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Archaic Sovereignty and Colonial Law: The reintroduction of corporal punishment in colonial India, 1864–1909

Published online by Cambridge University Press:  03 February 2020

ALASTAIR MCCLURE Open the ORCID record for ALASTAIR MCCLURE [Opens in a new window]
ALASTAIR MCCLURE*
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Abstract

The judicial and summary punishment of whipping—absent from the Indian Penal Code (IPC) of 1860—was passed into law through Act No. VI of 1864. This legislation, tacked on as an appendage to the IPC, invested the judge with wider discretionary powers to administer violence across Indian society. In this case what emerged was an evolving attempt to enlarge the colonial state's capacity for quotidian violence, targeting certain bodies to reaffirm, manage, and police the social hierarchies upon which colonial sovereignty depended. In the context of a slow imperial movement away from the cast-iron distinctions that had been made between groups in the early nineteenth century—distinctions that had, among other things, supported a legally enforced system of slavery—new methods to mark the value of different bodies were created. The events of the 1850s, in particular the rebellion of 1857–1858, saw the re-emergence of the colonial idea that certain bodies could withstand violence, and that violence itself could be used to create economically productive colonial societies, in debates around penal law and punishment. This article will trace this history through formal legal restrictions and informal legal-cultural practices in relation to corporal punishment in colonial India. Over the course of the period under study, this legislation introduced into law what one official termed ‘the category of the “whippable”’.1 Charting the changing shape of this legal category along lines of race, gender, caste, class, and age, the article will argue that a logic of exceptionality, channelled here through the application of judicial violence, attempted to structure and manage Indian society in complicated ways.

Type
Research Article
Information
Modern Asian Studies , Volume 54 , Issue 5 , September 2020 , pp. 1712 - 1747
Copyright
Copyright © Cambridge University Press 2020

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Footnotes

I would like to thank Leigh Denault, Shruti Kapila, Saumya Saxena, Devika Shankar, Mitra Sharafi, Stefan Vogenauer, and the journal's reviewers for their helpful comments on earlier drafts of this article.

1

Deputy Commissioner of Bara Banki district to United Provinces Government (hereafter UPG), 19 August 1905, United Provinces State Archives (hereafter UPSA), Lucknow Branch (hereafter LB), List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

References

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17 Regulation II of 1834, British Library, India Office Records (hereafter BL, IOR), V/8/21.

18 It is worth noting that those charged with attempting to codify English criminal law in this period also excluded corporal punishment in two of their reports; however, it later re-entered the draft code in 1843 for acts of treason. See Radzinowicz, Leon and Hood, Roger, A History of English Criminal Law: Vol. 5, The Emergence of Penal Policy (London: Stevens and Sons, 1986), pp. 690–691Google Scholar.

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20 Singha, ‘“Rare Infliction”’, p. 6.

21 ‘Notes’, in A Penal Code Prepared by the Indian Law Commissioners (Calcutta: Bengal Military Orphan Press, 1837), BL, IOR, V/27/144/1, p. 13.

22 Kaye, John, Kaye and Malleson's History of the Indian Mutiny of 1857–8: Vol. I (London: Longmans, Green and Co., 1897), p. 199Google Scholar.

23 Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 22.

24 Streets narrates the violence in Bareilly in which three scaffolds and six whipping posts were set up and over 700 men were summarily executed and punished. Streets, Heather, Martial Races: The Military, Race and Masculinity in British Imperial Culture, 1857–1914 (Manchester: Manchester University Press, 2010), p. 40Google Scholar.

25 Act No. XI of 1858, BL, IOR, V/8/36.

26 Ibid.

27 Ibid.

28 A.D. 1827, Regulation XIV, Section VIII, BL, IOR, V/8/24.

29 A.D. 1828, Regulation VIII, BL, IOR, V/8/28.

30 A.D. 1844, Act II, BL, IOR, V/5240.

31 Legislative Council Proceedings, 31 August 1861, BL, IOR, V/9/3-6.

32 Charles Jackson in fact was keen to restrict the instrument to a rattan rather than cat o' nine tails but the final bill made no clear decision on this. Ibid.

33 On the comparative underinvestment in the legal system, one journalist commented ‘England spends on judges alone for thirty millions of people covering an area of 119,924 square miles, more than twice the amount spent on the administration of justice on the same number of people in the North Western Provinces. Where England spends £2,600,000, besides the unpaid labour of an enormous number of magistrates and justices of the peace, India spends £247,000 and has no such honorary judges.’ Friend of India, 8 January 1863, p. 32.

34 Legislative Council Proceedings, 8 September 1860, BL, IOR, V/9/3-6.

35 Ibid.

36 Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 25.

