From Sharia to Mens Rea: Legal transition to the Raj

This article was downloaded by: [University of Cambridge] On: 04 November 2014, At: 02:28 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK International Journal of Comparative and Applied Criminal Justice Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rcac20 From Sharia to Mens Rea: Legal transition to the Raj Farrukh B. Hakeem a a John Jay College of Criminal Justice Published online: 01 Jun 2011. To cite this article: Farrukh B. Hakeem (1998) From Sharia to Mens Rea: Legal transition to the Raj, International Journal of Comparative and Applied Criminal Justice, 22:2, 211-224, DOI: 10.1080/01924036.1998.9678618 To link to this article: http://dx.doi.org/10.1080/01924036.1998.9678618 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. 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Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions http://www.tandfonline.com/loi/rcac20 http://www.tandfonline.com/action/showCitFormats?doi=10.1080/01924036.1998.9678618 http://dx.doi.org/10.1080/01924036.1998.9678618 http://www.tandfonline.com/page/terms-and-conditions http://www.tandfonline.com/page/terms-and-conditions INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE FALL 1998, VOL. 22, NO. 2 From Sharia to Mens Rea: Legal Transition to the Raj FARRUKH B. HAKEEM John Jay College of Criminal Justice Comparative legal scholars classify legal traditions under four categories: Common, Civil, Socialist and Islamic. Each of these traditions is normally examined separately for one country. This paper examines the interaction between two different traditions on a temporal plane within one country. It seeks to trace the legal transformation in undivided India (1526-1947 AD) from that of a complex Islamic tradition to one that had to adapt to a Common law tradition. This process traces the transformation through three time periods (Islamic, Transitional and Consolidation). It also examines changes in the administrative, bureaucratic and legal elites during these three periods. Introduction Legal traditions put legal systems in a cultural perspective. They refer to the deeply rooted and historically conditioned attitudes regarding the role of law in society, the nature of law, how a legal system should be organized and operated, and the method whereby law is or should be made, applied or per- fected (Merryman, 1985). Today comparative legal scholars identify four legal traditions (or legal families). According to some these are: i. common law, ii. civil law, iii. socialist law and iv. religious/political law (David and Brierly, 1985). However, Reichel (1994) substitutes Islam as the fourth type of law instead of the religious/political. This paper traces the process whereby the previous government was dis- credited and power was consolidated within the new government by discard- ing the Islamic laws and replacing them with new ones. In order to accom- plish this task the legal and judicial personnel belonging to the Islamic system were purged systematically. According to conflict theorists, the criminal justice system acts as an in- strument of domination and control by the elite over the less powerful seg- ments of the populace. The criminal justice system acts as an instrument of the dominant elites to consolidate their power and legitimacy (Hay, 1975). Though legal traditions are studied, few accounts trace the historical process that leads to a transition from one legal system to another. The present paper will look at this aspect within the context of India during its colonial period and examine when changes took place from the Islamic legal tradition to the Common legal tradition. It will also suggest some explanations as to why these changes were necessitated. D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 212 HAKEEM This paper postulates that irrespective of the form of government, power tends to be retained by an organized minority  the ruling elite  which has authority over the majority through the criminal justice system. The ruling elite tries to justify its rule by a moral or legal principle. This has been re- ferred to by Mosca (1939) as the ‘‘Political Formula.’’ In the post-mutiny era this is evidenced by the fact that there was a stupendous increase in bureaucra- tization and the criminal justice system was changed so as to concentrate all power in the hands of the colonial elite. The role of the elites in the administration of criminal justice are examined during three time periods: i. The Islamic period. ii. The Transitional period. iii. The Consolidation period. Each time period is compared to determine the types of structural changes that were being made in the various institutions. There was a transition from Islamic law to English Common law. The Social Setting India was ruled by the Mughal dynasty from 1526 to 1707 AD. In the course of their rule the Mughals followed the Islamic legal tradition. In the arena of criminal law of the Mughals the Islamic legal tradition was applied . With the advent of the East India Company on the Indian Political scene this legal tradition first underwent gradual change and then was replaced by the common legal tradition. An analysis of the course of events in colonial India reveals that the criminal laws were gradually changed to enable one ruling elite to have power and control over another. The early hybrid political sys- tems forged by the British elite resulted in a culture conflict that was generated by Dyarchy (dual government) of the East India Company and this culminated in the Great Indian Mutiny of 1857 (alternatively referred to as the First War of Independence by the Indian nationalists). Although the Colonists constituted the dominant political power after the Battle of Plassey (1757), however, they could not change the Mughal system of administration of criminal justice and continued to apply it until the rude shocks of the Mutiny ushered in rapid changes. The Mutiny prompted the Colonists to adopt drastic changes in the social, legal and administrative institutions. The configuration of events set into motion raise many interesting questions about the relative power of elites. Elite Theory The intricate empirical relations between law, customs, and convention, and the hierarchical structure of the social stratification system, are maintained through the machinations of the prevailing criminal justice system. The crimi- D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 LEGAL TRANSITION TO THE RAJ 213 nal justice system is conditioned by and dependent upon the relationship of the ruling elite to the political system. The greater the consolidation of the ruling elite over the social control system, the higher the normative value system of that elite reflected in its laws. Hay (1975) delineates the ideological functions of criminal law and examines expressed human endeavors and the vital calcu- lations of those in power. Early theorists dating back to Plato (Cornford, 1941) and Aristotle (Barker, 1946) were aware of the presence and importance of oligarchy in the societies of their day. However it was not until the late nineteenth and early twentieth centuries that the intellectual era of elitism dawned. The classical elitist school emerged under Mosca (1939) and Pareto (1935)  a set of ideas emerged about the role of leadership in relatively modern societies and these ideas formed the normative and empirical bases for future research. According to Pareto (ibid.) for virtually every activity and every corresponding sphere of social life there is an elite. In relatively undifferentiated societies elites are few and have comprehensive powers; however, in societies that have exten- sive differentiation, elites are varied and specialized. According to Mosca (ibid.) irrespective of the form of government, power is concentrated in the hands of an organized minority  the ruling class  which has authority over the majority by virtue of: i. certain characteristics that vary according to the epoch and the situation and, ii. the power derived from organization per se. The ruling class always tries to justify its rule by a moral or legal principle, which Mosca refers to as the political formula. Different reasons for the inevitability of elites were advocated: superior ability of minorities to organize over larger majorities (Mosca, 1939), differ- ential talent among individuals and an inevitable tendency for the more talent- ed to prevail over the less (Pareto, 1935), a strong drive in all bureaucratic organizations to create oligarchies who have different interests from the normal persons (Michels, 1915). Features of the internal structure of the political system around which a tradition of research developed included the inquiry of various political elites, their relations to various non-elite groups, and the pattern of political organi- zation and mobilization employed by them (Pareto, 1935; Mannheim, 1935; Aron, 1950). Apart from being inevitable in all bureaucratized societies, variations in elite structure and function are crucial for major political outcomes (Burton and Higley, 1987). In addition to these contentions about elites there is a dynamic, interdependent nexus between non-elites and elites so that political inclinations and acts are mainly independent of, but still circumscribe, the power options of the category (Mosca, 1939; Pareto, 1935). Some scholars give the concept of elites a very narrow meaning by assum- ing they are necessarily characterized by the ‘‘three C’s’’  group con- sciousness, cohesion, and conspiracy (Friedrich, 1963). There is little doubt that such elites exist in highly stratified third world countries (Aron, 1950). D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 214 HAKEEM Much of the research on elites has been empirical regarding variable prop- erties. Further, a great deal of the research lacked a focus on their structure and dynamics within a social system. There are some recent indications that this highly empirical approach is giving way to an approach more consistent with that of the classical theorists (Burton and Higley, 1987). Investigation into the structure and dynamics of relations among many elite groups is beginning to move elite theory and research away from its ‘sterile preoccupa- tion with sociological characteristics of individual elite members’ (Domhoff, 1980; Czudnowski, 1983; Moore, 1985). Following Michels (ibid.), elites are now implicitly thought of as arising from the structure and functioning of bureaucratic organizations and institutions. On the question of transformation in elite structure and functioning, most inquiries into this question have looked into the sudden or long-term changes in the membership and social composition of elites (Putnam, 1976). Member- ship and social composition of elites is one of the relevant variables for ex- plaining major political changes. In light of the above research this paper traces the process whereby chang- es in the composition of