Colonial Terror: Torture and State Violence in Colonial India 0192893939, 9780192893932

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Colonial Terror

Colonial Terror Torture and State Violence in Colonial India D E A NA   H E AT H Reader in Indian and Colonial History, University of Liverpool

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3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Deana Heath 2021 The moral rights of the author have been asserted First Edition published in 2021 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020951482 ISBN 978–​0–​19–​289393–​2 DOI: 10.1093/​oso/​9780192893932.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

To Gene and Marlowe

Acknowledgements As in the case of any project that has developed over a considerable period of time, this one has incurred many debts of gratitude, not least in terms of financial and research support. The project’s genesis was laid during a year-​long fellowship from the Indian Council for Cultural Relations, which although awarded for a rather different undertaking led to the discovery of this one in the National Archives of India. I would particularly like to thank both Shahid Amin and former ambassador to Ireland, P. S. Raghavan, for supporting my application for this fellowship. Additional funding from the Universities of Alberta and Liverpool enabled me to pursue further research in the India Office records and private papers at the British Library. Jaya Ravindran, Assistant Director of the National Archives of India, and her staff, as well as staff at the British Library, offered invaluable help in locating and accessing the materials on which this project is based. Colonial Terror would not have been possible, however, without the support of the Independent Social Research Foundation (ISRF), which provided me with a year-​long grant to conduct additional research and write a first draft, along with the intellectual stimulation, through its interdisciplinary conferences, workshops, and publications, to push the boundaries of my own research and discipline in new directions. I am particularly grateful to Louise Braddock, Rachael Kiddey, Lars Cornelissen, and Stuart Wilson for their encouragement and assistance, to David Arnold, Martin Thomas, and Andy Davies for their endorsement of this project, as well as to the many ISRF fellows with whom I have debated and discussed a wide range of issues relating to violence. Many others have shared their knowledge and insights with me about colonialism, violence, and policing. I owe special thanks to Jinee Lokaneeta and Santana Khanikar, whose work on policing and violence in post-​colonial India, along with the many discussions we have had, have been inspirational, in addition to the participants at the three workshops we have held in Liverpool and Delhi on issues related to this book—​ particularly Sharib Ali, Esaar Batool, Pratiksha Baxi, Anjuman Ara Begum, Uma Chakravarti, Veena Das, V. Geetha, Shalini Gera, Anindita Ghosh, Will Gould, Vrinda Grover, Sanjoy Hazarika, Beatrice Jauregui, Babloo Loitongbam, Nivedita Menon, Shivangi Narayan, Steven Pierce, Vikash Narain Rai, Bhavani Raman, Pooja Satyogi, Abdul Wahid Shaikh, Gagan Preet Singh, Ujjwal Singh, Sunita Toor, and Arvind Verma. The members of both the Foucault and the Power and the Archive reading groups at the University of Liverpool have played an especially important role in helping me to develop the theoretical insights that shape this book, in particular Mike Rowe, Rabeea’h Aslam, and James Lowry, and my PhD students Hannah Kelly, Tilly Reeves O’Toole, Louise Roberts, Catherine Tully, Emily Warrilow, and Beth Wilson. So, too, did the participants in the week-​long workshop I organized at Cambridge in 2017 (funded by the ISRF) on the ‘civilizing’ violence of colonialism, especially Zahid Chaudhary, Daniel Grey, Stephen Morton, Pablo Mukherjee, Gavin Rand, Dan Rycroft, Jonathan Saha, Ajay Verghese, and Claire Wintle.

viii Acknowledgements I am also grateful for the many others who shared both their work and their insights and suggestions, including Ritu Birla, Elizabeth Kolsky, Tim Parsons, Darius Rejali, Mitra Sharafi, and Radhika Singha. I owe considerable gratitude, as always, to Steve Legg, for helping me to think through issues relating to sovereign power and governmentality and for his exhaustive knowledge of relevant publications, along with Colin Gordon, Patrick Joyce, and the members of the South Asian Governmentalities research group. In addition, those who commented on all or parts of this manuscript, including Jonathan Saha, Wendy Lee, and David Whyte, as well as the anonymous reviewers, were instrumental in encouraging me to rethink aspects of my arguments. Elements of this book have been presented at the South Asia seminar series at Cambridge University, the Global History seminar series at Leeds, the Global History AHRI Seminar, University of Dundee, the Centre for International Politics, Organisation and Disarmament at Jawaharlal Nehru University (JNU), and the Centre for Comparative Politics and Political Theory at JNU, as well as at the following conferences, workshops, and symposia: ‘Hard and Soft Power: Questions of Race, Intimacy and Violence in the Comparative Colonial Toolkit’ at the University of Kent; ‘Violence, Colonialism and Empire in the Modern and Contemporary World’ at the British Academy; the 42nd and 44th Annual Conferences on South Asia at Madison, Wisconsin; ‘Re-​engaging Elaine Scarry’s The Body in Pain:  A Thirteenth Anniversary’ at the University of Brighton; ‘What is the History of the Body?’ and Foucault, Political Life, and History:  South Asian Governmentalities, both at the Institute of Historical Research; ‘Global Networks of Violence’ and ‘Refining the Legal Lens: New Directions in Modern Indian Legal History’, both at Cambridge University; ‘Empire and Policing’, at the University of Liverpool; the Law and Society Conference, Mexico City; ‘Policing in South Asia: Dilemmas of Governance and the Making of Participatory Communities’ and ‘The State, Policing, and the Law:  Understanding the Genealogies and Nature of Police Violence in India’, both at Jawaharlal Nehru University; ‘ISRF Workshop:  Relating Pasts and Presents—​History of Science and Social Science’, in Berlin, and the ‘ISRF Annual Workshop: The Question of Violence’, at Oxford University; and, lastly, the British Association of South Asian Studies Annual Conference at Durham University. My greatest debts are, however, to Gene, for all his encouragement and support, and to Marlowe, who despite learning, far too early, that iniquities like colonialism and torture exist, has taught me a great many things, not least about the wonders of the natural world. My final thanks are to Greg Parker and Julie Hills, for helping make it possible for me to cart my family with me for part of the research for this book, as well as to Waggle Bot, Bright Beak, Emerald, P. B., Twitch, and Domino, who brought surprising joy to the writing of it.

