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Bengal Regulation 10 of 1804 and Martial Law in British Colonial India

Published online by Cambridge University Press:  19 January 2022

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Abstract

This article examines the East India Company's Bengal Regulation 10 of 1804, a legal statute that enabled martial law to be enforced by the in British colonial India. The use made of this little studied yet significant emergency regulation, its perceived legal deficiencies, and in particular, the discord that arose between the military and civil authorities over how and who should be administer it will be discussed with reference to the promulgation of martial law by the British during the Cuttack Uprising of 1857, the Indian “Mutiny” or Revolt of 1857, and in response to the civil unrest in the Punjab during 1919. While martial law was itself ring fenced by legislation that determined the legal grounds for its inauguration and for its cessation, the implementation of martial law by the British military forces in India was marked by the absence of law.

Type
Original Article
Information
Law and History Review , Volume 40 , Issue 1 , February 2022 , pp. 1 - 36
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the American Society for Legal History

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Footnotes

He is an independent scholar with a research interest in insurgency and counterinsurgency in nineteenth century colonial India. The author thanks Gautham Rao, the editor of Law and History Review, for his advice and support, as well as the three anonymous reviewers for the comments that they made on earlier draft versions of this article.

References

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2. The Bengal State Offences Regulation was the short title given to the regulation under the Amending Act of 1897. Minor deletions were made to its text by the Repealing and Amending Act of 1891. The term “regulation” refers to legislation passed by the governor general of the Bengal presidency, the senior most official of the British East India Company (EIC), and the governors of the Bombay and Madras presidencies. Such regulations were later superseded by legislative acts sanctioned by the governor general and his Legislative Council. Henry Yule and A.C. Burnell, Hobson-Jobson: The Anglo-Indian Dictionary, reprint (Ware: Wordsworth Editions Ltd., 1996), 758.

3. For succinct comparative assessments of how martial law was utilized by the British within their empire see Townshend, Charles, “Martial Law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940,” The Historical Journal 25 (1982): 167–95CrossRefGoogle Scholar; and Lyndall Ryan, “Martial Law in the British Empire,” in Violence, Colonialism and Empire in the Modern World, ed. Philip Dwyer and Amanda Nettlebeck (Cham: Palgrave Macmillan, 2018): 93–109. A more detailed and intricate analysis of martial law can be found in R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005).

4. British support of principles and practice of the rule of law in India have been questioned by a number of scholars. Rather than colonial governance being grounded upon the principles of legal objectivity and universal equality as embodied in the rule of law, Ranajit Guha has claimed that the British exercised “dominance without hegemony,” since their rule amounted to “an autocracy that ruled without consent.” Guha, Ranajit, “Not at Home in Empire,” Critical Inquiry 23 (1997): 485CrossRefGoogle Scholar. See also Jan Wilson, India Conquered: Britain's Raj and the Chaos of Empire (London: Simon & Schuster, 2016), 293–317. Partha Chatterjee has pointed out that, as an alien conquest regime, the British colonial state's laws were a product of what he calls the rule of “colonial difference” reflecting the British sense of isolation and racial segregation from their Indian subjects. Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993), 10. The stresses and strains associated with this colonial racial fault line has been laid bare by the numerous instances of everyday acts of violence committed against Indians by, for example, European indigo and tea planters and off-duty soldiers. In doing so, Europeans rarely faced legal prosecution for their acts essentially placing themselves above the law. Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010), 1, 4. As such, the rule of law in India remained a fractured and qualified one.

5. Taylor C. Sherman, State Violence and Punishment in India (London: Routledge, 2010), 5, 7, 10, 171. For an insightful examination of the systematic use of torture by the police in colonial India see Deana Heath, Colonial Terror: Torture and State Violence in Colonial India (Oxford: Oxford University Press, 2021).

6. Bhavani Raman has drawn attention to the oscillation evident in the colonial state-engendered violence in India in her article “Law in Times of Counter-Insurgency,” in Iterations of Law: Legal Histories from India, ed. Aparna Balachandran, Rashmi Pant, and Bhavani Raman (New Delhi: Oxford University Press, 2018), 120–46.

