RACIAL DISCRIMINATION IN THE JUDICIAL ADMISTRATIONORIGINThe advent of Muslim rule in this country created two different system of laws in place of one depending for their application upon the personal status of the parties i.e., Hindu law for Hindus and Muslim law for Muslims subject to a theoretical exception in matters of crimes where the Muslim law applied to all. When the Britishers entered this country they also brought their own law.In the beginning this was a sort of immunity from general law of this land but in subsequent years it developed as a claim of superiority not only of being governed by their own laws but also of being amenable to the jurisdiction only of different courts both in civil as well as in criminal matters.DISTINCTION IN CIVIL JUSTICEFrom the very begaining the position was that while, all other natives within the companys territory were subject to the jurisdiction of the courts established by the company, the British born subjects were amenable only to the jurisdiction of the crowns court. In 1787, for the first time in Bengal it was provided that if a British subject filed a suit in a companys court , which had the jurisdiction with respect to the other party but did not have the jurisdiction over a British subject. In 1793, Lord Cornwills prohibited the British subjects from residing beyond ten miles of Calcutta.The charter act of 1813 provided that the British subjects residing, trading or holding immovable property beyond ten miles from the presidency limit could be sued in the companys civil court. Lord Hastings in his reforms of 1814,however provided that cases in which British subject, European or any American was a party, could not be heard in the courts of Munsifs and the Sadar Ameens.To achieve the object of codification and for creating necessary apparatus, the Charter Act of 1833 was passed. By an act of 1839, the Munsifs were also given jurisdiction against all persons but only in matters connected with arrears or exactions of rent.

DISTINCTION IN CRIMINAL JUSTICE It must be noted that the special privileges or judicial favours which the English people enjoyed in the field of civil justice were abolished after 1843 but the favours in the field of criminal justice continued for a longer time after that. By regulating act 1773 the British subjects residing in the provinces of Bengal, Bihar and Orissa were under the jurisdiction of the Supreme Court so that no lower court could ever try them.In 1813, the charter act instituted a licensing system for the Britishers who desired to come to India. Due to this the doors of India were opened for them to settle here and exploit. The English misbehaved and racial distinction provided them a quite a nice opportunity. Assault, forcible entry and other injuries inflicted by the English on the Indians went unedresed.This was the position up to 1833. Thereafter taking into consideration section 46 of the charter of 1833.the passing of the Black Act in 1836 accelerated the situation and Macaulay was not of the opinion of exempting a mere handful of the settlers without having regard to the interest of Indian. The first Law commission was of the opinion of subjecting the English to the jurisdiction of some courts for the protection of the English themselves. This showed their pride of race.To remove this distinction Law member of the government of India Mr. Brthune drafted a bill. This and there other bill were proposed to end this glaring inequality but against these bills. It was only in 1949 after independence that by passing of the criminal law (Removal of Racial Discrimination) Act that the remnates of the racial distinction in the field of criminal justice were abolished.

DEVELOPMENT OF CIVIL LAW

INTRODUCTIONThe British administration concentrated on the development of a system of courts. From 1661 to 1883, they made and unmade various schemes of courts to achieve viable system. In India came to have a number of codes on fundamental and basic areas of human relationship. Law has been transformed from personal law into territorial law

Law in presidency towns act of 1781Before 1781, the SC had sought to apply English law to all in all matters except that in certain matters the court applied Hindu law and Muslim law to the Hindus & Muslims respectively.

LAW CLASSIFIEDAfter 1781 but before 1834 law administrate by SC in 3 presidency towns was classified under the following heads:1. Common law of England in 17262. Statute law of England in 17263. Statute law by the British parliament after 17264. Ecclesiastical and Admiralty courts in England5. Regulations made by Govenor General- in- council & the governors in - council6. Hindu law- Usages:- inheritance &succession of lands , goods & rents , contracts & dealing between party & parties , when both the parties or defendant were Hindu.7. Mohammedan law Usages:- inheritance & succession to lands , goods & rents , contracts & dealing between party & party in cases where both the parties or the defendant were MuslimsINTRODUCTION OF ENGLISH LAWThe English law maintains a fundamental distinction between the legal position of colonies acquired by settlement or by conquest or cession

COLONIES(For the purpose of administration)Nature Settled Colony

A settled colony is a settlement made by colonies i.e. peopling a country which is uninhabited or has only savage people

Lex loci : There is no LEX LOCI, the subject of the crown carry with them their own laws & hence English law was applicable Settled Colony

Power of legislate : The subjects of the crown carry along with them their constitutional right. Power of legislate was in the hands of British Parliament. Crown could not legislate independently. It could grant constitution subject to its over riding powers.