List of Abbreviations BL CPC ICS IPC NAI Report UK

British Library Criminal Procedure Code Indian Civil Service Indian Penal Code National Archives of India Report of the Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency (Madras: Fort St. George Gazette Press 1855) United Kingdom

Introduction: Torture, Empire, and the Exception The colonial regime owes its legitimacy to force and at no time tries to hide this aspect of things.1

In 2011 the High Court of England and Wales heard a historic case that exposed facets of the brutal violence that sustained Britain’s empire. The issue at stake was whether five poor and elderly Kenyans,2 who had been subjected to ‘physical mistreatment of the most serious kind, including torture, rape, castration and severe beatings’ by British colonial officials during what was known as the 1952–​1960 Kenyan Emergency had, as the Hon. Mr. Justice McCombe remarked in his judgment summary, ‘a viable claim in law’ for their case to be heard in Britain.3 The question before the court was not, therefore, whether the allegations of the claimants were true (though McCombe noted that ‘no doubt has been cast upon them by the evidence before the court’), or whether the British government was liable for the injuries they had suffered, but whether they could, after a lapse of over half a century, be tried in Britain.4 For the defendants, the Foreign and Commonwealth Office (FCO), the answer to this question was a resounding ‘no’; the colonial government in Kenya had been ‘separate and distinct from that of the UK Government’, it argued, and hence liability for colonial violence rested, following Kenya’s independence from Britain in 1963, with the Kenyan government.5 Britain, according to such logic, was not responsible for the torture and other forms of violence committed by its colonial officials on the bodies of its formerly 1 Frantz Fanon, Concerning Violence (first published in 1961, Constance Farrington tr, London: Penguin, 2008), 57 (hereafter Fanon, Concerning Violence). 2 The five complainants were Ndiku Mutwiwa Mutua, Paulo Nzili, Wambugu wa Nyingi, Susan Ngondi, and Jane Muthoni Mara. Susan Ngondi, however, died the year before the case was heard, and Ndiku Mutwiwa Mutua died in 2012, before the British government settled the case. David M. Anderson, ‘Mau Mau in the High Court and the “Lost” British Empire Archives: Colonial Conspiracy or a Bureaucratic Bungle?’, The Journal of Imperial and Commonwealth History 39/​5 (2011), 700 (hereafter Anderson, ‘Mau Mau’). 3 Mutua & Ors v. The Foreign and Commonwealth Office [2011] EWHC 1913 (QB), 21 July 2011 [A1], [A2] (hereafter Matua & Ors). 4 Ibid [A1]. As United Kingdom (UK) law does not recognize torture as a specific tort (a legacy, perhaps, of its imperial past?), the action brought was, instead, regarding a claim for the tort of trespass to the person, which according to Devika Hovell ‘distract[s]‌from important legal implications of torture’. Devika Hovell, ‘The Gulf between Tortious and Torturous: UK Responsibility for Mistreatment of the Mau Mau in Colonial Kenya’, Journal of International Criminal Justice 11 (2013), 224 (hereafter Hovell, ‘The Gulf between Tortious and Torturous’). 5 Matua & Ors (n 3) [C11]. Colonial Terror. Deana Heath, Oxford University Press (2021). © Deana Heath. DOI: 10.1093/​oso/​9780192893932.003.0001

