E. Hipótesis de investigación
IV. Programa de trabajo
Civil justice in early colonial Kumaon emerged from small and informal
beginnings that, unlike criminal justice, had no explicit legislative basis.2 The Company’s ability to enforce revenue demands through court-based legal action was so a central a practice of the imperial enterprise that setting up a civil justice system was implicit in the proclamation of October 1816 that brought Traill as Commissioner under the general superintendence of the Board of Commissioners.3 Creating such a system was simply a natural outcome of the directive that Traill’s duties were defined ‘by the general principles
1 Barron, Notes of Wanderings in the Himmala, p. 165.
2 The Commissioners powers to make orders for revenue demands are implicit in Adam, J. - Secretary to
Government to Traill, G. W. – Acting Commissioner Kumaon, 19/10/1816b, KDMLR, vol: 9. However, nothing in this proclamation explicitly states this fact.
3Ramsbotham, ‘Chapter XXV The Revenue Administration of Bengal,’ p. 415; Adam, J. - Secretary to Government
to Traill, G. W. –Acting Commissioner Kumaon with enclosure of ‘Extract from the proceedings of His Excellency the Right Honorable the Governor-General in Council in the Secret Department’, 19/10/1816e, KDRLI, vol: 3.
184 established throughout the provinces.’4 Deeply embedded in those ‘general principles,’ was a set of emergent formal judicial practices that included avoidance of apparent conflicts of interest, rigid case recording practices, rigorous procedural fairness practices, the practice of determining a case on the merits of the evidence before the court and enforcing the orders of the court through a documented and prescribed process.5 This set of concepts, practices and competencies were new to justice in Kumaon, but not to Traill. His four years as Assistant Magistrate at Farrukhabad had given him an extended period of training and experience in the Company’s judicial practices, including training and experience with the special powers required to hear summary suits under Regulation XXIV of 1814.6 Familiar with the ‘general principles’ of these courts practices then, he did not need to carry their codified form with him into the hills, merely his memory of them.
Freed from the strictures of the regulations, Traill took the opportunity to develop an innovative institutional form for civil justice in Kumaon that embodied the ‘general principles’ but he adapted them to meet the contingencies of the political, economic and cultural conditions of the Pahar. Traill was certainly the pivot and catalyst through which this system emerged, however, a significant share of the authorship of the system’s
practices should be attributed to the local people. The scale of their participation eventually grew to an enormous level, while many of the novel practices that emerged were unexpected and had no obvious basis in the pre-existing practices of the Company’s courts. Moreover, many of these new and unexpected practices operated well outside the walls of Traill’s cutcherry (courthouse/administrative office) and independently of his direction.
Initially, Traill’s was the only civil court in Kumaon, although it did not operate in isolation from existing customary judicial institutions.7 This hybridity included an active
4 Ibid.
5 These formal practices were also introduced into the Extra-Regulation Order’s criminal-justice system but are dealt
with most fully here in the consideration of the civil-justice system because they were codified in the ‘Rules for the
Guidance of Moonsiffs’.
6 Doss, A General Register of the Hon'able East India Company's Civil Servants of the Bengal Establishment from 1790 to 1842,
p. 390.
7 From 1825 to 1829 there was a second court presided over by John Shore, Assistant-Commissioner Dehradun.
Established essentially as a sinecure for the son of Governor-General Baron Teignmouth, (previously aka John Shore) the post was dissolved when Shore took up other duties. See Penner and Maclean, The Rebel Bureaucrat: Fredrick John Shore (1799-1837) as Critic of William Bentinck's India.
185 relationship and interchange with trade and caste panchayats, heavy use of local
arbitrators, and incorporation of the services of a court pundit knowledgeable in Indian philosophy, religion, and law. However, by the late 1820s, demand for civil justice
services had grown to the point where they could not be delivered by one man and a new model was needed. This new model had two key elements. The first was the
appointment of Mosley Smith as Assistant Commissioner Kumaon on 1 September 1829.8 Smith was a young covenanted Company officer who had only been in India since May of that year. Over time, and as his experience and language skills increased, he would take on a prominent role in hearing original suits that came before the civil courts of the Commissioners. However, from about the same time that Mosley Smith arrived in Kumaon, Traill and Smith began to hear a decreasing proportion of civil plaints. In the second element of the new model, the bulk of the ever-increasing workload was taken up by a new kind of judicial officer, moonsiffs.
