In the late 1700s, as America – its white settlers, that is – was preparing to break itself free of British domination, the eastern regions of the Indian subcontinent were being forcibly incorporated into Britain’s international empire. Having extracted the diwani (rights to collect revenue) from a captive Mughal emperor, British officers were keen on setting up new systems of administration in their colonial acquisitions. The deep penetration of Mughal authority and imperial symbols, and the supposed ‘unchanging continuity’ of ancient Hindu customs, ensured that India was not considered a blank slate by the British, one on which they could easily justify the involuntary imposition of their own systems of governance. In the debate over the adequacy of English law in the administration of Indian natives, the rhetoric around India’s ancient origins would ultimately gain the upper hand.Officers in Calcutta expressed a desire for a ‘code of laws’ which was to be compiled “agreeably to the Laws and Tenets of the Mahometans and Gentoos”. This arbitrary division – administratively attractive but socio-culturally meaningless – of the natives of Bengal (and later India) into two simple, uniform groups of Muslims and Hindus, was a major colonial development. The largely artificial dichotomy would go on to persist in the governance logic of the British throughout the colonial period, and would later spill over into native Indian communities with disastrous consequences.The juxtaposition of religion with jurisprudence and legislation can be explained by what Bernard Cohn termed the ‘India as a theocracy’ model that some Company officials subscribed to. As per this interpretation, the subcontinent was characterised by highly detailed codes of personal and social conduct that had already been worked out in antiquity, and possessed the power of law. Warren Hastings, the Governor of Bengal, believed that “even the most injudicious or most fanciful customs which ignorance or superstition may have introduced among [the Hindus], are perhaps preferable to any [new introductions by Europeans].” He was convinced that the ‘Hindus’ – whatever it meant in the context of the late 1700s – were content with their pre-existing religious customs and traditions. (Clearly, the only ‘Hindu’ people that Hastings conversed with were from elite, privileged-caste groups who had no reason to do away with the status quo.)In this context of the ‘India as a theocracy’ model, what Company administrators wanted was a ready reckoner-type compilation of Hindu ‘laws’ (and later Muslim ‘laws’). To make that happen, Hastings commissioned 11 Brahmans from different regions of the Bengal province to begin work in Calcutta in May 1773. By early 1775, these pandits had created a Sanskrit law digest called Vivadarnavasetu (‘a causeway through the sea of litigations’). However, the British at this time lacked Sanskrit-language competence, so the Vivadarnavasetu was translated into Persian, which was done via a Bengali oral rendering of the Sanskrit. Clearly, this process of translation that led to the final English digest in 1776, A Code of Gentoo Laws, was considerably convoluted: Sanskrit to Bengali oral, Bengali oral to Persian, and then Persian to English. Nathaniel Halhed was personally chosen by Hastings to translate the Persian into English and to author the landmark digest. Soon after, an early codified version of Muslim law in English, titled An Epitome of Mohammedan Law, was published in 1786 by Francis Gladwin.Despite the efforts involved in its creation, and its first-of-its-kind nature, the influence of Halhed’s A Code of Gentoo Laws in jurisprudence in India was short-lived. The influential Sanskrit scholar and colonial administrator William Jones opined that “a translation, in the third degree from the original, must be, as you will easily imagine, very erroneous.” The scholar Garland Cannon contends that it never enjoyed authority, was sparsely executed, lacked references, and abounded in errors. Nevertheless, until the next code, A Digest of Hindu Law on Contracts and Successions, was published in 1797-98, A Code of Gentoo Laws remained an important source for British judges.More importantly, this 1776 digest, and its creators, gave rise to a legacy that continues to shape politics in the subcontinent to this day, primarily because they enabled what scholars have termed the “birth of Anglo-Hindu law”. Warren Hastings believed that an important reason for the success of the Mughal empire was the Mughals’ non-interference in the traditional ways of life of their Hindu subjects. Referring to the belief among some elite in Britain that “written laws are totally unknown to the Hindoos, or original inhabitants of Hindostan,” he wrote that “from whatever cause this notion has proceeded, nothing can be more foreign from truth.” Nathaniel Halhed, translator-author of A Code, shared this belief, writing that “much of the success” of the Romans arose from the fact that they had exercised toleration