The Rhetorical and Substantive Basis of the
'Rule of Law' under Colonialism: The Suppression of Terrorism
in Bengal in the early Twentieth Century1
I: The ‘Rule of Law’ in a Despotic Terrain:
The history of British rule in India, and more widely of European colonialism
around the world, leads one to the tempting and entirely plausible supposition that there
was generally one law for the colonizers, and another one for the colonized. Law has
always been, to rehearse a familiar cliche, an instrument of the ruling class, though it
pretends to transcendence and neutrality.
White juries almost never convicted
Englishmen in the colonies of serious offences, such as rape and murder. When, in 1883,
the Viceory of India, Lord Ripon, proposed that the legal restriction whereby Indians were
forbidden from having criminal jurisdiction over Europeans be removed, he incurred the
determined resistance of almost the entire European community.i2 For an Englishman to
support equality under the law was to go against the grain, to render himself into an
outcaste from his community.
Apostasy was not tolerated.
The ideological state
apparatuses, of which law is but one element, had perforce to maintain the distinction
between the rulers and the ruled, because the collapse of that distinction posed a threat to
the very fabric of colonial rule.
The critique of the 'rule of law' has become a staple of studies of colonialism,
and theorists of the critical legal studies movement are apt to dismiss any normative
1This
is a revised version of a paper first presented at the Annual Meeting of the Law and
Society Association in Toronto, June 1995.
2See Edwin Hirschmann, ‘White Mutiny’: The Ilbert Bill Crisis in India and the Genesis of
the Indian National Congress (Columbia, Missouri: South Asia Books, 1980).
2
conception of law.
There is an earlier Marxist critique, which is not without its
attractions. As articulated by Douglas Hay, one of the contributors to an influential
collection of essays on crime in eighteenth-century England, law serves principally in the
task of oppressive governance. As Hay argued, “the criminal law, more than any other
social institution, made it possible to govern eighteenth-century England without a police
force and without a large army. The ideology of the law was crucial in sustaining the
hegemomy of the English ruling class.”3 In India, one might conceivably argue, a more
naked form of domination was essential to the preservation of British rule, but as the
work of Bernard Cohn and many others has by now indubitably established,4 the work of
hegemony was performed in myriad ways. There were oracular displays of power to
which Indian princes were invited, and elaborate political trials, during which the accused
were permitted to condemn British rule, were staged; and though political assassins were
to be hanged, it was expected that they would die with some aphorism from Locke or
John Stuart Mill on their lips. The very idea of freedom which inspired Indians to
political action was described as an essential English contribution to political thought.
The greatest testament to the hegemonic success of British rule in India, as Thomas
Macaulay believed, was that long after their departure from the shores of India, the
3Douglas
Hay, “Property, Authority and the Criminal Law”, in Albion’s Fatal Tree: Crime
and Society in Eighteenth-Century England, eds. Douglas Hay et al (New York: Pantheon Books, 1975),
p. 56.
4Bernard S. Cohn, Colonialism and Its Forms of Knowledge: The British in India (Princeton,
New Jersey: Princeton University Press, 1996); the essays in this volume were first published between
1982 and 1989. See also Bernard S. Cohn, “Representing Authority in Victorian England”, in Eric
Hobsbawm and Terence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University
Press).
3
British would continue to rule India through such of their vassals as had imbibed the
British sensibility, being British in taste and feeling, indeed in everything but color.5
In the hegemonic apparatus of the British in India, what was to be the place of
the ‘rule of law’ and the legal infrastructure of the state? The Law Member in the
Viceory’s Council, Sir Henry Sumner Maine, had given it as his decided opinion in the
nineteenth century that India was singularly “empty” of law. India was, in other words,
essentially lawless and anarchic. ‘Despotism’ was the first element of the Orientalist
Grammar of India, and it is characteristic of despotic states that there is no conception of
the ‘rule of law’, all authority being vested solely in the despot, to whom life and limb
may have to be surrendered without recourse. Despotism might well be the eternal
condition of India, but India could be rendered into what authoritarian liberals called a
‘benevolent despotism’.
Macaulay, the first man to serve as Law Member on the
Governor-General’s Council, had said of the Criminal Code he devised that it would be
the tool of a “firm and impartial despotism”.6
That characteristic phrase with which the British described their enterprise in
India, ‘The Government of India duly established by law’, suggested the ambivalent
nature of Britiain’s legal mandate in India. This was to be a government of laws not men,
a government under the ‘rule of law’ where the law in principle would apply equally to
everyone. Such laws as had been passed would be anounced beforehand and made
known to the public, lest anyone should plead ignorance. As adumbrated by A. V. Dicey
5The
reference here is to the infamous Minute on Education of 1835: see Macaulay’s Minutes
on Education in India, ed. H. Woodrow (Calcutta: Government of India, 1862), though the document in
question is more easily accessed in Sources of Indian Civilization, ed. Ainslie Embree, 2 vols. (Columbia
University Press), 2:44-49. Britian is, of course, no longer exclusively white, and ‘Black British’ might not
have shocked Macaulay at all. It is extraordinairly ironic, however, that ‘Black British’ effects a complete
inversion: the ‘natives’ are not British in anything except color.
4
in his classic study, The Law of the Constitution, first published in 1885, the ‘Rule of
Law’ means that no person can be made to suffer punishment, or be liable in court, for
conduct that is not expressly forbidden by the law; a person's legal liabilities or rights,
whenever in dispute, can only be determined by the courts. However, Dicey was also
certain that "each man's individual rights are far less the result of our [the English]
constitution than the basis on which the constitution is founded."7 The “basis” of the
constitution rested on the ‘spirit of law’ and the Englishman’s proverbial respect for law.
The 'rule of law' is thus partly tradition and precedent, partly custom and moral sense, for
all this is also surely the "basis" on which the (unwritten) constitution rested. Yet, if the
British Government of India was never “established” with the consent of the governed,
how was it to be represented as a government tethered to the notion of ‘rule of law’?
Moreover, if Indians had known no system of government other than despotism, and if
they had lived in trembling fear of the tyrannical exercise of power by the despot and his
functionaries, how could they be expected to abide by the ‘rule of law’ and revel in the
spirit of freedom? If the principle that the law applies equally to everyone was so alien to
them as to be altogether outside the realm of the possible, if indeed it bespoke a style of
thought and living that was inconceivable, then with what justice could they be expected
to celebrate in the advent of British rule as circumscribed and simultaneously animated by
the principles of the ‘rule of law’? They were bound to be burdened with despotism, as
the only form of governance known to them; and yet if British rule were nothing but
6Quoted
by John Clive, Macaulay: The Shaping of the Historian (New York: Vintage Books,
1973), p. 320.
7A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London:
Macmillan, 1915; reprint, Indianapolis: Liberty Classics, 1982), p. lv. It is not unimportant that Dicey was
a student of Benjamin Jowett, translator of Plato and Master of Balliol College at Oxford. Jowett’s students
numbered many of the ‘great’ proconsuls and imperialists at the turn of the century, ‘Platonic’ guardians
5
despotism, by what measure could the British hope to distinguish themselves from
tyrannical regimes that had preceded them? Thus their ‘despotism’ was to be benevolent,
for the good of their ignorant subjects, and impartial, not swayed by those usual
considerations of nepotism and obsequiousness that came naturally to people in the East.
In the matter of the exercise of power, and their adherence to the ‘rule of law’,
the British were never more severely tested than when it came to the problem of
‘terrorism’. If one of the principal duties of the state is to assure the safety of its subjects,
it likewise has no greater sanction to repress than when it does so in the name of ‘law and
order’. With that magical incantation, the state assumes the right to abrogate not merely
constitutional conventions, but those customary modalities by which common civilities
are maintained:
and an apparatus of repression is bestowed with dimensions of
normality. In the repression of terrorist and revolutionary activities aimed at overthrowing
British rule in India, the state surely needed little pretext to jettison the ‘rule of law’, and
even less so did the colonial state have to worry about sentiments of accountability. In
India, unlike in Britain, the executive assumed sweeping powers, partly on the grounds
that the traditional doctrine of ‘balance of powers’ could not be adhered to in a country
where they had never been legislative traditions, where the culture of dissent did not
exist, and where the responsbility that comes with the exercise of constitutional rights
could not be expected of the citizenry. The activities of revolutionaries, anarchists, and
terrorists could easily be represented as returning India to its characteristic state of
lawlessness, and it was reasonable to assume that in repressing such activities, the state
like Curzon, Viceroy of India, and Cromer, who governed Egypt. See John Jones, Balliol College: A
History, 1263-1939 (Oxford: Oxford University Press, 1988), passim.
6
was within bounds in taking any steps that assured the subjects such limited freedoms as
they had uniquely enjoyed under the colonial dispensation.
It is in following the debates leading to the measures taken to contain
terrorism, however, that one finds that there was in fact some adherence to the notion of
‘rule of law’, and that the easy path to the elimination of terrorism, though contemplated,
was not so readily adopted. However much the 'rule of law' in the colonial context may
well have been only a rhetorical ploy on the part of the colonizers, as is commonly
suggested, to legitimize their rule and retain their hegemony, the Governments of India
and Bengal found that the logic of their rule, as much as the logic of the sociology of
knowledge that they had put into place, made impossible the adoption of methods merely
of brutal repression. The acquiescence of their subjects to the idea that the British were
uniquely moved by sentiments of ‘fair play’ was not unimportant, just as it was essential
to establish that, in its fundamentally ‘democratic’ impulses, British rule was to be
equated neither with other manifestations of European dominance, nor with ruling
systems in the Indian subcontinent before the advent of British supremacy. Thus, as I will
suggest, though there must necessarily be a tension between the colonial enterprise with
its repressive apparatus and the adherence to any notion of ‘rule of law’, there is no
reason to suppose that the ‘rule of law’ was merely a rhetorical gesture. The rhetorical
stance masked, ironically, a substantive commitment to the rule of law, and however
imperative it certainly was to the British that in public they should show few signs of
disagreement among themselves, this did not prevent India’s colonizers from engaging in
intense deliberations. To admit as much is not to offer any relief to the colonizer, who
stands indicted in any case, but rather to understand why, through an inquiry into the
micro-politics of power, it is the case that in the latter phase of their rule in India, the
7
British sought to effect their rulership largely through the apparatus of hegemony rather
than by brute recourse to the sword.