From 1829 until 1838, the existing canoongoe were recycled and remodelled as moonsiffs or junior Native Commissioners, with an active judicial role in civil but not criminal justice. In parallel, the court pundit was recycled into the role of suddar ameen or senior Native Commissioner, who had a higher civil-case value limit than the moonsiffs and some powers in criminal matters, particularly infractions against caste rules. It was within this new institution of the Native Commissioner’s courts that the Pahari people first met a new, more sophisticated form of the formal, textually mediated, legal, revenue and administrative practices the Company introduced.
At the centre of this meeting was a regulation-like code developed by Traill to empower and guide the functioning of the new Native Commissioners—’Rules for the Guidance of Moonsiffs.’9 Unlike earlier legislation in Kumaon, the Rules drew heavily from the regulation that empowered and ordered the practices of moonsiffs who dealt with minor civil suits on the plains, Regulation XXIII of 1814.10 Intended to create a new category of public servant inculcated with formal practices based on the ‘general
8 Doss, A General Register of the Hon'able East India Company's Civil Servants of the Bengal Establishment from 1790 to 1842,
p. 535; Note that Smith joined his establishment at Almora on 16 March 1830. See Smith, Mosley to Young, W. H.
– Civil Auditor Forth William 9/8/1830, KDRLI, vol: 10.
9 See Appendix 6.1. Note that Traill actually calls the ‘Rules’ a Regulation at two points in the document but they
had no official status as a Regulation
186 principles,’ the Rules had a very different form and style to all legislation seen earlier in the Extra-Regulation Order. To a degree, the informality and simplicity of earlier
legislation was still apparent in the Rules, but, given the novel degree of instructive detail and formal legalism through which they were expressed, the Rules represent a point of phase change in the style of legislation developed for use in Kumaon.
Importantly though, while the Rules codified the process that was to be followed by the new Native Commissioners, the civil law itself remained uncodified. The Rules make no mention of what the civil law of Kumaon was or was not. Directed at the Native Commissioners as Company servants, not the Kumaoni people themselves, the Rules gave very detailed instructions on the practices to be followed when trying a lawsuit, but actively grounded the eventual determination of the case in existing custom by instructing:
When the parties have been heard, and the exhibits received and considered, and the witnesses on both sides examined, the moonsiffs shall give judgement according to practice and right.11
Like criminal law, then, civil law in Kumaon only underwent limited intrusions from codified practices during the early Extra-Regulation Order. As such, the law itself was to be primarily found in the everyday practices of both Traill’s and the moonsiffs’ courts rather than in a codex, while the only ‘evidence’ of this law was to be found in the detailed recording practices prescribed by the Rules.
Civil justice practices on the plains
Developments in the institutions and practice of criminal and civil justice in India and their relationship to the Company went through many parallel changes through the eighteenth century. However, the basis of these two arms of the law diverged almost immediately on the Company’s decision to ‘stand forth as Diwan’ in Bengal and openly rule Bengal.12 As discussed earlier, criminal law in the Company’s courts was initially based almost exclusively on Indo-Islamic criminal law. In contrast, civil law was based
11 Ibid., para.29. Emphasis added.
12 G. S. Chhabra, Advanced Study in the History of Modern India(Volume-1: 1707-1803), vol. 1 (Darya Ganj: Lotus Press,
187 on the customs of each religious community—Sikh, Hindu, Christian or Muslim—and then further bifurcated by local traditions and practice.
This division of the basis of civil law on community lines was most famously expressed in Rule 23 of Warren Hastings’ 1772 ‘Plan for the Administration of Justice’ which outlined:
That in all suits regarding inheritance, marriage, [succession] and caste and other religious usages or institutions, the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to Gentoos [Hindus] shall be invariably adhered to.13
Importantly, Hastings’ maxim was extended in 1797 to include ‘rents and goods and all matters of contract and dealings between party and party’ by Sec. XIII of Geo. III Cap. CXLII.14 This legislative move explicitly brought much of what the modern reader from the Anglophonic legal tradition understands as civil and administrative justice under Hastings’ principle. Application of Hastings’ principle in Kumaon however, required very different solutions to those that played out on the plains.