37 See Rao, Anupama, ‘Problems of Violence, States of Terror: Torture in Colonial India’, Interventions, 3:2 (2010), pp. 186–205CrossRefGoogle Scholar. In other contexts, the link between slavery and corporal punishment in a post-abolition society retained very substantive links. In law courts in early nineteenth-century America, for instance, whipping was at times used as evidence of the previous slave status of an individual. See Scott, Rebecca, ‘Social Facts, Legal Fictions, and the Attribution of Slave Status: The Puzzle of Prescription’, Law and History Review, 35:1 (2017), p. 26CrossRefGoogle Scholar.

38 Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 22.

39 The Legislative Proceedings stated: ‘Our Judges would not readily submit to be turned into executioners; such scenes were so painful that no English gentleman would be present at them, who could possibly avoid it, and, the superintendence of the infliction of the punishment would be left to irresponsible Natives.’ Ibid., p. 24.

40 Metcalf, Thomas, Ideologies of the Raj (Cambridge: Cambridge University Press, 1995), p. 56CrossRefGoogle Scholar.

41 Bartle Frere, a supporter of the Bill, was representative of this position when he claimed, ‘He was convinced he spoke for every one in that council anxious to see the punishment at once entirely and for ever abolished. His objection to its immediate abolition rested mainly on his belief that too many classes and in many parts of the country imprisonment or any other punishment which could be substituted for flogging was in reality the more inhuman of the two.’ Legislative Council Proceedings, 8 September 1860, BL, IOR, V/9/3-6.

42 ‘Letter from the Secretary to the Government of the North-Western Provinces to the Secretary to the Government of India, 441A Nynee Tal, 23rd June 3rd’, National Archives of India (hereafter NAI), Home (A)/Legislative/December 1862/Nos. 10–148.

43 For an extended analysis of this ideological shift, see Mantena, Karuna, Alibis of Empire: Henry Maine and the Ends of Imperial Liberalism (Princeton: Princeton University Press, 2010)CrossRefGoogle Scholar.

44 Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1862, Vol. 1, BL, IOR, L/V/9/8, p. 52.

45 Bartle Frere perhaps embodied this position most clearly, stating in support of corporal punishment: ‘There were hundreds of thousands of savages and uncivilized tribes on all the borders of Bengal, in Berrbhoom and Bhangulpoor in Assam and on the Burmese frontier, among whom the mortality of prisoners shut up in jail was enormous, compared with the mortality of other classes. It was the simple confinement that killed them, and no device had yet been found by which the mortality of these savages when shut up in prison could be kept within such limits as were usual with other classes.’ Legislative Council Proceedings, 8 September 1860, BL, IOR, L/V/3-6.

46 Ibid. Parallels can be drawn to other examples in the British empire. The Aboriginal Offenders Act of 1892, for instance, brought back whipping as a summary punishment specifically for indigenous groups in Western Australia. See Wadiwel, Dinesh Joseph, ‘Thick Hides: Whipping, Biopolitcs and the White Soul of Power’, Social Semiotics, 19:1 (1999), pp. 47–57CrossRefGoogle Scholar; Nettelbeck, Amanda, ‘Flogging as Judicial Violence: The Colonial Rationale of Corporal Punishment’, in Violence: Colonialism and Empire in the Modern World, (eds) Dwyer, Philip and Nettelbeck, Amanda (Basingstoke: Palgrave Macmillan, 2017), pp. 111–131Google Scholar. See also Peté, Stephen and Devenish, Annie, ‘Flogging, Fear and Food: Punishment and Race in Colonial Natal’, Journal of Southern African Studies, 31:1 (2005), pp. 3–21CrossRefGoogle Scholar.

47 Beames, John, Memoirs of a Bengal Civilian (London: Chatto and Windus, 1961), p. 102Google Scholar. I thank one of my reviewers for pointing me towards this reference.

48 For the production of colonial knowledge in this period, with particular reference to ideas around caste, see Dirks, Nicholas B., Castes of Mind: Colonialism and the Making of Modern India (Princeton: Princeton University Press, 2001)Google Scholar.

49 Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 35.

50 Legislative Council Proceedings, 18 August 1860, BL, IOR, L/V/9/3-6.

51 See W. Morgan and A. G. Macpherson (eds), Indian Penal Code (Act XLV. of 1860) with Notes (Calcutta: G. C. Hay and Co., 1863), Chapter IV, Section 95, p. 72.

52 Legislative Council Proceedings, 31 August 1861, BL, IOR, L/V/9/3-6.

53 Ibid.

54 The full quote from Mr Harington states ‘But moderate floggings as a punishment for certain classes of offences not of the most heinous kind has, we think, many advantages over other punishments, especially in this country.’ Legislative Council Proceedings, 18 August 1860, BL, IOR, V/9/3-6.

