by Miles Taylor
Subjects
Equality before the law was the great promise of the queen’s proclamation of 1858. As we have seen in the previous chapter, Queen Victoria’s personal insistence that Indians be treated on an equal footing to all her other subjects was actually watered down in the text of the proclamation. Instead of ‘equality’, it was stated that the queen was bound to do her duty to Indians in the same way as she was obliged to all her other subjects. In principle, the new Government of India accepted this definition of a common imperial subjectivity. Within weeks of the proclamation, Canning confirmed that, as far as the amnesty clause was concerned, no distinction was to be made between Europeans and Indians, when cases of clemency for murderous acts during the rebellion were judged. ‘To give a more restricted sense to the term’ – that is, to limit the amnesty to Europeans – ‘would be to make the spirit of the proclamation more exclusive, and to exhibit the Crown as less considerate of the lives of Indian subjects than the literal and legal meaning of the words used’.15 However, this noble sentiment was quickly spirited away in the legal reforms that took place in India in the early 1860s, as well as in some of the key decisions of the courts.
Three major pieces of legislation defined the new liberal India: the Code of Civil Procedure (1859), the Penal Code (1860) and the Code of Criminal Procedure (1861). Although already on the statute book when they arrived, these laws were shaped by Henry Maine and James Fitzjames Stephen, the first two legal members of the Viceroy’s Council. Both men came to India wearing their liberalism on their sleeves, untainted by the world-weariness so endemic to Indian administration.16 As it turned out, their advanced views did not survive the long journey east. The rebellion of 1857–8 had altered many men’s minds, the Indian legal fraternity more so than most, and a hardening of attitudes was apparent immediately.17 Immunity from prosecution for Europeans in the district courts was effectively upheld by the new Code, and by the Indian High Courts Act of 1861. There would be no return to the ‘Black Acts’ of the 1830s, whereby native judges had been allowed jurisdiction over all cases, irrespective of race. In the new legislation, only a Justice of the Peace (JP), and not an ordinary magistrate, could refer accused Europeans to the higher courts, and JPs tended to be white men. This flew in the face of the queen’s proclamation, or so it seemed to the British Indian Association, the mouthpiece of Bengali landowners, which protested to Canning, reminding him of the ‘spirit’ of the queen’s words.18 In theory, anyone who had risen through the Indian Civil Service could be a JP. In 1872 Stephen closed that particular loophole, amending the Criminal Procedure Act so that only JPs who were British subjects could judge in such cases. For the purposes of the Act, ‘British subjects’ meant those who were ‘born, naturalised or domiciled’ in any of Britain’s European, American, Australasian or African possessions, but not in India. A Maltese merchant, or a khoikhoi tribesman from southern Africa, or a New South Wales sheep farmer could be a JP in India, but not an Indian. The queen’s proclamation proved of little use in this regard. As Henry Maine advised in January 1866, the term ‘subject’ in all statutes relating to India ‘expressly contrasted’ the British subject and the native Indians.19
There was no such ambiguity about the status of the queen’s proclamation when it came to matters penal, however. Loyalty to the Crown was written directly into India’s new Penal Code, in operation from 1862. Originally drafted by Thomas Babington Macaulay and others back in the 1830s, the Penal Code was finally published in 1860. On the face of it, as with other aspects of the law, the new version of the Penal Code was simply an update registering the new nomenclature of the Crown instead of the Company.20 However, a new section was inserted in the chapter of the Code covering offences against the state. Here it was proposed that the full weight of the English law of treason be applied to India. Canning and his Council extended to India the British statute, introduced at the height of the last Chartist risings in 1848, which made collecting arms to levy war against the queen an offence punishable by transportation. In India the law would be stretched further to include the government alongside the queen.21 The Code cited the proclamation as defining the relationship of ‘allegiance’ between the queen and her subjects. In return for her protection, her subjects should give a ‘true and faithful obedience’. If they did not, if they chose to ‘wage war against the Queen’, and, by extension, the Government of India, then they would be prosecuted.22 In later versions of the Penal Code, the reference to the 1858 proclamation was dropped, but the sections relating to the penalties for ‘waging war’ against the queen remained, and in 1870 a new crime of conspiracy to overthrow the queen was added.23 Between 1858 and 1901, four men were tried for ‘waging war against the Queen’, that is attempting to overthrow the Government of India. They were Vasude Balwant Phadke in Poona in 1879; Shivaji IV, the Maharaja of Kolhapur, in 1881; the King of Ava in Burma in 1886; and the Senapati of Manipur in 1891. The law actually proved blunt and ineffective. Only in Phadke’s case was there an implicit reference to the queen’s rule, insofar as he was reported to desire a republic, and he was duly tried, convicted and transported, dying in captivity in Aden in 1883.24 Only in Manipur was there a successful capital conviction, as we shall see in a later chapter. Nonetheless, the insertion of treason into the new Indian Penal Code showed the determination of the Government of India to wield the might of the monarch when crime against the state reared its head. Strikingly, it was the only mention of the proclamation in any of the new legal codification for India introduced after 1858. Not so much Victoria Beatrix as Victoria the Punitive.
