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LAW

1. Singha looks at criminal law in context of how it developed alongside the legitimisation
of state- as just ruling authority- extension of control, while Kolsky looks at the British
side, criminal law in context of bad European British who are an embarrassment to the
officials and endanger their project (as enumerated by Singha)
2. Thus- they look at the different sides of the same scene, but Kolskys work rests upon
Singhas in a sense. The former could not be written without the latter- as it treats it as a
given
3. Kolsky doesnt much look at cultural aspects, as this is written about by many others, but
physicality
4. Singha looking at actual content of law as it existed before the British and then how they
changed it and the ideologies with it.
5. Singha also looks at contradictions about the uniformity of law but sees it in the context
of areas of judicial discretion (pg 29)
6. Vagrancy of different sorts
7. Conception of civil order- state with exclusive exercise to violence. Explored differently
in both.

Elizabeth Kolsky

I ntroduction

1. Physical violence an intrinsic feature of imperial rule- intro- 1
st
page
2. Shouldnt look at macro violence like wars but at the incidents, and minor actors in
between- these are central to the working of empire.
3. Growth of colonialism- growth of law, legitimising it. Language of law to legitimise state
and rule; out with oriental despotism in with new sense of justice! Huzzah! Impartiality,
liberty, equality before law
4. Pg 4 was it possible to administer equal justice to those who were legally and politically
unequal?
5. Same page- despite this rhetorical stance, most of the British were placed above this law,
6. Same page- Main point of this essay is that the tensions between the rule of law discourse
and practice revolved around trials on violence, and violence by Britons, exposing the
imperatives of imperialism and race. This essay inverts the colonial claim.
7. Pg 5- The binary between white and what they stand for and black and what they stand
for upended by the white criminals. Colonial differences thus unclear. These guys stood
for the Third face of colonialism; the non-official British. Indigo planters- financial
contribution- special legal privileges- they are also the frequent targets of colonial
control, due to their unruly behaviour.
8. Pg 7- stokes- vision of benthamites- intellectual and philosophical dimensions- utilitarian
emphasis. Singha looks at criminal law, to be read alongside the formation of the colonial
state. To extend control over Indians.
9. Ignoring cultural ramifications, enough studies on that, looking at physicality- pg 8
10. Pg 10- Hunter might be exception, but this doesnt change the fact that he was exercising
imperial power even in his nonconformity
11. Last line of page 10 good quote- law is white crimes constant sidekick
12. Page 11- The whites were monolithic in their violence.
13. Same page- codification of law not just to control Indians but to control white problems
14. Page 12 interesting data
15. Same page- law constructing race
16. Whites in India not only ill behaved but ill defined
17. Two perspectives on law- i) the states emissary ii) weapon of the weak- this essay
combines both
18. Why? Changing reasons. Race inferiority one reason- culturally or biologically
19. Not that many contemporaries didnt think it wrong, they just didnt see it as anything to
do with the empire
20. Pg 17, Slavery connection- niggers and blackies strikingly similar treatment
21. Pg 19- Macaulay
22. Pg 20- class- dehumanisation when working class Briton goes out of his country?
23. Pg 23- Chapter 1 overview- moral legal and political problems posed by third element-
1766 1833. Law and order problems challenging Company during critical phase of
expansion. Expansion of empire and absence of law opened up new spaces for violence
and criminal opportunity
24. Chapter 2 overview- official response the codification of law. Designed to bring unruly
chaps into purview of law. Unfortunately, non-official community became lobbying
group. Criminal law shows how codification promised something and delivered
something different. Exacerbated problem it was designed to solve- the privileges granted
a zone of illegality. Race based distinctions--- so much for equality of law, not to mention
states ability to maintain order.
So basically- judicial consequences

