by Jon Wilson
Until well into the twentieth century, law in imperial India retained the mark of it having been created by a conquering power: it was a system of rules imposed without consulting the people to which it applied. But the law also reflected the chaotic and limited capacity of British authority, always needing to involve Indian’s in practice. In order to work, imperial India’s legal system relied on the cooperation of a vast spectrum of Indian staff, from peons to puisne judges, who had their own ideas and their own ways of doing things. This involvement meant some, particularly middle-class Indians, thought the imperial legal system was a place where they could build their own spheres of authority and self-governing ways of life. The supposed neutrality of the law also gave Indians scope to criticize and challenge what they did not like about British power. But for Indian authority to grow within the structures of imperial law, a state whose basic purpose was to protect conquered power would need to be converted into a very different kind of regime, which ruled through dialogue with its subjects rather than domination. Unsurprisingly, efforts to limit the conquering command of the British caused those whose lives were bound up with the fact of European dominion in India considerable anxiety.
The final fate and consequences of Vasudev Balwant Phadke’s rebellion illustrates some of these tensions. For the upper-middle classes of the western Indian city of Pune, Phadke’s uprising demonstrated that Britain’s conquest of Indian could not be reversed. Even those who thought the use of force could be justified against the British ruled it out until mass support for an anti-British war was peacefully organized. Phadke’s fate proved that Indian violence would be outgunned by British imperial soldiers for the foreseeable future. Phadke’s example was celebrated in the pages of the Calcutta newspaper Ananda Bazar Patrika but the newspaper did not call on its readers to pick up arms. Closer to home it inspired the Pune-based radical Bal Gangadhar Tilak. Tilak thought the British would eventually need to be evicted from India through a violent struggle, but he was careful throughout his political career never to urge violence, only supporting measures which stayed within his interpretation of imperial legality. That, however, was not enough to prevent him from spending two periods in gaol.
For others, Phadke’s revolt confirmed that British power could not be relied on to create order, peace and prosperity in India. More conservative figures than Tilak thought the uprising proved that imperial institutions would only protect British power and could not be trusted to maintain the security of Indian property. Indians needed to take the law into their own hands in the wake of the Phadke revolt, the Pune Sarvajanik Sabha proposed that its members stand in for incompetent British authorities by acting as a volunteer police force. The revolt was, they said, merely the work of ‘a few misguided hare-brained spirits’, who had taken advantage of ‘the diseased state of the body politic’ to stir up ‘professional robbers’ and ‘dacoits’. It got out of hand because poverty lured thousands into crime and the British had not trusted India’s elites to defend order and authority. Of course, their proposal was rejected. Sir Richard Temple, Governor of Bombay, thought the Sabha was made up of members of India’s permanently ‘disaffected class’, who could not be trusted. But despite being suspected by the imperial authorities the Sabha enlisted a band of volunteers to hunt Phadke down and reassert order in the region. Phadke himself was detained by British soldiers, but members of the Sabha successfully acted to enforce law and order by discovering and arresting the perpetrators of the Pune fires which followed Phadke’s outbreak.8
Legislative reconstruction
The history of modern Indian law begins in the 1860s. Before the great struggle of 1857–8, imperial bureaucrats had talked about extending a coherent and systematic rule of law evenly across British Indian territories but did little to put this into practice. Thomas Macaulay’s Code of Criminal Law had not been enacted. Until the great rebellion, the uneven power of Britain’s empire was upheld by soldiers and armed tax collectors rather the East India Company’s network of judges and courts. Privately printed handbooks had given judges a guide for some kind of standards to apply in cases. Otherwise there were no codes, few regulations and precedent did not apply. Writing in 1862, the lawyer John Norton complained that judges had been left with nothing but their personal sense of justice with which to decide cases. A few officers anxiously ‘endeavoured, by private reading, to supply their unavoidable deficiencies’ but they never knew if their opinions about what was and was not law were correct. The less studious were left ‘to the devices of their own imagination’. Until 1857, law in India was noted for ‘its confusion [and] utter want of principle and unity’, as the English lawyer James FitzJames Stephen wrote.9
‘The effect of the Mutiny on the Statute-book was unmistakable’, Stephen suggested in his A History of the Criminal Law of England. It was ‘practically a principle of British government . . . that serious disaster in any department of public affairs should be followed by large legislative or administrative reconstruction’, his friend Sir Henry Sumner Maine wrote. It was Britain’s defeat by and then decisive victory against the brief attempt to revive the Mughal regime in 1857–8 which spurred the creation of a new legal system in India. The imposition of new law, like the spread of public works, was an extension of Britain’s reconquest of the Indian subcontinent.