Ceded/Conquered Territory

Ceded teritory is a territory made by peopeling a territory which is civilized. They have their own govt or system of law.

Lex loci : Initialy ceded teritory had LEX LOCI of their own Crown altered to change with English law

Power of legislate : Ceded colony belonged to the crown in its own right. Crown can legislate but was subjected to over riding power of the parliament.

DEVELOPMENT OF CRIMINAL LAW The traditional Muslim criminal law broadly classified crimes under three heads : (i) crimes against God; (ii) crimes against Sovereign; and (iii) crimes against private individuals.The first category included such crimes as apostasy, drinking intoxicating liquors, adultery etc. The second category included such crimes as theft, highway robbery and robbery with murder. The third category included such offences as murder, maiming, etc., i.e. offences against the human body. Accordingly, the Muslim criminal law arranged punishments for various offense into four categories. Viz., Hadd, Tazeer, Kisa, which was commutable into Diya.Kisa Kisa or retaliation meant, in principle, life for life and limb for limb. Kisa applied to cases of willful killing and certain types of grave wounding or maiming, offences falling in the third category mentioned above. Kisa, or retaliation, was regarded as the right of man and gave to the injured party or his heirs a right to inflict a like injury on the wrong-doer as he had inflicted on his victim.Diya diya or Diyut meant blood money. In certain cases, like unintentional injuries, diya was awarded to the victim on a fixed scale. In cases where kisa was available, it could be exchanged with diya, or blood money. The injured person or his heir could accept diya or kisa as he liked. Thus, in case of murder, the heir of the victim could accept diya and forgo his right to claim death on the murderer. So, also, in cases of intentional wounding or maiming, the victim could accept diya in lieu of kisa. All these were crimes against the human body. Practically, the punishment of diya was an alternative to kisa.Hadd had etymologically meant boundary or limit. In criminal law, it meant specific penalties for specific offences. The underlying idea was to prescribe, define and fix the nature, quantity and quality of punishments for certain particular offences which the society regarded as anti-social or anti-religious. These offences were characterized as being against God, or in other words, against public justice. The punishments prescribed under had could not be varied, increased or decreased; if the offence was established, the prescribed punishment had to follow as a matter of course. The judge had no discretion in the matter. Some of them had punishments were: death by Stoning or scourging, amputation of a limb or limbs, and flogging. The prescribed punishments for certain offences were: for zina or illicit intercourse, death by stoning or scourging; for theft, amputation of limbs like the right hand or the left foot; for falsely accusing a married woman of adultery, eighty stripes. The hadd punishments were severe. The main aim underlying these punishments was to deter criminals from committing those crimes which were injurious to the community of Gods creatures.