Chapter One
White Peril: Law and Lawlessness in Early Colonial I ndia

1. Evident that certain amount of violence happens because the law breaker aware of
freedom he has. A judge complains about how his efforts to control him are
unavailing, as he is not supported by the law. Often take refuge in places beyond the
Companys frontiers, if action against him does come... the Companys legal system
provided local officials with limited authority over Europeans who committed
violence against Indians. Pg 28
2. Also a political problem, as they impinge upon the states exclusive right to inflict
pain related power; a challenge to exclusive power
3. Have to look at historical impact of interlopers and legal moral and political
challenges they posed to the authority
4. This chapter challenges the view that the British ran around bringing justice for all by
looking at the disorder and lawlessness at the very centre of the colonial project.
Violence not limited and episodic- but persistent factor- law its reliable accomplice

Colonialism and the Absence of Law

1. Britain linked its expanding global empires legitimacy to promises of law and
order. There was no way Britain could control India if both stood on an equal
footing- thus in creating an unequal system of law, an absence of law was created-
enabling European crime and lawlessness
2. EIC initially only had permission to rule over officials. Influence spread, Charter
Act 1661 allowed it to exercise jurisdiction over all residents within boundaries of
its factories. Reimagining Indias geography as their own European territories,
they effectively turned the Indians into aliens in their own lands.
3. No means to deal with interlopers, who were anyway violations of the Company
monopoly over trade.
4. 18
th
century- crown courts (jurisdiction extends to the seas)- supreme courts,
5. In the mofussil (interior) there were Company courts- presided over by judicial
officers in Companys employ who had little legal experience- had jurisdiction
over Indians and non- Brit Europeans
6. Development of legal system with companys expansion as well as increase in the
number of people
7. Till 1793- European British subjects couldnt be tried by Company courts,
Europeans could sue Indians in mofussil courts, but Indians grievances to be
taken to Crown courts in the Presidency; obviously quite far. Quarterly session of
Supreme court- delays. This annoying for Indians- in 1796, all non Brit Europeans
could be tried in district courts.
8. 1793- i) non official British to live within 10 miles of Calcutta, unless they had a
license, and they had to make them amenable to being tried by local courts, ii) All
non- official Europeans to have licenses and provide 2 securities or testimonials
9. 1813- Companys trade monopoly abolished, British subjects in mofussil placed
under local courts higher than the zilla (district level). Indians could appeal on ly
to Sadr Diwani Adalat, while Britons could appeal directly t othe Calcutta
Supreme Court.
10. In criminal matters, Company officials had extremely limited powers in the
mofussil.
11. Non- official violence represented as a menace external to the emerging Company
state in official discourse, however law itself was part of this threat, not that
external. Pg 35
12. Tried to deal with this by license system- needed a license from the Court of
Directors. In practice this was exceedingly difficult to enforce. Oceanic passage
difficult to control, people simply moved outside presidency areas, and the license
thing opened up a whole bunch of frauds.
13. Pg 36- david washbrook looks at 2 faces of colonialism, while P.J. Marshall looks
at class- but kolsky sees it as third face, entering india under the aegis of a new
political order and threatening it from within- pg 37

Commanding India, commanding themselves
1. Concern about non officials and crimes ongoing in discussion of opening up free trade
and a permanent settlement in India. Steady opposition to open colonisation 1764 to 1813
2. Treaties made with Indian potentates requiring them not retain other Europeans in their
service shows the contested nature of sovereignty- still ill-defined and insecure.
3. Ardent supporters of colonialism wanted more Europeans to settle- various reasons,
provide much need remittance, circulation of knowledge, civilise the mofussil... stop flow
of bullion back to England (Rammohun Roy)
4. Companys legal control in interior in criminal matters very circumscribed. Assault and
trespass could be tried under local magistrates, but felonies and gross misdemeanours had
to be taken to the Supreme Court.