II: Bengal and the Problem of ‘Terrorism’:
“Previous to 1907”, one official in the Office of the Director of Criminal
Intelligence was to write, “criminality in Indian politics was not a general feature though
there were some manifestations and some under-ground preparations for it.”8 So far,
James Campbell Ker suggested, Indian politics had largely been an affair of the so-called
‘moderates’, who were inclined to petition the government whenever they had grievances,
and aspired to no more than a small share in the task of governing India. No doubt, here
and there some advocates of violence had appeared before 1907, most notably the
nationalist Bal Gangadhar Tilak and his supporters in Maharashtra, but on the whole Ker
was inclined to believe that the revolutionary spirit had not pervaded Indian politics or
poisoned the minds of Indian youth.
Then, in 1905, the partition of Bengal was
announced, and young Bengalis who had already been leaning towards violence were
moved to constitute themselves into a “physical force movement”.9
By 1907 the
Swadeshi movement, which implanted the seeds of nationalism and self-reliance in
Bengal, had come into its own, and Bipin Chandra Pal and Aurobindo Ghosh had
formulated the doctrine of passive resistance.10 That same year, “the quiet of the Madras
Presidency was disturbed” by the visit of Bipin Chandra Pal, who desired it to be known
in his numerous public addresses that “as the people had lost faith in the generosity and
8James
Campbell Ker, Political Trouble in India, 1907-1917 (Calcutta: Superintendent
Government Printing, India, 1917; reprint ed., Delhi: Oriental Publishing House, 1973), p. v.
9Ibid., p. 7.
10Sumit Sarkar, The Swadeshi Movement in Bengal 1903-1908 (New Delhi: People’s
Publishing House, 1973); see esp. pp. 68-69.
8
justice of the British Government, constitutional agitation was useless.”11 In Punjab,
agriculturalists had been aggrieved by certain economic reforms undertaken by the
government, and “a wave of seditious agitation . . . spread over almost the whole
Province.”12
As Ker was aware, 1907 also marked the fiftieth anniversary of the revolt of 1857,
and that may have contributed to the feeling that some political dissent seemed to prevail
throughout the country. Though Ker’s account of the central importance of 1907 can
certainly be disputed, and one might be inclined to take a slightly earlier date as the
departure point for a new era in Indian politics, it is unquestionably clear that, towards the
end of the first decade of twentieth century, Indian political activity had taken on wholly
undesirable and alarming dimensions from the colonial standpoint.
Revolutionary
literature, unabashedly calling for the armed overthrow of the British, was circulating
openly; and a program of political terror, which extended from the assassination of police
and government officials to the destruction of trains, had been initiated. The newlyappointed Director of Criminal Intelligence had noted the presence of over a dozen
revolutionary group, and their engagement in criminal conspiracies was widely recorded.
In December 1907, an attempt was made to blow up the train carrying the LieutenantGovernor of Bengal, but the plot was foiled; and a few months later an assassination
attempt was made on the life of an English judge: though unsuccessful, it resulted in the
death of two Englishwomen. Police records showed innumerable “political dacoities and
11Ker,
Political Trouble in India, p. 11.
p. 22, 446.
12Ibid.,
9
murders in Bengal”, and though the prosecution by trial of offenders had put many
conspirators away for life, political violence showed no signs of diminishing.13
Thus, in 1910, the year before the 1905 partition of Bengal was annulled, the
Government of India addressed a long letter on sedition to all the provincial
governments.14 It was stated of the "disaffection towards the British Government which
now undoubtedly exist [sic] in many parts of India" that it was "confined, with a few
negligible exceptions, to the literate middle classes." Yet it was the middle class which
only a few years before had been described as restricting itself to constitutional activities
and demanding legislative representation. Some members of that class had graduated
towards passive resistance, offering civil disobedience to select laws, boycotting British
goods, and conducting an agitation through the press; others, "more active
revolutionaries", "most prominent in Bengal, Eastern Bengal and Bombay", now
constituted the party of violence and terror. The letter described the two forms of sedition
as closely allied, "for the persistent preaching of sedition has a marked effect upon the
youth of the country and thus creates a favourable recruiting ground for the party of
revolutionary violence". The Government of India recognized that in the ranks of those
opposed to British rule existed a "residuum of implacable hatred of all alien intrusion",
but it held to the belief "that the seditious movement is in the main due to ignorance and
misapprehension of the nature and consequences of British rule in India." While the
"spacious [sic] reasoning against a foreign rule" was "again and again" drummed into
youths, "the case for the other side" had "seldom" been put before them. It was desirable
to counteract decisively the propaganda of the seditionists; officers of the Education
13Ibid.,
pp. 136-153, 317-331.
10
Department, maintained the Government of India, were especially positioned to remove
the "erroneous opinions" held by misguided youths, particularly "in the domain of history
and economics". For example, the "mischievous" theory that India was being drained of
its wealth by England was "honestly held by many young graduates" who never heard it
contradicted. By far the most important duty of each and every administrator was to
"combat misrepresentation", remain watchful, and show errant young men the way to
rightful conduct.15
We can wonder that the Government of India could hold to the view that the case
for British rule in India had "seldom" been put to young men, as if every opportunity that
presented itself for pronouncing upon the beneficial, indeed inestimable, effects of the
British dominion in India was not pounced upon. The remarkably moderate tone of the
Government of India's letter, counseling education, vigilance, and admonition as the best
ways to counteract the pernicious teachings of sedition-mongers, scarcely suggests that
'terrorism' was apprehended as a serious threat to British authority. What this letter did
not reveal was that in the previous months, a most intensive discussion had taken place
among officials of the Government of India on how the spread of sedition could be
checked, and there the idea of trying political offences by a specially constituted
commission had been aired.
The officials appeared to recognize that the terrorist
conspiracy to overthrow British rule could not be cracked because witnesses were too
intimidated to testify, and when captured terrorists did testify, they were ignorant of the
identity of "members of the inner circle" of revolutionaries. Commenting on the police’s
dismal failure in unearthing the "nature of the organisation", Sir Herbert Risley, the Home
14National
Archives of India, New Delhi [hereafter NAI]: Home Dept. (Political), A, March
1910, Nos. 42-46, letter of 4 March 1910.
11
Member in the Government of India, added: "Either the criminals are cleverer than
similar criminals in Europe and America, or the police are less efficient in a line of
business where orientals are usually supposed to be smart. The dilemma is not a pleasing
one."16 To suppose that Indian criminals were cleverer than their counterparts in Europe
or America was unthinkable, and while the inefficiency of the Indian police might be
explained as of a kind with the general ineptness of Indians, it reflected poorly on
European police officials under whom the Indians worked. Such an admission, however,
was hardly proper: thus the "dilemma". We must also pause to reflect on the apparently
curious observation that spying was the sort of work at which "orientals are usually
supposed to be smart." The Oriental, on the colonial view, had a propensity towards
certain kinds of activities from which the Britisher, with his natural inclination towards
privacy and moral conduct, recoiled. Rarely was it conceded that "orientals" were good at
anything, and it was perhaps unexceptional that they were credited with being "smart" in
work that of necessity involved deception, subterfuge, and a disregard for scruples. If
now too Indians had been found wanting, here was proof, if it was needed, that the
professionalism of Indian agents was a poor second even to the amateurism of a Sherlock
Holmes or a Miss Marple.
The political "outrages" could not, in any case, be allowed to continue unchecked,
and as the Viceroy, Lord Minto, wrote the government had to be prepared with "some
plan of action -- possibly even martial law in Calcutta".17
That Calcutta only was
mentioned by him is revealing: whatever the extent of the terrorist problem, its nerve
center had been identified as Calcutta. But it is also remarkable that so astounding a
15Ibid.
16Ibid.,
July 1910, Nos. 5-32, p. 1, note by Risley, 7 Dec. 1909.
12
suggestion as the imposition of martial law, as if an armed insurrection were threatening
the State, should so casually find its place among the proposed remedies, and that too at
the behest of the Viceroy. The "plan of action" came in the form of a strongly worded
note by Sir Harold Stuart, Home Secretary in the Government of India, who pointed to
the imperative need to reject inaction: "The Government cannot afford to sit still and let
its officers, European and Indian, be assassinated or exposed to the risk of assassination."
Adverting to the argument of Rash Behari Ghosh, a member of the Legislative Council,
that "anarchism" did not require "repressive legislation" to speed it to its demise, Stuart
said that the government could not accept that "impotent and ignominious position. They
must stamp out anarchy at all costs, and if they can't do it by process of law they must do
it by Act of State." He described "Regulation III of 1818" as the "ultimate weapon"
available to the government, and was prepared to think that "short of military law and a
state of siege", there were other "measures" that could be taken which would go "some
way to meet the situation without discarding legal forms and the privileges of individual
liberty which are enjoyed under the law."18
While Bengal "Regulation III" would remain the supreme weapon available to the
government in its war against political violence, it was an extra-constitutional ordinance,
opposed to all the fundamental liberties which even the colonial State had to pretend to be
bound by, and its activation could not go a long way in persuading the people that the
State was maintaining "legal forms".
Regulation III provided for the indefinite
confinement, for "reasons of State", of individuals against whom there was not "sufficient
17Ibid.,
18Ibid.,
p. 2, note by Minto, 11 Dec. 1909.
pp. 2-3, note by Stuart, 31 Dec. 1909.
13
ground to institute any judicial proceeding".19 The regulation was devised to be used at
times of crisis, as the occasion demanded, and not as a permanent measure. Its frequent
use held out the danger that its use in times of emergency would be hampered; moreover,
to endow Regulation III with a judicial or quasi-judicial character was tantamount to
stripping the Executive of the summary powers with which it was possessed.20 The
frequent resort to an ordinance like Regulation III, which was meant to be employed
when the State was faced with grave danger, would lay the government open to the
charge that its legal and judicial machinery had been rendered subservient to the
executive.
