That in all Suits regarding Inheritance, Marriage, Caste, and all other religious Usages or Institutions, the Laws of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos, shall be invariably adhered to: On all such Occasions, the Moulavies or Brahmins shall respectively attend and expound the Law, and they shall sign the Report, and assist in passing the Decree.
âClause XXIII, âA Plan for the Administration of Justice,â 1772
Text and Context: The Judicial Plan of 1772
Following military victories (the Battles of Plassey and Buxar), diplomatic successes (the signing of the Treaty of Allahabad and receipt of the dÄ«wÄnÄ«ârevenue collectingârights), and protracted debates over the British East India Companyâs status, the 1772 âPlan for the Administration of Justiceâ was the founding document for the British East India Companyâs judicial system on the subcontinent.1 Crafted in consultation with the nawab, still the reigning sovereign in Bengal, the plan brought existing institutions under British authority, dispatched with other offices, and laid the foundation for the Companyâs transition from trading outfit to governing body, at least insofar as Bengal was concerned.2 In addition to the passage just excerpted (Clause XXIII), the plan included thirty additional rules relating to judicial affairs.3 A symbolic and pragmatic response to the Companyâs decision to âstand forthâ as dÄ«wÄn, the 1772 plan presupposed radical change, while largely maintaining the status quo.4
The multipart plan began by outlining a hierarchy of courts for civil and criminal cases. It summarized procedures, named and appointed personnel, and even indicated when each would be open to hear which types of cases. The Provincial Court of Dewanee (MufaáčŁáčŁal DÄ«wÄnÄ« ÊżAdÄlat) would oversee matters related to property, inheritance, marriage, caste, debts, accounts, contracts, partnerships, and rent, while the Provincial Criminal Court (MufaáčŁáčŁal FaujdÄrÄ« ÊżAdÄlat) would hear all cases of murder, robbery, theft, âand all other Felonies,â forgery, perjury, âand all sorts of Frauds and Misdemeanors, assaults, frays, quarrels, adultery, and every other Breach of the Peace, or violent Invasions of Property.â5 The plan recommended employing councils of judges and using local legal personnelâincluding âthe Chief CĂązee, the Chief Muftee, and Three capable Moulaviesâ in the apex court (the NizÄmat ÊżAdÄlat) (VII) and âthe CĂązee and Muftee of the District, and Two Moulavies ⊠to expound the Lawâ in the criminal courts (IV)âto aid councils of (European) judges.6 The plan thus drew on existing practices, personnel, and institutions to build the new judicial infrastructure of the Company-state.
The plan also included guidelines for making local justice accessible and equitable. It established procedures for receiving complaints and hearing petitions with the placement of a âBoxâ at the âDoor of the Cutcherry [court]â to receive those complaints from the public at all hours of the day and night (IX).7 It granted the âHead Farmerâ in the district (âPurgunnahâ) permission to hear cases ânot exceeding Ten Rupeesâ to make justice accessible locally (XI).8 It instituted uniform procedures for hearing cases and evaluating evidence (XII) and offered additional measures to guard against excessive litigiousness by implementing time limits (XV).9 In other words, the plan imbued the judicial system not only with symbolic content but also with practical measures to ensure open access and fair treatment.
Focusing on revenue collection and extraction as much as on facilitating just and equitable governance, the plan also altered practices related to the receipt of payments and collection of fees. It prohibited the collector from summoning âany Persons ⊠who are in any ways connected with the Revenueâ during the months of harvest, so as not to interfere with agricultural work (X).10 The plan further adjusted the interest rates for money-lending (noting that the current rates were âexorbitantâ), demanded that all bonds be âexecuted in the Presence of Two Witnesses,â and limited the extent to which debtors were beholden to their bondsmen (XVIIIâXX).11 It curtailed the practice of charging commissions and allowing arbitrators to take a cut from the suits they settled (XVI).12 It also abolished the practice of paying fees to qazis and muftis as annual tributes (âRassooms,â rusĆ«ms) or for performing certain ceremonies and recommended replacing those fees with a âMonthly Salaryâ (XXXIII).13 In short, the plan introduced lasting changes while leaving preexisting local hierarchies and administrative structures in place. It was a founding document that also invited future interventions.