Any Magna Carta worth its name would surely respect the principle of habeas corpus, or no detention without trial, a fundamental right of the English since their own Magna Carta in 1215. Yet, when tested, that extension of liberty to India also proved elusive. In 1870, two Bengali Muslims – Amir Khan and Hashmadad Khan – were arrested on suspicion of belonging to the jihadist wing of the Wahabi sect.25 They were imprisoned and, when no date was set for their trial or even arraignment, an appeal was made to the Calcutta High Court. It was by no means straightforward. Under Company rule habeas corpus had been routinely set on one side. So the barrister who brought the appeal, Thomas Chisholm Anstey, threw in the queen’s proclamation and its guarantee of equality, to help his plea. All fell flat. Not only did the court reiterate that habeas corpus did not apply in the mofussil (that is, outside Calcutta, where the Khans had been arrested), but in any event the viceroy had the right to take suspects into custody without trial.26 The case caused controversy, as Indian Muslims were accused of not recognising English law, as Wahabis believed India lay within the domain of Islam. That put the matter back to front. For it was actually English law – in this case habeas corpus – that refused to recognise Indians. This 1870 ruling was occasionally tested but never overturned, and habeas corpus remained precarious in India thereafter. Once more, the queen’s proclamation seemed undone by the work of British officialdom.
The fiction of the queen as the fount of justice for India was perpetuated insofar as she was the court of final appeal in both civil and criminal cases. In civil matters, the Judicial Committee of the Privy Council in London had since 1833 embodied the sovereign’s role as supreme arbiter, albeit without requiring her physical attendance at its hearings. Appeals for redress from both Europeans and Indians in India took up an increasing amount of Privy Council time during Victoria’s reign. Before 1858 there was an annual average of seven appeals from India. From the 1860s, the rate climbed exponentially. By the early 1870s some two-thirds of appeals to the Privy Council in civil matters were of Indian origin.27 Not that taking a case from India to London was straightforward. There was the cost of arranging transcripts and organising witness depositions. In 1863 further hurdles were erected. Only appeals involving disputes over 10,000 rupees were permitted, and financial securities had to be provided upfront in the event of all the costs being awarded against the appellant. Still the tide was not stemmed, despite t
wo successive legal members of the Viceroy’s Executive Council – Stephen and Arthur Hobhouse – arguing in 1872 that final appeals should rest with the Indian higher courts. Then, in 1874, another condition was added: the appeal must also involve a ‘substantial question’ of law.28 The number of cases levelled off in the 1880s, but India kept the Privy Council busy well into the twentieth century, and so kept alive the queen’s reputation as judge in the last resort, ‘a star chamber’ whose proceedings were transparent and trusted compared to the viceregal machinery in India.29 Not so in criminal cases. Although the queen also retained the prerogative of appeal for these, by 1876 it was noted that this was exercised very rarely. Similarly the governor-general and then the viceroy acted as gatekeeper in matters of pardon and commutation. After 1858, there was no change to the 1855 enactment that commutation of sentences such as death and transportation remained the final decision of the governor-general, although the royal prerogative to pardon was retained. As late as 1890 this ruling still presented some confusion, the practical solution being that the hangman’s noose usually intervened before any appeal for royal clemency could reach London.30
So, as quickly as new legal channels between the queen and her subjects appeared to open in 1858, judicial reform and practical administration in the years that followed sealed them shut, or at best put in place powerful disincentives. Maine and Stephen had embedded racial difference in the law. They left behind them a legal code that bore little relation to the paternal rhetoric of the queen’s proclamation of 1858. The imperial jurisdiction of the Privy Council over civil matters aside, most legal routes to the Crown proved dead ends. In 1882, in the case of Empress v. Tegha Singh, the Calcutta High Court even went so far as to rule that the acts of the Indian legislature took precedence over the queen’s proclamation.31 Effectively, the queen’s words had no binding legal status. And, by the mid-1870s, the principle that the local courts and the supreme court of India (that is, the Viceroy in Council) had the final say on whether anything should be appealed to London was well established. But it was not well known. The spirit of the proclamation lived on. In 1872, in an unusual breach of convention, twenty-two memorials addressed to the queen slipped through the net at Bombay and made it all the way to Buckingham Palace, where they were diverted and returned to India by Colonel Thomas Biddulph, the watchful keeper of the Privy Purse.32 Written in Marathi and Persian as well as in English, they were the stuff of the lower courts of the Bombay presidency – mostly inheritance and property disputes – hardly fit business for a queen, however encompassing her rule was supposed to be. But they point to an abiding belief after 1858 amongst Indian litigants in the remote justice offered by the Crown, no matter how much the Government of India confuscated the procedures, nor how extensively men like Henry Maine attempted to modernise Indian law.
