The legal system in India has been considered pathological for a long time (Oliver Mendelsohn, “The Pathology of the Indian Legal System,” Modern Asian Studies [no. 4, 1981]). A person accused even of a minor crime can languish years in jail, without facing a proper trial and receiving judgment. A civil suit can take decades without a decree being passed in the case. In the period of British rule, a dispute concerning property sometimes took forty years in its progress through lower courts to High Courts in major cities like Calcutta, Bombay, or Madras to the Privy Council in London—the ultimate appellate tribunal. In the meantime, sons and grandsons might succeed fathers, grandfathers, or grandmothers, and the suit become an intergenerational legacy.

The pathology of this (ill-)legal system has continued in present-day India. One of the objectives of the monograph authored by Tirthankar Roy and Anand Swamy is to trace the colonial roots of this pathology. According to them, the ills of the system have two principal roots. The first is the need of the British to preserve a large part of the precolonial order to facilitate the initial process of the extraction of a surplus from the colony. The other is the need to adapt the system to the newly emerging demands of intercontinental trade, industry, and new forms of copyright such as in books or trademarks. In many of these areas, there were no codified laws or procedures in pre-British India. There was no law of contract, law of evidence, law regulating principal-agent relations outside the family or the clan, law to regulate partnerships between nonfamily partners, and laws relating to the newly emerging forms of joint-stock companies. Much of this absence was because business was carried on through informal agreements within networks of trust. Roy and Swamy also scrutinize the claim that it was the drive of modernizing legality that caused the complexity and find it wanting.

The book is an admirably concise account of the evolution of this highly complex legal order from the immediately pre-British days to the end of World War II. Being the economic historians they are, they have given tables and figures to illustrate, for example, the number of suits pending in the Sudder Dewany Adawlut (the civil courts inherited from the days of rule of Bengal by the Nawab and adapted to British uses), the number of rent law suits, the number of registered rent law suits in Madras Presidency (1889–91), evolution of corporate legislation in India (1850–1936), and figures comparing the number of criminal cases under trial for the whole of British India and the number of civil cases instituted within the same territory between 1877 and 1937. They note that despite a large increase in the number of judicial officers per 100,000 persons from the mid-nineteenth century to, say, 1945, the proportion of pending to instituted cases rose steeply between 1877 and 1937. They also note that there was a spike in the number of criminal cases and civil suits in the years of devastating famines between 1896 and 1900.

Roy and Swamy are naturally more interested in the drama of legal enactments and case histories (they break new ground here along with scholars like Ritu Birla, Stages of Capital: Law, Culture and Market Governance in Late Colonial India [2009]) than in outcomes. But to gain a proper perspective on the tap roots of the pathology of the Indian legal system, we also need to examine the outcomes of indigenous systems in their changing avatars and British adaptations. The authors recognize that the British did not rule India for the sake of their health (in fact, the country remained decidedly unhealthy for most of the British officers and soldiers down to the end of the nineteenth century, as many a gravestone in European cemeteries would testify). But they underplay the role of race in both preserving the rule by a tiny corps of British officers, and increasing the complexity. For a start, despite reservations of Thomas Babington Macaulay, the first Law Member of the Governor General's Council, trial of Europeans was exclusively conducted by European judges and European juries. A move to remove this anomaly of inequality before law in the 1850s and again in the 1880s was vociferously resisted by the British in India and in Britain. The latter move, in the bill prepared by Courtney Ilbert in 1883, the then–Law Member of the Viceroy's Council, saw a ferocious outpouring of racial contempt by the British in India and Britain, including James Fizjames Stephen, an ex-Law Member of the Viceroy's Council and a brother of Leslie Stephen, the liberal publicist.