Tazeer Taseer meant discretionary punishments. These punishments were inflicted at the discretion of the judge as there were no fixed rules to prescribe such punishments. Usually, these punishments consisted of imprisonment, exile, corporal punishment, boxing on the ear or any other humiliating treatment. These offences could be regarded as falling in the second category mentioned above, i.e. offences against the Sovereign. In cases of offences governed by tazeer, the kind and amount of punishment was left entirely to the discretion of the judge who could even invent new punishments according to his whims and notions. Tazeer could be inflicted in several situations. First, it could be inflicted for offences for which penalty by way of had or kisa was not prescribed. These offences were not serious or of a heinous nature and so were left to be punished according to the discretion of the judge. The number of such offences was very large, e.g., use of abusive language, forgery of deeds or letters with a fraudulent design, bestiality, sodomy, offences against human life, property, public peace and tranquility, decency, morals, religion and so on. In fact, the entire Muslim criminal law was based on the principle of tazeer because they had, kisa or diya had been prescribed for a very few offences only. The process of trial in cases falling under the category of tazeer was simple as compared to the trial procedure in cases coming under hadd. The conditions for conviction for tazeer offences were not very difficult. Tazeer could be inflicted on a confession, evidence of two persons, or even on strong presumption. The whole of this part of criminal law being discretionary could be regulated by the sovereign. Secondly, tazeer could be inflicted even in cases falling under had or kisa. If the proof available for an offence was not such as was required by the law for the award of the prescribed penalty, but, nevertheless, was sufficient to establish a strong presumption of guilt then, instead of had or kisa, some other punishment was awarded I n the discretion of the judge. If because of some technical difficulty, insufficiency of evidence or some other special circumstances, had or kisa could not be awarded, then tazeer was awarded. Thirdly, the doctrine of tazeer covered heinous and flagrant crimes, crimes having a dangerous tendency or capable of causing, extensive injury to society. Such crimes called for exemplary punishment, known as siyasat, because they were detrimental and injurious to the society in a high degree and thus deserved severe punishment, even more than had, so that others were deterred from committing these offences. For example, for protection of the community against dangerous characters, especially against those who habitually committed atrocious crimes and of whom there could be no hope of reformation, exemplary punishment could be awarded by the ruler or his delegate such as he might deem expedient. Tazeer punishments were thus inflicted for meeting the ends of public as well as private justice. Even, for cases falling under had or kisa, siyasat punishment could be inflicted in certain situations. Siyastan meant exemplary punishment imposed on habitual offenders or dangerous characters.CRITICISM OF THE SYSTEMCriticism First, the law was very uncertain. On many points there were differences of opinion among the Muslim Jurists. This gave a good deal of leeway to the Kazi to interpret the law and apply to it the specific fact-situation before him. A corrupt kazi could twist the law and misapply the same. From the above brief survey, though the Muslim law of crimes would appear to be very severe on its face, as it sanctioned some cruel punishments like mutilation and stoning, yet the claim could officially be made for it that as a system, the Mohammedan law of crimes is mild; for though some of the principles it sanctions be barbarous and cruel, yet not only is the infliction of them rarely rendered compulsory on the magistrate, but the law seems to have framed with more care to provide for the escape of the criminals than to found conviction on sufficient evidence and to secure the adequate punishments for offenders. Similarly, Warren Hastings also thought that the Mohammedan law is founded on the most lenient principle and as an abhorrence of bloodshed. The reason underlying this comment was that the harshness of the punishments was compensated by the difficulty in getting a conviction. The difficulties in the way of imposing had punishments have already been noted above. A close scrutiny of some other salient features of the Muslim law of crimes, especially those pertaining to murder, will prove the validity of these observations. The Muslim law of crimes contained many illogicalities. It was based on some of those concepts of state and social relations which the Western thought had already discarded long ago. It suffered from complexities and a lack of system. It drew no clear distinction between private and public law. Criminal law was regarded more as a branch of private law rather than of public law. Its underlying principle was that it existed mainly to afford redress to the injured; it had not much developed the idea that crime was an offence not only against the injured individual but also against the society as such. The crimes against God were regarded as crimes of an atrocious character. On the other hand, crimes against man were regarded as crimes of a private nature in which the injured person had himself to take an initiative to claim punishment of the offender. Only the crimes of the former nature, which, however, were few, were regarded as worthy of public vengeance but not the crimes of the latter kind. Though the crimes against man were punished by the state, yet the basic notion underlying them was to give satisfaction to the injured person rather than to protect society. The crimes against man, though no less ruinous to the peace and tranquility in the society than the crimes against God, were, nevertheless, regarded as private wrongs and were left to the discretion or caprice of the individual concerned. It was left to the injured in such cases to move the machinery of the state to have the offender punished. That was a major weakness of the Muslim criminal law. To take an example, while murder as the most serious crime as it strikes at the very basis of the existence of a civilized society, it looks rather irrational that murder be regarded as a private offence while drunkenness should be deemed to be a public offence.The primitive character of the Muslim criminal law prevailing in Bengal, Bihar and Odisha at the time could not be better appreciated than by surveying the law of murder which, in the words of Rankin, was if taken as a whole, very complicated, technical and obscure. As noted above, murder and homicide were regarded as private grievances. An offender could, therefore, be prosecuted on a private complaint. The state did not regard it as its duty to move suo motu in a case of murder. The right to claim kisa on the murderer was the hak admi, i.e. The right of the man and not the right of the public or of God. It was, thus, for the heirs of the murdered man to claim capital punishment on the murderer. In the absence of such a demand, the state could not by itself inflict the punishment on the offender. Instead of claiming kisa, the heirs could compound the murder by accepting diya from the murderer, or they could even pardon the murderer. If the heirs of a murdered man pardoned, or did not complain against the murderer, the sovereign could not compel them to demand kisa. It was only when a murdered man left behind him no heir that the judge or the kazi could claim kisa on the murderer. The law vesting a privilege in the heirs to pardon murderers of their nearest of kin was not only unreasonable, but was even fraught with dangerous potentialities and gave rise to a lot of social evil by way of promotion of crime. Warren Hastings characterized this as a law of barbarous construction, and contrary to the first principle of civil society, by which the state acquires an interest in every member which composes it and a right in his security. It is a law which if rigidly observed, would put the life of every parent in the hands of his son, and by its effect on weak and timid minds, would afford a kind of pre-assurance of impunity in those who were disposed to become obnoxious