Market Laws

Law in India is taught in an ahistorical vacuum. Save for a few exceptions, the law and even the Constitution are taught as though they emerged Swayambhu into the Indian polity. Legal and political history are bucketed away from the pure study of law creating many lawyers (such as myself) who know little of the history and circumstances in which laws were made.

Into this breach step two economists(!)—Tirthankar Roy and Anand V Swamy—with their book Law and the Economy in India. The book is an attempt to answer a thorny question—why do India’s laws make doing business so difficult? Roy and Swamy do not offer simple answers, but I think (rightly) complicate our understanding of the impact of colonial rule and the introduction of common law into India. India’s colonial encounter, as Roy and Swamy argue, resulted both in the laws and institutions which prioritised “extraction” of resources and imported European laws and institutions which protected life and property.

Understanding the trajectory of laws and institutions from both the colonial period and post independence allows us to see the state’s priorities when they passed these laws. These priorities changed over time, but laws were not wiped out as result, but just built on top of earlier laws. This palimpsest lawmaking has given us a complicated tangle of laws and institutions that are crying out for reform. Laws relating to property, for instance, began with the imperative of enabling revenue collection for the East India Company before pivoting to embrace the political need to pacify the population with measures against dispossession by landlords. The post-independent state took on a more interventionist approach of land redistribution but one that was built on laws and institutions which had been put in place to serve very different needs.

The first part of the book deals with pre-independence laws and the second part, post-independence laws. Each part has a chapter focusing on an area of law, and given the several areas of law covered in the book, I have chosen to focus on only the two chapters in the book which trace the history of personal laws in India, pre- and post-independence.

Roy and Swamy trace the origins of Anglo-Hindu and Anglo-Mohammedan personal law to the approach taken by the East India Company’s courts in resolving disputes over land and succession while upholding what they saw as the status quo in matters of society. British judges initially relied heavily on Hindu and Muslim scriptures (and less on custom) as interpreted by pandits and imams to understand the law before slowly moving away from them, relying more on precedents and principles of common law. Roy and Swamy show the struggles of the colonial regime to create something approximating a coherent body of personal law, sometimes resorting to legislation to sort out the confusions and contradictions that emerged.

Post-independence, we see the state prioritising reform and gender equity as mandated in the Constitution. This is true not just of statute laws but the judiciary as well. The authors tie this eventually to the complicated discourse around the Uniform Civil Code in India and why it has not materialised post independence. One important aspect missed here is the perspective of Adivasis against a uniform personal law—something which I believe shows us why uniformity may not be an important value in a personal law code.

If one had to nitpick, as a lawyer, I found some of the authors’ statements on the law a bit misleading or incomplete. This book would have benefited from a closer legal read to correct some mistakes in presenting what the court has held in a given case.

The nitpick notwithstanding, Law and Economy in India offers a terrific narrative about the trajectory of India’s laws and institutions, and is a must-read for lawyers. The sharp insights provided here, one hopes, will inform debates on legal and institutional reform in India.

About The Author

Alok Prasanna Kumar