Pride of place to the legacy of British imperialism in India is often given to the Empire giving India its penal code, drafted by Macaulay with the avowed purpose of ‘legislating for a conquered race, to whom the blessings of our constitution cannot as yet be safely extended’. Macaulay sat for three years behind high walls, completely disconnected from the people he was ostensibly working for, and created a code of criminal law that was ‘a body of jurisprudence written for everyone and no one, which had no relationship to previous Indian laws or any other form of government at all’. Even the British were uncertain about his effort, and Macaulay’s penal code sat un-enacted for twenty-four years after he finished it in 1837. Finally enacted in 1861, it is still largely in force in India today, in all its Victorian glory. In addition, the British introduced their ideas of trial by jury, freedom of expression and due process of law. These are incontestable legal values, except in their actual manner of working, for in its application during the colonial era, the rule of law was not exactly impartial.
Justice, in British India, was far from blind: it was highly attentive to the skin colour of the defendant. Crimes committed by whites against Indians attracted minimal punishment; an Englishmen who shot dead his Indian servant got six months’ jail time and a modest fine (then about 100 rupees), while an Indian convicted of attempted rape against an Englishwoman was sentenced to twenty years rigorous imprisonment. Only a handful of Englishman were convicted of murder in India in the first 150 years of British rule. The death of an Indian at British hands was always an accident, and that of a Briton because of an Indian’s actions always a capital crime. Indian judges also suffered racial discrimination, as we have seen with the case of Justice Syed Mahmud. When Lord Ripon—the only humane, non-racist viceroy sent to India in the nineteenth century—attempted to allow Indian judges to try British defendants and to play a stronger role in municipal matters (through the ‘Ilbert Bill’), the backlash was severe. His aides protested that it would hardly ‘subvert the British Empire to allow the Bengali Baboo to discuss his own schools and drains’, but neither courts nor municipalities were acceptable terrain for Indian participation as far as the British were concerned. Ripon was boycotted by British expatriates and the racist outcry resulted in the collapse of the Ilbert Bill and Ripon’s premature removal from office.
A certain type of case popped up frequently in the British colonial courts. Many Indians suffered from enlarged spleens as a result of malaria (or other diseases); when a British master kicked a native servant in the stomach—a not uncommon form of conduct in those days—the Indian’s enlarged spleen would rupture, causing his death. The jurisprudential question was: did the fatal kick amount to murder or criminal misconduct? When Robert Augustus Fuller fatally assaulted his servant in these circumstances in 1875—Fuller claimed he struck him on the face, but three witnesses testified that he had kicked him in the stomach—he was found guilty only of ‘voluntarily causing hurt’, and was sentenced to fifteen days’ imprisonment or a fine of thirty rupees to be paid to the widow. (According to the coroner, the servant’s spleen was so enlarged that even ‘moderate’ violence would have ruptured it.)
‘In the middle of the hot night,’ wrote Captain Stanley de Vere Julius in his 1903 Notes on Striking Natives, ‘the fan stops, and a man in the barrack-room, roused to desperation by heat and sleeplessness, rushes forth, careless of the consequences, and kicks the fan-puller in the wrong spot, his spleen. Do you blame him? Yes and No. It depends partly on whether he stopped to put his boots on.’ Punch wrote an entire ode to ‘The Stout British Boot’ as the favoured instrument of keeping the natives in order. It ended: ‘Let us sing, let us shout for the leather-shod foot,/ And inscribe on our Banners, “The Stout British Boot”.’
The disinclination of British judges in India to find any Englishman guilty of murdering any Indian was curiously mirrored in a recorded decline in murder charges in Victorian London. Martin Wiener proposed an ‘export’ model: the murder rate had dropped in Britain, he suggested, because ‘the most aggressive citizens were busily wreaking havoc overseas’. It helped, of course, that fatal kicking in London was handled as ‘wilful murder,’ whereas in India it would only be charged as ‘causing hurt’ or ‘committing a rash and negligent act’—provided the victim was an Indian.
There was, it is true, a threat of terrorism from Indian nationalists in the early years of the twentieth century that may have influenced judges in deciding cases of white violence against natives. But most of the Indian deaths at European hands involved servants or other menials rather than swadeshi bomb-throwers, and their cases were unrelated to political terrorism. Still, circumstances could always be stretched to extenuate the murderous conduct of an Englishman. When an Indian boy was shot dead by Lieutenants Thompson and Neave in Bangalore and Indian villagers forcibly confiscated Neave’s gun, it was two of the villagers who were sentenced to six months’ imprisonment for the crime of misappropriating the white man’s weapon, whereas the murderers went unpunished. Indeed the case was filed as an incident of ‘Natives Against Europeans’.
