A History of India, Third Edition

THE PERIOD OF COLONIAL RULE

with it altogether and so facilitated social progress through the
introduction of modern British law into India. This utilitarian generation
not just disregarded, but utterly despised, Indian traditions.
The clash of British legal ideas and judicial practice prevailing in India
was even more pronounced in the field of criminal jurisdiction and the
penal code. Originally this jurisdiction was not the diwan’s responsibility
but remained with the nawab in his capacity as military commander
(faujdar). The nawab was bound to follow Islamic law with all its rigours
in this respect. The British were revolted by the mutilation of thieves and
other such drastic penalties prescribed by Islamic law. When they took over
the responsibility for criminal jurisdiction they had to listen to the advice
of Islamic law officers attached to their courts, but they could find ways
and means to circumvent the provisions which were repugnant to their
principles. However, while they refrained from mutilating convicts they
much more readily resorted to capital punishment. After all, death
sentences even for thieves and forgers were the order of the day in England
at that time, where everything affecting property was treated as an aspect
of inviolable public order.
Islamic law was altogether different. There was no public prosecutor,
crimes were punished only if the criminal was accused by the aggrieved
party, and the law of evidence was hedged in by so many conditions that it
was often very difficult to convict a criminal at all. It was only the most
blatant crime, which by its very ostentation challenged established authority,
that was punished with due severity. The British saw to it that criminal
jurisdiction became much more efficient, so many a criminal who would not
have been convicted under Islamic law was quickly executed by them.

Absconding peasants and the permanent settlement

The British idea of private property also played an important role in the
major reform associated with the name of Hastings’ successor, Lord
Cornwallis, who ordered the permanent settlement of the land revenue of
Bengal as earlier advocated by Philip Francis. This order of 1793 did not
just fix the amount of the revenue assessment once and for all; it also
bestowed the right of heritable and alienable private property in land on all
those who were assessed in this way. These were not the peasants who
cultivated the land, but the zamindars or landlords who had so far been
only revenue collectors who could keep a certain percentage of what they
managed to squeeze out of the peasantry. They became landlords in the
British legal sense of the term only due to Lord Cornwallis’s famous
regulation.
Later historians have interpreted Lord Cornwallis’s motives in many
different ways. Some see in him the executor of Philip Francis’s bright
ideas; some say he wanted to create a class of squires in Bengal who would