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9. John Collins has demonstrated that in early modern England, the scope of martial law could at times extend to elements of the civilian population such as the unemployed or vagrants who were regarded as a potential threat to crown rule. John M. Collins, Martial Law and English Laws, c1500-c1700 (Cambridge: Cambridge University Press, 2016).

10. Up until 1858 when India became a crown colony, the EIC, operating as a private trading corporation, exercised governance over the British territorial possessions in India. Under the Charter Act of 1833, the EIC was stripped of its trading monopoly and ability to engage in commercial operations, and became “merely an agency for the government of India.” A. Berriedale Keith, Speeches and Documents on Indian Policy, 1750–1921, Vol. 1 (Oxford: Oxford University Press, 1922), xxi.

11. Charles J. Napier, Remarks on Military Law and the Punishment of Flogging (London: T. & W. Boone, 1837), 2; and The Marquis of Dalhousie and the Lieutenant-General Sir C.J. Napier (London: J. & H. Cox, 1854), 63, 106; Matthew A. Cook, Annexation and the Unhappy Valley: The Historical Anthropology of Sindh's Colonization (Boston: Brill, 2016), 86. On the character of Napier's military regime in Sindh, see Mark Condos, The Insecurity State: Punjab and the Making of Colonial Power in British India (Cambridge: Cambridge University Press, 2017), 84–86, 116–17; and Cook, Annexation and the Unhappy Valley, 69–132.

12. Sir W. Napier, The Life and Opinion of General Sir Charles Napier, Vol. 3 (London: John Murray, 1857), 53.

13. This uprising arose from discontent over the imposition by the British of a series of new taxes. Sujit Sivasundaram, Waves Across the South: A New History of Revolution and Empire (London: William Collins, 2020), 326. During this uprising, several hundred Ceylonese were killed or wounded in skirmishes with colonial troops and of those tried by military court martial under martial law, 18 were executed and nearly 100 received jail sentences or were flogged. “Article 4, Pt. 1,” The Quarterly Review 88 (1850/1851): 114; and Papers Relative to the Affairs of Ceylon (London: W. Clowes and Sons, 1849), 242.

14. Cited in John D. Mayne, The Criminal Law of India (Madras; Higginbottom & Co., 1896), 313.

15. Sir George Campbell, Memoirs of My Indian Career, ed. Charles E. Bernard, Vol. 1 (London: Macmillan & Co., 1893), 231–32.

16. Phillimore, C.G., “Martial Law in Rebellion,” Journal of the Society of Comparative Legislation 2 (1900): 60Google Scholar.

17. W.F. Finlason, “Martial Law, Part 2,” The Law Magazine and Review 5 (1872): 375.

18. A.V. Dicey, Introduction to the Study of Law of the Constitution, reprint (Indianapolis: Liberty Classics, 1982), 182–83.

19. William Forsyth, Cases and Opinions of Constitutional Law (London: Steven & Haynes, 1869), 198–99. Nasser Hussain has drawn attention to this tautology in his article, “Beyond Norm and Exception: Guantanamo,” Critical Inquiry 33 (2007): 752.

20. W.F. Finlason, A Treatise on Martial Law (London: Steven & Sons, 1866), xxxii.

21. “Martial Law,” The Times, June 27, 1867, 12.

22. Buckler, F.W., “The Political Theory of the Indian Mutiny of 1857,” Transactions of the Royal Historical Society 5 (1922): 74CrossRefGoogle Scholar.

23. Joseph Minattur, Martial Law in India, Pakistan and Ceylon (The Hague: Martinus Nijhoff, 1962), 15.

24. Fear of a French invasion of India was considered a very real threat to the British in India during the first decade of the nineteenth century, while the potential of Russia to invade India was taken far more seriously by the British at precisely the same time as Regulation 10 appeared on the EIC's statute books. See Roger Knight, Britain Against Napoleon: The Organisation of Victory, 1793–1815 (London: Allen Lane, 2013); and Yapp, M.A., “British Perceptions of the Russian Threat to India,” Modern Asian Studies 21 (1987): 648CrossRefGoogle Scholar.