2  Colonial Terror colonized subjects. According to what I shall call the displacement of colonial blame thesis, it was the former colonial subjects themselves, or their descendants, who instead bore such a burden. For the claimants, however, it was impossible for Britain to so flagrantly airbrush its responsibility for the brutal violence to which they had been subject.6 In addition to the fact that the liability of the colonial administration in Kenya devolved upon the British government in 1963, rather than the Kenyan, the British government was ‘directly liable to the claimants . . . for having encouraged, procured, acquiesced in, or otherwise having been complicit in, the creation and maintenance of the “system” under which the claimants were mistreated’.7 The British government was liable, furthermore, for violating ‘a common law duty of care’ in failing to end the systematic use of torture and other forms of violence on Kenyan bodies when it had the clear capacity to do so.8 What made such a duty of care clear, for the claimants, was that in addition to their being British subjects at the time they were subjected to torture, residing in a colony created by the Crown, ‘The source of the risk of harm to [them] . . . was the Colonial Government itself ’.9 McCombe agreed with them. In addition to the fact that the existence of a colonial government did not ‘preclude . . . a separate and individual role for the paramount government of the country whose colony a particular territory is’, the evidence before him suggested that Britain was as culpable as its colonial government in Kenya in the way in which the Emergency was managed.10 Indeed, McCombe argued, the idea that torture could have been so widely perpetrated as it appears to have been in colonial Kenya had the British Government genuinely wished to put a stop to it seemed highly unlikely. But even had the British government done no more than stand by and do nothing, ‘[t]‌he time must come when standing by and doing nothing, by those with authority and ability to stop the abuse, becomes a positive policy to continue it’.11 The judge was satisfied, therefore, that the claimants had a legitimate case that the British government owed them a duty of care.12 McCombe went as far, in fact, as to suggest that because the case involved torture, it was ‘of such a nature that judicial policy might positively demand the existence of a duty of care’ in light of ‘the revulsion with which the English law regards torture’.13 Evidence could be plucked from numerous cases to substantiate such revulsion, he argued, such as a 2005 House of Lords appeal judgment that declared the fact that English common law had abolished judicial torture at a time it was still routine in Europe a source of national pride, since in addition to being ‘dishonourable’ torture corrupted and degraded ‘the state which uses it and the legal system which accepts

6 Ibid [D27]. 7 Ibid [C13]. 8 Ibid. See also David Anderson, ‘British Abuse and Torture in Kenya’s Counter-​insurgency, 1952-​1960’ 23/​4-​5 (2012), 701 (hereafter Anderson, ‘British Abuse’). 9 Matua & Ors (n 3) [K156]. 10 Ibid [J132]. 11 Ibid [K143], [144]. 12 Ibid [K138]. The law regarding the UK government’s vicarious liability for the conduct of former colonial governments is, however, still unresolved. Hovell, ‘The Gulf between Tortious and Torturous’ (n 4) 236. 13 Ibid [K153].

Introduction: Torture, Empire, and Exception  3 it’.14 McCombe thus agreed with the claimants that the United Kingdom had not just a national but an international duty to protect against torture, particularly since it was a signatory to the 1987 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, under which it was obliged to ensure legal redress to victims of torture.15 When it came to the ‘exceptional case’ before him, therefore, he regarded it as ‘dishonourable’ that a legal system that ‘will not in any circumstances admit into its proceedings evidence obtained by torture should yet refuse to entertain a claim against the Government in its own jurisdiction for that government’s allegedly negligent failure to prevent torture which it had the means to prevent’.16 In a landmark ruling—​‘the first time’, as the claimant’s law firm declared, ‘the British Government had been held to account for colonial era abuses’—​McCombe therefore found in favour of the claimants.17 Two years later, following an unsuccessful appeal by the FCO, the British government finally awarded an out-​of-​court settlement of £19.9 million.18 McCombe was right that torture had long been prohibited in British law, and that this is a source of pride in Britain as a sign of its much-​vaunted ‘rule of law’ (as journalist Ian Cobain puts it, it is a common perception that ‘the British avoid torture, if only because it is British so to do’).19 Such pride became, in fact, a chief justification for Britain’s ‘civilizing mission’ in colonies from Kiribati to Kenya (one of what Caroline 14 A v Secretary of State for the Home Department (No.2) [2005] UKHL 71 [82], cited in Matua & Ors (n 3) [K153]. 15 Matua & Ors (n 3) [K156]. That McCombe chose the 1987 Convention Against Torture to cite rather than the 1953 European Convention on Human Rights (ECHR), which was in force during the emergency in Kenya, is noteworthy, since as Britain forced the inclusion of Article 15 into the convention, under which states can abrogate human rights norms in an emergency (though freedom from torture is one of the few rights that cannot be derogated under Article 15), the passage of the ECHR does not cast Britain’s human rights records in a particularly positive light. See the Council of Europe, ‘Guide on Article 15 of the European Convention of Human Rights: Derogation in Time of Emergency’ accessed 11 May 2020; and John Reynolds, Empire, Emergency and International Law (Cambridge: Cambridge University Press 2017), Ch. 4 (hereafter Reynolds, Empire, Emergency). 16 Matua & Ors (n 3) [K153]. 17 Leigh Day, ‘Historic Claims’ accessed 11 May 2020. 18 Mutua & Others v. The Foreign And Commonwealth Office [2012] EWHC 2678 (QB) 5 October 2012; and Ian Cobain, ‘Kenyan Mau Mau Promised Payout as UK Expresses Regret over Abuse’, The Guardian (London, 5 June 2013) accessed 13 May 2020. The settlement was awarded to a total of 5,228 Kenyan torture victims, but since it included a £6 million fee for the law firm Leigh Day victims received a mere £2,658 each. Daniel Howden and Kim Sengupta, ‘59 Years Late—​but Mau Mau Accept an Almost Apology’, The Independent (London, 7 June 2013) accessed 13 May  2020. 19 Ian Cobain, Cruel Britannia: A Secret History of Torture (London: Portobello Books 2012), xii (hereafter Cobain, Cruel Britannia). See also Tobias Kelly, This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty (Philadelphia, PA: University of Pennsylvania Press 2012), 44 (hereafter Kelly, This Side of Silence). Torture was formally abolished in England in 1640 and in Scotland in 1708; it is also explicitly prohibited under the 1988 Criminal Justice Act, introduced to honour Britain’s commitments under the UN Convention Against Torture. However, the Act also provides a defence for torture if the perpetrator was given ‘lawful authority, justification or excuse’ to enact it. ‘Torture in UK Law’ (Justice.org) accessed 11 May 2020; and Cynthia Banham, Liberal Democracies and the Torture of their Citizens (Oxford: Hart Publishing, 2017), 150 (hereafter Banham, Liberal Democracies). See also Edward Peters, Torture (Oxford: Basil Blackwell, 1985); and John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago and London: The University of Chicago Press, 1977).

