Making the Personal Civil: The Protector’s Office and the Administration of Indian Personal Law in Colonial Natal, 1872 – 1907
The arguments presented in this paper analyze the administrative contestations around Indian ‘personal law ’in the Colony of Natal from the establishment of the Coolie Commission of Inquiry in 1872 to the promulgation of the Indian Marriages Act in 1907.2 To date, very little attention has focused on this area of historical inquiry into Indians in this region.3 The administration of customary law amongst Indians in Natal in the latter part of the nineteenth century pivoted around the office of the Protector of Indian Immigrants – a bureaucratic office constituted in 1874 upon the recommendation of the Coolie Commission. Many of the historical and legal questions raised here arise from the
1 This paper is part of a larger MA study entitled ‘Gender and the Legal Administration of Indians under Indenture in Colonial Natal, 1860-1907’. Unpublished Master’s Thesis: History, University of KwaZulu-Natal, 2005.
2 The contemporary legal meaning of personal law is ‘the system of law which applies to a person and his (sic) transactions determined by the law of his (sic) tribe, religious group, caste, or other personal factor, as distinct from the territorial law of the country to which he belongs, in which he finds himself, or in which the transaction takes place.’ See D.M Walker, Oxford Companion to Law. Oxford: Oxford University Press, 1980. Historically, however, the creation and definition of Personal Law was more complicated. Under the British administration of India (East India Company) and sovereignty (British Charter for India), the Westminster and Common Law models were introduced. However, the imported Rule of Law was rendered almost unworkable by the existence in India of a great diversity of customs, cultural traditions, regional legal systems, group identities and community memberships. Initially colonialists tended to ignore traditional cultural practices, ritual legalism, textual records of moral thinking (Arthashastras, Dharmashastras, Yanjavalkyasmriti, nibandhas, Manusmirti, and so on). By the late 1700s, the British administration would attempt to accommodate aspects of the personal - or an artificially separated private area of morality from the public civil and criminal codes - under the newly-evolved jurisdiction of Personal Law. See http://www.law.emory.edu/IFL/cases/India.htm for more on this.
3 The most notable recent addition being Goolam Vahed’s piece, ‘Muslim Marriages in South Africa: The Limitations and Legacy of the Indian Relief Act of 1914’, Journal of Natal and Zulu History, 21 (2003). The primary aim of my paper is to better understand the peculiarities of the administration of those Indians who arrived in Natal under contracts of indentured labour. Previous historical writing on this issue assumes a greater degree of continuity between the administration of indentured and passenger Indians in this Colony than I believe is actually the case. While this paper does not address the administration of passenger Indians in Natal, it does attempt to call attention to the manner in which early laws for all Indians in the Colony of Natal were made with special reference to the administrative circumstances of indentured Indians.
cases which came before this appointed government official. Central to the arguments I make is the fact that both administrative and domestic patriarchal control over women’s lives and movement was a crucial part of these legal struggles. It is evident also from these arguments that administrative decisions about the lives of Indians were aimed primarily at the areas which constituted the realm of personal law or the personal aspects of customary law – a putatively private area of morality that encompassed the personal and intimate lives of Indians – particularly the areas of marriage and divorce, and it was one in which women in particular were implicated.