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The “Rare Infliction”: the Abolition of Flogging in the Indian Army, circa 1835–1920

Published online by Cambridge University Press:  23 May 2016

Radhika Singha
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Extract

“the very rarity is argument for retention”

On September 2, 1920, an amendment to the Indian Army Act abolished corporal punishment for the Indian soldier and follower and introduced field punishment as a substitute on active service. This emancipation from the lash and the rattan came approximately 40 years after flogging had been abolished for the British soldier by the Army Discipline and Regulation Act, 1881. This article examines two distinct features of Indian military law during the high noon of empire: the Summary Court-Martial (SCM), introduced experimentally in the 1860s and formalized by Act V of 1869, and the prolonged retention of corporal punishment. The Manual of Indian Military Law described the SCM as a tribunal “peculiar to the Indian Army,” and the one most frequently used in it. There was no such tribunal under the British Army Act. The commanding officer (CO) of a “native” regiment presided as sole judge over an SCM, and in this capacity he could award a wide range of sentences, including corporal punishment of up to fifty lashes, and these sentences could be implemented forthwith, without confirmation from higher authority. The Manual of Military Law pronounced that for Indian troops in particular, “a slight punishment promptly inflicted” was more of a deterrent than a heavier one that followed long after the offense. However, from mid-century onwards, debates about flogging in the “native” army were usually inaugurated with the declaration that it was a punishment rarely used or that it was “practically obsolete.” The issue offers one of those intriguing situations in which the rarity of a punishment becomes an argument for retaining it, instead of for doing away with it altogether.

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Law and History Review , Volume 34 , Issue 3 , August 2016 , pp. 783 - 818
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Copyright © the American Society for Legal History, Inc. 2016 

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References

1. General Charles C. Egerton, insisting corporal punishment be retained in the Indian Army, June 6, 1907, India Office Library and Records, British Museum (hereafter IOR) IOR/L/Mil/7/13738. Corporal punishment was inflicted with the cat-o-nine-tails on the back, although “menial” followers could also be caned with a rattan. In the civil sphere, “whipping” was usually inflicted with a rattan on the posterior.

2. Act XXXVII of 1920. On active service the CO could award Field Punishment No.1 and No. 2 of up to 28 days to enrolled ranks. In the first case, the prisoner in irons was secured to a fixed object, in the second case he was not secured. Indian Army Act (hereafter IAA) (Act VIII of 1911) section (hereafter s) 24. Indian soldiers and followers were also exempted from a judicial whipping for any criminal offence (IAA, s 45) although this penalty was retained in Indian criminal justice until 1955 and even longer in some provincial jail codes.

3. In 1868, flogging had been restricted, with some exceptions, to offenses on active service for the British soldier.

4. Under the Indian Articles of War (Act V of 1869) any court-martial, including the SCM convened by the CO, could sentence any personnel below the rank of warrant officer to corporal punishment not exceeding fifty lashes. “(I)n camp or any frontier post” the CO could award up to twelve strokes of the rattan to a “menial” follower without holding a court-martial, and in the field and on the line of march the provost-marshal could order the summary infliction of up to fifty lashes on anyone below the rank of a warrant officer. Act V of 1869, articles 76, 166, 169.

5. Manual of Indian Military Law, 1911 (Calcutta: Government Press, 1922), 146. (Hereafter MIML). Major L. M. Peet, Courts Martial in India (Calcutta and Simla: Thacker, 1923), 6.

6. Act V of 1869, articles 90–94. Two other officers merely attended the tribunal. The SCM could not award a sentence of death, or transportation or imprisonment for a term exceeding 1 year. IAA s 72(1).

7. MIML, 146.

8. John McCosh, Advice to Officers in India (London: Wm. H. Allen & Co., 1856), 12.

9. One argument used to defend the retention of capital punishment in India is that it is awarded only in the “rarest of rare” cases.

10. Wolseley, G.I., “The Native Army of India,” The North American Review 127, 263 (July–August 1878): 132–56Google Scholar, 150. George F. MacMunn, The Armies of India ( London: Adam and Charles Black,1911).

11. Thomas Metcalf, Ideologies of the Raj (Delhi: Oxford University Press, 1995), 55.

12. For criminal law, see Singha, Radhika, “Punished by Surveillance: Policing ‘Dangerousness’ in Colonial India, 1872–1918,” Modern Asian Studies 49 (2015): 241–69CrossRefGoogle Scholar.

13. Military Department (hereafter MD), Judicial, A , September 1894, 1226–50, National Archives of India, Delhi (hereafter NAI).

14. In Parliament on April 16, 1894 the secretary of state for India (hereafter SSI) declared that “flogging had gone into disuse in the Indian Army.” In fact under the strains of the Afghan war (1878–79) the annual figure for flogging under the Indian Articles of War had gone up from seven cases in 1878 to sixty-seven in 1879 and ninety-six in 1880. Legislative, October 1894, 188–94, 188–232, NAI.

15. For a similar effort to block parliamentary scrutiny of the system of regulated military prostitution in India, see Levine, Philippa, “Rereading the 1890s: Venereal Disease as `Constitutional Crisis’ in Britain and British India,” The Journal of Asian Studies 55 (1996): 585–612CrossRefGoogle Scholar.