the ruling Mughal elite by the British brought in major political changes in India. An examination of the three time periods in eighteenth and nineteenth century India will be attempted to discern the change in the structure and dynamics of the various elites. Islamic Period (1526 to 1707 AD) During this period the system that prevailed was akin to the ‘Kadi-justice’ that Max Weber describes. Law was closely bound to tradition and precedent. Criminal laws were still based on divine laws. However, since caste was not recognized by Islam there was a change in the basis of status  it came to be based on possession of land. The criminal law was more formalized with the emergence of legal officials. A regular police system emerged. The Emperor as Khalif was, in theory, the highest judge who held courts of justice and personally tried selected cases on Wednesdays. However, this court was a tribunal of the highest appeal rather than an original proceeding. The Mir Arz who accompanied the Emperor presented applications of the people to the Emperor. Due to the volume of legal matters there were seven Mir Arz’s during Akbar s reign. Access to the Emperor was not easy, howev- er, efforts were made to create links between the Emperor and the aggrieved parties. The Quazi, as the Chief Judge in criminal suits proceeded according to Islamic law. All cases in which either both the parties or at least one of them was a Muslim, were instituted in the Quazis court. The Quazi was assisted by a Mufti, who stated the abstract law in each case after referring to the old Arabic books on jurisprudence. The Quazi was charged with pronouncing sentence. D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 LEGAL TRANSITION TO THE RAJ 215 The Supreme Quazi of the empire (Quazi-Ul-Quzat) always accompanied the Emperor. There was a local Quazi for every city and large village (Sarkar, 1972). The Quazi-Ul-Quzat was the highest judicial officer of the country and was responsible for the proper and efficient administration of justice. Howev- er, there was no systematic organization of the law courts in a regular hierar- chical gradation, nor was there any proper distribution of courts in proportion to the area served, so far as jurisdiction was concerned. Cases were tried and disposed by Quazis, Muftis, and Miradls. It was not until the Mughal times that a regular police organization emerg- es on an all India basis (Curry, 1977). The Kotwal performed the police duties and he was assisted by the local inhabitants and a civil force that patrolled thoroughfares and guarded the city. Sometimes he also functioned in the dual capacity of a military commander of a fort. The normal functions exercised by today’s police were performed by the Muhtasib, who actually was a censor of public morals. There was a small civil force under his command and some of his duties included suppression of illegal practices, maintenance of a high code of conduct of public behavior, control of gaming, sale of liquor and prevention of indecency, prevention of exploitation of human labor and cruel- ty to animals, and the care of orphans. The Muhtasib was purely an executive officer as opposed to the Quazi who had purely judicial powers. The Muhtasib combined the police and the quasi judicial duties in himself. Under this system a single official simultaneously held the offices of Kotwal and Muhta- sib. Both these offices were directly under the control of the Amir-i- dad. Abu Fazl’s Ain-i-Akbari which was written during Emperor Akbar’s reign (1556-1605) gives a vivid account of police organization in the Mughal times. The duties of the Mughal Kotwal correspond to those of the Police Commis- sioner in modern India. There was a regular staff of watchmen under his control who patrolled the streets at night, and a network of paid informers who kept him abreast of all the developments. Since the Kotwal was an important official he had to attend the emperor’s Durbar (court) regularly. Police organization during the Mughal administration is described in the Mirat-i-Ahmadi (1748) by Ali Mahammad Khan and Storia do Mogor by Manucci. There was a higher degree of efficiency of the police in towns under the Kotwal as opposed to the loose control of the Faujdar who conducted the overall supervision of rural areas. The law applied and administered during this period was Islamic law. The Quazis followed digests of Islamic law and relied upon precedents compiled therein. These digests were prepared from time to time and varied according to the Emperor’s choice from amongst the four different schools of Islamic Law. The Fatwa-i-Alamgiri was the last law digest prepared in India prior to the demise of Mughal rule. It was compiled by a syndicate of theologians by order of the Emperor Aurangzeb. The Mughals had three separate judicial agencies; they all worked at the same time and were independent of each other: Courts of Religious Law; Courts of Secular Law; and Political Courts. D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 216 HAKEEM a) Courts of Religious Law: These were presided over by Quazis who decided cases according to Islamic law. The Quazis were not authoritative enough to lay down a legal principle, elucidate an obscurity in the Koran, or supplement Koranic law. Quazis were helped by Muftis who expounded the law. The Miradl’s drew up and pronounced the judgment. b) Courts of Secular Law: These were presided by Governors, Faujdars and Kotwals. Brahmans were appointed to decide cases of Hindus during