As Roy and Swamy recognize, land was at the center of British dominion, both in its geographical aspect and its incarnation as the most valuable asset and base of colonial extraction. In common with many scholars in this field, they fail to recognize the peculiarity of the land laws the British instituted in India. Today land is treated as just any other asset, to be sold off like gold or jewelry for the settlement of a debt, if necessary, including the payment of a land tax. Under British rule, land tax had a lexicographic priority; failure to pay it at every kist, which often fell twice a year, would lead to the forfeiture of all assets, including those to which a nonstate or nonlandlord creditor had a prior claim. Further, today a person must pay a tax on the land because he or she is the legal owner of the land. In British India, it was the entitlement to pay the land tax that allowed a person to claim ownership of his or her portion of the revenue of the land. What the British did was to create not a market in land but in land revenues.

When the British wanted to open up Assam or the hilly areas of Southern India for the cultivation of tea or coffee, they conferred a fee simple title on the European buyers of land. As in other British and French colonies, this kind of title, which made land truly marketable, was denied to the natives (C. K. Meek, Land Law and Custom in the Colonies [1949]).

There is a strong degree of continuity in the agrarian relations in colonial India and India after independence. The British had created what has been called a “landlord's paradise” in India, by giving zamindars, talukdars, and mirasdars enormous powers and leaving much of the countryside to be informally policed by them (Barrington Moore, Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World [1966]). This leniency toward landlords received a further boost after the 1857 Revolt, which the British read as acquiring its militancy through landlord disaffection in Northern India. The structural factor of a massive deindustrialization of India, throwing out millions of artisans on the hapless embrace of a stagnant agricultural sector also increased landlord power (Amiya K. Bagchi, “Introduction, Colonial Rule as Structural Adjustment: Expropriation, Agency, and Survival,” in ed. Bagchi, Colonialism and Indian Economy [2010]). In independent India, also the conjoint failures to carry out propeasant land reforms and to employ most of the labor force in nonagricultural sectors gave enormous power to rural magnates. Despite the growth of large-scale industry and services, land remains central to the exercise of political power in India.

The authors fail to recognize that a basic difference between Mitakshara law prevalent among the Hindus of North, South, and West India (and suitably adapted among the Parsis, and among the Muslim Khojas, Bohras, and Memons) and Dayabhaga law ruling the Bengali Hindus had serious consequences for the evolution of business groups, for example, Marwaris who became prominent over most of North, Central, and East India. The major British managing agency houses in the beginning of the nineteenth century had Bengalis as banians, who advanced money to their British principals when needed, arranged loans, and acted as their intermediaries in trading ventures. When major managing houses such as Alexander & Co., Palmer & Co., and Fergusson & Co. failed, their banians were legally regarded as their partners and the assets of the banians were seized by the creditors. Under Dayabhaga law the head of the household was supposed to be the owner of the property, so in case of loan default the whole property of the household—whether considered a joint family or not—was forfeit. When the banians failed to pay up, they were jailed (imprisonment for loan default was a British innovation). Those Bengali banians who managed to survive the crises of 1829–33 went bankrupt in the crisis of 1846–47. Among the prominent Bengali businessmen who managed to avoid ruin were Dwarakanath Tagore, Motilal Seal, and Raghuram Gossain, the first two because they knew English law, the last because he took refuge in the Danish colony of Serampore. Those businessmen who survived, like the Malliks of Chorbagan and the Tagores of Jorasanko and Pathuriaghata, became zamindars or urban landlords.

In contrast, the Marwaris or the Parsis of Bombay who were governed by Mitakshara or a variant of it, managed to stay in business. In fact, because Western India came under British rule much later than Bengal when the East India Company's monopoly of trade with India had ceased, there was a much greater equality between Europeans and Indians trading there. When the boom in cotton caused by the American Civil War collapsed, many Bombay firms, including the state-backed Bank of Bombay, went bankrupt. But just before that, in 1865, the European-dominated Legislative Council of Bombay passed an insolvent debtors' act (Act XXIII of 1865) that was much more favorable to debtors than previous acts, so that bankrupt businessmen—European and Indian—got off lightly (Amiya K. Bagchi, The Evolution of the State Bank of India, The Roots, 1806–1876, Part II, Diversity and Regrouping, 1860–1876 [1987]).