Stuart had, however, spoken of "other" measures to combat terrorism, by which he
meant "some judicial machinery", that is a "Commission which should sit in camera",
consisting of three persons of which at least two would be judges of a "High Court or a
Chief Court", and empowered to try all offences brought before it by the Government,
"pass any sentence permitted by law", demand security from any suspect, and restrict a
person to a certain place or locality for as long as five years. Its proceedings, as they
would not be conducted in public, would ensure immunity to witnesses.21 If counsel were
allowed to appear for the defence, there was some risk that the names of witnesses would
be leaked to the public, but the disallowance of counsel, wrote Stuart, "will excite strong
opposition which it will not be easy to meet."
19Text
The experiment "of granting this
of Bengal Regulation III of 1818, printed as Appendix II to Hem Chandra Nag, ed.,
Lawless Laws or Regulation III & Bengal Ordinance, 'Forward' Political Literature Series (Calcutta:
Forward Publishing, Ltd., n.d.).
20See NAI: Home Dept. (Political), A, August 1917, Nos. 225-232, pp. 9, 21.
21S.P. Sinha, the only Indian member of the Viceroy's Council, noted that in camera
proceedings would not offer any protection to witnesses, for "it is idle to expect that it will not become
known what witnesses are being examined in the secret inquiry." On the contrary, he argued, "the witnesses
will feel less secure, because their statements will not be published and it will be imagined that they have
said more than they actually depose to." See ibid., July 1910, Nos. 5-32, p. 9, note by Sinha, 9 Jan. 1910.
14
concession" had to be tried.
What most appealed to Stuart about the idea of a
commission was the promise it held out of disposing cases swiftly; besides, the
government would be in a strong position if it could announce "that [its] orders for
detention were passed on the advice of a body of this judicial character."22 The legality of
establishing a new tribunal independent of the High Court was questionable, but the
government could "feel reasonably assured that a High Court would not be likely to
interfere on revision with the proceedings of a tribunal of which at least two members are
judges of a High Court or Chief Court."23 Moreover, in the words of Risley, the Home
Member, if there was "any real legal difficulty the combination of the Commission and
the Regulation would get over it." Risley was scarcely inclined to be detained by legal
niceties: "It is certain that if we do not wage war against the extremists", he wrote, "they
will gain power and will terrorise the entire population."24
Stuart's long note of 31 December 1909 examines a great many other measures to
deal with terrorism that over the years would continue to be the subject of discussion.
These measures included various improvements in administration, the disciplining of
Government servants who neglected to use their influence to thwart the spread of
"pernicious doctrines" or prevent their relatives from embarking upon a course of
seditious activities, the support of loyalist newspapers and the suppression of seditious
ones, the expansion at short notice of police forces, the conferral of police powers on
troops and army officers, and the extension to disturbed districts of such legislation as the
Prevention of Seditious Meetings Act of 1907 and the Indian Criminal Law
22Ibid.,
p. 4, note by H.A. Stuart, 31 Dec. 1909.
p. 5.
24Ibid., marginal note by Risley.
23Ibid.,
15
Amendment.25 While a history of sedition might well dwell on the measures proposed,
and eventually
implemented, to tackle it, the extra-constitutional character of the
proposed commission, and the expansion of summary executive powers at the expense of
the usual judicial procedures, must not be obscured. The extraordinary nature of Stuart's
prposal did not go unremarked upon by his colleagues.
Describing the proposed
Commission as little short of a "Star Chamber", the Legal Member made the pregnant
observation that "such an institution was abolished in England in sixteen hundred" and
"its creation in India in 1910 cannot be seriously contemplated." The chief characteristic
of the Star Chamber was that it abrogated the right to a jury; it could compel the accused
to testify on oath, and it often had recourse to torture.26 One historian had described it as
“a court of prerogative justice”; another, while noting that it could not inflict the penalty
of death, wishes us to remember that it exercised “a very comprehensive penal
jurisdiction, practically an unlimited jurisdiction.”27
Here, in any case, there appeared to be one Englishman who did not think that
England's past was none other than India's present, that India -- to be true to itself -- must
stagnate, even become retrograde. Wilson, the Legal Member, described himself as an
advocate of more restrained methods, for he saw "repressive legislation as a two-edged
weapon", a cat-and-mouse game: it was conceivable that it would crush the party of
violence, but it was just as possible that it would not, and what was certain was that it
25The
Prevention of Seditious Meetings Act of 1907 was at first in force only in Eastern
Bengal and Assam. The Criminal Law Amendment Act XIV of 1908 had two main provisions. It allowed
the Governor-General to declare unlawful certain classes of associations, such as the Dacca Anusilan
Samiti, which was outlawed in January 1909; secondly, it provided that persons charged with certain
offences could be tried by three High Court Judges without jury or assessors.
26See S. T. Bindoff, Tudor England, The Pelican History of England Vol. 5 (Penguin Books,
1950; reprint, 1974), pp. 58-62; F. W. Maitland, The Constitutional History of England (Cambridge: At the
University Press, 1908, paperback ed., 1963), pp. 219-20, 263.
16
would "alienate the moderate" and possibly "drive them and the indifferent into the ranks
of the seditious." It appeared to Wilson that no legislation could take the place of "an
efficient police", and in an admission that one rarely encounters, he added: "Ours appears
to be fairly rotten." Bombay had dealt with "a grave combination a criminal character
without the aid of exceptional repressive legislation". Why could not Bengal?28
If Wilson had expressed his reservations about the appointment of an extrajudicial commission to deal with terrorist suspects, the Military Member could scarcely
contain his enthusiasm for Stuart's proposal, and was prepared to see an "Act of State"
substitute for "process of law" if that remained the only course for allowing the
government to extirpate itself from the "impotent and ignominious position" in which it
had been placed. Now was not the time for appeasement, but for the immediate passage
of a stiff Press Act, an Arms Act that would make the mere illegal possession of arms an
offence punishable with transportation for life, and above all for "an announcement that
Colonial Self-Government is unsuited to India, and is a goal which Indians are not
entitled to aspire to"!29 To some, principally the English, freedom is the very air they
breathe; others, for reasons that are to be found in nature, are not even "entitled" to
breathe this air. Self-government, like other refinements and attainments, is only for
certain classes of people, and must remain the preserve of civilized and politically mature
people if it is not to cease functioning as the line of demarcation between people
27George
Burton Adams, Constitutional History of England, rev. by Robert L. Schuyler
(London: Jonathan Cape, 1921, reprint 1963), p. 248; F. W. Maitland, The Constitutional History of
England (Cambridge: At the University Press, 1908; paperback ed., 1963), pp. 220, 263.
28NAI: Home Dept. (Political), A, July 1910, Nos. 5-32, pp. 8-9, note by Wilson, 8 Jan.
1910. Three years later, when the then Home Member, R. H. Craddock, made a similar proposal
advocating the institution of special commissions where judges would try cases in camera without reference
to the rules of evidence, his colleague in the Viceroy's Council, G. S. Barnes, similarly said that he could he
could not agree to place "the administration of Justice in the hands of a Star Chamber". If the condition of
17
habituated to despotism and those raised in the ways of democracy. Describing himself
as "aware of the gravity of the recommendation" he was to make, O'Creagh stressed the
need for "immediate action, and if this is not possible under Civil Procedure, then I think
Martial Law is the only remedy."30 Having described himself as "aware", O'Creagh
believed he had numbered himself among the enlightened ones, but it must be a poor kind
of awareness which refuses to recognize the aspiration to self-government of certain races
and proclaims the necessity of military solutions to encourage the aspirations of those
would retain their domination in perpetuity.
These difficulties aside, the Military
Member had not shown himself as a very astute man, for as the Viceroy was to point out,
what effect would the proclamation of martial law have "upon public opinion not only in
England but all over the world"?31
The proposed appointment by ordinance of a commission entirely independent of
the High Courts presented many legal and political difficulties, and for the time being at
least it was decided to proceed with other measures.32 For instance, The Prevention of
Seditious Meetings Act was extended to all provinces except Burma, Baluchistan, and the
North-West Frontier Province, and the new act (Act X of 1911) that superseded it, when
brought into operation by official notification, conferred upon the government
considerable powers for controlling public meetings. Early in 1910, a new press law,
based on an outline drawn by Stuart, was pressed into service. Its features interest us only
insofar as they suggest how the executive, in accumulating for itself extraordinary powers
and intruding upon the judiciary, was really paving the way for the committee-type of
Bengal was so desperate "as to need desperate measures of this kind", he would "prefer to see the Province
placed under martial law at once." See NAI: Home Dept. (Political), A, Aug. 1917, Nos. 225-232, p. 28.
29Ibid., A, July 1910, Nos. 5-32, pp. 9-10, note by O’Creagh, 9 Jan. 1910.
30Ibid.
18
investigation that in less than ten years would become a prominent feature of the political
landscape.33 Among the provisions of the Indian Press Act was one that required a
money security from all prospective publishers and owners of printing presses, a clear
contradiction, as some critics were quick to observe, of the "presumption of the British
criminal law in favour of innocence and not guilt."34 Another section sanctioned the
prosecution of newspapers which were alleged to display a mischievous "tendency". In a
pointed characterization of the Press Act as un-British, its critics described this liberty
allowed to the government as a "revival of the old French law of the Bourbon kings in
1822, which introduced what was called the 'proces de tendance,' and led to the most
undesirable results."35 But by far the most disturbing aspect of the new legislation was
that, as the offences it enumerated were already offences under the old legislation, "the
only effect of the new legislation is to make them punishable by the Executive without
proof instead of by courts of justice after proof." The "motive" of the new law was none
other than to arm the Executive with the "right to inflict, without the intervention of a
court of justice", penalties upon journalists and publishers in order to prevent them from
publishing, should they wish to do so, views at odds with those held by the government.
31Ibid.,
p. 11, note by Minto, 9 Jan. 1910.
p. 12, "Order in Council" by Minto, 11 Jan.1910.
33The most extended discussion of such committee-type of investigations is to be found in
Vinay Lal, “Committees of Inquiry and Discourses of ‘Law and Order’ in Twentieth-Century British India”,
Unpublished Ph.D. Dissertation, 2 vols. (Department of South Asian Languages and Civilizations, The
University of Chicago, 1992).
34NAI: Home Dept. (Political), A, July 1910, Nos. 5-32, pp. 39-40, letter to the Viceroy by
Frederic Mackarness and S.K. Ratcliffe of the "India Civil Rights Committee", London, 7 March 1910.