25. The Statutes of the Realm, Vol. 1, reprint (London: Dawsons, 1963), 319–20; The Statutes at Large Passed in the Parliaments Held in Ireland, Vol. 19 (Dublin: George Grierson, 1799), 178. For an overview of imposition of martial law by the British in Ireland, see Keane, Rohan, “‘The Will of the General’: Martial Law in Ireland, 1535–1924,” The Irish Jurist 25/27 (1990/1992): 150–80Google Scholar.

26. The regulation refers to the presidency of Fort William, the old name for the presidency of Bengal. As well as containing the city of Calcutta, the administrative capital of the EIC in India, the Bengal Presidency encompassed the province of Orissa to the south west, the province of Bihar, and what would become the districts of the North Western Provinces (NWP) to the north east. Each presidency formed a distinct and separate territorial unit, although technically the governor-general needed to approve any laws passed, this requirement was not enforced.

27. These were the Madras Regulation 8 of 1808 and the Bombay Regulation 1 of 1820.

28. Charles Hamilton, The Hedaya, or Guide; A Commentary on the Mussulman Laws, Vol. 2 (London: T. Bensley, 1791), 248–49, 251.

29. Thus, according to Syed Raza, “offences that were deemed treasonous under the Treason Act 1351 were provided in Regulation X almost verbatim and were subject to martial law jurisdiction.” Syed Sami Raza, The Security State in Pakistan: Legal Foundations (London: Routledge, 2018), 18.

30. Modification of the Judicial System in the Bengal Provinces (Fort William: Calcutta, 1815), paragraph 65, no page no. On the circumvention of Muslim laws by the British, see Joseph Schacht, An Introduction to Islamic Law, reprint (New York: Oxford University Press, 1982), 187; and Jorg Fisch, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769–1817 (Wiesbaden: Franz Steiner Verlag, 1983).

31. Bankey Bihari Misra, The Central Administration of the East India Company, 1773–1834 (Bombay: Oxford University Press, 1959), 359. Regulation 20 of 1803 repeated the legal provisions of Regulation 4 of 1799 and extended them to districts ceded to the EIC in northern India by the Nawab (ruler) of the Kingdom of Oudh. These ceded districts later formed part of the Bengal Presidency's NWP. Reference to these regulations in Regulation 10 were deleted under the Repealing Act of 1874 (Act 16).

32. The Statute of the Realm, Vol. 6, reprint (London: Dawson, 1963), 55–56; Courtney Stanhope Kenny, Outlines of Criminal Law, 12th ed. (Cambridge: Cambridge University Press, 1929), n. 5, 267; and Harris Prendergast, The Law Relating to the Officers in the Army, 2nd ed. (London: Parker, Furnivall, and Parker, 1860), 6.

33. This circular is reproduced in Akshaya K. Ghose, Laws Affecting the Rights and Liberties of the Indian People (From Early British Rule) (Calcutta: Mohun Brothers, 1921), 24–26.

34. On the character of the rebellion, see Akio Tanabe, “Genealogies of the “Paika Rebellion:” Heterogenetics and Linkages,” International Journal of Asian Studies 17 (2020): 1–18; P.K. Pattanaik, The First Indian War of Independence: Freedom Movement in Orissa (1804–1825) (New Delhi: A.P.H. Publishing Corporation, 2005); and Mubayi, Yaaminey, “The Paik Rebellion of 1817: Status and Conflict in Early Colonial Orissa,” Studies in History 15 (1999): 43–74CrossRefGoogle Scholar. Earlier useful historical accounts of the uprising include G. Toynbee, A Sketch of the History of Orissa from 1803 to 1828 (Calcutta: Bengal Secretariat Press, 1873), 12–23; and W.W. Hunter, A Statistical Account of Bengal, Vol. 19, reprint (Delhi: Concept Publishing Company, 1976), 185–92.