Akbar’s reign. The Panchayats (village Councils) also fell under this section. These courts were not under the control of the Quazi. c) Political Courts: These courts tried cases like rebellions rioting, theft, robbery, murders, etc., and were presided over by Subhadars, Faujdars, and Kotwals. According to Islamic law, crimes were classified into three classes: Offens- es against God; Offenses against the State; and Offenses against private indi- viduals. Under this system of classification the first class was an offense against God and could not be compounded whereas in the case of the others the aggrieved party could forgive or compound the offense. Manslaughter could be compounded by paying compensation to the next of kin of the de- ceased. It was only when this compensation was refused that the Quazi was asked to pronounce the sentence of death. There were five classes of punishments: Hadd, Tazir, Qisas, Tashir, and Hajat. Hadd was the punishment prescribed by canon law and it was considered the right of God. It could not be altered by the judge. Its original function was to act as a deterrent. It was applicable to all the subjects  Muslims and non- Muslims. Some of its forms were scourging, stoning to death, and amputation. Tazir was a form of punishment that was originally reformative. The kind and amount of punishment was entirely at the discretion of the judges, who could even remit the Tazir in whole. Some of these forms were public reprimand (Tadib), dragging the offender to a door usually of the Court house and expos- ing him to public scorn (Jirr); imprisonment or banishment; boxing on the ear or scourging. Qisas (retaliation) was much akin to the European duel. It was the personal right of the victim or his kin for acts such as manslaughter. If the injured party demanded Qisas the Quazi was bound to inflict it. In this case the Emperor could not grant clemency either by modification or abrogation of the sentence. Tashir was a form of public degradation which was a popular punishment that was inflicted as it was a mild form of lynching. Hajat was a detention in prison without a trial. There was no code of civil or criminal procedure that existed during the Mughal period. The emperor constituted the final appellate authority regard- ing litigation and the Quazi was his judicial representative. The executive authority vested in the Faujdar (a rural executive authority with revenue and police functions with extensive jurisdiction) or the Kotwal (police commis- D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 LEGAL TRANSITION TO THE RAJ 217 sioner); both these officials assisted the Quazi in arriving at correct decisions according to the Sharia (koranic law). An analysis of the preceding account reveals that during the Islamic period there was a despotic form of government. There were some laws that were codified  The Hedaya of Burhanuddin al-Marghianani, the Fatawa-i-Tartar Khania, and the Fatwa-i-Alamgiri (Rashid, 1979). The Fatwa-i-Tartar Khania was the most comprehensive compilation prior to the Fatawa-i- Alamgiri  however, there were no adjectival laws that had been codified. Transitional Period (1707-1857) During the period of early Colonial rule, the prevalent criminal justice system gradually began to transform according to the needs of the new rulers. The traditional system of criminal justice was gradually shaped and supervised by the British colonists for their own political and economic expedients. With the decline of the Mughal empire from 1707, the prevalent criminal justice system could not immediately be replaced by the Anglo-Saxon model. Muslim criminal law was still formally operational in Bengal, Bihar and Orissa for a hundred years after the East India Company took over. This was due to the fact that the old elite were still very firmly entrenched and it would have been very costly for the British to replace them (Jain, 1977). The main functions of the government during the despotic pre-British rule were to collect revenue, maintain the army, and suppress rebellion. Since there was a very high degree of local self-government by the villages and since the British were unfamiliar with the local culture and tradition, they only assumed a despotic role during the early stages. Though the East India Company originally came for trade and not for empire it seems that with the gradual decline of Mughal power they began interfering in local Indian politics. There were two phases of expansion of territorial acquisitions: from 1740 to 1760 and from 1792 to 1818, which converted the company into a full fledged colonial state; the factors that spurred on this metamorphosis were revenue, war and empire (Arnold, 1986). In 1757 Robert Clive defeated the Nawab of Bengal at Plassey and this event led to the rise of the East India Company as a political power. In 1764 the Nawabs of Oudh and Bengal and the Mughal emperor formed a coalition against the British at the Battle of Buxar. The eventual victory of the British finally resulted in their emergence as the leading political power in Northern India. In 1765 the East India Company was granted the Diwani (land grant) of Bengal, Bihar, and Orissa. With this grant the status of the East India Compa- ny changed from that of a trader to an administrator. Thus began the period of dual government when corruption flourished among the Indians and British alike in the murky twilight of dual government (Arnold, 1986). The period between the Governor Generalships of Lord Cornwallis