Captors: European misconduct in early colonial Bengal
1. Linda Colley- 2 parables- imperialist as warrior, coloniser as captive- Kolsky sees 3
rd

parable- captors but not conquerors.
2. The cases reveal the insecurity of early Company power and uncertain status and
ineffective nature of it laws; relationship between violence law and empire
3. Many of the non- officials debated the Companys constitutionality, and their status as
subjects of the British Not of the Company.
4. The Company obligated to protect but powerless to control.
5. Primary method to punish misconduct deportation- raising critical legal question.
Forcible removal subverting the due process of law; Company often ran roughshod over
own legal processes, summary deportations without trial, when they felt the evidence was
sufficient. Deportation not an answer as they were politically and financially costly, also
people deported returned, showing how pappu the companys power, ports and coastline
were.
6. European misconduct- certain cases not present like court- martialling of soldiers, those
who evaded the law altogether, those who did get their licenses back- so only partial
view.
7. 5 reasons for deportation- see them in 3 themes-
8. (i) confederacy and resistance to government- resistance of interlopers to exclusive
power of the Company- rather than actual threats as themselves, these guys exposed the
legal tenuousness pg 49 that crippled action. Company even less certain on policies on
non- Brit Europeans
(ii) General misconduct. Race- gender hierarchies sometimes inverted
(iii) a. seamen and soldiers- large transient populations. 4 out of 5 seamen died in
hospitals in India out of booze abuse. Before 2
nd
half of 19
th
century, quite a few executed
for wilful murder of European comrades. More lenient when Indians attacked- right of
correction, costly procedures for simple case of manslaughter- pg 56
b. abuse of servants- labour violence noticeable on tea and indigo plantations- couldnt
seek justice due to weak state produced by economic deprivation. The accusations of
weak and moribund nature of the Indians to minimise the severity of the assaults done
them. In early trials good character of Britons more important than medical
considerations (arrey, yeh toh normally sahi banda hai, must have been an accident)
indigo plantations violence lashed out in all directions but Bengal govt dependant on
financial returns from indigo. Pg 59 planter violence forcing ryots to cultivate, linked to
restrictions on landholding of Europeans- advance systems, holding land in others names.
Shouldnt see planter as in relation to indigenous morality but as a creature constructed
and normalised by empire and its law. Attacks on Europeans too.
c. Gender violence- Company didnt recognise this as specific theme of European
misconduct, this was quite widespread.

Conclusion
1. Taking cases in European misconduct 1766 1824- white crime serious problem-
challenge to company in critical phase of territorial expansion in practical law and order
problems as well as undermining moral right to rule, contradicting imperial claims.
Exposed disorder and violence brought about by colonial contact itself.
2. British not monolithic in India and efforts of Company to exert power not limited to
competing Indian powers and territories but non- official and non conformer of white
society.

Chapter Two
Citizens, subjects, and subjections to law: codification and the legal construction of
racial difference

1. In 1831 it was decided to set up a committee to investigate the Companys operation in
India. Concern over excessively complicated administrative system, many areas of
overlapping jurisdiction, dual structures, inexperienced law officers.
2. Macaulay pretty set on teaching Europeans obedience to the law, didnt want to inflict a
new breed of Brahmins on them. Give them a good government if not a free one: thus a
codified rule of law.
3. Principle underlying the codification: uniformity when you can have it: diversity when
you must have it; but in all cases certainty.
4. Codification going on in England didnt succeed- perhaps this lent the colonial project
all the more impetus.
5. Late 19
th
century, codification became so prolific that many criticised its expense and
utility. Codification also posed a dilemma. A uniform system of law that would place
both coloniser and colonised on an equal legal footing would upend the colonialisms
fundamentally unequal politics. It would make them the prisoners of their own rhetoric
so why do it?
6. Eric Stokes thinks of it in the context of India being a laboratory, so to speak, for the
experiment of codification of law. India best suited it, or it best suited India; an
enlightened and paternal despotism. The fact that they had this space is not sufficient to
explain why they did do it. Kolsky says the additional reason was the menace of the
unbridled Europeans. Codification gave the chance to control everybody in India,
including Europeans.
7. Of course when Macaulay came, all the Europeans were like boo! about the freeborn
Englishman being subjected to the laws meant for a subject population. So though the
laws were codified for the purpose of controlling the non-officials, it ended up being
ambivalent on that very issue.
8. Colonial difference, as Partha Chatterjee puts it: modern liberal political ideas often
distorted in the Indian context; this is most evident in the codification of law and the
creation of special legal distinctions, exceptions, and/ or privileges created for the
Britons.
9. So though the codification happened to teach the non-official bunch obedience,
achieved precisely the opposite, in fact, formalised an elevated status in law. (I think
Kolskys overstating this a bit.)