35Ibid., p. 40. This comparison of the Press Act to the laws of the Bourbon kings is a
particularly bold one, when we remember that the English perceived themselves as a people uniquely
incapable of tolerating authoritarianism and despotism, and more renowned lovers of freedom than their
nearest and greatest rival on the continent, France. We find, for instance, G.M. Trevelyan writing in his
History of England: "It is common to speak of the 'Tudor despotism', but the English were never 'mutes and
audience' to the acts of their sovereigns, as the French were to the doings of Louis XIV." See Trevelyan,
History of England, 3 vols. (London: Longmans, Green & Co., 1926; third ed., New York: Anchor Books,
1953), 2:76.
32Ibid.,
19
The Indian Press Act also violated another cardinal principle of British justice, namely
that legislation enacted to meet a temporary emergency must have "its temporary
character stamped upon it."36
Despite the enactment of special legislation, and the successful prosecutions of
many men held to be responsible for political murders and other anarchist offences, the
tide of political violence aimed at weakening British rule in India could not be stemmed.
Fifteen members of the Dacca Anusilan Samiti, a revolutionary group,37 were convicted
in the Dacca conspiracy case (1910-12), but the number of "outrages" in Eastern Bengal
increased, particularly in the area around Dacca, "sufficient proof" -- in the words of a
later investigative committee known as the Rowlatt Committee after its chairman -- that
the proceedings against the anarchists had "no substantial deterrent effect."38
In
concluding its account of political crime in Bengal in 1913, the Rowlatt Committee took
the view that it was no longer necessary "to describe all the dacoities of the year in detail,
since in all respects they conformed to what had by this time become a recognised type of
crime."39 "Dacoities" were now so common, and followed so well-known a pattern, that
their enumeration in detail was scarcely necessary, and indeed their frequent periodicity
made it possible to assimilate them to ordinary, as opposed to political, crimes. On the
one hand, young men were being implicated as terrorists, guilty of heinous crimes against
the State, motivated by the "sheer desire to murder", out to ruin the fair name of India,
36NAI: Home Dept. (Political), A, July 1910, Nos. 5-32, pp. 9-40, letter from Mackarness
and Ratcliffe to the Viceroy, 7 March 1910. The principle that extraordinary legislation must have its
temporary characteristic has been violated once too often, most recently in the continuous enactment of the
Prevention of Terrorism Acts. See Vinay Lal, "Anti-Terrorist Legislation: A Comparative Study of India,
the United Kingdom, and Sri Lanka”, Lokayan Bulletin 11, no. 1 (July-August 1994):5-24.
37This 'terrorist' society was supposed to have wide networks. See in ibid., B, July 1918, Nos.
292-316 k.w., a document, marked "Strictly Secret", entitled "The Dacca Anushilan Samiti in Bihar".
38Government of India, Sedition Committee, 1918: Report , republished in Calcutta: New
Age Publishers Pvt. Ltd., 1973), p. 48. Hereafter cited as Rowlatt Report.
20
and therefore the fit subjects for a committee to inquiry; on the other hand, it was
necessary to divest their actions of any political meaning or intent,40 for to fail to do so
would amount to an admission by the government that not everyone agreed that the
political system devised to rule India was successful or even in the interests of Indians
themselves.
Towards the end of March 1913, the Government of Bengal felt obliged to
address a long letter, in response to persistent queries from the Government of India, on
the subject of "disorder and conspiracy" in Bengal and the measures that could be taken to
bring the situation under control. The Government of Bengal admitted that "a wellorganized and centralized criminal propaganda [was] in full operation", that events
unmistakably pointed to "the serious recrudescence of the disloyal movement in East
Bengal", and that "forces of unrest" were "again manifesting themselves and assuming
renewed vitality."
A great deal of revolutionary literature was being produced and
disseminated, and just as ominously, secret societies were being strengthened with new
recruits from the ranks of schoolboys. The numerous measures that had been taken over
the last few years "for the suppression of dacoities and other crimes of violence" were
reviewed. Villagers had been armed, and otherwise aroused to "a sense of their civic
responsibilities"; reforms in the police administration had been undertaken, a river police
had been established, and police stations had been newly armed and fortified.
Nonetheless, these improvements had proven insufficient to eliminate the menace posed
39Ibid.,
p. 59.
so-called 'moderates', keen to show their loyalty to the government, were likewise eager
to demonstrate that much of what passed for political crime was nothing but ordinary street crime or
common dacoity. "Such sophistry satisfied no one", says J. H. Broomfield, but it is not clear that the
'moderates' were aiming to please the government, which itself had indulged in such sophistry. See his Elite
Conflict in a Plural Society: Twentieth-Century Bengal (Berkeley: University of California Press, 1968), p.
72.
40The
21
to an ordered and law-abiding society by the proponents of violence, and the Government
of Bengal proposed introducing more stringent measures.41
Adverting to the Bengal Government's letter, R.H. Craddock, Home Member in
the Viceroy's Council, described it as "melancholy reading".42
As Home Member
between January 1912 and April 1917, Craddock presided over Home affairs at a critical
period in the history of terrorism in Bengal, a period that witnessed too the creation of
extraordinary legislation and the outbreak of a war of unprecedented dimensions. In a
long note that Craddock penned on the Bengal Government's letter, which reveals more
than adequately the sociology of knowledge that informed his perceptions of the problems
in Bengal, he began with an inquiry into why the problem of terrorism had remained
intractable only in Bengal. The conventional theory, with which one might have expected
Craddock to begin, stipulated that Bengalis had been exposed to Western modes of
thought and ideas of freedom and democracy for a far greater period of time than had
other Indians, partly on account of the fact that Bengal was the first area to come under
British rule, and partly as a consequence of the fact that as until 1911 Calcutta had been
the capital of British India, it was there that the demand for English-educated Indians to
man clerical and lower-level administrative positions had first arisen.
When the
expectations of Bengalis could not be realized, their restlessness searched for an outlet
where it could be expressed and visibly felt. But of course such an account had now
perforce to be rejected, for when the subject of inquiry was terrorism, one could not truly
speak of the influence of the West, which must always be for the good, unless the twisted
mind of the Hindu had somehow managed to corrupt, vulgarize, and demean the
41NAI:
60-61.
Home Department (Political), A, May 1913, Nos. 72-75, pp. 57-66, esp. pp. 57 and
22
ennobling thoughts of Western civilization. "In no other country in the world than India,
and in no other part of India except Bengal," wrote Craddock, "could such an absolute
inversion of right and wrong apparently find acceptance among people, who are more
than ordinarily gifted with intellectual gifts."43 Clearly, the teachings of Locke, Milton,
and Mill, who stood for anything but subversion, had been subverted by intelligent
people. The pity of it was all the greater because here one was dealing, as usually one did
not in India, with men who were not devoid of "intellectual gifts". The Hindu's learning,
like his moral and social growth in general, was apt to display an "absolute inversion".
As a rule, Hindu society displayed little inclination towards growth, stirred from
stagnation only by an occasional prod or two from the Englishman, but when there was
growth, it verged on the point of being cancerous. Whatever meditations Craddock
believed he might have to offer on terrorism in Bengal, he did not doubt that "surgical
operations" would be indispensable "to remove the poisonous growths of Bengal
society."44
What, then, made the control of terrorism in Bengal so exceptionally difficult? In
Bengal, argued Craddock, the administration was carried on without close "touch with the
people"; secondly, Calcutta was the seat of a High Court, with which "executive wrongheadedness and highhandedness" were an "obsession", and which looked upon all
evidence furnished by the prosecution as "tainted and suspicious"; thirdly, where in the
rest of India the "bhadralok", or the imperfectly-educated middle-class, was confined
largely to the towns, in Bengal its members were numerous enough to have become "a
very large element in rural society", where they fomented dissent; and "added to this" was
42Ibid.,
43Ibid.,
p. 20, note by Craddock, 27 April 1913.
p. 21.
23
the paucity of police forces (particularly of European officers), the enormous size of
administrative districts, the great difficulty of communications, the excessive influence
(for the worse) of the press and the legal element upon policy in Bengal, and "the subinfeudation and excessive division of rights in land creating large classes of
intermediaries without any definite occupation."
Among the existing police forces,
demoralization had set in; some policemen feared for their lives, and others would not
even "venture out after dark." The hunters had become hunted. The "failure of the Bengal
Government", observed Craddock, "to carry its people with it, to administer (as we
understand the term elsewhere in India), to uphold its authority, to command universal
obedience, to be a terror to the evil-doer and a protector of the oppressed, is easily
intelligible."45
In Bengal the influence of Government was least strong. "Government in its
beneficent aspect", wrote Craddock, "is not manifested to them [the Bengalis] as in other
parts of India." Government was, to the Indian, a wholly abstract idea; and in India the
English administrator appeared as the bearer of parental authority.
However, writing of
Bengalis, Craddock averred that "the benevolent District Officer as the father of his
people is a conception unknown to them." Many problems were 'structural', rooted in the
decisions and failures of previous administrations, but it scarcely helped that the present
Government of Bengal was impotent, cowardly and supine. "In Bombay the seditious
press has subsided before the feeling of its own hopeless impotence" -- and how great a
contrast was Bengal, where this same press "repeatedly makes the Government dance to
44Ibid.,
p. 20.
pp. 20-22 and 28. Each of these points is elaborated in detail in Craddock's note: for
instance, as regards the paucity of European officers, where in Punjab and Bombay "the ratio of population
per head of European I.C.S. officer engaged in district administration" stood at 1:232,000 and 1:209,000
respectively, in Bengal this figure was 1:505,000.
45Ibid.,
24
its tune." "Overwhelming" as were the disadvantages under which officers in Bengal had
to labour, their sufferings were compounded by "a most enervating climate", and by the
fear that they could not rely upon "their Government to support and defend them from the
attacks of their enemies." Just how little credibility the Government of Bengal had with
its subjects was suggested by the unfortunate circumstance that when, a few years ago, the
government had instituted special enquiries into the conduct of the police in bringing a
riot under control, "farcical 'People's Commissions'" -- as Craddock described them -"were appointed to conduct their own enquiries and make their own reports."46
"This is my diagnosis of the nature and cause of the disease", Craddock was to
write, but what manner of diagnosis was it that purveyed the idea of disease in the
abstract, that is without reference to that condition of the patient which rendered him
different from the ordinary man? Could a diagnosis be quite complete unless one were
attuned to the distinct nature of the Bengali?
