A Despotism of Law: Crime and Justice in Early Colonial India

by Ludo Rocher
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Title:
A Despotism of Law: Crime and Justice in Early Colonial India
Author:
Ludo Rocher
Year: 
2001
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Journal of the American Oriental Society
Volume: 
121
Issue: 
4
Start Page: 
667
End Page: 
668
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English
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Reviewed work(s): A Despotism of Law: Crime and Justice in Early Colonial India by Radhika Singha
 

A Despotism of Law: Crime and Justice in Early Colonial India. By RADHIKA SINGHA. Delhi: OXFORD UNIVERSITY PRESS, 1998. Pp. xxix 342. $32.
 
On 14 October 1837, Thomas Babington Macaulay and the Indian Law Commissioners addressed a letter to the Governor-General, Lord Auckland: "Your Lordship will perceive that the system of penal law we propose is not a digest of any existing system, and that no existing System has furnished us even with a groundwork" (pp. 297-98 n. 53). Macaulay's Draft Penal Code of 1837, presented as based solely on universal principles of jurisprudence, was not readily accepted: "[b]ecause of the lack of political will or incentive to adopt the code, it was consigned to various phases of reassessment" (p. 292). The Indian Penal Code finally received the assent of Governor-General Lord Canning twenty-three years later, after the 1857 uprising, on 6 October, 1860.
 
Radhika Singha's book, a thoroughly rewritten version of her 1990 doctoral dissertation done under the supervision of Chris Bayly, deals with crime and justice in the period preceding--"leading up to" would be only partly accurate--the 1837 Draft Penal Code, starting from the judicial reforms of 1772 in Bengal. From a social historian's perspective--Singha explicitly distinguishes her own approach from that of the legal scholar, Jorg Fisch (Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law 1769-1817 [Wiesbaden: Franz Steiner Verlag, 1983])--this period of sixty-five years is fascinating: it shows how the British, with their own, not always unanimous or even unilinear, ideas about crime and punishment, struggled to come to grips with an indigenous penal system characterized by "its variation from one Presidency to another, imprecision, and the inconvenience of working through references to Islamic law" (p. vii).
 
The book is crammed with information, based on extensive reading not only of printed books, articles, acts, regulations, minutes, correspondence, etc., but also of handwritten materials in records preserved in British and Indian depositories. It deals with homicide, slavery, female infanticide, sati, "thuggee" and dacoity, and other activities that involved the right to punish and the kind of punishment to be applied.
 
 
Of special interest to this reviewer--and, presumably, to most readers of our journal--is a theme that dominates the entire period and that is raised repeatedly in the volume. On the one hand, "[t]he criminal regulations of the Company formalized the claims of state upon individual subject, cutting through identities and claims which came in the way" (p. ix). On the other hand, "the Company searched for cultural moorings in the traditions of rule associated with the Mughal state and its regional successors. The criminal law, its machinery and procedure, was therefore tied up with earlier institutions, personnel and legal-sacred texts" (p. x; emphasis added). Notwithstanding the lofty declaration of the Law Commissioners mentioned earlier, even "the draft penal code of 1837 . . . had to build discursive bridges with the religious and social norms of the subject population" (p. viii).
 
To be sure, in a penal system that has been described as "an Anglo-Muhammadan construct" (p. vii), "discursive bridges" were established primarily with Islamic law, which, at the time, "the Company had instituted...as the substantive law for criminal justice using the argument of 'ancient usage'" (p. 49). Yet, important adaptations were also made to Hindu practices. The term "caste"--as well as the terms shastras, pandits, and vywasthas (rather vyavastha[s])--appear throughout the volume. I will restrict myself to one example, concerning the most obvious question: could brahmans be subjected to corporal and, especially, capital punishment? In a 1788 case in which one Bhowanny Buksh, a brahman, strangled a brahman boy, the Court consulted Kasinath, the court pandit in Banaras. Kasinath made it clear that, according to the sastras, a brahman could not be put to death; he could, however, be punished by shaving his head, branding a symbol of the crime on his forehead, confiscating his property, and banishment. Jo nathan Duncan, the Resident in Banaras, accepted the pandit's opinion. He explained his decision as a concession given out of regard for the Hindu religion, yet added, and personally explained to an assembly of brahmans, that, henceforth, a brahman convicted of murder would be sentenced to death (p. 101). Nevertheless, in a proclamation of 28 December 1790, "the Company formally conceded the exemption of Brahmins of the Banaras raj from capital punishment" (p. 85).
 