to it. The misplaced power of life and death of the murderer within the discretion of the heirs of the murdered person could lead to the commission and abetment of crime by the heirs themselves. This aspect may be illustrated by reference to a few typical cases which are found scattered in the Bengal Revenue Consultations prior to 1790. A person murdered his brother to obtain a share of his deceased fathers inheritance. Another brother of his, being the next of kin of the deceased and thus being entitled to claim kisa, pardoned by the heirs of the deceased for such a paltry consideration as ten or twenty rupees. How the doctrine of diya was being misused at the time is clearly evidenced by a case at Chittagong in which five men convicted of murder and robbery were pardoned by the complainant for paltry sum of Rs.80/- and were thus saved from the gallows. Human life was thus rated very cheap. Further, as a result of the rule, Brahmin murderers often escaped the punishment of death for murdering a Hindu, for no Hindu would dare ask kisa on a Brahmin and thus incur the supposed sin of brahma hatya under the Hindu religion.Muslim Law laid down that if one of the heirs of the murdered person pardoned the murderer, or compounded with him by accepting diya, then all other heirs were debarred from demanding kisa; they were entitled merely to their share of the blood money paid by the criminal. According to a futwa in March, 1791, when Mongol Das murdered his wife Amala, one of the heirs having forgiven the murderer, he could not be punished with death; the sister of the deceased claimed, and was declared entitled to receive, her share of dyut. In certain circumstances, murders and homicides were regarded as justifiable, as for example, a husband could kill a man who attempted to rape his wife; parents and grandparents could not be sentenced to death for murdering their children or grandchildren: a master could kill a slave without assuming any criminal liability. Further, the Muslim law maintained a distinction between willful murders (sabih amd). According to the great Muslim jurist Abu Hanifa, the distinction was based not on the logical test of the intention of the offender as revealed by the facts of the case, but on the method employed by him to commit the crime. The nature of the instrument used to commit murder was regarded as the test of the intention of the murderer. A murder was not regarded as willful if it was committed by such methods as throwing the victim from the upper floor of a house, or throwing him down a well or river, or strangling him, or striking him with a fist, stick, stone, club, or any other weapon having no iron and which would not draw blood. In such cases of murder, diya and not kisa, was claimable, as the offender was regarded guilty only of sabih amd and not of amd. He was liable to pay only blood money and could not be punished capitally. On the other hand, if the crime of murder was committee with a sharp instrument which could draw out blood, such as a knife or a sword, the murder would be regarded as willful (amd) and the offender would be liable to be punished with kisa. The balance of authority of the Muslim jurists was that a murder committed by administering poison could not be regarded as willful, because poison is occasionally given as a medicine also and that it was quite possible that in that that particular case, it might have been so administered and that the man giving it did not know that the quantity was excessive. Again, murder was regarded as not willful (sabih amd) if a person was bound and confined till he died of hunger, or if he was put alive into a grave till he died, or if he was put in a room with a snake which killed him, for in all such cases no weapon was used. The rank absurdity of the propositions was forcefully brought out by Warren Hastings by referring to the following case which came to light at that time. A man held the head of a child under water till it was suffocated and made a prize of her clothes and the little ornaments of silver which she wore. From the way the crime was perpetrated and was sought to be concealed, there was no doubt that the object of the criminal was to commit robbery and the murder and the extraordinary manner in which the murder was committed was suggested to the murderer by the distinction made by the Muslim jurists between sabih amd and amd, as mentioned above. The offender would have been sentenced to death had he hilled with a knife or sword, even though he might have done so in a sudden passion and not with a pre-meditated design. But, for the horrible and deliberate crime committed in the instant case, the criminal was held guilty of manslaughter and thus liable only to pay diya of Rs.3, 333-5-4. Such a rule encouraged commission of robbery with murder, as murder in most cases destroyed evidence of the crime of robbery, while its detection meant practically no additional consequence to the criminal concerned. The fact that the Muslim law of homicide made no reference to the attending circumstances to show the intention of the accused while committing the murder but took the instrument as the test thereof, and the way in which it distinguished between amd and sabih amd, resulted in much injustice and promoted crime in the country. A ruthless criminal could easily choose the method of killing so that the conditions for capital sentence were not fulfilled. A poor and indigent criminal had nothing to lose as he could not pay diya and would not be subject to kisa, and so he would not be deterred from committing the crime of murder. Not only murder, but even robbery was encouraged, as is evidenced by the case mentioned above.SETTLEMENT IN INDIAIndia was neither newly discovered nor it was an uninhabited country at the time when the British people came here. It was already inhabited by civilized people & had a well established govt.Introduction of English law In IndiaEnglish law in India was applicable not only to the British settlers but also to the Indians.Charter of 1661It is the first & the only charter which is introduced English law into the East Indies. This charter gave introduction to Madras Presidency. Bombay & Calcutta were founded later than 1661. In 1661, there was no general introduction of English law in all the presidency towns. The next charter is that of 1668 which transferred Bombay to the company & required the application of English law in the settlement. In 1672, the Protugese law was substituted in the Bombay towns.Charter of 1726The English law was introduced into the presidency towns, is the Charter of 1726, in Calcutta, Madras & Bombay on a uniform basis. The charter of 1726 was uniformly applicable to all the Presidency towns &the first regular introduction of the English law in the three settlements is associated with the year 1726.LAW APPLICABILITY1. Date of Application of English law:There are two views to the applicability of English law. Generally courts propounded that English law was introduced into the presidency towns in India by means of charters. According to first law commission English law became applicable to the presidency towns ipso facto as they were settled by the British & the English soverignity extended over them before any charter was issued.2. Content of English law: As regards the English law which was introduced into the Presidency towns by the charter of 1726 ,a national question which was arose: the whole of English law , common law or statute , extant in England in 1726 that was introduced into indian or were some qualification attached thereto ?FREEMAN S CASEIn 1828 FREEMAN v. FAIRLIE, the court of chancery of England had determined for the first time , that houses & land is in Calcutta were of the nature of freehold property . It was held that English law was the law of the settlement. The land in the instant case was held to be freehold of inheritance according to the acceptation of these terms by the law of EnglandUNCERTAINITY OF LAWLaw introduced in presidency towns resulted in making law in these territories very confused and uncertain. Wether a particular principle of the English law applicable or not could not be answered definitionaly until the courts had a chance to consider the question & hold it suitable or unsuitable to the local conditions. Burden of which English law should be applied to the presidency towns was left to the courts but it did not function well.