and Lord William Bentinck  1790 to 1830  is considered the dark age of Modern India since the old order was dead but the new had not yet begun (Sarkar, 1960). This D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 218 HAKEEM was a period during which immense structural transformation was accom- plished. The traditional bases of Indian society were gradually being eroded. Up until the Mutiny of 1857, the British did not attempt to force their cul- ture on India. They adopted the policy of respecting the laws and institutions with minor innovations. However, this led to a very paradoxical situation because without State power and backing, the indigenous institutions were overlooked and rendered impotent by the powerful organs of the new gov- ernment. In the initial stage external security and internal safety were the primary concerns of the British. Up until 1917 the legal and constitutional growth in India had little connection to the spontaneous growth of national institutions (Mahajan, 1965). The British colonial administration in India may be regarded as a series of experiments made by foreign rulers to govern alien races in a strange land, adapt European institutions to oriental habits of life, and make definite laws supreme among peoples who had always associated government with arbi- trary and uncontrolled authority (Gledhill, 1964). Development of Administrative System: In the pre-British era the prim- ary unit in rural India was the village and the principal unit was the district. Although the village endured, in Bengal when the East India Company as- sumed the Diwani, the Zamindari superseded the village. The district was controlled by a collector or deputy commissioner. This feature developed due to the exercise of powers given by the Diwani grant and it became an essential characteristic of the administrative system. The transition from despotic to representative government merely involved a modification of the power and influence of the head of the district  the collector. In most of rural India the collector is crucial for the working of the government machinery. Up until 1833 some of the main functions of the government were to repel invasion, suppress rebellion, punish crime, enforce contracts, and raise revenue for these purposes. Most officials that preceded the British administration were either military officers, who in dealing with crimes against the state administered some measure of criminal justice, or revenue officers who in the course of their duties to collect revenue were obliged to mete out some measure of civil or criminal justice. There was no specialized agency for administration of crimi- nal justice. The task of criminal justice administration was subordinate and ancillary to the main governmental functions. At the top of the imperial hier- archy there was the king and his ministers who exercised all the governmental powers; however, the right of access to them was fairly limited. During Muslim rule there seems to be a slight variation in the administration of criminal justice. The Quazi’s courts were established and sharia was adminis- tered. So long as distance was not the limiting factor these courts were ade- quate to the needs of the general Muslim populace. The courts were entrusted with the administration of civil and criminal justice. However, under this criminal justice system a Hindu was at a disadvantage because the Quazi’s courts could not apply the Hindu personal law; and furthermore, a Hindu could not be a competent witness in these judicial proceedings. D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 LEGAL TRANSITION TO THE RAJ 219 In Bengal the zamindar ruled his Zamindari but for the greater part of India the Panchayat system (Committee of elders) prevailed, which was presided over by the Sarpanch (village headman). In criminal matters the principle followed was to set a thief to catch a thief. Usually this task was accomplished by a member of one of the criminal tribes who usually were employed as watchmen. With the installation of new types of officials (by the British) backed by the power of the modern state, the decay in influence of the village panchayat and caste authorities becomes evident. There was a transformation in the status of village officials from representatives of the people to mere agents of the British government. As opposed to the panchayat system in other parts of India, in Bengal, Zamindars who were attached to the lands were the rulers and the tax gather- ers. They were obliged to collect and pay land revenue, and ancillary to this function they had to administer civil and criminal justice. The development of the administration of justice was conditioned by the instruments used and methods employed in the collection of land revenue. Emperor Akbar em- ployed a very systematic method of land assessment. Land was divided into classes according to the quality of the soil, and the rates were based on the outturn over 10 years. Each holding was either measured or the measurement was checked each season and the settlement was made with each peasant. However, later emperors did not follow this meticulous procedure; instead, they farmed out revenue to contractors who collected oppressively as much as possible and paid into the treasury as little as they dared (Gledhill, 1951). Bengal Development: In 1765 the Diwani grant empowered the East India Company to collect revenue in Bengal, Orissa and Bihar but since the British were inexperienced, the company continued