Other Hindu practices were taken into consideration as well. Three telling examples out of many must suffice in this review. Example 1. In 1797 the Banaras court of circuit ordered that the bodies of murderers be exposed on a gibbet at or near the scene of the crime. However, exposing the body of a Hindu on a gibbet prevented his family from performing the sraddha, and, in 1833, exposing the body on a gibbet was prohibited (p. 240). Example 2. At a certain moment measures were called for to enhance prison discipline, and to change the overall atmosphere in which prisoners sarcastically referred to going to prison as "visiting their sasural." One such measure was to provide prisoners with food cooked in messes, rather than with money (which they often used to acquire liquor or tobacco) and rations (which during hard labor [again, sarcastically, referred to as sardar ki naukari] outside the prisons they gave away to their relatives who were often in attendance). "But, instead of establishing messes by the princ iple of a standard size, the magistrates began by drawing up lists of castes that could eat together" (p. 237). In one prison, "after petitions and objections from the prisoners," the list resulted in fifty-two messes for 630 prisoners (p. 280). Example 3. One of the essential features of a criminal trial was a fatwa given by a maulvi acting as a law officer. However, during the trials after the communal riots in 1809, "[tlhe magistrate and the judges of the Banaras court of circuit reported that the trial of Hindus in this context, by a procedure which required a fatwa from an Islamic law officer, was generating great tension" (p. 295 n. 40). After a preliminary Regulation in 1810, according to which the Islamic law officer and his fatwa could be dispensed with in particular cases, Regulation 6 of 1832 ordered in general terms that sessions judges could use assessors acting as a jury, instead of maulvis.
 
The question whether features of criminal law in this period derived from traditional Hindu practices requires further investigation. For instance, I agree with the author that branding the name of the offender on his forehead is not a practice known from Hindu law, but branding a symbol of the crime on the forehead is well attested in Sanskrit texts on criminal law (see above). Therefore, saying that "[g]odna ... was not drawn from any indigenous punishment" (p. 245) may be an overstatement.
 
The author repeatedly and appropriately warns against the temptation to look at the penal law administered by the British in India, involving amputation, banishment, branding, flogging, gibbeting, the treadwheel, etc., as archaic or "medieval," because one tends to compare it with more modern British criminal law rather than with the law administered in Britain during the period 1772-1837. When she reports that the British magistrates in India were ordered not to inflict corporal punishment on offenders "of rank and caste," she observes in a footnote that "[i]n England too, gentlemen were exempted from corporal punishment on the reasoning that the loss of honour would be a greater pain than the law intended" (p. 246 n. 83). In fact, Macaulay's plan to codify Indian criminal law, "hoping that it might induce the English to reform their own law as well" (p. 299), was only the last example of how "India often proved an exploratory terrain for schemes to reconstitute order and political legitimacy in the metropol is and other colonial territories as well" (p. 310).
 
If Singha's book has a flaw, it may be the author's desire to compress into a single volume too vast a mass of materials. Footnotes occasionally add information not immediately relevant to the text. Some passages require rereading of other passages elsewhere in the book to grasp the point that the author wishes to make. But as a synthesis of an unusually wide variety of sources the book is a major scholarly contribution.
 
The volume includes an impressive bibliography. Note that Francois Balthazar (not Balthazard) Solvyns (not Solvyn) was not a French (p. 117 n. 167) but a Belgian painter; read Frykenberg for Frykenburg throughout; Hindu Infanticide was written by Edward Moor (E. Moor, p. 322), not H. Moor (p. 58); the same article on Cornwallis and colonial police appears both under Chatterjec, B. and Chattopadhyay, B. (p. 316). An index of the law cases discussed in the volume might have been helpful.
 
COPYRIGHT 2001 American Oriental Society

 

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