Rereading the Hastings Plan in the Context of Religious Freedom
In scholarship on South Asia, the 1772 âPlan for the Administration of Justiceââcolloquially referred to as the Hastings Plan, in recognition of Warren Hastingsâs role in its designâmarks many beginnings for British rule on the subcontinent. Read for its symbolism as much as its substance, the plan tends to stand in for everything that was wrongâand for everything that went wrongâwith British rule on the subcontinent, particularly in relation to religious law. Even without overstating its accomplishments, the plan signals a transition in the Companyâs history and offers insights into the ideologies of British imperialism.14 The plan, for instance, gestures toward Britainâs divide-and-rule philosophyâthat is, to divide local inhabitants into distinct and competing factions (with perquisites, emoluments, and entitlements distributed unevenly among them)âwhile also signaling the recognition of communal difference as a sign of cultural deference.15 Naming two distinct communities (here âMahometansâ and âGentoos,â or âMuslimsâ and âHindusâ), the plan established Company rule through favors and special interests.16 It also demarcated the boundaries of religious legal pluralism on the subcontinentâeven though those terms do not appear here and their broader implications would take decades to develop.17 Most notably, the plan announced that suits related to âInheritance, Marriage, Caste, and all other religious Usages or Institutionsâ would be adjudicated according to two textsâthe âKoranâ [QurÊŸÄn] and the âShasterââas âexpound[ed]â by two groups of interpreters, âMoulavies or Brahmins,â thereby planting the seeds for future visions of legal pluralism to grow.
In and of itself, this statement of legal pluralism was odd and exceptionally narrow, compared with contemporaneous descriptions of justice on the subcontinent.18 Yet directing their attention to this moment, scholars have ascribed great importance to this statement and to the misinterpretation, misapplication, and âinvention of traditionâ that followed it.19 The plan provided a road map for the administration of justice but left many questions unanswered and was subject to revision, rethinking, and modification throughout the late eighteenth century and into the nineteenth. At the same time, the plan reflected specific assumptions about South Asian society and turned those observations into policy prescriptions. The plan recognized two communities (Hindus and Muslims) belonging to distinct (religious) traditions, with unique laws for settling private disputes. Accordingly, the plan dictated that within areas of private or personal law, each communityâs scriptures (the âKoranâ and âShastersâ), as interpreted by recognized religious leaders (âMaulvisâ and âBrahminsâ), would âinvariablyâ apply to those categories of disputes for those groups of disputants.
There is much to critique here. To begin with, the formulation made the two groups it named, whitewashing local difference and diversity for the sake of simplifying judicial practice.20 It also located legal practice (qua dispute resolution) within textual sources and dictated who would interpret those texts. The plan amalgamated and simplified a diverse array of local practices, customary observances, and legal traditions under the âGentooâ and âMahometanâ umbrellas, and ushered in new projects to know, learn, fix, and reform those categories. The legacies of these invented religio-legal traditions haunt scholars of law and religion today. For scholars of Hinduism and Hindu law, the planâs simplistic formulations create a double bind.21 To argue that âHinduismâ as a âHindu religionâ did not exist before British rule undermines the validity of practices and precedents that defined precolonial socioreligious life, yet to challenge colonialismâsâand orientalist scholarshipâsârole in making Hindu religion overlooks the changes that took place under British rule (in the consolidation of Brahmanical authority, the reification of caste hierarchies, and the denial of legitimacy for nondominant or heterodox practices).22 Likewise, for the study of legal history, denying the precolonial existence of âHindu lawâ undermines and devalues the normative, moral, ethical, and legal systems that operated in precolonial South Asia and furthermore plays into imperial narratives of âbackwardnessâ and âprogress.â Yet by naming a community âGentoosâ and ascribing to them a legal tradition rooted in the text of the âShasters,â the plan demanded an approach to law that was unlike what had existed before.23
Reference to the âLaws of the Koranâ produces a similar conundrum. Here, arguments about colonial change take two forms. The first suggests that Islamic governance in precolonial South Asia (particularly with respect to the judicial institutionalization and application of Islamic legal norms) was absent or deficient. If the Mughal empire and its successor states were âIndo-Islamicâ (i.e., only partially, syncretically, compositely, or âculturallyâ Islamic), then the planâs emphasis on the QurÊŸanâand textual understandings of Islam drawn from itânecessarily introduced (and inscribed as law) an Islamic legal ethos that was dogmatically textual.24 ...