India’s conquest by imperial law occurred most of all through the quick enactment of a succession of law codes. As successive law members of the Governor-General’s Council, Sir Henry Maine and Sir James FitzJames Stephen were the primary agents of this legislative refounding of empire. Born in 1822 and 1829 respectively, the two men became friends at Cambridge when Maine was appointed Professor of Civil Law at the age of twenty-five and Stephen was an undergraduate. They shared a liberal but authoritarian sensibility. They believed in the progress of society, in modern commerce and social mobility. But they thought progressive change relied on an elite with intellectual self-confidence, which had the ability and right to write laws to apply to millions of people in a society they knew nothing about. They argued, as one obituary of Stephen put it, ‘that discipline is absolutely necessary for mankind’; thus that ‘compulsion was . . . perhaps the most necessary ingredient, in the progress of human society’.
This attitude conformed to the spirit of conquering authority which followed the great insurrection throughout the British regime in India. Suspicious of democracy and hostile to unnecessary conversation with the subjects of government, Maine and Stephen were happy to impose laws founded on philosophical principles alien to Indian society where they could. But they also perceived the need to preserve Indian customs where change would be ‘unsafe’, as they put it. More so than earlier generations, Maine and Stephen thought law reflected the character of a civilization, and its imposition on another society was capable of diffusing ‘a new set of moral ideas’. Yet the security of Britain’s power in India always came before any project of moral reform.10
The legal revolution began when the Code of Civil Procedure finally eradicated the need for imperial lawyers to consult experts in Hindu and Muslim law in 1858, and a modified version of Macaulay’s Penal Code was introduced two years later. These texts placed the security and efficiency of the British regime before every other concern.
The Penal Code, still today the foundation of criminal law in South Asia, was designed to be carried ‘as easily as a pocket bible’, Stephen noted. Covering the entire criminal law in 511 short chapters, the whole text was shorter than the entry for murder in the most widely used English criminal law textbooks. The Code’s priority was the smooth and safe functioning of the imperial regime not the punishment of crimes against individuals. Ten sections dealt with ‘offences against the state’. Another nineteen covered actions contemptuous of public servants, proposing a series of draconian penalties for petty acts of insubordination. The refusal to answer an official ‘authorized to question’ was punishable by imprisonment for up to six months, for example. Crimes against objects e
ssential to imperial power, coins and stamps, for example, were punished severely. The Code gave functionaries of the state a status far greater than they possessed in the UK. ‘[T]he official body in India’, Stephen noted, ‘was charged with more important functions than the officials of any other country in the world except absolutist Russia.’ In contrast to the proliferation of strictures that projected the authority of government, the bodies of Indians were poorly protected. Only three sections dealt with murder, and four covered other forms of culpable homicide.11
In the decade after the Penal Code was passed, Henry Maine and James FitzJames Stephen added hundreds of new measures. Codes were passed covering almost every area of law, from contract to civil procedure, carriers to companies. The telegraph and the steamship allowed the rapid passage of drafts and minutes between Calcutta or Simla and London, letting India be viewed as a scene of English law-making as it had not been before. A few of these new laws introduced slightly modified versions of English statutes to India, the 1866 Indian Companies Act, for example. Many, though, relied on nothing more than the abstract reason of their authors. The codes were produced by a small group of men, ranged between London and India, who believed in their ability to make law for millions without consulting its subjects. Discussion in the legislative council was technical and perfunctory. The council was ‘emphatically a body which meant business’, and wasn’t willing to be delayed by listening to the voice of people, British or Indian, outside the official hierarchy. By the early 1870s, the only areas left untouched by codification were the Hindu and Muslim law dealing with inheritance and family matters, and the law of wrongful liability.12
If one dominant trend ran through this vast and disparate collection of new laws it was the expansion of the imperial state’s effort to monitor and regulate the small-scale transactions that sustained British power. The decades after 1858 saw a large increase in the scale of the government’s ambition to collect information, for example. Data about a few transactions, wills, a few forms of landed tenure, companies and stamped paper had been recorded before 1858. But from the 1860s, law after law was passed insisting the protagonists in an ever-increasing list of dealings travelled to government offices to transcribe their names and the basic details of particular transactions. To give a few examples: in 1860, an income tax was created for India, and a network of bureaucrats appointed to enforce it in the presidency towns. From 1862, a more rigorous effort was made to regulate the sale of stamped paper. In 1863 the personal details of every minor servant in government offices was registered. Two years later, an India-wide infrastructure was inaugurated for registering property transactions, creating new registry offices in every district town. In the same year, an Act was introduced for regulating joint stock companies, and the limited liability corporation was created in India for the first time. The 1860s saw the birth of India’s registration state, obsessed with transcribing information about hundreds of transactions in large ledger books. Unlike today though, the late nineteenth-century regime was more interested in recording the fate of things than people. It was only after the registration of property and corporations began that the state started to take an interest in the births and deaths of human beings, first in Calcutta in 1866, in Madras in 1867, and Bombay in 1872. Registration still was not compulsory throughout India until well into the 1880s.13
To an extent imperial legislation mirrored the process of legal change in Britain. There, too, the government’s power expanded through the creation of new forms of regulation and the construction of new registry offices. But there were important differences. In Britain, regulation was about defining people’s rights over events which everyone knew about, but where legal obligations seemed unclear. The registration of births and deaths was driven by uncertainty about the inheritance of land. Companies were registered to determine clearly who was liable in cases of bankruptcy. State regulation grew as a way of classifying people’s rights and liabilities in a society where transactions were public, but where new forms of business meant legal responsibility was not precisely defined.14
In India, the avalanche of new regulation was shaped by the fact that lawmakers did not know what was going on in the society they governed. Registration was about bringing invisible activities into view for the first time. Unlike the British Parliament, imperial bureaucrats were not making laws to govern activities they were involved in themselves. The transcription of information about contracts and land deals, stamped paper and new companies was an effort to understand a society otherwise considered inscrutable. Instead of defining rights over transactions in public view, the power of the state was used to make public what was otherwise unknown.