To "diagnose the malady, or to trace the
disease to its root causes", it hardly sufficed to enumerate the most "virulent symptoms",
and forget that one was dealing with a race of people whose advocacy of political
violence held out the most fearful possibilities for the future of British rule in India. To
Craddock it was transparent that the "wild ravings of Bengal and their childish hopes that
the collection of a few arms, and the committal of a few dacoities, or even a murder of a
few officers can ever shake the British Raj to its foundation are beneath contempt." At
the same time, accepting unquestionably the typology of races formulated by his many
predecessors and other administrator-scholars, it was clear to Craddock that "the spectacle
of authority defied by an unwarlike race like the Bengalis is the most unedifying objectlesson to the rest of India that can possibly be imagined." One expected the Pathans,
46Ibid.,
pp. 20 and 25.
25
Gurkhas, Jats, or Rajputs to fight, but since when was it given to the Bengalis to defy the
authority of the British? The surprise was one thing, the evil it portended of an altogether
different order: "The situation in Bengal is dangerous in itself; but it is vastly more
dangerous in its potentialities."
"A movement of this kind is like the plague", and it is in
the nature of a plague to spread and infect others.
Already, "Young Bengal" was
becoming "dictatorial", and one heard of "mutterings that if Bengal can do this or that, the
rest of India should be able to do it better still."
What if the martial races took to
anarchism and dacoity on the scale which was being encountered in Bengal? Here, too,
there was yet a greater fear, the spectre of different races with their peculiar
characteristics complementing each other in a united effort to eradicate British rule from
India. "Before long we may have political dacoits and professional dacoits", Craddock
explained, "the former supplying the brains to the ruder violence and physical courage of
the latter."47
Craddock had, it appears, developed an entire historical sociology to explain why
terrorism remained such an acute problem in Bengal while in the rest of India, and
particularly in Bombay where it had first originated, it had been combated with
considerable (if not complete) success. Yet how quickly this historical sociology was to
be jettisoned in favor of an explanation which essentialized the Bengali! Craddock had
enumerated the problems that the administration of Bengal had inherited, such as the poor
contact between the rulers and the ruled, the paucity of European administrators and
police officers, the wasteful and excessive division of agricultural land, and
unemployment among the educated youth. If the conditions in Bengal were such that
terrorism had found a climate and soil in which it would prosper, then it mattered little
47Ibid.,
pp. 20-22.
26
whether the Bengali was 'effeminate' or 'war-like', and similarly the prevalence of
terrorism elsewhere in India had little to do with whether a particular class of Indians
displayed martial tendencies or was content, oxen-like, to plow the fields. Yet the resort
to amateurish psychology held out an irresistible charm for British administrators,
particularly those whose on-the-spot work brought them into 'contact' with Indians whose
conduct rendered them somewhat anomalous or inexplicable. Thus the Bengali, whose
character had been shaped by "the enervating climate of Bengal", and whose "physique
and stamina [were] inferior to that of the up-country Indian", suffered from something of
an "inferiority complex", which he sought to overcome by "misdirected patriotism."48
These words are not Craddock's, but the utterances of Sir Charles Tegart, who served in
the Indian Police in Bengal between 1901 and 1931, the last eight as Commissioner of
Police, Calcutta, and had thus acquired a reputation as the man most well-informed
among the British in India on the subject of terrorism. It could just as easily have been
Craddock speaking, but his expertise in psychology took him a shade further along his
magisterial pronouncements. Craddock noted that in India schools, the breeding-grounds
for sedition, could be operated without a license, nor were teachers required to be
licensed. The consequences were there to be seen: "A convict, an anarchist, or a
sodomite may undertake the profession of teaching and no one can say him nay."
Someone who could be foolish enough to think that in England things stood on a similar
footing, as there too licenses were not required, need only be reminded that "in England
48Sir
Charles Tegart, Terrorism in India [text of an address delivered before the Royal Empire
Society, London, November 1932] (reprint, Calcutta: New Age Publishers Pvt. Ltd., 1983), p. 11.
27
you can depend upon it that parents will not send their children to a school where teachers
are of bad character, but there is no such confidence possible in India."49
In England, one could count upon the force of ostracism, the presence of a moral
and socially conscionable community, and the blessings of virtue, moderation, restraint,
and good sense to make it impossible for teachers of evil disposition to exercise influence
over their wards. Indians, who were creatures of habit and instinct, aroused by sentiment
and emotion, were scarcely capable of functioning as a moral or political community.
The ease with which the "anarchist" was equated with the "convict" and the "sodomite"
was also certainly intended to convey the ludicrous impression that the Bengali was as
sick in the body as in the mind, his acts of political terrorism only a reflection of the
sexual terror he unleashed upon his charges, his filthy sexual preferences and practices a
vehicle of entry into his debased mind.
It is all the more surprising that such an
insinuation should have been levelled at Bengalis by an Englishman, when we consider
that European expansion entailed not only political domination and economic profit, but
also sexual exploitation, and not only of native women, but also of young men and boys.
The Empire, as one historian has recently written, was the gateway to "sexual
opportunity", and as England itself allowed fewer opportunities for anything but postmarital sexual intercourse as the nineteenth century progressed, imperial proconsuls,
officers, and the subalterns alike found in the young men and boys in their various
colonies subjects upon whom they could easily impose their sexual preferences.50
49NAI:
Home Department (Political), A, May 1913, Nos. 72-75, p. 24, note by Craddock, 27-
4-1913.
50Ronald Hyam, "Empire and Sexual Opportunity", Journal of Imperial and Commonwealth
History 14 , 2 (January, 1986):34-89, passim. The sexual appetite of the imperial proconsuls, the great
generals, and war heroes extended nearly as often to boys as it did to women. "Lovers of boys took
particularly horrendous chances", writes Hyam, and several careers were ruined in the process, such as that
of the Anglo-Boer War hero, Sir Hector Macdonald, who was caught playing with Singhalese boys, and
28
"It is a strange world", Craddock wrote of Young Bengal, "a topsy-turvy
arrangement under which all the maleficent influences are hailed as deliverances, and all
the benevolent influences are howled down in press and on platform as tyrannical and
malevolent."51
To meet this situation, Craddock proposed another "arrangement".
Recognizing the primacy of the man-on-the-spot, Craddock acknowledged that he could
not pretend "sitting here in Calcutta, or from an occasional visit to Calcutta, to make any
precise recommendations." The Bengal Government was "groping in the dark", the
"ordinary machinery of the State" had "broken down", and so the agency of reform must
come from the outside. What Craddock recommended then was
the appointment of a strong committee to investigate the present
Bengal system, and to recommend the lines on which Bengal
District administration can be built up, so as to be assimilated as
nearly as may be to the system which has grown up and which
works so efficiently in other parts of India including especially
the permanently settled division of Benares.52
"Careful consideration" was to be given to the composition of the committee:
the men who were to sit on it must be "broad-minded and level-headed", "thoroughly
conversant with their own system", and yet "fully able to appreciate the difficulties of
their Bengal brethren". No provincial government would like to have a committee
then committed suicide. "Boys were certainly John Nicholson's principal solace", Hyam says of one of the
Indian Mutiny's great heroes, also characterizing the early Victorian Punjab Administration by its
"communal households" and young proteges "aged five to 25" (ibid., pp. 34-38).
The abhorrence of, and hostility to, homosexuality was "almost pathological" in late
nineteenth century Britain. More precisely, as Hyam points out, "a traditional hostility to sodomy now
switched to a broader hostility towards a generalized homosexual disposition" (pp. 42, 49-50). Craddock's
seemingly chance lumping of convicts, sodomites, and anarchists suggests a certain sexual anxiety, and in
any case it tells us nothing about Bengalis just as it reveals a great deal about the English themselves.
51NAI: Home Department (Political), A, May 1913, Nos. 72-75, p. 21.
29
inquire into its affairs, and the idea would be surely "unpalatable to the Bengal
Government", "but they have brought it on themselves." We detect even a note of despair
in the suggestion, a strong pronouncement of how there must be a "parting of the ways":
“We must either abandon the task of governing Bengal as too difficult, or we must decide
to tackle it."53 Was the author of the seditious pamphlet who had written, "Terrorise the
officials, English and Indian, and the collapse of the whole machinery of oppression is not
very far", to be proven right?54
The terms of reference of the proposed committee were to "include an
investigation into the economic and administrative causes, which have produced
discontent, and the inability of the Government to maintain its authority". It would be to
the committee to decide how the administrative system at the "sub-divisional and district"
levels could be overhauled.
As always, the main concern was whether there was
precedent for such an inquiry. Answering in the affirmative, Craddock asserted that
"such committees were appointed formerly to investigate economic conditions in the
Deccan, and there are thus precedents for a Committee of this kind comprising officers of
different provinces." There would be a non-official element on the committee as well,
and who should Craddock have thought of to fill the two positions but landlords
[zamindars], the natural allies of the British. However, the zamindars were mainly
Hindus, just as the poorest of the peasants were Muslims, and if problems of tenure and
ownership rights were also to come under the committee's purview, then the Muslims
must receive representation. A "good Muhammadan zamindar from Eastern Bengal",
52Ibid.,
pp. 25 and 28.
53Ibid.
54Cited
by Tegart, Terrorism in India, p. 6.
30
Craddock noted, would do: the Muslims could not complain of not being heard, and the
zamindars would have little to apprehend about their privileges being compromised.55
Whatever the machinery devised to bring the situation under control, it must,
howsoever temporary its application at the outset, be capable of being rendered
permanent, for otherwise it would merely "scotch and not kill these revolutionary
organizations." It was well to emphasize that the police and the courts could no longer be
relied upon to effectively assist the government in its war against the terrorism. The
ordinary law of the land "did not permit Government to gain the upper hand": it did not,
for instance, allow the government the unfettered right to restrict the liberty of those who
were "setting the law at defiance", and such proceedings as the government instituted
against suspects were subject to the interventions of the Court. Two other measures, in
Craddock's view, could provide the Government of Bengal with the arsenal it needed to
wage war against the terrorists. The local governments, acting on the advise of a small
commission of two senior officers, must be endowed with the power to place the suspects
under police surveillance for a period of five years, or demand security for good behavior
on pain of being imprisoned until the security were paid. "It is over failure to give
security", Craddock noted, "that the crux would arise": the suspect might successfully
appeal to the High Court unless it were, in these instances, divested of its habeas corpus
powers.