35. W. Hough, Precedents in Military Law (London: W.H. Allen & Co., 1855), n. 5, 515.

36. Spankie's legal opinion is reproduced in full in ibid., 544–50.

37. The scholarly literature on the Revolt of 1857 is immense. A useful entry point to this literature is Harold E. Raugh Jr., The Raugh Bibliography of the Indian Mutiny, 1857–59 (Solihull: Helion & Company, 2016). For a brief but perceptive discussion of the military dimension of the uprising, see S.P. MacKenzie, Revolutionary Armies in the Modern Era: A Revisionist Approach (London: Routledge, 1997), 96–115. See also the various contributors to the collection edited by Gavin Rand and Crispin Bates, Mutiny at the Margins: New Perspectives on the Indian Uprising of 1857, Vol. 4 (New Delhi: Sage, 2013); and Sabyasachi Dasgupta, In Defence of Honour and Justice: Sepoy Rebellions in the Nineteenth Century (Delhi: Primus Books, 2015). On the myriad and complex character of the civil insurgency that broke out in 1857, see E.I. Brodkin, “The Struggle for Succession: Rebels and Loyalists in the Indian Mutiny of 1857,” Modern Asian Studies 6 (1972): 277–90; Ranajit Guha, Elementary Aspects of Peasant Insurgency in Colonial India (New Delhi: Oxford University Press, 1983); and Clare Anderson, The Indian Uprising of 1857–8: Prisons, Prisoners and Rebellion (London: Anthem Press, 2007). Insightful regional studies of the uprising include Eric Stokes, The Peasant and the Raj: Studies in Agrarian Society and Peasant Rebellion in Colonial India (Cambridge: Cambridge University Press, 1978), 120–204; Rudrangshu Mukherjee, Awadh in Revolt, 1857–58: A Study of Popular Resistance (Delhi: Oxford University Press, 1984); Eric Stokes, The Peasant Armed: The Indian Rebellion of 1857, ed. C.A. Bayly (Oxford: Clarendon Press, 1986); Tapti Roy, The Politics of a Popular Uprising: Bundelkhand in 1857 (Delhi: Oxford University Press, 1994); and Rudrangshu Mukherjee, Spectre of Violence: The 1857 Kanpur Massacres (New Delhi: Viking, 1998).

38. George W. Forrest, ed., Selections of Letters and Dispatches and other State Papers preserved in the Military Department of the Government of India, Vol. 1 (Calcutta: Calcutta Military Department Press, 1893), 251–52, 268.

39. H. Lawrence to G. F. Edmonstone, Lucknow, May 16, 1857, Inclosure (hereafter Incl.) 44 in No. 13; and G. F. Edmonstone to H. Lawrence (telegraphic), Calcutta, May 16, 1857, Incl. 45 in No. 13, House of Commons Parliamentary Papers (hereafter PP), Appendix to Papers Relative to Mutinies in the East Indies Vol. 30, 187.

40. Major J.G. Holmes to the Magistrate of Saran, Segowlee, June 19, 1857, Incl. No. 133 in No. 1, PP 1857–58, Vol. 44 Pt. 1, Incls. in No. 1, Appendix A, 73–4.

41. John William Kaye, A History of the Sepoy War, Vol. 3 (London: W.H. Allen, 1876), 103–4.

42. The Sec. (hereafter sec.) to the Govt. of Bengal to the Mag. (hereafter mag.) of Chupra, Fort William, June 27, 1857, Incl. No. 135 in No. 1, PP, Vol. 44 Pt. 1, 75.

43. Correspondence Relating to East India (Mutinies) (London: 1858), 2–3.

44. Proceedings of the Legislative Council of India from January to December 1857, Vol. 3 (Calcutta: Baptist Mission Press, 1857), 259, 284, 290, 308.

45. For the text of these acts, see Acts Passed by the Legislative Council of India in the Year 1857, upload.wikipedia.org/wikipedia.commons/6/69/The_Acts_of_Legislative_Council_of_India_in_1857.pdf (February 11, 2021).

46. Mukherjee, Spectre of Violence, 26.

47. Correspondence Relating to East India, 3.

48. A.W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001), 78.

49. Roberts, Christopher, “From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire,” Chicago Journal of International Law 20 (2009): 42Google Scholar.

50. Arthur Irwin Dasent, John Thadeus Delane: Editor of “The Times,” Vol. 1 (London: John Murray, 1908), 306.

51. “Weekly Epitome of News,” The Friend of India, December 23, 1858, 1207.

