.

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 The vibrancy of the South Asian constitutional courts stands in stark contrast to the rest of

the judicial apparatus. Lower courts remain poorly staffed and marked by corruption and delays.

India today has the largest backlog of cases in the world with 30 million cases still pending. The

delays are in part due to the colonial origins of procedural laws. Given that the lower judiciary was

staffed by Indians whose judgment was never completely trusted by the colonial state, procedural

laws retained provisions for appeals at every stage of the trial. As lawyers benefit from the delayed

litigation, there has been strong resistance from the legal profession to any attempt to change the

procedural laws.

Conclusion

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