the office of two Naib Diwans who controlled the collection of revenue. With the passage of time the Kanungos (record of right keepers) in collusion with the Zamindars were keeping the company ignorant of the real taxable capacity of the country. This prompted Warren Hastings to dismiss the Naib Diwans in 1772 and to post the company’s servants instead as collectors to take charge of the fiscal dis- tricts. However, since this experiment also failed, the collectors were replaced by 6 provincial councils. In 1781 Hastings abolished the councils and restored collectors to the districts. A supervisory Board of Revenue was set up in Calcutta and in 1783 the supervisory board of revenue ordered all collectors to tour their districts and examine the crop prospects. The collectors became judges of civil courts, though criminal justice remained in the hands of Muslim officials. The collector exercised some control over the criminal courts and became the company’s agent. Lord Cornwallis disproved the arrangement of concentrating the executive, revenue and judicial power in one individual, as was the case with the collec- tor, and in 1793 the Collector ceased to be the judge and for some time the judge magistrate who dispensed civil and criminal justice became the head of the district. Cornwallis accepted the Zamindars, imposing permanent settle- ment in Bengal. Revenue was fixed in perpetuity although this eventually D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 220 HAKEEM caused loss of revenue. As a consequence of this measure the collectors lost touch with people because they could only receive revenue and take steps against the defaulters, thus the districts became unmanageable. The Indian intermediaries between the collector and the Indian populace were the unpop- ular Darogas (police) who were under the control of the judge-magistrates in the districts. Originally the districts were aggregates of zamindaris and the collector dealt with the zamindar but as land passed from old to new zamin- dars the obvious method of subdividing the district was to make it an ag- gregate of police circles. Lord William Bentinck (1828-1835) superimposed yet another supervisory authority on the commissioner. Districts were grouped into divisions each under a commissioner who was the executive and revenue officer exercising supervisory and appellate functions, but initially he also controlled the police and held criminal assizes. However, the commissioner was heavily over- worked and so his assize work was transferred to the district Judge, whose magisterial powers were transferred to the collectors. In Bengal and Bombay this system was introduced with variations since 1818. The Mamlatdar (assistant collector) not only supervised the collection of revenue but was responsible for police arrangements and received requests for civil and criminal justice which he forwarded to the Panchayats and the collector. Viewed from a broader cultural perspective all these failed experi- ments could be viewed more sympathetically in light of the deplorable condi- tions of law and order prevalent in the sub-continent during the first half of the nineteenth century. Problems of great magnitude surfaced from social scourges such as Thuggee, Suttee, female infanticide, and human sacrifice. The problem was further complicated by the fact that these evils were deeply rooted in religion and social custom and thus a more systematic and concerted effort was needed to eradicate problems successfully. The first step towards solving these problems were taken by the creation of the present police forces in Sindh in 1848 by Sir Charles Napier. The new force was modeled after the lines of the Royal Irish Constabulary with a high standard of discipline, and the officers performed no judicial, revenue or other executive functions. This proved so successful that in 1861 a civil police force was created along the same lines and was emulated in each province. At the head of the provincial force and subject only to the control of the Provincial government was the Inspector General of Police who was assisted by deputies. With each district a Superintendent of police was responsible for its discipline and management, and was at the head of the force; but he was subordinate to the Deputy Commissioner or Collector. The collectors presided over the civil courts. The appeals from them went to the Sadr Diwani Adalat which was comprised of the Governor General in council. In the realm of criminal law, Islamic law was administered at the district level. The judges and law officers were mainly Muslims. The criminal courts established in each district were under the superintendence of the col- lector. The Sadr Nizamat Adalat  the criminal court of appeal  was also established; it was composed of Muslim officials and was under the superin- D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 LEGAL TRANSITION TO THE RAJ 221 tendence of the governor general. The administration of justice in the non- metropolitan areas was different from that of the metropolitan areas (Bombay, Madras, and Calcutta). Local laws (Hindu and Muslim) were applied in the Mofussils (non-metropolitan areas). In 1773 a Supreme court was established in Calcutta; the practicing lawyers were mainly from Britain and English law was applied here. Since there was some confusion over the scope and jurisdic- tion of the supreme court, the Act of 1781 limited the jurisdiction of the supreme court to Indians in Calcutta and it had no control over Indians in the Mofussil areas. Simultaneously in 1781 the Mofussil courts received recogni- tion. In 1801 the supreme court of Madras was established and in 1823 a supreme court was established in Bombay. From the time that the supreme courts were established there was a perennial stream of conflict between the Laws of England (as applied to India under the vague notions of Justice, Equity and Good Conscience) and the Personal Laws. By 1833 this dual system began to show strains and the need for standardization became evi- dent. Some of the cases that highlighted the strains regarding jurisdiction were: David Killican v. Juggernath Dutt, I.D.