16. Perhaps this encouraged the Indian soldier to maintain a certain reticence himself about a punishment more commonly associated with his institutional inferior, the follower.

17. Pandit Deepchand, “Bharti hole re, kyun bahar khade rangroot,” in Rajaram Shastri, Haryana ka Lok Manch, trans. “Enlist! O recruit, why do you hesitate,” in Haryana's Folk Forum, No.15 (Gurgaon : Haryana Academy of History and Culture, n.d.).

18. No person subject to the IAA could be arrested for debt by any process of Civil or Revenue Court. IAA, 1911, s 119. He could be arrested in a criminal case, but a sympathetic CO could obstruct police investigations. See Major General D. K. Palit, Major General A.A.Rudra ( New Delhi: 2000), 6.

19. See page 34.

20. J.S. Bell, “India,” Blackwood's Edinburgh Magazine. (hereafter BEM) 38 (1835): 805.

21. “Papers relating to Corporal Punishments, East Indies,” Parliamentary Papers, House of Commons (hereafter HC), Vol. 40, 1836Google Scholar.

22. Minute by the Commander-in-Chief, (C-in-C) W.C. Bentinck, January 1, 1835, ibid. HC, Vol. 40, 1836Google Scholar. John Rosselli, Lord William Bentinck, The Making of a Liberal Imperialist, 1774–1839 (Delhi: University of California Press, 1974), 86.

23. Mutiny Bill, HC Deb April 14, 1836, Vol. 32 cc. 1026–53, 1043.

24. Linda Colley, Captives: Britain, Empire and the World 1600–1850 (London: Jonathan Cape, 2002), 341–43.

25. Radhika Singha, A Despotism of Law, Crime and Justice in Early Colonial India (Delhi: Oxford University Press, 1998 ), 116, 250–51, 285–86.

26. Regulation 2 of 1834.

27. Minute, Bentinck, February 16, 1835, HC Vol. 40, 1836.

28. Both those who favored the abolition of flogging in the “native” army and those who wanted to retain it, shared the same assumptions about the respectability of the sepoy. Peers, Douglas M., “Sepoys, Soldiers and the Lash: Race, Caste and Army Discipline in India,” The Journal of Imperial and Commonwealth History 23 (1995): 211–47CrossRefGoogle Scholar.

29. In March 1835, the Whig ministry had appointed a Royal Commission to inquire into the system of military punishments. Its report was published in 1836.

30. Colley, Captives.

31. Bell, “India.”

32. The Asiatic Journal and Monthly Register for British and Foreign India (hereafter AJMR) 18 (1835)Google Scholar; and “Recollections of a Sentinel,” AJMR 4 (1845): 417Google Scholar.

33. April 16, 1839, IOR/L/Mil/5/417, No. 341. The JAG, India held that mere discharge allowed the discontented to escape from “wholesome discipline.” September 29, 1838, MD, 1844, Vol.206, Maharashtra State Archives, Mumbai.

34. In the early nineteenth century, the dismissal in disgrace of an Indian officer or sepoy could be effected quite ritualistically. See illustrative case 6, January 20, 1822: “drummed out, with his coat turned and a halter round his neck; after which to be stripped of his uniform”; case 3, August 5, 1818: “coat and commission to be torn before his face, his sash cut into pieces, and his sword to be broken over his head.” William Hough, Precedents in Military Law: Including the Practice of Courts Martial (London: W.H. Allen, 1855), 141, 163.

35. The scars left by a flogging were valued for the trace they provided of a previous brush with judicial or military punishment. In 1836 the C-in-C India suggested that sepoys be branded before dismissal. However, Governor-General, Lord Auckland rejected this, declaring that whereas it had been unwise to discontinue corporal punishment in the native army, he would not revive “bad punishments.” Auckland, Military Minutes, August 29, 1836, and November 28, 1836, Add. Mss 37, 714 British Museum. However, the British soldier remained vulnerable to a punishment considered archaic, because right up to 1871 the letter “D” for deserter or “BC” for Bad Character could be marked indelibly on his body.

36. Singha, A Despotism of Law, 150–51,162–64. For helpful discussions of contractarian ideology see Prakash, Gyan, “Colonialism, Capitalism and the Discourse of Freedom,” International Review of Social History 41 (1996): 9–25CrossRefGoogle Scholar; and Prabhu Mohapatra, “From Contract to Status? Or How Law Shaped Labour Relations in Colonial India 1770–1880,” in India's Unfree Workforce, ed. Jan Breman, Isabelle Guerin, and Aseem Prakash (New Delhi: Oxford University Press, 2009), 96–125.

37. Singha, A Despotism of Law, 150–63.

38. Bell, “India.”

39. Ibid.

40. Ibid.

41. See Radhika Singha, “Front Lines and Status Lines: Sepoy and ‘Menial’ in the Great War, 1916–1920,” in, The World in World Wars: Experiences, Perceptions and Perspectives from Africa and Asia , ed. Heike Liebau, Katrin Bromber, Katharina Lange, Dyala Hamzah, and Ravi Ahuja (Leiden: Brill, 2010), 55–106.