This effort to make Indian life visible to the imperial state brought with it new and intensive forms of surveillance. Groups of people seen as posing a danger to British power were marked out and required to inform the state about themselves in special ways. The prostitutes who worked near army bases were forced to register with the government: venereal disease was a major threat to the fighting capacity of the army, with 18 per cent of British soldiers admitted to hospital with the condition in Madras in the 1870s, 45 per cent in some other garrisons. Tribes considered to contain criminal elements, as well as bands of eunuchs, were compelled to give detailed information about themselves. Communities with a reputation for killing female children at birth were targeted with special population counts before the decennial census of Indians began in 1871.15
In each case, the imperial regime’s effort to count and to list, to write yet more information down on the ruled lines of official ledgers, was a sign of its inability to otherwise know anything about the people it ruled. The government did not think it could trust local informants. The knowledge of its district officers was insufficient. The transcription of key facts and figures at a single moment was rarely an effective way to contain intelligent, mobile people; at best it offered a snapshot of a rapidly changing society. But it allowed the government to believe it could do something to assuage its fears about not knowing what was happening.
The classic case of using these impersonal techniques to rule an otherwise ungovernable people was the use of the fingerprint, pioneered in British India. Indians had long used hand marks as signatures. It was William Herschel, an English magistrate in Bengal, who first employed prints as unique identifiers, using them to monitor the compliance of public works contractors. In 1858, when the man who supplied the raw materials to metal a road in the district gave a handprint in lieu of a signature, Herschel noticed the distinctive swirls on his fingerprints. Taking a print of these seemed a useful way of tracking otherwise anonymous, untraceable contractors who might make off with advance payment before finishing their work.
Over the next twenty-five years, Herschel was stationed in a succession of troubled districts. In Arrah, at the far western end of the province of Bihar, he said ‘the mutiny still left work to do’; at Nadia in northern Bengal ‘[t]hings were so bad that the administration of Civil Justice had unusual difficulty in preserving its dignity.’ Herschel thought fingerprinting was the only way to keep track of a mobile and violent population in these fractious places. Through the 1870s, a flood of new documents arriving in British-ruled districts needed individuals’ identities to be verified and Herschel made sure every one of them was certified with fingerprints.
Only in the late 1890s did fingerprinting move from being a tool of bureaucratic regulation to a technique for crime-solving; there, too, its use was based on British ideas about the unknowable nature of India’s population. The first person to be convicted with fingerprint evidence was a cook accused of killing a tea planter in Bengal in 1902, but he was only prosecuted for theft because the judge was not willing to hang a man on fingerprint evidence alone. The first execution for murder based on such evidence occurred, again in India, four years later.16
Fingerprinting provided a rare moment of real connection between the physical reality of Indian life and the British administration
of imperial India. Most of the time, the British effort to collect information used new kinds of abstract and anonymous techniques which created an artificial world, distant from the real processes that drove social and commercial life. Concerned primarily to make visible activities which seemed invisible to the imperial regime, in fact official categories created a world of shadow institutions and paper structures, whose real existence was very different from the forms conjured up in official documentation. Hundreds of joint stock corporations were created, for example, which seemed to be a public shell for corruption and fraud. The Indian Companies Act allowed the proliferation of speculative British-run ventures in Bombay and Calcutta which attracted the capital of trading groups such as Banias and Marwaris and then collapsed, their founders absconding with the cash. Bombay’s registrar of companies complained that 62 out of the 172 companies created after the passing of the Act had not informed the government of the address from which they traded in their first year of operation; seventy-two had not submitted their accounts. The British justified their rule by claiming to have introduced certain laws to a land of anarchy, but in practice imperial law offered an uncertain foundation for the sustenance of a viable and stable form of economic activity.17
The massive expansion of legislation in the two decades which followed the Indian rebellion asserted the power of the imperial regime, and defined Indian society as one in which the state could interfere. But it also posed questions about the limits of British power. The law relied on Indian staff. The growth of the imperial regime’s system of paperwork needed tens of thousands of assistant magistrates and record-keepers, police officers and peons. The gigantic scale of this Indian organization overseen by a tiny number of Europeans raised in British minds the possibility of non-compliance, of orders not being followed properly, of things being done in ways which did nothing for British power. It also posed questions about whether it was accountable to the people who administered it and whom it was supposed to serve.