DRAW BACKS

1. DECLARE RESTRICTEDDeclare restricted to only those statutes which was decided in courts rest remained.2. JUDICIAL DECISION NOT REPORTEDJudicial decisions was not reported3. RULINGS DIFFERENCE Rulings differed from courts to courts & judge to judge4. DECLARATION ALWAYS RIGHTDecided cases by HC & SC decisions was reversed by privicy council in some cases5. IT WAS NOT CLEAN WHETHER IT WAS APPLICABLE TO INDIANS OR NOT.How much of English law should be appliedAnother question came before was that how much of English law should be applied. Only that much of English law was applicable that suited conditions particular to Presidency towns. As in NAND KUMAR S case forgery under English law was considered as capital offence but under indian law it was not a capital offence REGULATIONS.The govt of each presidency town could frame laws & rules for the settlement subject to certain restrictions.REGISTRATIONRegulation did not really play much important role in the development of the law. One of the restriction factors was the requirement of having the regulation registered with the respective Supreme Court; otherwise, they were to have no effect.SECTION 17, DF ACT OF 1781According to sec 17 of 1781, the parties to a suit be longed to different persuasions, and then the law of defendant was to apply. It would appear to be reasonable that in a case where the decease was a Hindu, the Hindu law of succession should be applied to his property.DEVELOPMENT OF PERSONAL LAWS DURING BRITISH PERIODI would like to begin by sketching a background to the discussion of Personal Law in order to highlight its development in the wider frames of colonial sovereignty, post-Independence constitutional debates on rights and the interests of different communities, and other legal entanglements. As many commentators have observed, it is difficult to find a conception of law comparable to the liberal, Post-Magna Ca..rta conception or the European canons of civil law in traditional India. There is no central notion of law as presupposed in the idea of Common Law with its bureaucracies, central law courts, formal statutes, and judiciary. In particular, a central policing or enforcing mechanism was conspicuously absent. In its place stood a variety of socially regulative and normative rules, acara, punishments, prayas'citta (generally included in the category of dharma) varying across different regions and peoples. Each caste had its own svadharma (own duties). In fact, an autonomous concept of law was not yet distinguished from ethics and regulative norms. This would have required a theory, albeit abstract, of law and due process, conceivably recognizing the issues of inequality, the disproportionate distribution of privileges and denial of entitlements, legitimacy and the rights of certain classes or groups of people. Not that such recognition was not possible within the framework of dharma itself, but it lacked a mechanism for codification, adjudication and enforcement of punishments. The bulk of the dharmashastras did not actually codify the "law", or dispute, but for the large part devoted themselves to the articulation of religious mores and ethical norms, as Kane has painstakingly demonstrated in his monumental The History of Dharmasastra.Indeed, the Mughal rulers appeared to have strengthened this differential and preferential process. The Portuguese and French missionaries found that a tradition of rather strict observances of dharmic (for Hindus) and a Islamic (for Muslims) and connecting social virtues existed among the judges also, so that they could cultivate the requisite degree of detachment from the personal details of the case before them and exercise a degree of objectivity and fair-mindedness in their judgments. It was clear to them that equity is not something easily reduced to law or entitlements (rights); nor could one detect much concern for equity in custom, nor locate legal abstractions, canons, declarations (of entitlements, rights and claims), or civil case-laws concerning due process or distributive justice generally.When the British arrived in India, around 1772, the administrators of the East India Company were similarly bewildered by the diversity of customary rules, norms and practices, moral judgments and differential treatments of misdemeanors, as well as the vastly different views on marriage, succession, contract, severance, property and inheritance rights. Each micro-community had its own complex system of village-based juridical hearing courts or panchayats. They were astounded at the absence of an overarching central authority or even ecclesia that would systematically enact and enforce laws, rules of conduct and social imperatives, or monitor unequivocal adherence to the common law of the land. They were further befuddled by the vastly different regional legal systems and configurations of group One of the first steps was to separate out judicial punishment from other kinds of sanctions (especially religious, and what we nowadays call civil codes or Code Civil). This supervened on the demarcation between public moral harm, or the potential thereof, and private conduct which the communities could manage themselves. In theory, such a demarcation would warrant considerable debate and could hardly be achieved as an abstract objective. But when we note how the paradigm of English law informed the process, it is not difficult to imagine how swiftly this was achieved. The result was a series of enactments passing the Code of Civil Procedure (1859), the Penal Code (1861), and the Code of Criminal Procedure (1861). Common because they cover public space. Since their jurisdiction covered public morality, the latter Codes were deemed to be uniform regardless of race, caste, religion, and group-affiliation. The Penal Codes have remained on Indian statute books and continue to echo those 18th