42. Governor-General Hardinge, Memorandum, October 17, 1844, IOR/L/Mil/7/13714.

43. “Table of Court–Martials, 1833–1840,” Home, Legislative, December 1841, 26–31, NAI.

44. IOR/L/Mil/5/418, No.353.

45. William Hough, A Narrative of the March and Operations of the Army of the Indus (Calcutta : Thacker Spink, 1840), 44–45. COs in Afghanistan and China used the Provost Marshal to reintroduce flogging to Indian regiments. Hardinge, Memorandum, October 17, 1844, para. 54, IOR/L/Mil/7/13714. Napier did the same in Sindh.

46. IOR/L/Mil/7/13714.

47. Memorandum, October 17, 1844, IOR/L/Mil/7/13714.

48. Ibid. This was the reformed regime of corporal punishment in the British army, with the scale of lashes curtailed, flogging restricted to major offenses, and military prisons introduced to provide an alternative.

49. Ibid. Also Hardinge to Court of Directors, February 16, 1847, Letters to Court of Directors, January–June 1847, NAI.

50. Memorandum, October 17, 1844, IOR/L/Mil/ 7/13714. Hardinge was referring to the C-in –C in India, Lord Combermere's General Order of March 19, 1827 stating that flogging was to be reserved for crimes such as stealing, robbing, and gross insubordination, in which the offender was deemed unworthy to continue in service.

51. Ibid.

52. That is for offenses under articles 38–43, Act XX of 1845; later articles 40–45 of Act XIX of 1847. On the line of march, on board ship, and on service in the field, corporal punishment could be used more freely. The effort to unlink flogging from disgraceful offenses was undermined almost immediately. On January 30, 1847 the JAG, Bengal wrote saying flogging should also be permitted for theft of military property, as in British military law. Hardinge to Court of Directors, MD, February 6, 1847.

53. Hardinge, Memorandum, October 17, 1844, para. 51–57, 65. IOR/L/Mil/7/13714.

54. IOR/L/Mil/5/418.

55. Hardinge, Minute September 2, 1845, IOR/L/Mil/7/13714. Hardinge pointed out that the value of corporal punishment had been recognized anew both in Britain and in India. In Britain, flogging had been introduced to the Treason Act 1842 (c. 51) and in India, Act III of 1844 had restored the punishment of whipping for petty theft. Ibid.

56. “British Press, Corporal Punishment,” from the Morning Herald, reprinted in The Courier, April 15, 1848, 4.

57. George Campbell, MP and former Indian civil servant, said that flogging was retained in the Indian army because it would have been a scandal to use it for the European soldier and do away with it for “his black brother.” See HC July 15, 1879, col. 248 cc. 447–553.

58. Hardinge, Military Despatch, February 16, 1847, IOR/L/Mil/7/13714.

59. Ibid.

60. Punishments that involved discharge: death - 2, transportation - 5, dismissal - 257, imprisonment with labor - 363, corporal punishment - 11. punishments not involving discharge: corporal punishment - 99, imprisonment with solitary confinement - 261, simple imprisonment - 261, miscellaneous - 138. Ibid.

61. Charles Viscount Hardinge, Viscount Hardinge, Rulers of India (Oxford: Clarendon Press, 1892).

62. One correspondent complained that the native army was being assimilated too much to the royal army. The sepoy had come to feel it was his haq, right, to appeal against any punishment. “The Indian Native Army––Caste,” AJMR (1845): 257, 357–64Google Scholar; Thomas Seaton, From Cadet to Colonel: The Record of a Life of Active Service (London: G. Routledge and Sons, 1877), 261; Papers Connected with the Re-organisation of the Army in India, HC 1859 Session 2 (2541) (London 1859), passim.

63. John Lawrence, Neville Chamberlain, and Herbert Edwardes, 1858, in Papers Connected with the Re-organisation of the Army in India.

64. Noting that the C-in-C had begun to admit petitions from sepoys, a Times of India (hereafter TOI) editorial warned against the recreation of a pre-Mutiny situation in which the sepoy “could by the anna post forward a petition direct to Army Head Quarters and was sure of enquiry and a reply.” TOI, February 19, 1876, 2.

65. Act V of 1869, sections 92, 132, and 166.

66. The Indian Articles did not apply to any British-born subject or “any legitimate Christian lineal descendant of such subject.” Act V of 1869, Part 1 (d).

67. For the tenuous position of drummers in the 1857 rebellion, see George W. Forrest, The Indian Mutiny 1857–58: Volume 3: Lucknow and Cawnpore (Calcutta: Military Department Press, 1902).

68. “Abolition of flogging in the Native Army,” AJMR 22 (1837): 176–77Google Scholar. “View of Public Affairs,” The Christian Observer (1840): 250–56, 251Google Scholar. However, Governor General Auckland held that penalties should be determined with reference to the army to which the offender was attached; therefore, Christian drummers of the “native” army were exempt. Minute, June 26, 1839, Legislative, A, August 12, 1839, 38–40, NAI.