Sentences handed down by British judges were never equal for Indians and Europeans: in Calcutta, it was estimated that Indian prisoners’ sentences exceeded those for Europeans by a factor of ten for the same crimes. Indian defendants were more than twice as likely as European ones to face murder or attempted murder charges for violent crimes. Statistically, European assaults on Indians were far more frequent than those by Indians on Europeans, yet almost all of the latter were charged as murder whereas most European misdeeds were deemed to be either accidental or in self-defence, and were in any case downgraded from murder to assault. In one case in which a British judge found evidence that a crime was ‘clearly’ murder, the British killer was found insane and hence not responsible for his actions.
Not all the British were equally comfortable with this form of justice. In 1902, when three troopers of the 9th Lancers beat to death an Indian man in Sialkot for refusing to bring them a woman for the night, regimental authorities made no effort to investigate and they tried to get away by painting the victim as a drunkard. But the incident outraged a sizeable number of Britons living in India. Even the viceroy, Lord Curzon, who was no lover of Indians, was horrified enough to declare: ‘I will not be a party to any scandalous hushings up of bad cases of which there is too much in this country, or to the theory that a white man may kick or batter a black man to death with impunity because he is only a d[amne]d nigger.’ Curzon could not increase the punishment, but he had the entire British regiment involved transferred to Aden. Still, he was forced to watch stonily at a parade in Delhi a few weeks later, as the English sections of the crowd cheered the same regiment wildly as it marched past. If Curzon, of all people, was moved to make a statement sympathetic to Indians, one can imagine the scale of the problem.
One scholar, Jordanna Bailkin, points out that there were a few (though very few) exceptions to this norm of race-conscious justice. In three rare cases, Britons were executed for killing Indians: John Rudd in Bengal (1861), four sailors named Wilson, Apostle, Nicholas, and Peters in Bombay (1867), and George Nairns in Bengal (1880). But in two hundred years of British rule, and thousands of cases in which Indians died at the hands of their colonial masters, these three cases were the only exceptions. Generally speaking, British civilian judges and up-country magistrates were reluctant to punish Europeans, whereas military courts and urban High Courts were willing to impose relatively more serious punishments for attacks on Indians. In the view of an ICS officer, who served thirty years in the late nineteenth century, ‘there is a great and dangerous gap between the people and the Courts, and there is no way of bridging it.’
The moderate nationalist Prabhat magazine, in its issue of December 1925, writing after the exoneration and acquittal of an Englishman for kicking an Indian to death, lamented:
The answer to why Indians are dissatisfied with the [sic] British rule is to b
e found in such incidents. Such painful disregard of Indian life cannot but produce a deep impression upon the heart of every Indian, and no wonder that, despite Mahatma Gandhi’s insistent advice regarding non-violence, revolutionary conspiracies are heard of in the misguided India. So long as this relation exists between the boot and the spleen, India will be the most untouchable and degraded country in the world.
The imperial system of law was created by a foreign race and imposed upon a conquered people who had never been consulted in its creation. It was, pure and simple, an instrument of colonial control. As Henry Nevinson also pointed out, the rule of law, such as it was, functioned in a system in which Indians were ‘compelled to live permanently under a system of official surveillance which reads their private letters, detains their telegrams, and hires men to watch their actions’.
This, then, was the rule of law the British taught us. We have much to unlearn.
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There were other problems. The colonial ‘rule of law’ generally worked in favour of white settlers, elites and men. Racial discrimination was legal: as we have seen, in addition to private clubs that were open only to whites, many British hotels and other establishments sported signs saying ‘Indians and dogs not allowed’. (It was the experience of being expelled from one of them, Watson’s Hotel in Bombay, that led Jamsetji Tata to build one of the world’s finest and most opulent hotels of its time, the Taj Mahal, which was open to Indians.)
Women were treated with Victorian paternalism and not a little misogyny. Institutionally, for instance, women on the Malabar coast who benefited from matrilineal law and enjoyed vast property and social rights, not to speak of bodily autonomy, were pushed to accept patriarchal shackles as the ‘correct’ and ‘moral’ way of living and subject themselves to husbands and sons, physically, socially, and economically. (Southern Indian women, whose breasts were traditionally uncovered, found themselves obliged to undergo the indignity of conforming to Victorian standards of morality; soon the right to cover one’s breasts became a marker of upper-caste respectability and efforts were made to deny this privilege to lower-caste women, leading to such missionary-inspired colonial curiosities as the Breast Cloth Agitation from 1813 to 1859 in Travancore and the Madras Presidency.) India’s rape law, enshrined in the colonial-era Indian Penal Code, placed the burden of the victim to establish her ‘good character’ and prove that a rape had occurred, which left her open to discredit by opposing counsel. Many rapes were never reported as a result of the humiliation to which this system subjected the victims.
Since the rule of law was intended to perpetuate the British hold over India, it was designed as an instrument of imperial rule. Political dissidence was legally repressed through various acts. The penal code contained forty-nine articles on crimes relating to dissent against the state (and only eleven on crimes involving death).