Accordingly, an ordinance of the Governor-General was required to place
certain matters in the national interest outside the jurisdiction of the courts. The issuance
of an ordinance would give the Government of Bengal "breathing time" to build anew its
administration "in such a way that the ordinary law will suffice to prevent such situations
arising in future.”
55Ibid.,
No doubt, the promulgation of an ordinance would lead to "a
p. 26.
31
tremendous outcry in the seditious press and among nominal constitutionalists", and
"early reprisals in the way of fresh outrages", but what other method existed to meet the
"double conspiracy of silence", "the silence of sympathy and the silence of terror"?
It is on this note of conspiracy that Craddock's long missive of 27 April 1913
ominously ends, a portent of the many witch-hunts for conspirators in which the
government would soon be engaged.
It is on the note of conspiracy that the Government
of India began its reply to the letter of the Government of Bengal,56 accepting the
contention that there existed, "at all events in the eastern parts of the presidency, a wide
and carefully organised conspiracy, the ulterior purpose of which is the violent
destruction of British rule."
Craddock had written that "the real origin and habitat of
Indian anarchy is at present in Bengal", and within Bengal "the head centre and brain" of
the conspiracy was "most probably in Calcutta".57 Echoing this view, the Government of
India said it was "shown that the conspiracy is controlled by a central agency", and
described this very disclosure as a real gain. The most potent consideration, however,
was that howsoever dangerous the situation in Bengal, it was "even more dangerous in its
potentialities." If in an "unwarlike province like Bengal" certain men, "political dacoits
and professional dacoits", were able to set a "bad example", their imitation "in provinces
inhabited by fighting races" would lead to results "even more disastrous."58 So far the
Government of India had shown itself inclined to go along with the views of its Home
Member, Reginald Craddock.
56Ibid.,
p. 83, letter no. 208 from Government of India to Government of Bengal, 27 May
57Ibid.,
pp. 26 and 31, note by Craddock, 27 April 1913.
p. 83, letter of Government of India to Government of Bengal, 27 May 1913.
1913.
58Ibid.,
32
The Government of India's letter continues in this vein, pointing to the many
features of the administration and police work in Bengal which Craddock had highlighted
as greatly wanting in improvement, such as the insufficient contact between
administrators and the native population and the inadequacy of police forces.
The
Government of India agreed that schemes for enlarging the river police and the much
wider diffusion of police outposts ought to be given its full support. An "unrelaxing
vigilance" had to be maintained over the press, and the "judicious but constant application
of the Press Act" promised some success, as indeed it had in Bombay. While the
Government of India took strong objection to the decision of the Bengal Government to
arm villagers, as it implied a "denigration of the principle underlying the Indian Arms Act
that the State is responsible for the protection of its subjects", it wished to impress upon
the provincial government the necessity of working the Arms Act with greater rigor and
enforcing a strict control over sales of weapons.59
The main thrust of the Government of India's letter was, however, to lie in the
distinction between repression and the formulation of a constructive policy. Craddock
himself had noted that "though the very strictest repressive measures are now necessary
constructive remedies are likewise needed: we cannot govern on repression alone."60 But
where "constructive remedies" formed comparatively a small part of Craddock's
proposals, the Government of India was intent on removing the "root causes" of criminal
behavior, which it described as being "found partly in economic and partly in educational
conditions", without the resolution of which "no treatment of the political situation"
would be "complete and satisfactory." Purely repressive measures were likely to be
59Ibid.,
60Ibid.,
pp. 84-86.
p. 30, note by Craddock, 27 April 1913.
33
attended with some success, but "the disorders of Bengal will not be cured", stated the
Government of India with "absolute conviction", "until some searching attempt has been
made to discover and to remedy the causes which produce bhadralog [middle-class]
criminals." The disorders in Bengal were marked by the peculiar circumstance that the
kind of crime which called for repression in Bengal was "confined to a class which
elsewhere in India is by no means conspicuous for criminal activity". No criticisms of the
Government of Bengal were intended, although the Government of India was inclined to
think that the Government of Bengal perhaps was wont to underrate the "adequacy of the
resources" at its command "for dealing with the situation." The Government of India
wished to assure the Bengal Government of its unstinting support, and would go further
in stating that "the complaints of those who have openly shown sympathy with crime
ought to be disregarded."61
The Government of India's letter displays two striking features which are
encountered repeatedly in official discourse and the colonial sociology of knowledge.
The bhadralok had, by the early twentieth century, become an analytical category, one
with an astonishing capacity to thrive, as the work of American scholars over the last
several decades surely demonstrates.62 The bhadralok were the 'respectable people', the
'gentlemen', and in Bengal the class that filled the learned professions and supplied clerks
and lower-level administrators to the government.
Education was the "hallmark of
bhadralok status", as was a certain devotion to Bengali language and literature.63 The
bhadralok saw themselves as the custodians of a great cultural tradition, entrusted with
61Ibid.,
pp. 83-86, letter from Government of India to Government of Bengal, 27 May 1913.
for example, Broomfield, Elite Conflict in a Plural Society, and Leonard Gordon,
Bengal: The Nationalist Movement 1876-1940 (New York: Columbia Press, 1974).
63Broomfield, Elite Conflict in a Plural Society, pp. 5-12.
62See,
34
the task of keeping Bengali free of the vulgarities of common speech. Why, then, should
this class have given birth to "political and professional dacoits"? In a society where the
great avenue of employment for those literate in English was the government, other
opportunities for advancement were few and far between, and neither was the aversion to
manual labor among the educated calculated to ease their dismal employment prospects.
Having, as they thought, located the grievances of the bhadralok in economic and
educational conditions, the British were attempting to divest the activities of the terrorists
of their ideological intent and political significance, and implicate nationalism as a
movement of a few disgruntled people, in no way indicative of the feeling of the masses.
With what justice could one say that Indians aspired to self-government when substantive
opposition to British rule (the opposition of the 'constitutionalists' or the moderate party
being none other than the tentative steps of a people brought for the first time to the
awareness of 'politics' and their political privileges and duties) was confined to a
miniscule portion of the Indian population? Dared one assume that the party of violence
spoke for anyone but its own adherents? This endeavor to mitigate movements which
posed a challenge to the domination of the colonial power by dismissing their adherents
as men and women with no greater desire than to advance their own self-interests would
be witnessed with increasing frequency over the remaining years of British rule in India,64
for example during the disturbances in the Punjab in 1919 which were described by
senior officials as originating due to the evil influence of lawyers and the educated urban
elite.
64The greatest advocates of a non-ideological interpretation of Indian nationalism are
historians of the 'Cambridge School'. For a succinct criticism of the view that Indian nationalism was
merely the politics of self-interest, see Tapan Raychaudhuri, "Indian Nationalism as Animal Politics",
Historical Journal 22 (1979):747-763.
35
Secondly, in pointing to the adequacy of the resources already available to the
Government of Bengal to deal with the problem, and in pointedly overlooking those of
Craddock's proposed measures which would have been overstepping the normal legal
apparatus, such as the issuance of an ordinance and the appointment of small
commissions of two officers who would practically be entrusted with the authority to
restrict the liberty of certain people, the Government of India was giving expression to the
assumption that one must govern by law rather than ordinance, to the ambiguity that even
its own despotic rule was conducted along, or at least tempered by, certain quasidemocratic principles.65
Commenting on Craddock's note, a member of the Viceroy's
Council wrote that he did not think "it is either wise or prudent to act upon an ordinance."
If "extraordinary law" was required in the present circumstances, such legislation must
nonetheless be passed through the "Legislative Council".66
The pretensions of the
anarchists were easily scoffed at, but what of the pretensions of a government that, though
describing itself as "duly established by law" and sworn to the rule of law, was quite
prepared to proceed by ordinance for the repression of "ordinary crime rampant because
of the gross inefficiency of the Government of the Province in which that crime
flourishes"?67
It is generally assumed by historians of British India (and the British Empire) that
England as a colonial power chose to govern by employing the rhetoric of democracy, but
that it was never more than rhetoric, for if this rhetoric were actually underpined by
democratic practices, the whole fabric of colonial rule would have been destroyed.
65The power to issue an ordinance belongs to the executive; laws, howsoever repressive, are
passed by the legislature. Of course this distinction relies upon the acceptance of some version, however
attenuated, of the theory of separation of powers.
66NAI: Home Department (Political), A, May 1913, Nos. 72-75, p. 32, note by G.F. Wilson,
6 May 1913.
36
Colonialism is premised partly on the notion of ineradicable difference, whether this
difference be constituted as the difference of civilization and savagery, the rulers and the
ruled, white and black, Christian and pagan. For the colonial rulers to suppose that India
could be governed much as England was governed, with the supposed consent and
participation of the population, would have been to invite their own loss of privileges,
indeed their own destruction. India had only the rudiments of a legislative body, no
enshrined principle of checks and balances, nor had the multitude the power (howsoever
dubious) of the vote; and yet the discussion within government circles on whether to rule
by law (through the legislative) or ordinance (by executive decree) was not wholly
contrived, not wholly an engagement in speech and political practice that in time to come
would betray itself as unauthentic. The distinction between law and ordinance may
appear rather superfluous, when it is considered that as the head of the government the
Viceroy, appointed by the monarch at the advise of the cabinet, had virtually unlimited
powers. True, the Viceroy was subordinate to the Secretary of State and even subject to
recall, but the sheer distance between England and India precluded any direct control, and
there was nothing to stop the Viceroy from enforcing his will or ruling by decree, nothing
that is but the self-restraint that an Englishman of noble descent and high breeding might
naturally be expected to exercise.
The reluctance to employ executive power where legislation, extraordinary or
otherwise, might suffice pointed to several paradoxes or internal contradictions of
colonialism that the rise of nationalism had exposed. Several schools of thought existed
on how India might be governed: some imperialists claimed to govern India for India's
own good, others saw India as England's claim to glory and world domination; again,
67Ibid.,
p. 33.