69. Act VI of 1864.

70. HC Deb Jan 31, 1906, Vol. 162 c. 697.

71. European soldiers were lashed only in view of European personnel. However, those who criticized Bentinck's “invidious distinction” wrote as though the humiliation of the British soldier was witnessed by some sepoy, exulting in his own exemption. Those who felt that the sepoy should not be flogged commented on the special humiliation he experienced when lashed before “low-caste followers.”

72. Peers, “Sepoys, soldiers and the lash.”

73. MIML (Calcutta: Government Press, 1917), 245, para. 155. The prescriptions are also far more detailed than those for the “cat” used in the Coldstream Guards. Richard Holmes, Redcoat, The British Soldier in the age of Horse and Musket (London: Harper Collins, 2001), 322.

74. An Indian Officer, A Brief Sketch of the Certain Danger of a Reintroduction of Corporal Punishment with the Indian Native Army (London: Smith, Elder, & Co., 1845).

75. Evidence, Lord William Bentinck, Commission on Military Punishment, HC and Cd., Vol. 22, February 5, 1836, para. 5586.

76. Minute February 26, 1835, HC, Vol. 40, 1836. The widow who declared she would immolate herself with her husband's corpse, then changed her mind, was held to disgrace her family.

77. “Reminiscences of a soldier,” TOI, July 7, 1874, 4. Editorial, TOI, June 27, 1879, 2.

78. Land points out that proponents of reform in the British navy deployed a raced discourse of citizenship, arguing that the “true” that is, the white British sailor experienced flogging differently from the colored sailor. To emancipate themselves from the lash, American and British sailors re-cast themselves as “affirmations of orthodox, metropolitan masculinity.” Isaac Land, “‘Sinful Propensities’: Piracy, Sodomy, and Empire in the Rhetoric of Naval Reform,” in Discipline and the Other Body: Correction, Corporeality, Colonialism, ed. Steven Pierce and Anupama Rao (Durham: Duke University Press, 2006), 90–114.

79. “British Press, Corporal Punishment” from the Morning Herald, reprinted in The Courier, April 15, 1848, 4.

80. Richard Holmes, Sahib: The British Soldier in India, 1750–1914 (London: Harper Collins, 2005), 432.

81. “Rowdyism on service,” TOI, October 30, 1882, 6.

82. The Spectator, July 29, 1882, 3.

83. Frederick Sleigh Roberts, Forty-one years in India: From Subaltern to Commande-in-Chief (London: Macmillan, 1901), 13–14. At the time however, Roberts had been ready to tattoo all British recruits to prevent them taking the bounty, deserting, and fraudulently re-enlisting. Roberts to adjutant general, October 22, 1882, Brian Robson, ed., The Military Papers of Field Marshal Lord Roberts (Army Records Society, 1993), 268–70.

84. IOR/L/Mil/7/13714.

85. Interview, Honorary Subadar Lashkari Khan, 129th Duke of Connaught's Own (DCO), Baluchis, April 11, 1936, W.S. Thatcher papers, Cambridge South Asia Archives.

86. Describing his induction into military service in 1819, “Sita Ram” recalled the violence with which his drill instructor had wrenched his ear and cuffed him, switching thereafter to continuous abuse. Sita Ram Panday, trans. Lt. Col. James Thomas Norgate, From Sepoy to Subedar, (London: Routledge, 1873), 15.

87. William H. Sleeman, Rambles and Recollections of an Indian Official (London: J. Hatchard and Son, 1844), 409.

88. See HC, 1859, Vol. V, Appendix 61, 390.

89. Francis Yeats Brown, The Lives of a Bengal Lancer (London: Victor Gollancz, 1930) .

90. In May 1894, thirteen Rangar Muslim recruits to the 17th Bengal Native Infantry demanded their immediate discharge in protest against a drill havildar who had beaten one of them. However, the incident was attributed solely to conflict between Rangar and Hindustani Muslims and rivalry for the post of drillmaster. General Court-Martial, May 21, 1894, Agra, in General Orders By His Excellency the Commander-in-Chief in India, 1895, NAI; “The Reported Mutiny Among Sepoys,” Cardiff Times May 19, 1894, Welsh Newspapers Online. newspapers.library.wales. And again, in 1918, the insubordination at Jhelum, of newly recruited Garhwali and Kumaoni Brahmins of the 38th Dogras, complaining of harsh treatment by Dogra training officers, was blamed on rivalry for influence and promotions. IOR/L/Mil/7/7280.

91. Wald, Erica, “Health, Discipline and Appropriate Behavior: The Body of the Soldier and the Shape of the Cantonment,” Modern Asian Studies 46 (2012): 815–56CrossRefGoogle Scholar. Regulated forms of military prostitution also blurred the line between public and private services, increasing the vulnerability of women in sex work to soldier brutality.

92. Lt. Col. Andrew Cook McMaster, A Catechism on Act No. V of 1869, the Indian Articles of War (Higginbotham and Company: Madras, 1869), 27–28. In contrast, British civilians attached to the army came under military law only in war time.

