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British Colonial Justice in India
White Violence in Colonial India
Book Review: Colonial Justice in British India- White Violence and the Rule of Law-by Elizabeth Kolsky (Cambridge University Press) 2010, pp252. "The goddess of British Justice, though blind, is able to distinguish unmistakably black from white" Bal Gangadhar Tilak.[i]
As Britain’s imperial enterprise expanded in India, there was a powerful need to justify or legitimate her rule over the far-flung empire. How could Britain with her ideals of justice and fair play reconcile with the rapacious conquest and subjugation of people in distant and densely populated lands? Imperial leaders like Lord Curzon saw the justification in sheer moral terms, namely, principles of justice and the rule of law.
Woven in the intricate tapestry of Imperial ideology was the static view of India as being enslaved by oriental despotism and that the British colonial rule freed the enslaved natives from such a debilitating condition. Imperial rulers from Britain saw their empire as an empire of Law and liberty. By providing Indians with impartial judicial system and equal protection of Law, the imperial rulers believed that the stability of the imperial government would be assured by the support of the people.
Ms. Kolsky, an assistant professor of History at Villanova University, in her book Colonial Justice in British India argues that such a view of imperial justification was born of self deception. She points out that racial violence "was a constant and constituent element of British dominance"[ii] Physical violence was an integral part of imperial rule in India from the late eighteenth to the early twentieth centuries.
Violence by the wrong sorts The author makes an interesting observation that while history books on British imperialism dwell on violent macro-events such as the Battle of Plassey, the Mutiny of 1857 or the Jallianwallah Bagh massacre, the true nature of colonial violence central to the working of the empire could be seen by the violent crimes committed by "a mostly forgotten cast of European characters- planters, paupers, soldiers and seamen"[iii] Although the archives overflow with incidents of Britons murdering, maiming and assaulting Indians and getting away with it, white violence remains a closely guarded secret of the British Empire.
While apologists of British Imperialism would dismiss such incidents as exceptions committed by few bad apples, the sheer scale of racial violence inflicted by Britons on Indians suggest otherwise. As the author says, " the unsettling picture that emerges from our investigation of white violence and its handling in the colonial courts should not be brushed off as a list of exceptions, an epiphenomenal sideshow to the main stage of Pax Britannica"[iv]
The notorious example of miscarriage of justice was the case of the indigo planter William Orb Hunter who was tried in the Calcutta Supreme Court for the torture of three female servants. The horrific abuse included mutilation of ears, nose and genitals and illegal confinement of the female servants in chains. Hunter was let off with a nominal fine and set free. This aroused the indignation of Indians who accused the British of rendering a racially biased verdict.
Cases such as Hunter who indulged in terrible abuse of domestic help are a tip of an iceberg. As the author points out " the innumerable other incidents of interracial violence that never made their way through official channels remain beyond the historian’s reach" [v] Moreover, the violence inflicted by these planters, soldiers and sailors or vagrants on Indians blurred the binary system of superior Englishmen ruling over the Indians who were deceitful, inferior and venal. Men like Hunter did not work for the British Imperialism in any official capacity but nevertheless functioned as torch bearers of British Imperialism and its economic interests. They constituted the ugly third face of colonialism.
The white planters who worked in Tea, coffee and indigo plantations offered the empire steady financial returns but at the same time embarrassed the colonial administration with alarming incidents of brutality, murder and rape of Indian workers at the plantations. Beneath the idyllic setting of Tea gardens and the polite ritual of tea drinking lay the exploited slave labour entrenched in penal contract system which gave the planters wide powers to arrest and punish workers at the plantations. Introduced by Governor General William Bentinck under Regulation 5 of 1830, the powers of the planters grew by later enactments in 1865 and 1882 by which the planters had the power of magistrates. By the enactment of these laws the tea workers of British plantations were reduced to slaves whose appalling condition could be compared to the black American slaves working in the cotton plantations. As the author sums up succinctly "Although colonial law was described by officials as a guarantor of Liberty and agent of civilizational progress, in letter and in practice the law of the tea plantations was designed to secure capitalist control over labour" [vi]
A remarkable document titled "European Misconduct in India",1766-1874 shows the widespread violence indulged by the motley elements composed of European migrants, vagabonds, planters, and absconding soldiers and seamen which unsettled the officials of the East India company. The murderous violence unleashed on punkawallahs, cooks, porters, and labourers working in plantations threatened the stability of the imperial enterprise and shattered the myth of Pax Britannica with justice and equality of Law at its core. As the author observes "the drunken and disorderly soldier, like the wandering and wayward seamen, was a symbolic affront to British prestige, a practical thorn in the side of local magistrates, a health hazard, and an unruly usurper of military discipline"[vii]
Even though the record of infamy is restricted to incidents in Bengal and not other parts of India an interesting pattern emerges: in the cases of white on white physical violence the punishment was severe including capital punishment. Although capital punishments would become rare in the second half of the eighteen century, in the earlier period many European soldiers were executed for the willful murder of their European comrades. In cases where the European soldiers and seamen attacked their Indian subordinates, the consequences were quite lenient.