century ideas of Common Law, and the resistance to local/traditional variety. So lunacy is a crime; going insane could lend an Indian citizen or visitor in prison with hardened criminals. So is the attempt to commit suicide, which is punishable by law, even if the suicide is successful.Under British administration (East India Company) and sovereignty (British Charter for India), the Westminster and Common Law models were introduced. However, the imported Rule of Law was rendered almost unworkable by the existence in India of a great diversity of customs, cultural traditions, regional legal systems, group identities and community memberships. Initially colonialists tended to ignore traditional cultural practices, ritual legalism, textual records of moral thinking (Arthashastras, Dharmashastras, Yanjavalkyasmriti, nibandhas, Manusmirti, and so on). The subsequent attempt on the part of the colonialists to accommodate aspects of the personal -- or an artificially separated private area morality from the public civil and criminal codes -- under the newly-evolved jurisdiction of Personal Law led to tensions within the system. It would have been impossible for the British judges in the mofussil to work the rules propounded by Warren Hastings in 1772 due to the following reasons:1) Ignorance of Sanskrit and Arabic languages;2) Original book dealt with religious principles and precepts, both mixed up, and3) Literature on Hindu Law was very vast and undigested.Realising these difficulties of the judges Warren Hastings made available to them the assistance of Native Law Officers, i.e. Pandits and Kaziz . This experiment did remain confined to Bengal, Bihar and Orissa alone but in course of time it was extended to all those areas where the company's judicial system was introduced. A similar system came to operate in the Supreme Courts in Presidency Towns as well.However, the Pandits and Kaziz were not always above board and they were not experts. This position went on for some time by which the British Judges gained self-confidence and they began to be critical on their dependence on these officers. Moreover they had no trust and confidence in the integrity and honesty of these native officers .It would have been impossible for the British Judges in the mofussil to work the rule propounded by Warren Hastings in 1772, prescribing the personal laws to the Hindus and Muslims , unaided and unassisted. These Judges were not familiar with these oriental systems of law . They had no acquaintance with the Native languages , habits and customs . Further, they could not hope to derive any assistance from the books containing these laws for several reasons .One, the personal laws were locked up for the most part in two different languages, viz., Sanskrit and Arabic, which very few Europeans learnt, for "neither of them leads to any advantage in worldly pursuits." The Judges could not therefore read or understand the books dealing with the principles of these laws , Another difficulty was that these original books were not pure books of law but dealt with religious principles and precepts as well ; law, morality, ethics, were all mixed up in them; and it was difficult to ascertain as to what was obligatory , or mandatory, and what was merely directory? In the third place, the amount of literature pertaining to Hindu laws was very vast , developed as it had been over a long period of time and at various places, and accordingly, it presented a confusing picture of incoherent and undigested mass. The principles of these systems were shrouded in extreme vagueness and uncertainty, and this made the risk of administration of Justice according to those laws extremely difficult and complicated. This was much more true of Hindu law because for all the duration of Muslim rule in India , the progress of Hindu Law was arrested as it was administered not through any formal agency, like the courts , but through such informal agencies as panchayats and private arbitration. The law was thus more traditional than written except in a large number of ancient religious books , and the living law was somewhat different from the written law. On many points of law, the religious books contained inconsistent doctrines. The British, in consultation with indigenous legal experts, classical jurists, pandits and the ulamas respectively, devised the so-called Anglo-Hindu for Hindus and Mohammedan law or later Anglo-Muslim Laws for Muslims (Fyzee, 1975: 14), plus separate personal laws for Indian Christians. For example, new acts came into being for them, Native Converts Marriage Dissolution Act 1866, The Indian Divorce Act 1869, and the Indian Christian Marriage Act, 1872. These govern to this day Christians of all denominations even though there are variations on practices within them. There were Personal laws for Parsis as well (but only one or two actual Acts were passed, notably Parsi Marriage and Divorce Act 1937; otherwise Parsis may appeal to general civil law, where such could be identified, or be covered under Hindu Acts, such as the Indian Adoption Act enacted much later to which though the Parsis were initially resistant, and from which the Muslims have been exempt.). (Jains and Sikhs were included under Hindus, although there were some concessions in certain areas of practices for these communities as well.) The history of this process is complicated, and there have been ambivalences over what should prevail: customs, tradition or shastric, i.e. textual law If the latter, what about groups that do not have shastric or authoritative scriptural tradition or who are discriminated adversely under brahmanicalshastras (e.g. Manus dismissal of shudras, lowest in the four-poled formal caste hierarchy, and tribals and so-called ?untouchable? peoples, who have no citizens status in Shastas, and customary norms towards them could vary enormously)