(OS) I, 889; Manickram Chatto- padhya v. Meer Conjeer Ali Khan, Morton 127; Michael De Rozio v. Chat- geer Gosain, Morton 136; and Byjenath Singh v. Charles Reed, Mor. Dig. II, 36 (1821). It was with this background that a law member was added to the Governor General’s council. It was after the first three law commissions  1833, 1855, 1861  that the process of a codification of the criminal laws began (Jain, 1972). However, one of the most significant events that occurred in Indian history was the Mutiny of 1857; British rule was jolted from its very foundations, which led to the gradual demise of the East India Company. Lord Stanley’s Act of 1858 changed a great trading company into an English empire over- night and India came to be governed in the name of Her Majesty. As a conse- quence, the Queen stepped in and India was governed by her representative who was called the Viceroy. Towards Consolidation (1857-1947) The mutiny was the culmination of a long series of grievances which developed as the role of the British in India transformed from that of peaceful traders to colonial masters who disregarded the native culture, tradition, laws, and codes. There was a concerted effort during this period to change the laws and purge all the officials who owed allegiance to the old regime. This was done with the object of providing greater power and legitimacy to British rule. Though business and money were still dominant concerns, the mutiny pushed these into the background. Now the main concern seemed to center on the instruments to power: law, courts, and police. The Mughal system was abol- ished and the content and forum for the administration of criminal justice was changed. During this period codified Anglo-Saxon laws were introduced to D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 222 HAKEEM create an institutional infrastructure protective of British economic interests and embodied their perceptions of law and society. These were intended to provide the functions of security, reliability, and effective supervision of a framework of control and a pattern of order. As a consequence of these laws the colonial elite sought to wrest power away from the tottering remains of the Mughal elite. The result of British administration was a unification of India and a recep- tion to western notions of law and government; uniform criminal codes were enacted for the administration of justice, and the creation of a bureaucracy, legal system and a national army. The traditional bases of the law were changed. Secular Common law replaced divine laws of the Hindus and Mus- lims. In 1861 the High Courts Act was passed whereby the Sadr Adalats were abolished and English law came to be applied in gradual doses under the camouflage of ‘‘Justice, Equity and Good Conscience.’’ However, it was not until 1887 that this was defined as meaning rules of English Law if applicable to Indian society and circumstances (Waghela v. Masludin, 1887 L.R. 14 I.A. 89). The substantive criminal law was mainly based upon English Law and the basic crimes were described in the Indian Penal Code which was drafted by Babington Macaulay and passed in 1862. It defines the basic crimes and punishments, and is based mainly on English criminal law. Crimes have been divided into nine categories. The procedural laws were spelled out in the Criminal Procedure Code of 1861 which was based on the 1847 draft of the first Law Commission. The three basic criminal statutes  the Indian Penal Code, the Criminal Procedure Code, and the Evidence Act  were passed by the Imperial Parliament of Britain for its Indian colony in its tumultuous post mutiny era (Ramaswami, 1951). It was through these statutes that the colonial elite sought to consolidate their power and gain supremacy. The Indian Police Act, 1861 was passed in the same ethos. The history of the Indian Police takes on an anachronistic development in the Indian admin- istrative set-up from which the British evolved since 1857. The British were merely interested in replicating western institutions in their colonies; however, the fear of native violence and their perception of eastern societies was a great constraint in designing western institutions like the police and judiciary in post-mutiny India. The philosophy of liberalism and native colonial nativism created a chasm in thinking, and the Indian policeman is the typical victim of this lack of commitment to any specific ideology. This ideology was based on the colonial belief that the police were a limb of the law and a law enforce- ment agency, yet the native policemen could not be trusted in a colonial situa- tion where large-scale law breaking could assume massive and violent propor- tions. Anglo-Saxon jurisprudence compelled them to accept the sanctity of human life, but the police as an extensive arm of the state were too fragile to