Servants
In 1858 Queen Victoria took over formal control of thousands of civil servants and soldiers from the East India Company. The switch of employer – from Company to Crown – came a long way down the list of clauses within the Government of India Act. In fact, the alteration was almost forgotten until a hastily drawn-up supplement was bolted on to the proclamation of 1 November 1858. New legislation was required to transfer the Company army into the regular Queen’s army, and that only came two years later. The Indian Civil Service (ICS), by contrast, had already been reformed in 1853. Indeed, India was the guinea pig for the new principle of competitive entry to administrative positions, gradually applied in Britain following the Northcote–Trevelyan report of 1854. Yet both for the army and for the civil service, the transfer of power in India had more immediate and direct effect than many of the other changes made in 1858, and not all of it met with approval. Designed to quell and control the mutinous Indian rebels of 1857, the new terms of service for soldiers and civilians as employees of the Crown in turn provoked backlash amongst Company hands in India.
A new broom had swept through the Indian Civil Service following the renewal of the Company’s charter in 1853. A new competitive exam was introduced.33 Anxious that they would miss out on promotion and pensions, and wary of ‘competition wallahs’ overtaking worthy plodders, existing Company servants protested against the new system, demanding compensation.34 But the new service, formalised by the Indian Civil Service Act of 1861, quickly established itself. There were now calls to make the Indian Civil Service explicitly a royal cadre, with its own uniform, and a new Royal India College to be specially created in either Oxford or Cambridge for the preparation of candidates for the examinations.35 No pressure came from the Palace to follow this through. Queen Victoria remained ambivalent about the Indian Civil Service. As late as 1890 she lamented the inferior quality of its recruits, regretting that ‘gentlemen’ no longer entered the administration, implying that she preferred patronage to merit.36
In India there was no such hesitation about the benefits of the new Indian Civil Service. The promise to throw open administrative positions to qualified Indians, already made in the 1833 East India Company Charter, and now amplified in the queen’s proclamation, became a beacon of hope to the educated elite of India. It was a chance to assert loyalty, an incentive for public service, and a means of influencing the colonial power. But there were stumbling blocks. Entry examinations had to be taken in England. Hindus broke caste if they travelled overseas. Not surprisingly, Indian admission to its own civil service remained limited. By 1878 there had only been ten successful Indian candidates; by 1884 there was only one more. Through the years Indian candidates had presented themselves, for example eight in 1867 and seven in 1872, but were rarely successful. Demands for equal treatment in the ICS came from both Britain and India with increasing regularity from the late 1860s. In Bombay, led by a Parsi merchant, Dadabhai Naoroji, the local branch of the East India Association took up ICS reform. In 1868 Naoroji and the Bombay Association submitted a petition to Stafford Northcote, the secretary of state for India. Henry Fawcett, the radical MP for Brighton, took up the Bombay petition, debuting in his role as unofficial ‘member of Parliament for India’. Fawcett referred to the queen’s proclamation of 1858, explaining to the House of Commons that Indians believed it to be ‘the charter of their liberties’, and hence the basis for demanding easier access to the ICS. Fawcett supported the plan for ICS examinations to be held simultaneously in Bombay, Calcutta and Madras. Fawcett’s intervention went nowhere. Changes to the system of ICS entry were made slowly, but hardly in the spirit of the queen’s proclamation. An Indian statute of 1870 allowed the various branches of the Government of India to nominate Indians to join the minor branches of the ICS. In 1878, Lord Lytton as viceroy proposed that a section of this ‘statutory’ service, based on the hybrid maxim of ‘selection by merit’, should be closed and reserved for Indian appointments made this way without examination. Critics called it ‘the re-establishment of jobbery’. The new system added forty-eight new Indian civil servants by 1886, hardly boosting the meagre proportion of native civil servants (5½ per cent of 950 officials overall).37 Thirty years after the proclamation, the ICS had indeed been transformed, but not quite as planned. By design, Indians were being kept in their place in the ICS.
For Indian nationalists of Naoroji’s era, and indeed for the generation that followed, the sclerotic pace at which the ICS was opened up proved the largest breach of faith in the principle of equality affirmed in the queen’s proclamation of 1858. Naoroji aired his disappointment – in his speeches to the first few meetings of the Indian National Congress (est. 1885) and once he was an MP in the British Parliament (1892–5). In 1893 he denounced the ‘Anglo-Indian system’ for using ‘every subterfuge’ to defeat the spirit of the ‘proclamations of the Sovereign’, comparing the British in India unfavourably with their Mughal predecessors, who had populated their administrations with the very same Indians that they had vanquished.38 Native admission to the ICS was seen as an instant panacea for many of the ills that beset the Raj in the second half of the nineteenth centur
y: famine and unpopular taxation especially. Within an Indian polity in which there was little realistic chance of representative government any time soon, improved entry to the corridors of power was the next best thing. An ICS run by Indians as well as for Indians was never ruled out by the British, but it was never made easy. Jawaharlal Nehru’s later verdict on the ICS in 1934 – ‘neither Indian, nor civil, nor service’ – points to a missed opportunity. From a truly Indian ICS a loyal creole bureaucracy might have been forged, as happened elsewhere in the British Empire, for example French Canada. Instead, Indians were relegated to positions of petty power, trained to pen-push, but never trusted to take control.