93. Robert. J. Blackham, Scalpel, Sword and Stretcher (London: Sampson Low, 1931), 93.

94. Singha, “Front Lines and Status Lines.” A British officer noted casually that his bearer, having refused to accompany him to Quetta, would not help him pack. A colleague “kindly beat him for me and he fled unpaid.” “My War time travels, 1914–1919”, entries for 22–23 June 1918, Major A.S. Hamilton, 93/31/1, Imperial War Museum, London .

95. Frank Richards, Old Soldier Sahib (New York: Harrison Smith and Robert Haas, 1936), 163–67. For insightful work on taxonomies of white violence in colonial India see Bailkin, Joanna, “The Boot and the Spleen: When Was Murder Possible in British India?” Comparative Studies in Society and History 48 (2006): 462–93CrossRefGoogle Scholar; and Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010).

96. Ibid. “Batmen are not permitted to work in regimental clothing and they must never be employed in menial or domestic duties.” Capt. F.M. Wardle, Barrow's Sepoy Officer's Manual (Calcutta: Thacker, Spink and Co., 1922), 48.

97. A European nurse, elevated during her stint with an Indian army hospital to the masculine title “sister sahib,” described her encounters with various orderlies. There was a Garhwali so immune to admonition, whom, although they were not supposed to beat orderlies, she caned “weekly—sometimes daily.” “In an Indian Army Hospital, Devoted Orderlies,” The Singapore Free Post and Mercantile Advertiser, November 11, 1925, 24.

98. For a discussion of the Punjab Military Transport Animals Act (Act 1 of 1903) and the violence integral to such legalized forms of impressment, see Neeeladri Bhattacharya, “Violence and the Languages of the Law,” in Iterations of Law in South Asia: Legal History Beyond the Courtroom, ed Aparna Balachandran, Rashmi Pant, and Bhavani Raman (Oxford University Press, forthcoming).

99. See the Assam Hill Districts Whipping regulation of 1875, Home Judicial, A October 1875, 123–126, NAI.

100. General Egerton held that corporal punishment checked followers from breach of sanitary rules, “a most fertile cause of offence” and from offenses against local inhabitants. Note, April 6, 1907, IOR/L/Mil/7/13738. However, porters and scouts picked up for some punitive expedition were sometimes allowed to loot unchecked, then stopped by caning. See accounts of the 1911–12 Abor expedition along the upper Brahmaputra valley. Arthur John Wallace Milroy diary, IOR Mss Eur D 1054.

101. Report of an informal committee to consider the Indian Army Bill. December 18, 1892, MD, Judicial, A, September 1894,1226–50, NAI.

102. Thomas Thompson in HC Deb June 28, 1880, Vol. 253 cc. 960–2 960; Frank O'Donnell in HC Deb August 18, 1881 vol 265 cc. 218–19; Lord Truro, HL Deb, July 6, 1883, Vol. 281 cc. 581–85. East India (Corporal Punishment and Mortality in Jails), HC Cd. 3316 July 1882. (London, 1882).

103. Arnold P. Kaminsky, The India Office: 1880–1910 (London: Mansell, 1986), 132–38.

104. Hanbury argued that the solution to India's deficit was not to raise import duties on Lancashire goods, but to transfer many of the military and home charges that burdened India to imperial revenues. From this perspective, he critiqued both the injustice of the various military charges leveled on India, as well as the injustice of letting the burden of India's deficit fall on Lancashire alone. HC Deb February 21, 1895, Vol. 30 cc. 1285–361.

105. Telegram from SSI, March 18. 1889, MD Judicial, A, September 1894, 1226–50.

106. Note, June 10, 1889, ibid.

107. Viceroy, February 6, 1893, ibid.

108. SSI to Governor General in Council, Military Despatch, No. 56, May 10, 1894, NAI.

109. Kaminsky, The India Office, 132–38; Levine, “Rereading the 1890s.” Arguing that venereal disease raised military expenses, Hanbury supported the position of the C-in-C, India, in favor of continuing the medical inspection of prostitutes. HC Deb February 11, 1895, Vol. 30 cc. 438–39.

110. Note, JAG, India June 7, 1894, MD, Judicial, A, September 1894, 1226–50, NAI.

111. MD, A, March 1887, 813–14, NAI,

112. MD, Judicial, A, September 1894, 1226–50, NAI

113. Note, Captain Beauchamp Duff, December 18, 1892, ibid.

114. Ibid. The SGCM could pass any sentence authorized by the Indian Articles of War including the death penalty. It was the only form of court-martial in which Indian and British officers could sit together in a three-judge tribunal, a provision designed to facilitate speedy assembly. Act XII of 1894, articles 90(a) and (b). As in the case of the SCM, evidence did not have to be recorded. The SGCM corresponded in some, but not all respects, to the Field Court Martial of the British Army Act. See “A Table of Differences between Indian Military Law and British Military Law” in Stephen Thomas Banning, Indian Military Law (London: W. Thacker, 1924), Appendix, 150.

115. The varieties of court-martial were brought down from eight to five, namely the General, the District, the Regimental, the SGCM and the SCM. Later Act VIII of 1911 would also drop the regimental court-martial on the grounds that the SCM had rendered it obsolete.

