Le droit coutumier du Punjab britannique 1849-1947 : des aspects et des enjeux d'un droit colonial.

On March 29, 1849, Punjab was annexed by the British East India Company (the B.E.I.C.). Thus, the region of the five rivers (“punj” meaning five and “ab” meaning water in Persian) became one of the last great conquests of colonial power. It remained under British domination until 1947, the year of the independence of India and Pakistan. This territorial conquest took place in a context where British imperialism was beginning to assert itself within the Indian subcontinent – as well as in the rest of the world. Indeed, when it first established itself in India in the 17th century, the B.E.I.C. was only one trading company among other European companies, wishing to benefit from commercial monopolies. Two centuries later, in the 19th century, the B.E.I.C. became a real political, military, and judicial power. Its nationalization in 1858 and its replacement by the reign of the British Crown can only be interpreted as the continuity of this process of institutional politicization. When they settled in Punjab, the Governor General of India Dalhousie and the first administrators of the Punjab pondered about the law to be applied to private situations and to private disputes. Until then, the officers of the B.E.I.C. had leaned towards the local religious traditions, Hindu, and Muslim, to identify the applicable law. But for some years already, such a method had suffered from criticism because it was seen by some administrators as distorting local customs and by others as giving a non-deserved place to a certain religious elite, which was not representative of the Indian population. Aware of this, the administrators of British Punjab then imagined looking for the origin of private law not in religious traditions but in tribal and village customs. But while these same administrators were determined to protect the Punjabi population, according to a well-established rhetoric, from the procedural technicalities of a law that applied elsewhere in British India, the region couldn’t stay immune to the process of institutionalization of law: hierarchical jurisdictions were put in place, civil procedure became applicable to all-India, universities offering law studies were being established and barristers and vakils were being trained in London inns. In addition of this came the methods of compiling customs, which rested on a form of collaboration with the chiefs of local tribes, but which could not be done without selecting such customs. These are all modalities that allowed the transition from customs to customary law – which was also theorized in the light of legal theories developing in India, Europe, and the United States: that of the village community and that of the agnatic succession. The legalization of customs is also accompanied by a crystallization of certain identities and social inequalities: tribal identity, thus, received recognition on the legal level and women, besides, were structurally excluded from succession to ancestral property. Moreover, when socio-religious reform movements and ethnic nationalisms asserted themselves, in the second half of the 19th century, the legitimacy of a law that was not based on religious identities was called into question. Based on that, in this research, I intend to develop the following points: firstly, I studied the historical and theoretical controversies being at the origin of the customary law of colonial Punjab; secondly, I tried to demonstrate the process of transition from customs to customary law through the methods of compilations and the establishment of courts in Punjab; and thirdly, I attempted to highlight the various political and social issues related to customary law in British Punjab, concerning religious/tribal identities one the one hand and women's rights on the other.

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