First, neither Islamic custom and practice nor the complex interaction of the civil law of the respective religious communities played a major role in the process of
discovery, innovation and adaption of existing custom and practice necessary to the functioning of Traill’s civil court. There were only a few hundred Muslims resident in the hills at the time, mostly traders not landholders, and nearly all of these were confined to Almora and Srinagar. 15 Most legal disputes within this community appear to have been resolved within their own or traders’ panchayats, and the few cases that found their way into Traill’s court appear to have been covered by the spirit of the dictum of Sec. III, Regulation VIII of 1795 that ‘in cases in which the plaintiff shall be of a different
religious persuasion from the defendant, the decision is to be regulated by the law of the religion of the latter, excepting where Europeans or other persons not being
Mahomadans or Hindoos shall be defendants, in which case the law of the plaintiff is to
13 In 1781 Chief Justice Impey added the word ‘succession’ to Hastings original list with the enactment of
Regulation VI of 1781.
14 Great Britain Parliament, A Collection of Charters and Statutes Relating to the East India Company (London: George Eyre
and Andrew Stahan, 1817), p. 384.
188 be the rule of decision.’16 From the limited case records available—indeed so limited that any conclusion drawn from it must be treated with real caution—it appears that the few matters that did arise involving Indo-Islamic civil law, were largely matters arising between plains Muslims associated with the army.
Second, while the near irrelevance of Islamic civil law in Kumaon to some extent reduced the complexity of civil law practices that emerged in the hills, application of orthodox Hindu jurisprudence was almost equally irrelevant in the Pahar, and its application in Traill’s civil court required significant innovation. At this time on the plains, Company officers largely worked from the premise that the principles of Hindu law were to be found in ancient texts such as the Mānavadharmaśāstra or the ‘Shaster’ in Rule 23 of Hastings’ ‘Plan for the Administration of Justice’ quoted above. In turn, the practical expression of these principles was to be found in a number of localized
interpretive traditions such as gaudiya and mithila that incorporated lex loci practices.17 Now considered by some to be an ‘Orientalist’ inspired misperception of the reality on the ground, in the early nineteenth century, the belief that the law was to be found within these texts was grounded in the assessment that ‘Mohomedans as well as Hindoos, were in possession of their respective written laws…which from their religious tenets and prejudices, they had been educated and habituated to regard and venerate as sacred.’18
Whatever the validity of the premise that ancient texts formed the authoritative basis of law on the plains, these texts held little or no relevance in Kumaon. As outlined in the introduction, most Kumaoni people identified as Hindus, but unorthodox Hindus. Many Pahari cultural practices that played into property rights and inheritance law— polyandry, divorce, sale of wives and widow remarriage—were an abomination to orthodox Hindu jurisprudence. As such, standard texts of the plains like the ‘Shaster’ had little to say about law in Kumaon’s distant and distinct cultural conditions. Moreover, given Kumaon’s largely oral traditions, written alternative texts had not
emerged in the hills, and yet, as Blackstone tells us, the Company was obliged to allow for
16 John Clark Marshman, Guide to the Civil Law of the Presidency of Fort William (Calcutta: Serampore Press, 1842), p,
329.
17 Wilson, The Domination of Strangers: Modern Governance in Eastern India, 1780–1835, pp. 77-103.
18 J. H. Harington, An Elementary Analysis of the Laws and Regulations enacted by the Governor-General in Council, at Fort William in Bengal. vol. I(Calcutta: The Honorable Company's Press, 1805), p. 11.
189 the customs of the land to continue until they were specifically changed by the
sovereign.19 As with criminal law in Kumaon, then, Traill began his process of discovery of the civil law of Kumaon not through examination of ancient texts, but through
reflexive engagement with the people of Kumaon in the everyday practices of his courts and the wider community. In these circumstances, it is to Traill’s documentation of his everyday judicial practices, informed as they were by the ‘will of the whole community,’ that we must turn to for ‘evidence’ of civil law in early-colonial Kumaon.