Bentham in India
1. Laws founded on universal and scientific principles- his ideas posthumously instituted
by Bentinck and Macaulay. The codes were tools to free India from a long history of
arbitrary rule.
2. According to them Company laws were too unclear, and gave too much power to the
discretionary power of the judges.
3. In India the law was unknown to ordinary people, and the judicial officers had very
little experience, very little training and no familiarity with Indian languages.
4. In place of regional legislatures there was to be a centralised Legislative council. New
position created of Law Member + the Governor Generals Executive Council- this
body could now enact Acts of India. Gone were the days of the Regulation period
where the Presidencies used to pass contradictory laws.

Mr. Macaulay ought to be lynched
1. Court of Directors in 1934 directs Government of India to expand Companys
jurisdiction over all matter except capital punishment. Protection of natives critical in
light of the license system going, thus more white settlers.
2. Arduous process. Britons also giving problems as didnt want to subject themselves to
the subjected.
3. Issue of civil jurisdiction- 1836, Macaulay introduces an Act that divested Europeans of
exclusive appeal to Supreme courts. Now European British also have to Appeal to Sadr
Diwani Adalat.
4. Uproar- called the Black Act; newspapers question what right the Government of India
has to adjudicate on the subjects of the Crown. Pitting the inviolable rights of freeborn
Englishmen against the illegitimacy of a despotic colonial regime. Macaulay criticised
this self-serving concept of liberty and the Bill was passed, May 9
th
, 1936.
5. Fierce protest to become benchmark for all future opposition to uniform legal
jurisdictions in India.

The doctrine of equal rights vs. the actual state of things: the Code of Criminal
Procedure
1. 1833 to 1882- codification- Criminal Procedure (1861)- case study for colonial
subversion of legal authority and the legal construction of racial difference .
Institutionalised racial inequality. White majority juries for whites, but not Indian
majority for Indians, Presidency trials for Europeans- local for Indians, racially
differentiated schedule of punishments. Amendments expanded these, under pressure
from non- officials saying equality was impossible in a backward and caste-ridden
society like India.
2. Successive Law Commission repeatedly tried but failed to extend the jurisdiction of the
mofussil courts, (Jurisdiction bills only ended up dividing privileges all the more- pg 79
3. Without a uniform criminal procedure non-officials apprehensive that theyd be
subjected to Islamic criminal law, which they considered barbaric.
4. Dread of law scared off potential capitalists in India
5. By mid 19
th
century, planters exercised considerable influence over government policy,
due to economic considerations too.
6. So conflicted political and juridical commitments so Jurisdiction bills shelved
7. Earlier wealthy Bengalis didnt mind the system of exactions because they benefitted,
but the shelving of the Bills was a bit much. So this alliance gone.
8. Another bill introduced in 1857, explicitly preserving racial distinctions, protested by
Indians
9. Bueller Supreme Court Justice, in the legislative councils, proposed that jurisdiction
over European British subjects be moved to session courts, now lower courts presided
over by Indians, comparing equality with the actual state of things in defence of this
proposal. So not a claim for separate but equal- a claim that in the colony, separate and
unequal were fair and just.
10. After 1857, whole scene changed considerably. Indian Penal Code. Transfer of power
from Company to Crown. Queen Victorias proclamation- promises of equality
11. Of course resistance to legal equality and uniform criminal jurisdiction remained firm
as ever. Also shifting of relations between official and non-officialcame closer
together.
12. Peacock- new idea- only covenanted civil servant and European British were
empowered to arrest, hold bail, or commit any European British to Session Court.
13. Code of Criminal Procedure- 1861- Withdrew from Indian magistrates the power to
hold any preliminary enquiry into cases of European Brit subjects or to arrest, hold bail,
or commit them for any case triable by the Supreme Court. So basically could only be
taken up by a European, so in the district where highest authority an Indian judge,
European Brits chilled. Much protest but 1862- came into effect.
European Vagrancy