A question of race A paradox central to the administration of colonial justice was the question of race which assumed that the inherent characteristics of the British as superior and morally upright while the other, namely, the natives as morally decrepit and wallowing in superstition. The question which was topmost in the mind of colonial administrators was- How to administer equal justice to those who were legally and politically unequal? The thrust towards codification of laws in India by Macaulay rested on the belief that it was the duty of the British to give good government to the people of India for whom a free government was not possible. One object of the codification was to remove the plurality of laws which was prevalent during the East India Company such as a mish- mash of labyrinthine Regulations, Acts of Parliament, Hindu and Islamic law, English common and statutory law, and the principles of justice, equity and good conscience. In place of this welter of confusion, codification was seen as promoting uniformity and certainty of law in the administration of justice. The other object of the codification was to rein in the unruly violence of the planter, seamen and soldiers and vagrants who were whites and bring both the British and the Indians under one rule of law.
Predictably, the planter lobby bitterly protested the codification as lowering the prestige of the whites by placing them on the same footing as the Indians and mounted a sustained attack on Macaulay. Moreover, the whites also protested that they were entitled to be tried in accordance with the laws of England and not by any other law. The white planters also resented any trial by Indian magistrates whom they viewed as barbarians.
Bowing down to the pressure of the white planters who were increasingly seen as providing profits to the empire, the colonial authorities subverted equality before law by entrenching racial differences. Thus, The Code of Criminal Procedure (1861) "institutionalized racial inequality by delineating race-based rights and privileges, including: juries with European majorities for Europeans but not for the Indians, Presidency trials for Europeans, but local trials for Indians; and a racially differentiated schedule of punishments"[viii]
Amendments to the code in the following decades widened the racial discrimination rendering racial equality as a dead letter in law. It was not until India gained her independence from British rule and enacted the Criminal Law (Removal of Racial Distinctions) Act of 1949 that the pernicious influence of racial discrimination ended.
Tipping the Scales of Justice The racial prejudice of the British against the Indians as being deceptive and unreliable drove the colonial administrators to the elusive quest for truth in matters of evidence to try crimes in judicial proceedings. As the perception of native deceit was central to the understanding of the Indian society, the colonial administrators saw the need to replace oral testimony by something scientific and true. This led to the growth of medico-legal jurisprudence.
Out of this questionable body of medico- legal studies grew the fanciful theories of frail Indian bodies with diseased spleen that was to have a controversial impact on white crimes committed against Indians. In testimony after testimony European medical officials told the courts in murder trials that the diseased spleen of the Indian was the cause of the death and not the immediate consequence of the whips or blows inflicted by the White offender.
In cases such as the murder trial of Fuller who slapped his Indian servant on his face and ears causing him to fall and die, the testimony of the Colonial Doctor was that the victim died of a ruptured spleen caused by very slight violence. Fuller was convicted of a lesser charge of wounding and fined a sum of thirty rupees. The Fuller case which caused a scandal is merely illustrative of many cases where Britons were let off lightly on murder charges.'In trials of Britons', notes the author," who killed Indians by striking them with sticks, bricks, whips, and kicks, medical evidence was often presented by colonial doctors to support the claim that Indians had weak insides and were therefore more susceptible to such blows" [ix]Thus, Indian medical jurisprudence and medical experts played a crucial role in mitigating European criminal culpability in cases involving serious violence and murder.
Unraveling Imperial myths The underlying tensions within the British Empire between the officials of Imperial power and the unofficial- in between- like the planters, seamen and absconding soldiers was a class tension between highbred Englishmen and the so called lower class of mean whites. At the other level there was the threat that the empire would unravel by the horrific violence perpetrated on the natives. But the colonial laws designed to prevent the abuse of unofficial white violence conceded concessions to the violent Britons and destroyed the imperial promise of equality of law. Thus when these concessions combined with the racial practices of British judges, juries, and police who let off fellow Britons on lesser charges, the Indian subjects were exposed to the double jeopardy of political slavery and unchecked white violence.
The author’s book which is a culmination of ten years of research and writing offers a significant contribution to our understanding of racial violence and the rule of law in colonial territories. Moreover, as the author says there is very little secondary literature about the pervasive nature of white violence even though there is abundance of archival evidence to substantiate the same. Thus, the pervasive nature of racial violence in the day to day functioning of the British Empire has been consigned to the foot notes of history.
The author rescues scholarship from the airbrushed triumphalism of Pax Britannica by pointing out that all forms of imperial power have violence and nothing but violence at its core. This book should be a wakeup call for those who genuflect before the majesty of Imperial justice and the benefits of benign British imperialism.
C R Sridhar