participate in the administration of criminal justice, which was to be conduct- ed by a special kind of independent and insulated judiciary having stern watch over police deeds. This ambivalent philosophy led to some of the unique D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 LEGAL TRANSITION TO THE RAJ 223 characteristics of the Indian police system. Some of these were: dual policing by armed and unarmed police forces; uniform federal laws in the area of criminal justice to be enforced by a provincial system of police; absence of local or citizen policing to strengthen the agencies of criminal justice (Shar- ma, 1985). According to one author it has been referred to as a wiggling, miserly, grudging safeguard, fiddling with the existing order of things (Wolpert, 1989). Conclusion This endeavor traces the process whereby power was sought, obtained, and consolidated by a colonial elite. In this instance the British elite obtained power through a change in the laws and most importantly the personnel that manned key positions in the administration of law. It elucidates how money or resources that an elite controls can be redundant if the bases of power in a social system are not secured. In the present instance the objective was ob- tained through a change in the laws and key personnel that manned positions in the administration of criminal justice. This paper traces the process whereby the Islamic legal tradition was re- placed by the Common legal tradition. It suggests that the British could not establish their dominant status without effecting changes within the criminal justice system. After the Great Indian Mutiny of 1857 the British adopted methods through which the composition of the criminal justice system was changed to reflect the ideology and values of the Common legal tradition. India is a unique case study in colonial administration because it mirrors this change in ideology and elites Future research may focus on the political prob- lems that plague India due to the Common legal tradition which has not been fully internalized by all Indians, but is increasingly relegated to playing an instrumental role and in some instances is in conflict with the local norms and values. It may also focus on the new Hindu/Brahmin elite that now has come to power and wants to usher legal changes to consolidate its hold on power. REFERENCES Arnold, David. 1986. Police Power and Colonial Rule, Madras, 1859 - 1947. Delhi; New York: Oxford University Press. Aron, R. 1950. ‘‘Social Structure and Ruling Class.’’ British Journal of Sociology, 1: 1-16, 126-143. Barker, E. (Jr.) 1946. The Politics of Aristotle. Oxford: Claredon Press. Burton, M., and J. Higley. 1987. ‘‘Invitation to Elite Theory.’’ In Power Elites and Organizations, edited by G.W. Domhoff, and T.R. Dye. Newbury Park, Bever- ly Hills, London, and New Delhi: Sage Publications. Cornford, I.M. (Jr.) 1941. The Republic of Plato. Oxford: Claredon Press. Curry, J.C. 1977. The Indian Police. New Delhi: Manu Publications. D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14 224 HAKEEM Czudnowski, M. 1983. Political Elites and Social Change: Studies of Elite Roles and Attitudes. De Kalb: North Illinois University Press. David, Rene, and John E.C. Brierly. 1985. Major legal systems of the world today (3rd ed.). London: Stevens and sons. Domhoff, G. 1980. Power Structure Research. Beverley Hills, CA: Sage. Friedrich, C. 1963. Man and His Government. New York: McGraw-Hill. Gledhill, Alan. 1951. The Republic of India; The Development of its laws and Constitutions. London: Steven and sons. Hay, Douglas. 1975. ‘‘Property, Authority, and the Criminal Law,’’ in Albion’s Fatal Tree. New York: Pantheon. Jain, Mahabir Prasad. 1972. Outlines of Indian Legal History. Bombay: Tripathi. Khalid, Syed Rashid. 1979. Muslim Law. New Delhi: Eastern Book Company. Mahajan, Vidya Dhar. 1965. Muslim Rule in India. Jullunder, Lucknow, Bombay, Calcutta, Delhi, New Delhi: S. Chand. ______. 1971. Constitutional History of India. New Delhi: S. Chand and Company. Manneheim, K. 1935. Man and Society in an Age of Reconstruction: Studies in Modern Social Structure. New York: Harcourt. Merryman, John H. 1985. The Civil Law Traditon (2nd ed.). Stanford, CA: Stanford University Press. Michels, Robert. 1958. Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy. (Eden and Ceder Paul, trans.). New York: Free Press. Moore, G. 1985. Studies of the structure of National Elite Groups. Greenwich, CT: JAI. Mosca, Gaetano. 1939. The Ruling Class. New York: McGraw-Hill. Pareto, Vilfredo. 1935. The Mind and Society: A Treatise on General Sociology. New York: Dover. Putnam, R. 1976. The Comparative Study of Political Elites. Englewood Cliffs, NJ: Prentice-Hall. Ramaswami, P.N. 1951. Magisterial and Police Guide Volume I. Bombay: Ratanlal and Dhirajlal Thakore. Reichel, Philip L. 1994. Comparative Criminal Justice Systems. Upper Saddle River, NJ: Prentice Hall. Sarkar, Jadunath. 1960. Military History of India. Calcutta: Sarkar. ______. 1972. Fall of the Mughal Empire. New York: AMS Press. Wolpert, Stanley. 1989. A New History of India. New York: Oxford University Press. LIST OF CASES Byjenath Singh v. Charles Reed, Mor. Dig. II, 36 (1821). David Killican v. Juggernath Dutt, I.D. (O.S.) I, 889. Manickram Chattopadhya v. Meer Conjeer Ali Khan, Morton 127. Michael De Rozio v. Chatgeer Gosain, Morton, 136. Waghela v. Masludin, 1887 L.R. 14 I.A. 89.8 D ow nl oa de d by [ U ni ve rs ity o f C am br id ge ] at 0 2: 28 0 4 N ov em be r 20 14