55 On cannonading, see Wagner, Kim, The Skull of Alum Bheg: The Life and Death of a Rebel of 1857 (London: Hurst and Company, 2017), pp. 175–189Google Scholar. For recent scholarship that has examined similar themes in relation to the ‘Kooka’ outbreak of 1872 in Punjab, see Condos, Mark, The Insecurity State: Punjab and the Making of Colonial Power in British India (Cambridge: Cambridge University Press, 2017), pp. 103–139CrossRefGoogle Scholar.

56 Act No. VI of 1864, BL, IOR, V/8/39.

57 Ibid.

58 A comparison between Madras and Bombay in 1907 reveals that in the city of Madras whipping was carried out in the Penitentiary; in the mufassil, it usually took place in court and in public, but in some districts in the street or even the marketplace. In Bombay, there was no consistency: some whippings were carried out in prison, others in the precincts of the court. Where on the body whipping occurred also varied between the buttocks and bare shoulder. NAI, Home (A)/Judicial/March 1907/Nos. 167–183.

59 Complaints of illegal whippings, for instance, were not uncommon; see ‘Proposal to amend the Whipping Act (VI. Of 1864)’, NAI, Home (A)/Judicial/August 1878/Nos. 19–21.

60 Legislative Council Proceedings, 5 Jan. 1861, BL, IOR, V/9/3-6.

61 I have included among the eight crimes relating to theft or property, varying forms of theft, dishonestly receiving stolen property, house trespass, or house-breaking. See Act No. VI of 1864, BL, IOR, V/8/39.

62 To clarify some of these groupings, the crimes of sexual violence towards women included ‘Assaulting or using criminal force to any woman with intent to outrage her modesty’ and rape.

63 Act No. VI of 1864, BL, IOR, V/8/39.

64 Singha, Radhika ‘Punished by Surveillance: Policing “Dangerousness” in Colonial India, 1872–1918’, Modern Asian Studies, 49:2 (2014), p. 4Google Scholar.

65 As one official commented: ‘The law can, of course, make no difference between persons of good castes and others. But executive order could direct magistrates to respect the general feeling except in the case of juveniles.’ H. C. A. Conybeare to UPG, 11 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

66 D. C. Baillie to UPG, 20 July 1905, ibid.

67 While this was criticized by the legislative council, a circular sent in Madras in 1882 had expressed this view to judicial officers in clear terms, stating ‘whipping should not ordinarily be inflicted in cases in which the offender holds a respectable station in life’. NAI, Home (A)/Judicial/May 1882/Nos. 105–111.

68 See Bedwell, C. E. A., The Legislation of the Empire: Being A Survey of the Legislative Enactments of the British Dominions from 1898 to 1907: Vol. III (London: Butterworth and Co., 1909), p. 9Google Scholar.

69 BL, IOR, L/PJ/6/533.

70 It was admitted, though, that there were also reports of the crime taking place in Burma and the British Army. A particularly harrowing example of such case in Burma is described in Kolsky, Colonial Justice, pp. 199–200.

71 BL, IOR, L/PJ/6/533.

72 Ibid.

73 Legislative Council Proceedings, 5 Jan. 1862, BL/IOR/V/9/3-6.

74 BL, IOR, L/PJ/6/805.

75 NAI, Home (A)/Judicial/March 1907/Nos. 167–183, p. 42.

76 Kolsky, Elizabeth, ‘“The Body Evidencing the Crime”: Rape on Trial in Colonial India, 1860–1947’, Gender and History, 22:1 (2010), p. 115CrossRefGoogle Scholar.

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78 Act No. V of 1900, BL, IOR, V/8/63.

79 That is not to say that support for corporal punishment in response to crimes of a violent sexual and non-sexual nature towards women and children did not exist in Britain. However, the numerous attempts to reinstate the punishment in law in comparable terms in this period ultimately failed. See Radzinowicz and Hood, A History of English Criminal Law, pp. 693–696.

80 Conley, Carolyn, ‘Rape and Justice in Victorian England’, Victorian Studies, 29:4 (Summer 1986), p. 525Google Scholar. Discussion of gang-rape in nineteenth-century Britain can also be found in Stevenson, Kim, ‘“Ingenuities of the Female Mind”: Legal and Public Perceptions of Sexual Violence in Victorian Britain, 1850–1890’, in Everyday Violence in Britain, 1850–1950, (ed.) D'Cruze, Shani (London: Routledge, 2014), pp. 89–91Google Scholar; Wiener, Martin, Men of Blood: Violence, Manliness and Criminal Justice in Victorian Britain (Cambridge: Cambridge University Press, 2004), pp. 104–108CrossRefGoogle Scholar.