The racism of the colonial state was also reflected in its penal code. The Criminal Tribes Legislation, 1911, gave authority to the British to restrict movement, search and even detain people from specific groups, because their members were deemed to be chronically engaging in ‘criminal’ activity. This was bad sociology and worse law, but it stayed on the books till after Independence. Worse, its effects were inhumane. The scholar Sanjay Nigam’s work has shown how the British invention of the notion of ‘criminal tribes’, and their passing legislation to confirm this categorization, led to the collection of intrusive records of personal details, restrictions on the movement of members of these tribes, forcible relocation of people belonging to ‘criminal tribes’ to rural settlements or reformatory camps, and the deliberate separation of children from their parents.
Of course, the court system, the penal code, the respect for jurisprudence and the value system of justice—even if they were not applied fairly to Indians in the colonial era—are all worthy legacies, and Indians are glad to have them. But in the process Britain has saddled us with an adversarial legal system, excessively bogged down in procedural formalities, which is far removed from India’s traditional systems of justice. There is no doubt that traditional systems like the khap panchayats (caste or village councils) of the north had severe limitations of their own and were often used to uphold an iniquitous social order, but as Rwanda has shown with its gacaca courts, traditional systems can be adapted to meet modern norms of justice without the excessive procedural delays, formalism and expense of the Western system. The colonial legacy has meant a system of interminable trials and long-pending cases, leaving India with an unenviable world record for judicial backlog that exceeds by far every other country in the world. (There are still cases pending, in some of India’s lower courts, which were filed in the days of the British Raj.)
Non-Interference or Manipulation?
Part of the argument for the benevolence of British colonialism is that the British were, beyond a point, largely non-intrusive rulers with no desire to interfere in the local affairs of the Indian population, who believed that India’s traditions and customs, ‘however “abhorrent” and “primitive” they might be’, must be respected. As the Queen’s Proclamation of 1858 plainly put it:
We declare it Our royal will and pleasure that…none be molested or disquieted, by reason of their religious faith or observances, but that all shall alike enjoy the equal and impartial protection of the law; and We do strictly charge and enjoin all those who may be in authority under Us that they abstain from all interference with the religious belief or worship of any of Our subjects on pain of Our highest displeasure.
Since the British were not motivated by either the crusading Christianity of the Spanish or the cultural zeal of the French, but merely by pecuniary greed, they were not unduly anxious to transform Indian society or shape it in their image. It is true enough that British racism was accentuated by convictions of Christian superiority: as William Wilberforce, Britain’s most famous evangelical Christian, put it: ‘Our religion is sublime, pure, and beneficent. Theirs is mean, licentious, and cruel.’
For many Britons, imperialism was principally justified as a moral crusade to liberate Indians from ‘ignorance, idolatry and vice’. But they were curiously reluctant to act on it. Whereas the Portuguese rapidly Christianized Goa, for instance, the British did not import their first Bishop till 1813. ‘The first, and often the only, purpose of British power in India,’ writes Jon Wilson, ‘was to defend the fact of Britain’s presence on Indian ground.’ For most of the imperialists, India was a career, not a crusade. Changing India was not the object; making money out of India was. As Angus Maddison observes, ‘there were no major changes in village society, in the caste system, the position of untouchables, the joint family system, or in production techniques in agriculture’. He was not entirely right: in fact, as we shall see, the caste system became more rigid under the British than it had been in precolonial India.Yet the British also claim credit for ending the barbarous practices of sati (or suttee, the self-immolation of widows on their husbands’ funeral pyres, made even more grotesque by the fact that many of the victims were young girls married off to much older men) and thuggee (ritual robbery and murder carried out in the name of Goddess Kali by a bunch of criminals who gave the English language their collective epithet, the Thugs). The fact is that the British interfered with social customs only when it suited them to do so. The gap between liberal principles of universalism and the actual colonial practice of justice and governance was vast. I address some of the more misguided claims of British social reforms later in the book; what I would like to say here is that the British would interfere with local practices when they were minded to, and desist otherwise, claiming great virtue in either course of conduct.
In the process, while codifying the legal system and instituting an Indian Penal Code, the British have saddled India with colonial-era prejudices which they have long abandoned at home but which remain entrenched in India, causing untold misery to millions. A number of raging controversies in
India in 2016, though seemingly unrelated, have brought into sharp focus the one element they have in common—they all relate to criminal offences codified in colonial-era British legislation that India has proved unable or unwilling to outgrow.
Among other things (and these are just a few examples), the Indian Penal Code, drafted by British imperial rulers in the mid-nineteenth century, criminalizes homosexuality under Section 377; creates a crime of ‘sedition’ under which students shouting slogans have been arrested; and applies a double standard to the commission of adultery.
The draconian concept of ‘sedition’ was enacted as an offence in 1870 to suppress any criticism of British policies. Under Section 124A of the Indian Penal Code, any person who uses ‘words, signs or visible representation to excite disaffection against the Government’ can be charged with sedition and potentially sentenced to life. This was explicitly justified by its proponents at the time on the grounds of restricting free speech in a subject state: one Briton spoke candidly in 1870 of needing a law to curb ‘seditious offences not involving an absolute breach of the peace’. In other words, no free speech for Indians.
Inglorious Empire Page 14