37
some pretended they were Platonists, others claimed India had fallen into England's hands
by sheer chance, and yet others spoke of England's historical destiny to rule India.68 On
the one hand, as English domination over India began to be questioned, some could still
maintain that as India had been taken by the sword, it must be held by the sword. Power
when camouflaged is still power, but power when naked is absolute power, and the native
had certainly known nothing but absolute power. If the State must arm itself to the teeth,
let it do so; and if it must pass ordinances, let it do that too. On the other hand, the whole
drift of various pronouncements and policies since after the Rebellion of 1857-58, when
British rule had been put to its most severe test, had been to suggest that the numerous
subjects of the monarch were, however dispersed they may be around the globe, in no
wise different, and could in time expect to partake of the responsibilities of selfgovernance, just as they could expect the blessings of a good and stable government. A
fragile balance between these two trajectories would henceforth have to be maintained, a
balance that the institution of committees of inquiry helped to maintain, but which
towards the end of British rule broke under the weight of its own contradictions.
Moreover, as India moved into the era of repressive or extraordinary legislation, the
essentializing aspects of colonialism took on a new life. Thus Craddock, in his note on
Bengali revolutionary conspiracies, could quite categorically state that "a Bengali has
never governed either himself or anybody else": born to be a subaltern, he would remain
one.69 Yet, whatever the Bengali's inaptitude for governing himself or others, the British
were showing themselves quite inept at governing 'the Bengali race', and this intolerable
68See
Raghavan Iyer, "Utilitarianism and All That", St. Antony's Papers, Vol. 8 [South Asian
Series No. 2] (London: Oxford University Press, 1966).
69NAI: Home Department (Political), A, May 1913, Nos. 72-75, p. 23, note by Craddock, 27
April 1913.
38
situation could not be allowed to continue for long. The way had been paved for
repressive legislation and for the asssumption, by the state, of vast powers to curtail the
menace of 'terrorism', and it is these problems that the Government of India sought to
resolve when it appointed the Sedition Committee in late 1917 to inquire into
revolutionary conspiracies.
Did then the Government of India tackle the problem of 'terrorism' within the
bounds of the 'rule of law'? When the problem of terrorism first arose in any concerted
sort of way, the British at once thought of two ways in which they could deal with this
problem.
The first was to empower the Executive, that is the Viceroy, with some
extraordinary powers of repression, such as would enable him to rule by decree or really
by what were called ordinances. A decree might confine a person to house arrest; or it
might put someone in jail without trial for as many as two years: these decrees were not
to be subject to judicial review. Ruling by ordinance was no by means unprecedented, as
the example of Regulation III suggests. When, however, rule by ordiance was suggested
in the early twentieth century, there arose an enormous dispute within the highest circles
of the government of India, which was to last for at least ten years, as to whether it was
appropriate to rule by executive power. If the Government did so, then what would make
it different from those forms of despotism which had, on the British view, prevailed in
India since time immemorial before the coming of the British? To wage war against
political violence through extra-constitutional ordinances was to normalize them as part
of the apparatus of governance and so to render their effectiveness in times of dire
emergency quite dubious.
The other path that seemed more promising for the
containment of terrorism was to introduce repressive legislation. This legislation would,
39
its proponents promised, achieve exactly the same effects as executive ordinances,
without giving rise to the view that this was a wholly autocratic government.
The Government of India had never claimed to be a democratic government,
one which was bound to observe the separation of powers between the executive,
legislative, and judicial branches. If we then take the view that colonialism is wholly
incompatible with the 'rule of law', we have to ask why there should have raged for many
years a debate, not intended for public consumption, on whether the government should
contain the terrorist threat by means of executive ordinances or legislation that would be
subject to judicial review. In this respect, some cues are furnished by the work of E. P.
Thompson. In a work called Whigs and Hunters, which is a history from below of
English society at the time of the Black Act (1723), and of the opposition that this
legislation engendered, Thompson was constrained to admit that law was in the
eighteenth century, and is today, an instrument of the ruling class. His study, in his own
words, confirms "the class-bound and mystifying functions of the law", the mystification
arising from law's pretensions to neutrality and transcendence; as ideology, eighteenthcentury law "not only served", but "also legitimized class power." But must one conclude
from this, asks Thompson, that law is nothing more than yet another mask that the ruling
class wears?70
The entire thrust of Whigs and Hunters is in fact to assert the primacy of the
'rule of law' in English history and the possibilities it holds out for redressing social
inequities. As Thompson puts it unabashedly, "the rule of law itself, the imposing of
effective inhibitions upon power and the defence of the citizen from power's all-intrusive
70E.
P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon
Books, 1975), pp. 259-62.
40
claims, seems to me to be an unqualified human good." Some parts of the Marxiststructural critique, argues Thompson, indubitably command our assent; however, it is a
"slide into structural reductionism" to say that law is nothing but a way of expressing
class relations. Marxists have ignored, he says, the obvious distinction between "arbitrary
power and the rule of law", and to conflate the two is a "desperate error of intellectual
abstraction", desperate because it ignores the totalizing nature of power in the twentieth
century, and also because it becomes self-fulfilling, inducing in people the belief that they
are powerless to do anything about bad laws. It is one thing to say that the ruling class
has need of the law, in order to repress the ruled, but another thing to argue that as a
consequence the ruled do not in any way stand to benefit from the law. Again, "if the
actuality of the law's operation in class-divided societies has, again and again, fallen short
of its own rhetoric of equity", law nonetheless serves to inhibit the ruling class from an
unmediated exercise of power. The law may well be an instrument of the ruling class, but
in practice it works for the common good, much like those technological and social
improvements in the quality of Victorian life which were at first designed only to ease the
life of the rich, but from which the common people eventually benefited too.
It is
"inherent" in the "very nature of the medium" of law that it cannot be reserved for the
exclusive use of those who author and give it shape. Should not the "plebs of eighteenthcentury England" have considered themselves "lucky" that they were provided with "a
rule of law of some sort"?71
Thompson's spirited defence of the 'rule of law' resembles in part a 'trickledown' theory of law. This is only one of its numerous objectionable features; it appears to
be no less condescending to describe the eighteenth-century English working class as
71Ibid.,
pp. 260-68.
41
“lucky” in that its superiors agreed to subject to themselves to “a rule of law of some
sort” when they could just as easily as have exercised complete tyranny over their
subjects. The implicit comparison here is with Oriental despots, who never consented to
limit their own authority under the law: indeed it is the self-limiting characteristic of the
ruling class that makes it characteristically English. Here Thompson assumes, against the
spirit of his earlier work on the making of the English working class, that the “plebs” did
not engage in a form of self-fashioning; and much like the imperialist theory of Indian
nationalism, which construed it as a purely reactive exercise whose proponents were
devoid of agency, bound merely to respond to the initiatives of the government,
Thompson’s interpretation does not allow for the possibility that it is the solidarity and
resistance of the “plebs” that compelled the ruling elite to allow themselves to be placed
under partial constraint of the ‘rule of law’.
Thus, no unqualified endorsement of Thompson's view is possible, and not
only for the reasons enumerated previously. The notion of the 'rule of law' as he uses it is
embedded in a structural essentialism of another sort, the essentialism which sees the 'rule
of law' as something as 'English' as, to quote from an essay by George Orwell, "solid
breakfasts and gloomy Sundays, smoky towns and winding roads, green fields and red
pillar-boxes."72 One of the principal elements of the discouse of the 'Englishness' of the
English has been the Englishman's profound respect for the law.
Dicey, whose
Introduction to the Law of the Constitution I referred to previously, wrote in the
introduction to the eighth edition of his book (1914), as war was on the horizon, that all
was well, insofar as the "rule of law . . . remains to this day a distinctive characteristic of
72George
Orwell, “England Your England” [1941], in his A Collection of Essays (paperback
ed., New York: Doubleday Anchor Books, 1957), p. 258.
42
the English constitution." Yet all was not well, because the "ancient veneration for the
rule of law" had "in England suffered during the last thirty years a marked decline."73
The decline in the "reverence for rule of law" also showed in "the use of lawless methods
for the attainment of social or political ends";74 in India, but not in England, these
"lawless methods" often embraced the resort to violence.
It is remarkable that
throughout, Dicey uses, in speaking of the rule of law, the language -- “reverence” and
“veneration” -- reserved for religious devotion. Clearly, to speak of the 'rule of law' is not
merely to speak of the mechanical application of laws announced beforehand and partial
to no one, but also of the 'spirit of the law', that spirit which makes us venerate it and
without which the law is a skeleton. The alternative to believing in law, suggests Orwell,
is the acceptance of the idea that there is only "power"; democracy and totalitarianism are
rendered indistinguishable. "In England such concepts as justice, liberty, and objective
truth are still believed in."75
Nonetheless, we should not underestimate the more substantive argument that
underlies Thompson’s defence of the ‘rule of law’. Let us suppose that the 'rule of law' is
just another mask that the ruling class wears. There has, however, to be a face on which
this mask is placed. What happens to the face that wears the mask -- and particularly a
face over which a mask is worn for long periods of time? The face cannot remain
unchanged; its features adjust to accommodate the mask, and it takes on some of the
qualities of the mask. The 'rule of law' similarly cannot be only rhetoric, that is unjust on
account of being a handmaiden to the ruling class, because once it is seen to be rhetoric
and nothing else, it will cease to be effective. "If the law is evidently partial and unjust,"
73Dicey, Law
74Ibid.,
of the Constitution, pp. lv-lvii.
pp. lv, lviii-lxi.
43
writes Thompson, "then it will mask nothing, legitimize nothing, contribute nothing to
any class's hegemony." In order for law as rhetoric to persuade or succeed, law must
appear to be "upholding its own logic and criteria of equity", and must at least on
occasion be just and work for the common good. Behind the rhetoric of the 'rule of law'
stands the 'rule of law' itself.76
For Thompson, as for Dicey, Orwell, and many other English writers, the 'rule
of law' is, besides being an unqualified good, a principled trait of English life, for the
reverence with which it is treated is reflected in those deeply embedded social and
political practices by which the English people constituted themselves into a law-abiding
nation. Are we then to suppose that in coming to India, and then becoming the sovereign
power, the English had perforce to introduce the 'rule of law', even perhaps against their
will? Thompson has written that "as the last imperial illusions of the twentieth century
fade", it might appear to some that the "culture of constitutionalism" which flowered in
England (and presumably the other Western democracies) is "too exceptional to carry any
universal significance."77 However, such a view must, in Thompson's view, arise from an
excessive preoccupation with national history and characteristics, and derive its strength
from an essentialistic and parochial reading of 'English' history, where 'English' is no
more than the history of a people as they were confined to a geographical entity called
'England'.