4  Colonial Terror Elkins refers to as the many ‘fictions of colonial benevolence’ that the British government has long ‘crafted and affirmed’).20 He did not reflect, however, or perhaps did not wish to reflect, on how it was possible that a country in which torture was regarded as dishonourable, corrupting, and degrading, and as undermining the ‘rule of law’, could nonetheless be culpable for its systematization under ‘emergency’ conditions in Kenya as part of a genocidal drive to eliminate the Kikuyu, who bore the brunt of such inhumanity.21 McCombe also did not, notably, question how ‘exceptional’ the case before him actually was, despite not only the existence of states of emergency in British colonies that coincided with that in Kenya (such as in Malaya 1948–​1960 and in Cyprus in 1955–​1959),22 but the revelation, during the course of the trial, of a secret FCO archive of documents detailing horrific abuses in no less than thirty-​seven British colonies.23 Nor did he query the justification of such an ‘emergency’ or the legitimacy of the colonial regime that it sought to defend—​of, in other words, ‘the distinctive 20 Caroline Elkins, ‘The Colonial Papers:  FCO Transparency Is a Carefully Cultivated Myth’, The Guardian (London, 18 April 2012) accessed 11 May 2020 (hereafter Elkins, ‘The Colonial Papers’). 21 See Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (New York: Henry Holt 2005), xiv, 48 (hereafter Elkins, Imperial Reckoning); Dominik J. Schaller, ‘Genocide and Mass Violence in the “Heart of Darkness”: Africa in the Colonial Period’, in David Bloxham and A. Dirk Moses (eds), The Oxford Handbook of Genocide Studies (New York: Oxford University Press 2010), 359; and Martin Crook, ‘The Mau Mau Genocide: A Neo-​Lemkinian Analysis’, Journal of Human Rights in the Commonwealth 1/​1 (2013), 18–​37. Though scholars have attempted to refute claims that British colonial violence in Kenya was genocidal in intent, such attempts generally focus narrowly on military history—​i.e. that the British military could have killed many more people in Kenya than it did—​rather than on the many forms of structural and systemic violence to which Kenyans, particularly the Kikuyu, were subject. See Huw Bennett, Fighting the Mau Mau: The British Army and Counter-​Insurgency in the Kenya Emergency (Cambridge: Cambridge University Press 2012), 108 (hereafter Bennett, Fighting the Mau Mau). For debates on the genocidal nature of colonialism see Robert Gerwarth and Stephan Malinowski, ‘Hannah Arendt’s Ghosts: Reflections on the Disputable Path from Windhoek to Auschwitz’, Central European History 42/​2 (2009), 279–​300; and Michelle Gordon, ‘Colonial Violence and Holocaust Studies’, Holocaust Studies 21/​1 (2015), 272–​91. 22 For the use of torture against anti-​colonial movements—​which scholars, using a term that legitimates colonial violence, generally refer to as ‘counter-​insurgency’ campaigns but Kim Wagner more helpfully terms ‘savage warfare’—​see, for example, Elkins, Imperial Reckoning (n 21); Andrew Mumford, ‘Minimum Force Meets Brutality: Detention, Interrogation and Torture in British Counter-​insurgency Campaigns’, Journal of Military Ethics 11/​1 (2012), 10–​25; Anderson, ‘British Abuse’ (n 8); Cobain, Cruel Britannia (n 19); and Mark Curtis, Web of Deceit: Britain’s Real Foreign Policy (London: Vintage 2003). See also Kim Wagner, ‘Savage Warfare: Violence and the Rule of Colonial Difference in Early British Counterinsurgency’, History Workshop Journal 85 (2018), 222 (hereafter Wagner, ‘Savage Warfare’). 23 For the ‘discovery’ of this archive and the revelation of its contents see Anderson, ‘Mau Mau’ (n 2); David Anderson, ‘Guilty Secrets: Deceit, Denial and the Discovery of Kenya’s “Migrated Archive” ’, History Workshop Journal 80 (2015), 142–​60 (hereafter Anderson, ‘Guilty Secrets’); and Elkins, ‘The Colonial Papers’ (n 20). In addition to the fact that the FCO continues to withhold many of these ‘found’ documents from public release the hidden archive did not contain the most incriminating evidence of British brutality, which was systematically destroyed as Britain ‘withdrew’ from its colonies—​either incinerated or packed in weighted crates and dumped in deep water—​to ensure that post-​colonial states could not access any documents that ‘might embarrass Her Majesty’s government’. In the case of Kenya this amounted to an estimated 3.5 tons of documents. Ian Cobain, ‘Kenya: UK Expresses Regret Over Abuse as Mau Mau Promised Payout’, The Guardian (London, 6 June 2013) accessed 19 August 2020 (hereafter Cobain, ‘Kenya’); Ian Cobain, Owen Bowcott, and Richard Norton-​Taylor, ‘Britain Destroyed Records of Colonial Crimes’, The Guardian (London, 18 April 2012) accessed 13 May 2020; and Caroline Elkins, ‘Looking Beyond Mau Mau:  Archiving Violence in the Era of Decolonization’, The American Historical Review 120/​3 (2015), 860 (hereafter Elkins, ‘Looking Beyond Mau Mau’).