52. Correspondence Relating to East India, 6.

53. “Extracts from Letters written at Benares during the Mutiny by an Officer of the Indian Civil Service,” Journal of the United Provinces Historical Society 5 (1932): 5, 12; and R. Montgomery Martin, The Indian Empire, Vol. 2 (London: London Printing and Publishing Company, n.d.), 288.

54. Vivian Dering Majendie, Up Among the Pandies; or, A Year's Service in India, reprint (Allahabad: Legend Publications, 1974), 196.

55. “Our Advance on Lucknow from the Eastward by an Officer serving in India,” Colburn's United Service Magazine and Military Journal 2 (1858): 364; George Carter Stent, Scraps from My Sabretasche: Being Personal Adventures while in the 14th (King's Light) Dragoons (London: W.H. Allen & Co., 1882), 203.

56. Annand, A. McKenzie, ed., “Indian Mutiny Letters of Lieutenant William Hargood, 1st Madras Fusiliers,” Journal of the Society for Army Historical Research 43 (1965): 197Google Scholar; and Kaye, A History of the Sepoy War, Vol. 3, 105.

57. Clare Anderson, “Execution and its Aftermath in the Nineteenth Century British Empire,” in A Global History of Execution and the Criminal Corpse, ed. Richard Ward (Basingstoke: Palgrave Macmillian, 2015), 170–98; and Kim A. Wagner, “Calculated to Strike Terror: The Amritsar Massacre and the Spectacle of Colonial Violence,” Past & Present 218 (2016): 185–225.

58. Correspondence Relating to East India, 1, 12.

59. Papers Relating to the Disturbances in Jamaica Pt. 1 (London: Harrison and Sons, 1866), 232. See also Kostal, A Jurisprudence of Power, 8–14.

60. John William Kaye, A History of the Sepoy War in India, 1857–1858, Vol. 2 (London, Allen & Co., 1870), 235.

61. Home Department (hereafter dept.), Public, Consultation No, 38, 5 Mar. 1858, National Archives of India, New Delhi (hereafter NAI), 2–3. This and all subsequent references to archival material from the NAI have been accessed via Abhilekh-patal.in (December 28, 2020).

62. “Weekly Epitome of News,” The Friend of India, August 25, 1859, 126.

63. “Editorial,” The Times, November 18, 1865, 8.

64. Only one of these bills was enacted. For the text of this act (the Anarchical and Revolutionary Crimes Act) see Ghose, Rights and Liberties of Indians, 207–32. The act was never used by the British and was repealed in March 1922.

65. On events in the Punjab, and in particular, on the events that took place in the city of Amritsar, see Kim A. Wagner, Amritsar 1919: An Empire of Fear and the Making of a Massacre (New Haven, CT: Yale University Press, 2019). Earlier useful historical studies include Helen Fein, Imperial Crime and Punishment: The Massacre at Jallianwala Bagh and British Judgement, 1919–1920 (Honolulu: University Press of Hawaii, 1977); Thomas R. Mockaitis, British Counterinsurgency, 1919-60 (London: Macmillan Press, 1990); Tuteja, K. L., “Jallianwala Bagh: A Critical Juncture in the Indian National Movement,” Social Scientist 25 (1997): 25–61CrossRefGoogle Scholar; and Nigel Collett, The Butcher of Amritsar: General Reginald Dyer (London: Hambledon and London, 2005). The British public's attitude to the severity of the colonial state's response to the unrest in the Punjab has been assessed by Derek Sayer in his article, “British Reaction to the Amritsar Massacre, 1919–1920,” Past & Present 131 (1991): 130–64. On the legal nature of the emergency measures deployed by the British in 1919, see Hussain, The Jurisprudence of Emergency, 99–101, 124–31; and Sherman, State Violence, 14–37.

66. Evidence Taken before the Disorders Inquiry Committee, Vol. 3 (Calcutta: Superintendent Government Printing, India, 1920), 8, 24, 212, 221.

67. Evidence Taken before the Disorders Inquiry Committee, Vol. 6 (Calcutta: Superintendent Government Printing, India, 1920), 247.