In early 19th century the colonial government set about documenting native religious practices so as to bring them closer to the Brahmanic textual tradition, since this fitted best the privileged Western model of consistency and uniformity over variations in indigenous interpretations (Kannabiran, 1995, WS-59)Likewise, with codification of other Hindu laws in process, such as the Suttee Regulation Act 1829 and the Widow Re-Marriage Act, 1856, due largely to the efforts of social reformers like Raja Ram Mohan Roy [Rai] and IshwarachandraVidyasagara, came into force. But Hindu patriarchy still attempted to legitimate Sati (Suttee), or widow self-sacrifice, under traditional Hindu dharma or religious law since sati was never considered a crime or felony under Hindu customary law; while Muslim men petitioned for recognition of polygamy under Islamic law. The East Indian Company administrators even extended shastric laws laid down by Manu, Yajnavalkya to the Dravidic south as well in the absence of discernible customary law governing any class of people, as though they were all shudras in the eyes of Manu. Devadasis or temple dancing girls were suddenly classified as prostitutes and their adoption as well as rights to succession, inheritance, custodial guardianship, etc., were denied even though traditional Hindu law had recognized these rights. It was the Indian judges and legates who pushed such cases and counter arguments until the British benches would cave in, but not without sovereign censure. After 1868 customs could overwrite the written text of the law if the antiquity of the former was proved. The Privy Council placed shackles toward digging too far back into scriptural sources, as this had proved all along to be an effective strategy for the brahmanical group to legitimate and defend its tight control over the social caste-hierarchy order through an almost ingenious selective literacy process, non-violently thwarting any tendency towards centralizing statecraft or political hegemony of other competing groups, including warrior-caste kings and their advisors (who comprised mostly ascetics and brahmins anyway).Gradually, the colonial Codes based on universal principles of the science of legislation supplanted Hindu law, both textual and customary. So, for example, temple dancing girls usually orphans came to be classified as prostitutes, as Hindu law had permitted extended sexuality but this crossed the threshold of colonial tolerance. The IPC here as elsewhere was essentially privileging the Orientalist construction purely from high caste textual sources of the ideal of Hindu womanhood projected, in the Vedic Aryan woman as the embodiment of Hindu culture, and one devoted to monogamous conjugality (Uma Chakravarti, 1990). Again, of course such rulings did not go unchallenged, and the legitimacy of customary law for Hindus was re-invoked by Indian judges.For Muslims personal law or Aalim, the colonialists continued largely the Hanafifiqh or legal literature (which Sunni Muslims follow), notably al-Hidaya or hadiths, the pronouncements and practices of the Prophet Muhammad (m-p-u-h), from which in turn are deduced model and analogue traditions (sunnah), or rule of law, especially under the jurisprudential school of Shafii, with some admixture of custom and varying juridical sources, (e.g. FatawaAlamgiri). But the final authority rests with the Quran, which for the Muslim is the incontestable revealed Word of God. It is said that Muslim law in India has signs of being among the oldest continuing form of Muslim law which has not been eroded by excessive reforms, secularization or civil interference. And being Hanafi it is comparatively more liberal and in principle amenable than the literalist Hambali or Hadooth toward which Pakistan's state-religion or fiqh seems to be moving .After 1864 indigenous legal advisors were dispensed with and the British judges took it upon themselves to learn Sanskrit or Persian or Urdu, and interpret and pronounce upon Hindu and Muslim laws, while increasingly drawing on English legal principles and procedures to work through these customary law, usage and shastric laws. Often the colonial courts simply interpreted for purposes of specific judgments rather than reform existing practices. Precedents and case laws were built up this way. The consequence in practice was that sometimes the laws were stretched too far towards arcane customary practices which even the community found aberrant at the best of times. At other times English common law wisdom subverted indigenous proclivities or preferences on the pretext that ancient usages stand in the way of social progress and utilitarian objectives , i.e. greatest happiness for the greatest number. In any case, critics all along have argued that the Personal Law system as re-invented by the British in India has been bogus (Derrett), at best hybrid (Galanther), and at worse, an egregious blunder (Gandhi), a queer mix of Indian and Western traditional moralism (Nandy), that hardly reflect the coordinates of the lived culture, i.e., They are far from being normative.