Introduction: Torture, Empire, and Exception  5 wrongness of colonialism’—​even though the torture and other forms of violence to which Kenyans had been subjected were done with the aim of preserving a system of white racial privilege.24 He did not consider, lastly, why it took over half a century for colonial torture victims to seek or receive justice,25 despite the fact that questions had been raised, and voluminous evidence presented, of British brutality during the Emergency—​though this was all dismissed at the time through the use of what David Anderson terms the ‘dispositional-​individual’ or ‘bad apple’ thesis, or Purnima Bose refers to as the ‘rogue-​colonial individualism’ theory, through which systemic colonial violence is displaced onto select individuals as a means of distancing empires from their constitutive violence.26 The Mutua judgment was nonetheless seminal. As such it raised the hopes of thousands of others victimized by torture at the hands of British colonial regimes.27 But although the Foreign Office insisted that ‘there should be a debate about the past’ in order to learn from it, it continued to deny legal culpability for Britain’s colonial history.28 British taxpayers, according to their government, should not pay for historic crimes they had played no role in committing (despite the fact that, for victims still living with its consequences, torture cannot be quite so neatly relegated to the past).29 States such as Germany may therefore be continuing to apologize—​and pay compensation for—​crimes which few contemporary Germans played any role in committing, but Britain, according to such logic, was to be exempt from such a reckoning. Little

24 Vittorio Bufacchi, ‘Colonialism, Injustice, and Arbitrariness’, Journal of Social Philosophy 48/​2 (2017), 97; and Chris McGreal, ‘Torture and Killing in Kenya—​Britain’s Double Standards’, The Guardian (London, 8 April 2011) accessed 13 May 2020 (hereafter McGreal, ‘Torture and Killing’). For more on the establishment of such a system, in particular the expropriation of Kikuyu lands, see Elkins, Imperial Reckoning (n 21) 21–​5. 25 There were innumerable hindrances that prevented victims of colonial violence from obtaining redress. In the Kenyan case part of the problem was that because association with the Mau Mau, which had advocated violent resistance against British rule, was criminalized until 2002, fear of prosecution kept victims from coming forward. Huw Bennett, ‘Kenyan Mau Mau: Official Policy Was to Cover up Brutal Mistreatment’, The Guardian (London, 5 May 2013) accessed 13 May 2020; and Anderson, ‘Guilty Secrets’ (n 23) 153. 26 Anderson, ‘British Abuse and Torture’ (n 8), 701; Purnima Bose, Organizing Empire: Individualism, Collective Agency, and India (Durham, NC: Duke University Press 2003), 2. According to Mark Doyle the ‘bad apple’ thesis served to mark out particular individuals as ‘brutal exception[s]‌to the general rule of “minimum force” by which most British imperial forces abided’. Mark Doyle, ‘Massacre by the Book: Amritsar and the Rules of Public-​Order Policing in Britain and India’, Britain and the World 4/​2 (2011), 248 (hereafter Doyle, ‘Massacre by the Book’). 27 See, for example, Owen Boycott, ‘Mau Mau Lawsuit Due to Begin at High Court’, The Guardian (London, 22 May 2016) accessed 13 May 2020; Helena Smith, ‘Cypriot Veterans Win Right to Claim Damages Over UK Torture Claims’, The Guardian (London, 12 January 2018) accessed 19 May 2020; Sophocleous & Ors v. The Secretary of State for Foreign And Commonwealth Affairs & Anor [2018] EWCA Civ 2167; and Helena Smith, ‘UK to pay £1m to Greek Cypriots Over Claims of Human Rights Abuses’, The Guardian (London, 23 January 2019) accessed 19 May  2020. 28 HC Deb 6 June 2013, 563, col. 1693; Cobain, ‘Kenya’ (n 23). 29 Ibid col. 1692, 1695.