in the religious matters and beliefs of their subjects.We see such beliefs recorded for posterity in Hastings’s “Judicial Plan”, which was the administrative basis for the commission and creation of A Code of Gentoo Laws. The Plan’s most well-known line to this day remains:“…in all suits regarding inheritance, marriage, caste and other religious usages or institutions the laws of the Koran with respect to Mahomedans, and those of the Shaster [Shastras] with respect to Gentoos, shall be invariably adhered to…”These convictions of early East India Company officers, augmented by their conversations with elite-caste native Indians, set the stage for the creation of religion-based “personal laws” in the subcontinent. However, despite their claims about such ‘laws’ being based on history and tradition, these juridical ideas were actually very new to the people of the subcontinent.In an extended comparison of the premodern Roman state with South Asian states, Sheldon Pollock writes that “no uniform code of law was ever enforced anywhere across caste groupings, let alone everywhere in an imperial polity” in South Asia. The principal judicial actors or institutions for most people in the subcontinent were not the imperial rulers, but local kings and queens, temple authorities, and corporate groups (caste and sub-caste groups, and communities of traders, soldiers, agriculturalists, pastoralists, etc.). That is, for centuries prior to the 1776 Company intervention, the practical administration of law in the subcontinent occurred primarily at the local, societal level. As Nandini Bhattacharyya-Panda writes, the “Dharmashastras” – which Hastings and the other officials considered as law-books – provided prescriptive, normative or moralistic guidelines or codes of conduct for upper-caste Hindus, but were not equivalent to the European version of legally enforceable rules. Moreover, this ‘shastric tradition’ was not static, and the guidelines were subject to flexibility and change, with different regions and caste groups differing in multiple ways in their juridical traditions.But in the East India Company’s administrative projects of writing concise books of codes, the inevitable processes of selection, translation and interpretation which went into the production of both the ‘original’ Vivadarnavasetu and its translations, were bound to produce something new as opposed to reproducing ‘ancient laws’. The Brahman pandits even made some concessions to the administrative demands of Hastings, either incorporating material not ordinarily a part of ‘tradition’, or modifying the emphasis on particular topics depending upon what the Company was more interested in. Bhattacharya-Panda argues that the pandits were not exactly collaborators with much agency, but instead were “paid informants trying to answer questions that they did not always understand.” She contends that these translations marked a passage from normative texts on correct conduct (i.e., the ‘shastric tradition’) to clearly defined legal codes (i.e., A Code of Gentoo Laws), providing a powerful example of a colonial ‘invention of tradition’.What the personal laws of the colonial administration achieved was the flattening of the immense diversity of flexible and ever-changing customs and traditions of people in the subcontinent into a monolithic binary system of rigid ‘codes’. Arbitrarily selected topics and passages from older texts were used to define both ‘Hindu law’ and ‘Muslim law’, marking an “irreversible development” in India’s legal history. We can discern an arrogance in Company officers’ belief that they could easily construct authoritative ‘native’ texts with which to govern a foreign people. This arrogance was fueled not by some headstrong confidence, but by a profound ignorance of the dynamic and negotiated nature of the everyday aspects of society and politics in South Asia (and indeed across the world).The history of the making of the Muslim and Hindu personal laws show that the pre-colonial era itself was never marked by a universally ‘uniform’ civil code for all South Asian residents. Moreover, contemporary scholarship shows that in many parts of India and across the world in the twentieth century, it was usual, and considered desirable, to accommodate certain (though not all) aspects of cultural ideas and beliefs in written and unwritten legal structures, thus technically creating ‘non-uniform’ juridical structures. However, today in India, under a supposedly ‘de-colonial’ government, the completely ahistorical rhetoric around the so-called Uniform Civil Code (UCC) – a rhetoric which, like the discourse of early Company officials, is based on the hubris derived from ignorance – is but just one manifestation of the persistence of colonial ways of thinking to this day.Kiran Kumbhar is a historian, teacher and former physician, currently affiliated with the University of Pennsylvania.In his column ‘Past Forward’, Kumbhar provides us with a rear-view mirror that ensures we drive straight ahead.