116. December 18, 1892 , MD, Judicial, A, September 1894, 1226–50, NAI.

117. Act XII of 1894, article 93(i) (a).

118. MD, Judicial, A, September 1894, 1226–50, NAI. Act XII of 1894, article 93(5).

119. The sentence of an SCM could, as before, be implemented immediately without confirmation. However, the proceedings had to be forwarded to “the officer commanding the district, or the division or the brigade … or to the prescribed officer” and he could “for reasons based on the merit of the case, but not on merely technical grounds, set aside the proceedings.” Act XII of 1894, article 97.

120. December 18, 1892, MD, Judicial, A, September 1894, 1226–50, NAI.

121. HC Deb February 14, 1895, Vol 30, cc.754–55. Hanbury's question resonated in one Urdu paper, the Anis-i-Hind, which commented: “Even the African negroes, are not subjected to whipping, and Indians are surely not inferior, even to them.” Selections from the Vernacular Newspapers, North Western Provinces and Oudh, No.18, 1895, May 4, 1895. On the other hand, an article in a prominent English paper, the TOI, denounced Hanbury's attempt to draw Parliament into the discussion, and wound up with the usual declaration that the punishment was “practically obsolete.” “Parliamentary Mare's Nesting,” TOI, May 11, 1894, 4.

122. E.H. Fowler, The Life of Henry Hartley Fowler, First Viscount Wolverhampton, G.C.S.I, (London: Hutchinson and Co., 1912), 309.

123. HC Deb March 28, 1895, Vol. 32, cc. 435–42.

124. Note from Adjutant General, India, March 19, 1895. George White, Mss Eur F 108/29, IOR.

125. Ibid.

126. Ibid.

127. HC Deb March 29, 1906, Vol. 154, cc. 1532–33. Morley's Military Despatch of August 3, 1906 indicated a similar readiness to consider the “removal of an invidious distinction between Native and British forces.” IOR/L/Mil/7/13738.

128. Minto to SSI , Morley, February 14, 1907, IOR/L/Mil/7/13738. General Egerton, pronounced that flogging “had a great moral effect on men whom we can only regard as semi-civilised.” Note, April 6, 1907, IOR/L/Mil/7/13718.

129. Elgin to SSI, January 30, 1895, IOR/L/Mil/7/183738.

130. Kolsky, Elizabeth, “The Colonial Rule of Law and the Legal Regime of Exception: Frontier ‘Fanaticism’ and State Violence in British India,” The American Historical Review 120 (October 2015): 1218–46CrossRefGoogle Scholar.

131. Regulation III of 1901, s6.

132. Legislative, March 1911, 158–78, NAI.

133. W.D. Thomson, JAG, September 24, 1906, Home, Judicial, A March 1907, 167–83, NAI.

134. September 17, 1906, ibid.

135. SSI to Governor-General in Council August 30, 1907, IOR/L/Mil/7/13738.

136. SSI to Governor-General in Council August 16, 1907, IOR/L/Mil/7/13738.

137. HC Deb April 2, 1908, Vol. 187, cc. 668–69.

138. JAG, Notes, January 8, 1908, Legislative, March 1911, 158–78, NAI.

139. Governor General in Council to SSI, Despatch No. 60, Army Department, June 16, 1910, NAI.

140. Corporal punishment could be awarded “at any time” for theft in respect of government or regimental property or the property of a person subject to military law. IAA s 31(d) .

141. Act XIX of 1847, articles 41–43; Act V of 1869, article 60.

142. See Memorandum JAG, Bengal, January 30, 1847, Governor-General Hardinge, Military Despatch, February 6, 1847, NAI.

143. Captain W. Wickham, Military Transport in India ( Bombay: Times of India Steam Press, 1892), 132.

144. When a transfrontier sepoy wanted to take his personal licensed firearm home, his clansmen in the regiment had to deposit security to the full transfrontier value of the weapon. If it was not brought back, they forfeited the money, and could be refused a similar pass for two years. Barrow's Sepoy Officer's Manual, 38.

145. Indian soldiers commented with astonishment in their letters on the wastefulness with which military supplies were used in France during the First World War.

146. Note, April 6, 1907, IOR/L/Mil/&/13738. One of the illustrations for framing a charge was: “The accused, No. … , Driver … . , Mule Corps, is charged with Designedly ill-treating an animal used in the public service.” MIML, 1911, 297.

147. There was no provision for collective fines in the British Army Act.

148. Governor-General's Council, January 21, 1911, Legislative, March 1911, 158–78, NAI.

149. See Maneckji Byramji Dadabhoy, speech in the Viceroy's Council, TOI, March 25, 1909.

150. Notes, Adjutant General's Division, March 16, 1908, Legislative, March 1911, 158–78, NAI.

151. IAA s 41, s 42. Chapter VI of the Indian Penal Code included s 124-A with its notoriously wide definition of sedition.

152. JAG, India, stressing the importance of pushing through a comprehensive Indian Army Act, Notes January 8, 1908, Legislative, March 1911, 158–78, NAI; also Viceroy to SSI, Despatch No. 60, Army Department, June 16, 1910, NAI.