6  Colonial Terror wonder that, though restorative justice may have swept through many parts of the world in recent decades it has largely passed Britain by.30 To be sure, the British government made some concessions. In what was a rare admission of the falsity of the ‘bad apple’ thesis it acknowledged that Kenyans had been subjected to torture by the colonial regime. But it sought to mitigate the inhumanity to which Kenyans had been subject through marshalling a version of the displacement of colonial blame thesis, according to which, as Foreign Secretary William Hague put it, ‘widespread violence’ and ‘terrible acts’ had been ‘committed on both sides’ (emphasis added)—​a vindication of the violence of white supremacy reminiscent of U.S. President Donald Trump’s defence of the murder of civil rights activist Heather Heyer by white nationalist James Alex Fields, Jr.31 For Hague, therefore, the murders of ‘thirty-​two European settlers . . . in horrific circumstances’ at the hands of a colonized people was equivalent to, and justified, the torture, maiming, or execution of an estimated 90,000 Kenyans; anti-​colonial insurgency was reduced, in addition, to ‘terrorist actions’.32 Displacing the blame for colonial violence onto its recipients made it possible, in turn, to avoid having to apologize for it; Hague instead merely expressed ‘sincere regret’33 for both the torture and—​lest anyone forget that Britain had been in Kenya to ‘civilize’ it—​that such torture had ‘marred Kenya’s progress towards independence’ (which, by implication, Britain had been working to bring about).34 Apologies were clearly therefore for other, less ‘civilized’ states, ones without what Hague referred to as Britain’s ‘high standards of human rights’—​such as the apology that Britain wrested out of Libya’s revolutionary leadership, during the course of the Matua trial (and on behalf of the Libyan people), for acts committed by the regime of the very man it was struggling to overthrow, Muammar Gaddafi.35

30 Caroline Elkins, ‘Alchemy of Evidence: Mau Mau, the British Empire and the High Court of Justice’, The Journal of Imperial and Commonwealth History 39/​5 (2011), 731. 31 HC Deb 6 June 2013, 563, col. 1692, 1696; and Michael D. Shear and Maggie Haberman, ‘Trump Defends Initial Remarks on Charlottesville; Again Blames “both sides” ’, The New York Times (New York, 15 August 2017 accessed 13 May 2020. 32 HC Deb 6 June 2013, 563, col. 1696. Although ninety-​five European settlers had actually died Hague notably did not provide any statistics on the number of Kenyans murdered by Europeans. Simon Webb, A History of Torture in Britain (Barnsley: Pen & Sword History 2018), 109 (hereafter Webb, A History of Torture). 33 The trope of regret has become the standard response of the British government too all demands that it redress the wrongs of its imperial past. See, for example, Owen Bowcott and Ian Cobain, ‘UK Sternly Resists Paying Reparations for Slave Trade Atrocities and Injustices’, The Guardian (London, 24 February 2014) accessed 19 May 2020; Robin McKie, ‘After 100 Years, Still no Apology for Amritsar Massacre’, The Guardian (London, 14 April 2019 accessed 19 May 2020; and Charlotte Graham-​McLay, ‘UK Expresses “Regret” Over Māori Killings After Cook’s Arrival in New Zealand’, The Guardian (London, 2 October 2019 accessed 19 May 2020. 34 HC Deb 6 June 2013, 563, col. 1692; see also ‘UK to Compensate Kenya’s Mau Mau Torture Victims’, Press Association, The Guardian (London, 6 June 2013). accessed 13 May  2020. 35 HC Deb 6 June 2013, 563, col. 1696; and McGreal, ‘Torture and Killing’ (n 24). The hearings for Matua & Ors were held April 7–​14, 2011.