And although these have governed a narrower area of personal or private community conduct - pertaining to family law, marriage, inheritance, kinship, adoption, succession, collective property title, and so on - they nevertheless have specific implications for thinking on issues of citizenship, rights and obligations (including the duty of the State towards its citizens within varying social and cultural contexts). Prima facie, this tinkering has made room for inequality and preferential treatment depending on the subject's community membership claims and the particular personal law involved. The Indian Divorce Act 1869 put a ceiling on the maintenance amount to be given to the estranged wife (one-fifth of the average husband's income; and even then Muslim personal law might override this according to its own Qur'anic or al-Hidaya ordinances. The Registration of Mohammedan Marriages and Divorces Act 1876 made registration of Muslim marriages, nikah-nama, voluntary or good enough if records are kept with the Qazi (judge) in the masjid or mosque precinct, etc. And although the marriageable age, originally established at 18 and 15 years have changed to minimum 21 and 18 years for male and female respectively, no provisions are there for dissolution of under-age marriages if contracted under a Qazi's nose, and so such marriages are not challenged. The Guardians and Wards Act, 1890, recognized only the father as the natural guardian of children born or adopted by a couple; woman's right to guardianship is neglected; and when guardianship is reinstated to her full custodial rights after a certain age remain with the father, locking the kid into the father's business or income-raking schemes. Even worse for adopted children as Muslim and Parsi religions did not accept adoption since would mess up inheritance lineages.This is a list of the significant legislations in the areas of Personal laws passed during the British presence in India, they would include the following (although these are to be read against the grain of the enormous archival collections of case-law, cunning jurisprudence, precedents, appeal to customs, and various hybrid transcreations of classical and traditional laws on the judges? benches for each of the communities affected):Hindu LawSutte Regulation, XXVII of 1829.Caste Disabilities Removal Act 1865Hindu Widows Remarriage Act 1856The Hindu Gainful Employment Act 1930Muslim LawMuslim Personal Law (Shari ?at) Application Act 1937Shari ?at Act 1937Dissolution of Muslim Marriages Act 1939Parsi LawParsi Marriages & Divorce Act 1936Christian LawNative Converts Marriage Dissolution Act 1866Indian Divorce Act 1869Indian Christian Marriage Act 1872