Gone native: Race-based rights and Englishmans personal law
1. The larger problem of sending them to Higher courts still remained.
2. Various proposals- finally decided to extend jurisdiction to moffusils where there were
Europeans. Pg 93, 94.
3. Various arguments for exemption- relative equality, entitlement to privileges as
Englishmens Personal Law. Members of different races ill-equipped to judge each
other. If Indians had personal laws relating to religion, women, etc, Europeans should
on criminal law. Cultural argument.

White Mutiny- Ilbert Bill crisis
1. 3 separate criminal codes pg 97.
2. Anomalous position of Indian civil servants. Had less power than Europeans in
mofussils. Time to eradicate race- based distinctions here?
3. Local governments agreed at first. But Ilberts Bill came, removing every race based
judicial disqualification, and the non-officials described themselves as oppressed
minority, whose interests were threatened by the Bengali Babus and unsympathetic
colonial government.
4. Practical problems, British claimed. Danger of carrying out abstract sentimentalism too
far. Same old arguments about Indians ruling them. Anglo- Indian Defence.
5. Decided time wasnt ripe. Ilbert didnt prevail.
6. Only slightly expanded power of mofussil by right to trial by jury- no less than half had
to be European or American.
Whiteness as property: Race law and imperial identity politics
1. To be a European British in the law was to have. Property interest in Britishness.
2. Race in the code was an enduring position of status.
3. The only thing unstable was the question of entitlement- Europeanness= Whiteness.
Conclusion
1. Codification of Law part of colonial effort to control society. But ended up being
subverted by small white minority, who racialised it.
2. Justifications changed over time. Constitutional right of freeborn Englishmen, relative
quality according to peculiar histories, idiom of personal law
3. Doctrine of equal law opposed to actual state of things
4. Non- official and official communities warmed to each other, constant delaying of
equality project- Time not Ripe. When would it ever be?

Radhika Singha

From Faujdari to Faujdari Adalat: The Transition in Bengal

'Usurped' Prerogatives of Sovereignty? Pg 4
The Mughal order pg 4
Military-Executive Authority and Legal Points of Reference pg 6
Aurangzeb's Farman of Justice pg 13
Law and Justice under the Regional States: Breakdown and Judicial Venality? Pg 16
The Critique of Pre-colonial Rule pg 21
Reclaiming the Prerogatives of Sovereignty: The Reforms of 1772 pg 26
Rule of Law and Judicial Discretion pg 27

Civil Authority and Due Process: The Banaras Zamindari, 1781-1795

The Surathal: From Amil to Police Darogha pg 37
The Judicial Oath and the Issue of Veracity pg 46-
The Islamic Law, the Law Officers, and the Company's Subjects 49
Conceptions of Sovereign Right and Public Justice: Orientalists, Anglicists and the Islamic Law
of Homicide pg 51
Discretionary Punishment and the Modification of Islamic Law pg 60
Criminal Intention and the Legal Claims of the State pg 63
Rules of Evidence: The Confession pg 66
Criminal Justice and the Recurrent Petty Offender pg 71
Criminal Intention and the Criminal Tribe pg 76

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