"If we see Britain within the perspective of the expansion of European
capitalism," writes Thompson, "then the contest over interior rights and laws will be
75Orwell,
"England Your England", in A Collection of Essays, pp. 264-65.
Whigs and Hunters, p. 263.
77Ibid., pp. 258-59. Thompson was writing just after the American defeat in Vietnam, when
perhaps imperialism appeared to have been dealt a crushing and decisive blow, but in 1997, as ‘Stealth
Fighter diplomacy’ replaces ‘gunboat diplomacy’, "imperial illusions" scarcely seemed to have abated. For
the persistence of "imperial illusions" in America, see William Appleman Williams, Empire as a Way of
Life (New York: Oxford University Press, 1980; paperback ed., 1982).
76Thompson,
44
dwarfed when set beside the exterior record of slave-trading, of the East India Company,
of commercial and military imperialism."78 And yet the exploitative nature of British
imperialism did not dwarf altogether the 'rule of law' when it was transplanted to the
colonies: "If the rhetoric was a mask, it was a mask which Gandhi and Nehru were to
borrow, at the head of a million masked supporters."79
And so we return, by way of English history, to the 'rule of law' in India. That
the rhetoric at least of the 'rule of law' was of supreme importance to the British in India
is indicated by that famous expression, "The Government of India duly established by
law". What is suggested is the centrality of law, in the English view, both to the state and
civil society. According to Locke, "Law makes men free in the political arena, just as
reason makes men free in the universe as a whole."80 Law separates those who live under
it from those who have no use for it, those who are free from from those who must ever
live in fear. It divides the civilized from those who have no need for civility, those who
can differentiate between just and unjust from those who do not have the means and
faculties to make such distinctions, for as Hobbes puts it, "Over naturall fooles, children,
or mad-men there is no Law, no more than over brute beasts; nor are they capable of the
title of just, or unjust; because they had never power to make any covenant, or to
understand the consequences thereof".81
If citizens of a commonwealth can be said to live under the law only when
they have the power to make a "covenant" among themselves, and if the Government of
India was "duly established by law", we can understand this self-ascription as articulating
78Ibid.,
p. 259.
p. 266.
80John Locke, Two Treatises of Government, edited with an introduction by Peter Laslett
(Cambridge: Cambridge University Press, 1960), p. 111.
79Ibid.,
45
two claims: the British created those conditions which made it possible for Indians to
enter into a "covenant", and secondly the Government of India was a government
established with the consent of the governed. On this view, it had to be supposed that
India before the coming of the British was a land without law, which in turn incorporated
several claims. First, previous governments in India were established without the consent
of the governed, and had no just claim on the people, having risen to the top by the
ruthless elimination of all rivals and the tyrannical exercise of force.
The British
Government of India, by contrast, commanded the allegiance of the people, because it
was a government that was known for its impartial dispensation of justice and the
maintenance of 'law and order'. Secondly, India was literally, in the words of Sir Henry
Maine, "a country singularly empty of law."82 It was "singularly" and spectacularly
devoid of "law" because, to quote from Robert Orme's essay "Of the Laws and Justice of
Indostan" (1782), "custom and religion have given all the regulations which are at this
time observed in Indostan." Insofar as the function of law is to allow certain behavior
while proscribing, under the threat of sanctions, other actions, to Orme it seemed that
"custom and religion" admirably served in lieu of law, because they provided "a
constancy not exceeded in legislatures founded upon the best of principles."83 The
contradiction thus entailed, of on the one hand holding to the view that the people did not
form a "covenant" among themselves, such that they would be voicing the general will,
81Thomas Hobbes, Leviathan, edited with an introduction by C. B. MacPherson
(Harmondsworth: Penguin Books, 1981), Pt. 2, ch. 26, p. 317.
82Note written by Maine as Law Member in the Government of India, dated 17 July 1869, in
Minutes by Sir H. S. Maine 1862-69 (Calcutta: Government of India, Legislative Department, 1890), p.
225, cited by Marc Galanter, "The Displacement of Traditional Law in Modern India", Journal of Social
Issues 24, no. 4 (1968), pp. 65-91 at p. 73.
83Robert Orme, Historical Fragments of the Mogul Empire, of the Morattoes, and of the
English Concerns in Indostan from the Year MCDLIX (London: J. Murray, 1805; reprint ed., with
introduction by J. P. Guha, New Delhi: Associated Publishing, 1974), p. 280.
46
and on the other hand stating that custom and religion, which are surely other forms of
"covenant", governed the lives of Indians, is not pursued or even recognized in British
discourses of India. Finally, India was without law in the sense that the 'natural' or
perpetual state of affairs was one of anarchy, that is the lack of supreme authority, and
despotism, a form of 'government' where there can be no 'rule of law'. As Orme put it
bluntly, in a section entitled "Of the Laws of Indostan", "A government depending upon
no other principle than the will of one, cannot be supposed to admit any absolute laws
into its constitution; for these would often interfere with that will."84
India was "empty" of law,85 but providentially the British were there to spill that
overflowing cup of despotism and fill it anew with their law. Can we, then, speak of
India under the British as a country where the 'rule of law' obtained, and if so, what place
did the 'rule of law' have in colonial theories and practices of governance? A country may
have laws, a uniform legal code, and a judicial system, as did India in the second half of
the nineteenth century, but does it follow that the 'rule of law' is in consequence held in
great esteem? One view that has quite often been ascribed to is that since colonial
regimes were exploitative, held together by the impulse to maintain control for as long as
possible, it is pointless if not foolish to speak of the 'rule of law'. In other words, the 'rule
84Ibid.
85This
metaphor had an extraordinarily wide currency in colonial discourse, and its numerous
resonances have scarcely begun to be explored. Theological and philosophical discourses in the West have
generally been hostile to, and most certainly uncomfortable with, the idea of 'emptiness', a hostility
enshrined in the (by no means universal) proverb, 'Nature abhors a vacuum'. The political practices of
Western states, and of their ‘agents’ in the colonies, were aimed at transforming what was thought of as the
'emptiness', in every sense of the term, of the cultures with which they were confronted into a 'fullness'
characterized by greater want, productivity, and consumption? A feminine country with feminine
inhabitants lay before Maine, "empty" of law; it would have to be 'filled', and so it was. The idea of 'waste'
was indispensable to the 'Permanent Settlement' of Bengal in the closing decade of the eighteenth century
and, as I would argue, to colonial expansion. In colonial discourse, to 'civilize' a place is to render it
habitable, to fill it with 'structures', to denude it of 'waste'. Sadly, this has nowhere been examined, but a
small beginning has been made by Vinay Krishin Gidwani, "'Waste' and the Permanent Settlement in
47
of law' was nothing but rhetoric, but this returns us to E. P. Thompson's formulation that
the rhetoric of a discourse, here the discourse of the 'rule of law', can over time transform
or at least affect those political and legal practices which are conducted under the rubric
of that discourse. Once it is accepted that the 'rule of law' is nothing but rhetoric, then the
activities of the state can be conceived as 'legitimizing' the state to a public that may
question the state's monopoly over the use of force. As Max Weber puts it, in what has
become the classic formulation of the importance of legitimacy to domination,
"Experience shows that in no instance does domination voluntarily limit itself to the
appeal to material or affectual or ideal motives as a basis for its continuance. In addition,
every such system attempts to establish and to cultivate the belief in its legitimacy."86
Belief in the legitimacy of the state binds the people to the acceptance of a social order as
one that is just or that endorses certain values which to them are meaningful. When this
"belief" cannot be inculcated or sustained, when the worthiness of the "system" is no
longer apparent to the population, then obedience can no longer be expected. In other
words, legitimacy is nothing if it does not translate into obedience. But how is this
translation of legitimacy into obedience effected? The legitimation of this obedience,
Weber argued, can be either 'charismatic', 'traditional', or 'legal',87 but he does not say how
legal norms and behavior are transmitted into the popular consciousness.88 Indeed,
Bengal", Economic and Political Weekly 27, 4 (25 January 1992):39-46. Special issue on 'Political
Economy'.
86Max Weber, Economy and Society: An Outline of Interpretive Sociology, 3 vols., edited by
Guenther Roth and Claus Wittich (New York: Bedminster Press, 1968), 1:213.
87Idem, From Max Weber: Essays in Sociology, translated, edited, and with an introduction
by H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946, paperback ed., 1958), p.
79.
88These questions are discussed by Alan Hyde, "The Concept of Legitimation in the
Sociology of Law", Wisconsin Law Review (1983):379-426. Hyde subjects legitimation to a searching
critique, but seems to be quite unaware of the problems in substituting 'rationality' and self-interest' for
'obedience' as a basis of action.
48
In India, as the debate over the suppression of terrorism in Bengal amply shows,
colonial officials were to come to the understanding that the obedience of their subjects
could no longer be assumed. The authoritarian colonial official, who was looked upon as
the ma-bap (literally, mother and father) by the peasantry, had lost his charismatic appeal;
and though there would be bold attempts by individual colonial officials to transform
themselves into the guardians of traditional repositories of authority and venerated
customs, the British endeavor to out-Hindu the Hindu was not particularly welcome. It
remained to pursue a legal course, though it was recognized that adherence to the ‘rule of
law’ might prove detrimental to their interests. The British found themselves also caught
in the dialectic of sameness and difference: if the Indians were truly different, then the
homogeneizing and purportedly civilizing thrusts of colonialism were put into doubt; if
they were, however, the same as the British, they would of necessity have to be governed
by a similar set of laws. If the intent of British rule, as some members of the ruling class
were prepared to concede, was none other than to prepare the Indians for self-governance,
and to instill in them the same virtues of forbearance and steadfastness found in the ruling
element, then they could not but be governed by the ‘rule of law’. This expedient, as the
aftermath of attempts to contain terrorism, when seditious conspiracies were to increase
throughout India, was to show, could not be achieved under the conditions of colonialism.
i