153. Legislative, March 1911, 158–78, NAI.

154. JAG, Notes, January 8, 1908, Legislative, March 1911, 158–78, NAI.

155. Ibid. In 1903, field service in Somaliland revealed that there was no procedure for correcting irregularities in court-martials held for Indians serving in a force not under the command of the C-in- C, India. MD, October 2, 1903, IOR/L/MIL/7/13733. The importance given to the deployment of Indian Army detachments overseas is reflected in the interest taken in subordinating “long established prejudices … to the exigencies of service.” A class regiment of Brahmins was posted as an experiment to 2 years’ garrison duty in Mauritius (1898–1901). Digest of services of HM 1st Regiment Native Infantry 1871–1917, NAI. Selected bodies of troops of the Indian princely states were also being trained up to a higher standard so that they could be used in combination with Indian and British Army units overseas.

156. Legislative, March 1911, 158–78, NAI. The new emphasis on procedural clarity was underlined by the decision to publish an official MIML.

157. JAG, Note, April 24, 1908, Legislative, March 1911, 158–78, NAI.

158. IAA s 74.

159. Previously, an officer commanding a British corps that had an Indian detail attached to it could convene an SCM only if the men were combatants. Now he could convene an SCM even if his corps had an Indian noncombatant detail attached to it, IAA s 64(i) (b). Approximately 9000 Indian noncombatants had, for example, served with the British forces in the South African war (1899–1902).

160. IAA s64(i) (a)

161. IAA s102.

162. IAA s62–63, 72.

163. IOR/L/Mil/7/18848. A General Order was passed making it easier to convene an SGCM, and officers commanding troops out of India, such as those in Persia and Palestine, could convene it in peacetime as well. Peet, Courts-Martial in India, 5.

164. Thomas Anthony Heathcote, The Military in British India: The Development of British Land Forces in South Asia, 1600–1947 (Manchester: Manchester University Press, 1995).

165. India's Contribution to the Great War (Calcutta: Government of India, 1923), 73.

166. The importance of this imperative was underlined by the reluctance of the Dominions to contribute to imperial military expenditure, or to commit themselves in advance to raising expeditionary forces. For an excellent exploration of Indian military and police circulation, see Thomas Metcalf, Imperial Connections: India in the Indian Ocean Arena 1860–1920 (Ranikhet: Permanent Black, 2007), 68–101.

167. Ravi Ahuja, “The Corrosiveness of Comparison: Reverberations of Indian Wartime Experiences in German Prison Camps (1915–1919),” in The World in World Wars.

168. See Major-General Alfred H. Bingley, in the Imperial Legislative Council, March 22, 1918, Legislative, May 1918, 57–68, NAI; and A.S. Cobbe, Military Secretary, India Office, February 25, 1920, IOR/L/Mil/7/13738. To ensure that punishment did not offer a route out of active service, the provision for “consequent dismissal” was removed; that is, the need to dismiss Indian personnel sentenced to imprisonment with hard labor for more than 3 months. (Act IV of 1917). In 1918, provisions for conditional pardon and remission of sentence were introduced to the Indian Army Act (Act XVIII of 1918). Incidentally, the growing youthfulness of recruits had contributed the word jawan, young man, as an alternative to the word sepoy.

169. For France, see IOR/L/Mil/5/738; for Mespotamia, Home, Jails, B, January 1921, 9–11, NAI.

170. Lord Ampthill to Department of Labour, August 8, 1917; also “Note on discipline,” August 31, 1917, IOR/L/Mil/ 5/738.

171. WO 107/37, The National Archives, London, UK.

172. “A Desert Canteen,” Wanganui Chronicle LX, 16852, January 4, 1917, 6. Cecil Sommers, Temporary Crusaders (London: John Lane,1919). The Levantine tint of the Zion Mule Corps at Alexandria made it acceptable to use flogging in this unit too. http://www.jewishvirtuallibrary.org. Accessed 8 May 2016.

173. George Buchanan, The Tragedy of Mesopotamia (London: W. Blackwood, 1938), 108. The British occupation regime had applied the Indian Whipping Act to Iraq, and had tried, unsuccessfully, to formalize this arrangement in the transition to a civil administration. IOR/L/S/11/160, File 7510.

174. “Summary and Histories,” 12, 15; and “Report on 10th Punjab Jail Labour Corps,” 8 in Home Jails, B, January 1921, 9–11, NAI.

175. Ibid.

176. “Summary court-martials on service award practically no other sentence but corporal punishment now, and the sentences of the majority of Summary General courts-martial are also in practice commuted to corporal punishment.” Adjutant General, India, November 6, 1917, AD, Judicial, A September 1919, 2261–70 and Appendix, NAI. A.S. Cobbe said that during his 3 year command of a corps in Mesopotamia he had used corporal punishment for malingering, to punish young recruits sleeping on sentry duty, and to discipline followers, “hurriedly enlisted and of all classes.” A.S. Cobbe, February 25, 1920, IOR/L/Mil/7/13738. Rana Chhina supplied two instances: On April 12, 1917, at Sheikh Saad, Mesopotamia, a sepoy from the 3rd Brahmins was awarded thirty lashes by an SGCM for malingering, and seven were flogged in the presence of the regiment, perhaps for the same offense. The men of this regiment had resisted the effort to get them used to receiving cooked food in the trenches, a change from individual cooking, which would have facilitated front line deployment. WO 95/5022, National Archives, UK. Four men of the 1–129th Baluchis had been lashed for “being absent from duty,” and there was an enquiry as to whether they ought to forfeit their 1914 Bronze star. AD, August 1919, 3422–45, NAI.

