THE PERIOD OF COLONIAL RULEpredecessors this jurisdiction did not extend much beyond the city limits of
Murshidabad, Dacca and Patna. Within a few years Hastings established
eighteen new courts and tried to reform their rules of civil procedure and
of appeal to a higher court. Even under Islamic rule this civil jurisdiction
(Diwani Adalat) was always conducted on secular lines and was handled
by special judges and not by the kadi, who could only base his decisions on
the Koran. The highest authority of appeal was the diwan himself, but
Hastings felt ill-at-ease with this responsibility and asked the presiding
judge of the Supreme Court at Calcutta, Sir Eliah Impey, to do this work
for him. Impey accepted and drafted rules for civil procedure which were,
of course, entirely novel as far as Indian practice was concerned.
The procedures of serving notice on the defendant, the record of the
proceedings, the form of the judgment—all these were unheard of before.
This was the beginning of the amazing spread of British jurisdiction in
India. This was by no means an altruistic measure: it helped to strengthen
the foundations of British rule and it contributed to state finance, because
the court fees were quite high. Nevertheless, Indian litigants eagerly
flocked to these new courts which competed with all kinds of traditional
jurisdiction. Impey, the pioneer in this field, was not praised for his work,
for his critics pointed out that by accepting a post under the East India
Company he had jeopardised his impartiality as presiding judge of the
Supreme Court of Calcutta, which was a royal court independent of the
company. He was now serving two masters, the Great Mughal, from
whose authority the Diwani jurisdiction was derived, and the king, who
had appointed him to his high office at Calcutta. In a way all British
officers in India served two masters at that time; only in Impey’s case it
was so very obvious.
Impey’s successor, Sir William Jones, went beyond civil procedure and
judicial organisation and enquired into Indian legal traditions, which he
got translated and codified. This was not just a matter of academic interest
but of immediate practical significance. Young British officers with no legal
knowledge, who had no idea at all about the intricacies of the Hindu law
of inheritance and other subjects of this kind, were appointed as
magistrates and had to decide cases which Indian litigants brought before
them. These officers needed codified law for ready reference. But
codification was actually incompatible with the spirit of tradition, which
consisted of a continuous mediation between ancient rules and changing
reality. The Brahmins as guardians of this tradition had derived much of
their influence from this mediating role. A printed code on the shelf of a
British judge or magistrate precluded this mediation: it settled all questions
once and for all. But this was not what Jones was criticised for by the next
generation of legal luminaries who subscribed to the ideology of
utilitarianism; he was attacked simply for having produced an inconsistent
and unscientific jumble of traditional law, rather than having done away