68. Note of Martial Law by Mr T.P. Ellis, Legal Remembrancer to Govt. of Punjab, July 31, 1919, Govt. of India Home Dept. Political Proceeding, September 1919, No. 49, NAI, 3.

69. Evidence Taken before the Disorders Inquiry Committee, Vol. 4 (Calcutta: Superintendent Government Press, India, 1920), 106.

70. Evidence taken before the Disorders Inquiry Committee, Vol. 5 (Calcutta: Superintendent Government Printing, India, 1920), 213, Vol. 4, 51.

71. Govt. of India Home Dept., Political A, Nos. 74–108, May 1919, NAI, 10–11.

72. Disorders Inquiry Committee, Vol. 3, 221–22.

73. Disorders Inquiry Committee, Vol. 6, 50, 277, 379.

74. Note by W.H. Vincent, July 31, 1919. Govt. of India, Home Dept. Political A Proc., June 1920, Nos. 185–90, NAI, 10; Telegram by J.H. DuBoulay, April 19, 1919, Home Dept. Procs. 74-108, 10.

75. Such powers were a continuation of those set out in section three of the Indian Councils Act of 1861, which gave the governor general the ability to issue short-term ordinances “in cases of emergency.” A. Berriedale Keith, Speeches and Documents on Indian Policy, 1750–1921, Vol. 2 (Oxford: Oxford University Press, 1922), 32.

76. C.W. Gwynne, February 21, 1921. Home Dept., Political A, Miscellaneous Papers, June 1920, Nos. 185–90, Miscellaneous Papers, 3; and Note by H.M. Smith, April 20, 1919, Home Dept. Political Proc. May 1919, Nos. 74–108, 10.

77. Disorders Inquiry Committee, Vol. 6, 257, 278.

78. Note by W.S. Marris, Sec. to William Vincent, July 29, 1919, 3; and Confidential Note by the President of the Four Commissions, July 11, 1919. Home Dept., Political A Procs. June 1920, Nos. 185–90, 29.

79. “Acts passed at the time of the Indian Mutiny for the punishment of civil offences or offences triable by civil powers.” Govt. of India. Home Dept., Political Branch, Deposit File No. 21, March 1910, NAI, 3–4.

80. Disorders Inquiry Committee 1919–1920 Report (Calcutta: Superintendent Government Printing, India, 1920), 165.

81. Ibid., xxxviii, 137–40.

82. Instructions Relating to Martial Law (Secret), Home Dept., Proc. Nos. 185–90, 32–39.

83. Note by G.R. Lowndes, October 6, 1919, Home Dept., Proc. Nos. 185–90, 10.

84. “Report to the Government of India of the Committee Appointed to Examine Repressive Laws,” The Gazette of India Extraordinary, September 19, 1921, 382–83.

85. “Bengal State Offences Regulation, 1804”; J. McDonald, Chief Sec. to Govt. of Bengal, Political Dept., to Sec. of Govt, of India, Home Dept., May 25, 1921. Govt. of India Home Dept., Political Branch, 1921 File 29, Pt. 1, NAI, 19, 124.

86. Lloyd, Nick, “Colonial Counter-Insurgency in Southern India: The Malabar Rebellion, 1921–22,” Contemporary British History 29 (2015): 305CrossRefGoogle Scholar; and The Mapilla Rebellion, 1921–22 (Madras: Superintendent Government Press, 1922), 322.

87. D.A. Low, “‘Civil Martial Law’: The Government of India and the Civil Disobedience Movements, 1930–34,” in Congress and the Raj: Facets of the Indian Struggle, 1917–47, ed. D.A. Low, second ed. (New Delhi: Oxford University Press), 165–98.

88. H.J. Simson, British Rule, and Rebellion (Edinburgh: William Blackwood & Sons, 1937), 109.

89. Collins, Martial Law, 283.

90. The Indian Annual Register, January–June 1930, 132–5; and K. Ratnabali and U.C. Jha, Martial Law in India: Historical, Comparative and Constitutional Perspective (New Delhi: Vij Books India Pvt. Ltd., 2020), 41–46, 52–55.

91. Hough, Precedents in Military Law, 548.