177. Secretary WO to C-in-C, India, May 25, 1916, Legislative, AD, Adjutant's Branch, Judicial, B, July 1916, 1938–50, NAI. There were thirteen trials by SGCM in the Indian Army between December 12 and December 31, 1915 in France. Of these, one offender received twelve lashes for malingering, and another received thirty for “feigning disease.” IOR/L/Mil/7/18848. The sepoy had to understand that in injuring or neglecting his own body, he was damaging military property.

178. The C-in-C India had rejected a proposal in 1915 to replace corporal punishment in the Indian Army with field punishment. AD, Judicial, A, September 1919, 2261–70, NAI.

179. Legislative, May 1918, 57–68, NAI. On June 29, 1918, the C-in-C, India passed a special order permitting, on active service, the punishment of forfeiture of pay and allowances for a period not exceeding 3 months, either alone or as an additional punishment. “This punishment may suitably take the place of corporal punishment on active service”. Ibid.

180. On military stations in India, sepoys could not enter enclaves of European residence, leisure, and entertainment without permission; however, this was a limited constraint.

181. Nikolas Gardner, Trial by Fire: Command and the British Expeditionary Force in 1914 (Westport, CT: Praeger Publishers, 2003), 177.

182. Ibid.

183. James Willcocks, With the Indians in France (London: Constable and Company, 1920), Flogging was not used in the French army, either for white or colored troops.

184. Ibid.

185. Ibid.

186. Kenneth James Saunders, With the Indians in France: Being an Account of the Work of the Army YMCA of India with Indian Expeditionary Force A (Calcutta: Army YMCA of India, 1915); also IOR/L/Mil/7/18848.

187. Margarita Barnes, “S.K. Datta and His People,” Mss Eur C 576/89/74, IOR.

188. Ibid.

189. The Indian Home Rule League in Madras had critiqued this difference. Fortnightly Report, Madras Presidency, April 2, 1917, NAI.

190. See Daya Ram Thapar, The Morale Builders; Forty Years with the Military Medical Services of India (London: Asia Publishing House, 1965), 10; also contributions to G.A. Natesan, ed. All About the War: The Indian Review War Book (Madras: G.A.Natesan and Co., 1915).

191. S. Bhalamayya to Pazhamaneri Sundaram Sivaswami Aiyar, September 24, 1917, P.S. Sivaswami Aiyar Papers, Letter No 4105, NAI. Cecil Wood, Principal of an agricultural college, reported that some students had been scared away by the fear of a flogging. September 5 1917, Ibid, Letter No. 4036.

192. P. S. Sivaswami Aiyar, “Narrative of the Indian Defence Force Movement (Voluntary Branch) in the Madras Presidency,1919”, in A Great Liberal, Speeches and Writings of Sir P.S. Sivaswami Aiyar, ed. K.A. Nilakanth Sastri (Bombay: Allied Publishers, 1965), 505–7.

193. Ibid., 508; see also Legislative, May 1918, No 57–68, NAI.

194. However, in a virulent denunciation of Bengali recruits, the CO of this battalion had declared that flogging alone would check their “filthy practices.” Lt. Col. A.L. Barrett, September 1918, IOR/L/Mil/7/17768.

195. Bombay Chronicle, December 30, 1918.

196. Report of the Army in India Committee 1919–20 HC Cd. 87, 945, para. 94.

197. TOI, September 12, 1918, 8; Legislative, May 1918, 57–68, NAI; Legislative, B, October 1920, 153–55, NAI.

198. However, A.S. Cobbe, Military Secretary, India Office, wondered until the last whether corporal punishment ought to be retained for active service, in case “agitators” encouraged desertion . Minute, February 25, 1920,IOR/L/Mil/7/13738.

199. Report of the Indian Franchise Committee, Vol. 1 (Calcutta: Government of India, 1932), 137.

200. Minute by C-in-C, Bentinck, February 16, 1835, HC, Vol. 40, 1836, 453, expressing his frustration about the insistence of three military committees that corporal punishment ought to be retained in the native army.

201. See “A Table of Differences between Indian Military Law and British Military Law.” The SCM still has a place in the Indian Army Act, despite criticisms that it is an outmoded colonial legacy that violates the citizenship rights of the rank and file Indian soldier. Divi Jain “Summary Court Martial and the Indian Judiciary,” http://www.legalserviceindia.com/article/l30-Summary-Court-Marital-And-The-Indian-Judiciary.html. Accessed 8 May 2016.

202. IAA 1911, s22 (1)(b). See also IAA s24.

203. IOR/L/Mil/7/13738.

204. British soldiers coming to India in World War II were still being instructed not to give personal work to regimental followers and not to assault them, because the man might die of internal injuries, “because it savours of bullying” and because of “unpleasant results for the beater,” Our Indian Empire (Delhi: General Staff, India, 1940), 73–78.