Introduction: Torture, Empire, and Exception  7 The Matua case and its aftermath thus offer a number of insights into colonial violence and how it operates. The case reveals, to begin with, that such violence was often systematized, with whole swathes of colonized populations—​in the case of the Kikuyu, an entire ethnic group—​abandoned by the state. It demonstrates, secondly, that although Britain might conceive of torture as a barbaric practice long relegated to its past, as in the case of other liberal democratic states such violence has, instead, been central both to the disciplining, or ‘civilizing’, of what Sara Ahmed refers to as ‘other others’, as well as to the maintenance of its sovereignty.36 Thirdly, the case illustrates some of the many discourses and practices of denial regarding British culpability for torture and other forms of colonial violence. Since the voluminous nature of the evidence made it impossible for the British government to completely deny its accountability for systematized torture in Kenya it sought, instead, to rename (‘terrible acts’), discredit (‘bad apples’; we do not torture because we are British), and justify such violence through victim-​blaming (‘terrorist actions’).37 But while disclosing the nature of colonial violence, Matua also made such violence appear as exceptional, resorted to only ‘in times of crisis’, such as the ‘endgame’ of empire or, more recently, the new imperial, biopolitical, and exceptional global order generated by United States-​led ‘war on terror’.38 The global torture regime established 36 Sara Ahmed ‘This Other and Other Others’, Economy and Society 31/​4 (2002), 558–​72. For the use of torture as a ‘civilizing’ tool see Talal Asad, ‘On Torture, or Cruel, Inhuman and Degrading Treatment’, in Arthur Kleinman, Veena Das, and Margaret Lock (eds), Social Suffering (University of California Press 1997), 285–​308; Marina Lazreg, Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton: Princeton University Press 2008); and Samera Esmeir, Juridical Humanity:  A Colonial History (Stanford:  Stanford University Press 2012), 145 (hereafter Esmeir, Juridical Humanity). For the relationship between torture and democracy see Darius Rejali, Torture and Democracy (Princeton and Oxford: Princeton University Press 2007) (hereafter Rejali, Torture and Democracy); Jinee Lokaneeta, Transnational Torture: Law, Violence, and State Power in the United States and India (New York and London: New York University Press 2011) (hereafter Lokaneeta, Transnational Torture); W. Fitzhugh Brundage, Civilizing Torture: An American Tradition (Cambridge, MA and London:  The Belknap Press of Harvard University Press 2018); Banham, Liberal Democracies (n 19); and Shampa Biswas and Zahi Zalloua, Torture: Power, Democracy and the Human Body (Seattle, WA: University of Washington Press 2011). 37 According to Stanley Cohen these are the standard forms that official denial takes. See Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge: Polity Press 2001), xi (hereafter Cohen, States of Denial). 38 Mark Condos, The Insecurity State:  Punjab and the Making of Colonial Power in British India (Cambridge: Cambridge University Press 2017), 8 (hereafter Condos, The Insecurity State); and Cobain, Cruel Britannia (n 19) 90. As Ruth Blakely and Sam Raphael note, however, the torture and other forms of violence enacted against ‘other others’ in the ‘endgame’ of empire and the ‘war on terror’ are intimately connected, with the latter ‘less a departure from the normative [249] behaviour of leading liberal-​democratic states as provided by a new “state of exception”, and more the re-​emergence of practices that have lain at the heart of the US and British imperial projects for decades’. Ruth Blakely and Sam Raphael, ‘British Torture in the “War on Terror” ’, European Journal of International Relations 23/​2 (2017), 250 (hereafter Blakely and Raphael, ‘British Torture’). For scholarship on the ‘war on terror’ and the state of exception see Judith Butler, Precarious Life: The Powers of Mourning and Violence (London and New York: Verso 2004) (hereafter Butler, Precarious Life); Giorgio Agamben, State of Exception (Kevin Attell tr, Chicago and London: The University of Chicago Press 2005) (hereafter Agamben, State of Exception); Jef Huysmans, ‘International Politics of Insecurity: Normativity, Inwardness and the Exception’, Security Dialogue 27/​1 (2006), 11–​29; Vivienne Jabri, ‘War, Security and the Liberal State’, Security Dialogue 37/​1 (2006), 47–​64; and Andrew W. Neal, Exceptionalism and the Politics of Counter-​Terrorism:  Liberty, Security and the War on Terror (London: Routledge 2009). Some scholars argue that such an exceptional global order emerged earlier. See, for example, Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press 2000), 9–​10, 180, 345 (hereafter Hardt and Negri, Empire); and Mithi Mukherjee, India in the Shadows of Empire: A Legal and Political History (1774-​1950) (New Delhi: Oxford University Press 2010), 5.