81 Gatrell, V. A., Lenman, Bruce and Parker, Geoffrey, Crime and the Law: The Social History of Crime in Western Europe since 1500 (London: Europa Publications, 1980), p. 289Google Scholar. Though the authors are wary of placing too much emphasis on the value of these statistics, scholars like Kim Stevenson have argued that, given the underreported nature of sexual crimes, as well as the cost of prosecution to the victims, these numbers should not be quickly dismissed.

82 As Conley shows, in 81 per cent of cases involving men of higher status than soldier or labourer, charges of rape were lessened to attempted rape or indecent assault. Conley, Carolyn, ‘Rape and Justice in Victorian England’, Victorian Studies, 29:4 (1986), p. 523Google Scholar.

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86 Ibid.

87 See Metcalf, Thomas, Aftermath of Revolt: India 1857–1870 (Princeton: Princeton University Press, 1964)Google Scholar.

88 Act No. V of 1900, BL, IOR, V/8/63.

89 ‘Notes’, NAI, Home (A)/Judicial/March 1907/Nos. 167–183.

90 Hansard, 21 July 1904, cc. 755–756. From Secretary to Government of India to Secretary to Government of United Province, 8 June 1905, British Indian Association Papers, Nehru Memorial Museum and Library, New Delhi.

91 ‘Statement showing how the sentence of whipping is carried out in the different provinces’, NAI, Home (A)/Judicial/March 1907/Nos. 167–183.

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94 These included the British Indian Association, the Eastern Bengal Landholders’ Association, and the Provincial Muhammadan Association, BL, IOR, L/P/J/6/805.

95 Ibid.

96 The crimes in relation to rape were rape, abetment to rape, and attempt to commit rape.

97 Magistrate of Banda to Secretary to UPG, 11 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

98 Statement of Objects and Reasons, 11 March 1908, BL, IOR, L/PJ/6/805.

99 Ibid.

100 Deputy Commissioner of Bara Banki to Secretary to UPG, 19 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

101 Act No. V of 1900, BL, IOR, V/8/63.

102 See Theobald, W. (ed.), Code of Criminal Procedure (Calcutta: Messrs Thacker, Spink and Co., 1861)Google Scholar, Chapter 31, Section 433.

103 This section has been informed by new scholarship which analyses age as a category of historical analysis. See, for instance, Leow, Rachel, ‘Age as a Category of Gender Analysis: Servant Girls, Modern Girls, and Gender in Southeast Asia’, The Journal of Asian Studies, 71:4 (2012), pp. 975–990CrossRefGoogle Scholar.

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105 See ibid.; Pande, ‘Phulmoni's Body’.

106 Exceptions included concerns around child prostitutes. See Sen, Satadru, ‘A Separate Punishment: Juvenile Offenders in Colonial India’, The Journal of Asian Studies, 63:1 (2004), p. 85CrossRefGoogle Scholar.

107 Sen, Colonial Childhoods, p. 115.

108 Sec. to Gov NWP to the Sec. to Gov of India, 7 December 1893, NAI, Home (A)/Judicial/Jan. 1894/Nos. 109–116.

109 Ibid.

110 Deputy Commissioner of Bara Banki to Secretary to UPG, 19 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

111 Variations on the phrase ‘Whipping is considered a suitable punishment for boys and for low caste thieves’, for instance, emerged on numerous occasions. See District and Sessions Judge of Cawnpore to Secretary to UPG, ibid.

112 BL, IOR, L/PJ/6/533.

113 Ibid.

114 Ibid.

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122 Bandyopadhyay, Aparna, ‘Of Sin, Crime and Punishment: Elopements in Bengal 1929’, in Intimate Others: Marriage and Sexualities in India, (eds) Sen, Samita, Biswas, Ranjita and Dhawan, Nandita (Kolkata: STREE, 2011), p. 103Google Scholar.

123 Political theorists seeking to understand colonial discourse have long emphasized the depoliticizing metaphor of the colonial subject as a child. Nandy, Ashis, Intimate Enemy: Loss and Recovery of Self Under Colonialism (Oxford: Oxford University Press, 2013)Google Scholar. Mehta points to the use of the childlike metaphor of Indians in the writings of both Mill, Locke, and Burke, among others. Mehta, Uday, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999), pp. 31–33CrossRefGoogle Scholar.

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125 For a useful synthesis of some of this scholarship, see Benton, Lauren, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010), pp. 279–300Google Scholar.

126 The act was ultimately repealed after independence, under Act No. 44 of 1955, the Abolition of Whipping Act.

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