8  Colonial Terror by the United States against those ‘other others’ (primarily Muslims) who, in Judith Butler’s words, are not regarded as ‘grievable’, undoubtedly serves as a sign of the ways in which, as Giorgio Agamben has argued, the exception has become the norm.39 Britain has also, despite how ‘well-​rehearsed’ the denial of torture has become in a country whose history has been so entwined with empire, played a key role in the establishment and maintenance of such a system—​and in the process developed what Ruth Blakely and Sam Raphael refer to as a ‘peculiarly British’, or ‘neo-​colonial’ approach to torture.40 According to Blakely and Raphael, in the colonial era ‘torture formed part of a broader strategy of imperial policing and, as a result, could be blatant, widespread and extremely brutal, with British officials playing a direct role’.41 Beginning in the early 1970s, however, revelations of the routine use of torture by British security services in Northern Ireland led, they argue, to the generation of policy and legal constrictions on the enactment of violence by British officials, and with it the development of a ‘neo-​colonial’ form of torture.42 Such a form entails British agents assuming a facilitatory rather than direct role in the torture enacted by United States security services and those of other states while engaging in a ‘cautious pantomime of legal and procedural adherence’ that enables Britain to appear to be observing national and international human rights norms.43 Drawing upon Judith Butler, the authors argue 39 Butler, Precarious Life (n 38) 34; and Agamben, State of Exception (n 38) 2. The literature on the United States’ torture regime is far too vast to do justice to here. Notable examples include: Butler, Precarious Life (n 38); Slavoj Žižek, ‘Between Two Deaths: The Culture of Torture’, London Review of Books (3 June 2004) accessed 27 May 2020; Hazel Carby, ‘A Strange and Bitter Crop: The Spectacle of Torture’ (Open Democracy, 11 October 2004) accessed 27 May 2020); Paul W. Kahn, Sacred Violence: Torture, Terror and Sovereignty (Ann Arbor: University of Michigan Press 2008); Tzvetan Todorov, Torture and the War on Terror (London: Seagull 2009); and United States and Dianne Feinstein, The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (2014) accessed 27 May  2020. 40 Caroline Elkins, ‘The “Moral Effect” of Legalized Lawlessness: Violence in Britain’s Twentieth-​Century Empire’, Historical Reflections 44/​1 (2018), 79; and Blakely and Raphael, ‘British Torture’ (n 38) 244, 250. See also Sir Peter Gibson, The Report of the Detainee Inquiry (London: The Stationery Office, 2013); and Banham, Liberal Democracies (n 19) Ch. 6. For works on Britain’s role in the extradition, interrogation, and torture of individuals who were classified not as ‘accused’ or ‘enemy combatants’ but ‘detainees’ (see Agamben, State of Exception (n 38)  4, for the significance of this term), as well as use of information obtained through torture, see, for example, Alex Danchev, ‘Accomplicity:  Britain, Torture and Terror’, British Journal of Politics & International Relations 8/​4 (2006), 587–​601; Phillip N. S. Rumney, ‘The Torture Debate: A Perspective From the United Kingdom’, in Jon Moran and Mark Phythian (eds), Intelligence, Security and Policing Post-​9/​11 (Houndmills, HA: Palgrave Macmillan 2008), 135–​58; Mark Elliott, ‘Torture, Deportation and Extra-​Judicial Detention: Instruments of “The War on Terror” ’, Cambridge Law Journal 62/​2 (2009), 245–​8; Jamie Gaskarth, ‘Entangling Alliances? The UK’s Complicity in Torture in the Global War on Terrorism’, International Affairs 87/​4 (2011), 945–​64; Roger Gough, Stuart McCracken, and Andrew Tyrie, Account Rendered: Extraordinary Rendition and Britain’s Role (London: Biteback Pub. 2011); Kelly, This Side of Silence (n 19); Cobain, Cruel Britannia (n 19); A. T. Williams, A Very British Killing: The Death of Baha Mousa (London: Jonathan Cape 2013); Vian Bakir, Torture, Intelligence and Sousveillance in the War on Terror: Agenda-​Building Struggles (London and New York: Routledge 2016); Blakely and Raphael, ‘British Torture’ (n 38); and Satvinder S. Juss, ‘U.S. Torture on “Black Sites”: A Lesson From Great Britain?’, in Satvinder S. Juss (ed.), Human Right and America’s War on Terror (London and New York: Routledge 2019), 161–​82. 41 Blakely and Raphael, ‘British Torture’ (n 38) 250. 42 Ibid. 43 Ibid 251; and Banham, Liberal Democracies (n 19) 119–​22. Blakely and Raphael note, however, that ‘echoes of colonial-​era torture’ can be seen in the behaviour of British security services in Iraq. Yet the true scale of the torture committed by such services has never been disclosed. In 2010 the British government

Introduction: Torture, Empire, and Exception  9 that playing such a facilitatory role in torture has been made possible by a new entwinement of sovereignty with governmentality, in which virtually unchecked power is given to unelected officials, or what Butler refers to as ‘petty sovereigns’.44 Such ‘sovereigns’ have engaged in acts ranging from the apprehension and detention of suspects to ‘disappearing’ them into secret prisons, as well as providing intelligence that laid the basis for torture or receiving intelligence acquired through torture.45 The British government has, in addition, further facilitated such activities through such means as the 2001 Anti-​Terrorism, Crime and Security Act (which authorizes the indefinite detention without trial of foreign nationals who cannot be deported because they are at risk of being tortured), enabling its territory to be used as a vital administrative hub by the United States in the maintenance of its global detention and torture network,

established The Iraq Historic Allegations Team to investigate allegations against British security personnel who had served in Iraq—​albeit in order, in effect, to exonerate them; it was set up, in addition, in such a way as to prevent investigation of wider questions regarding accountability or the systemic nature of torture and other forms of violence. Yet the sheer number of allegations—​there were 3,400 open cases by 2017—​combined with jingoistic, right-​wing media and political outrage over ‘spurious claims’ and ‘vile witch-​hunts’ against ‘war heroes’ led the Conservative government to shut the investigation down that same year without any cases having been prosecuted (it has, however, paid out more than £21 million to Iraqi torture victims in over 300 separate cases, despite continuing to deny liability for such claims). However, in 2014 the International Criminal Court began an investigation into Britain’s war crimes in Iraq that, at the time this book went to press is still ongoing, and in 2018 the parliamentary Intelligence and Security Committee published a report on detainee mistreatment and rendition in Iraq that detailed both the direct and indirect involvement of UK security services in torture, although its insights were limited by the British government’s refusal to provide access to key witnesses and the report has yet to be followed by a public inquiry. The British government’s hostile environment for the treatment of asylum seekers who are victims of torture, which includes holding them in indefinite detention, along with the tremendous breadth in executive powers conferred by the 2018 European Union (Withdrawal) Act and its repeated commitment to repealing the 1998 Human Rights Act, leave little hope, furthermore, that the UK will address its torture record in Iraq. Blakely and Raphael, ‘British Torture’ (n 38) 250; Samira Shackle, ‘Why We May Never Know if British Troops Committed War Crimes in Iraq’, The Guardian (London, 7 June 2018) accessed 28 May 2020; Owen Bowcott, ‘The Hague Says Claims of War Crimes by UK Troops Have ‘Reasonable Basis’, The Guardian (London, 4 December 2017) accessed 28 May 2020; Intelligence and Security Committee of Parliament, Detainee Mistreatment and Rendition: 2001-​2010 (2018); and Redress, ‘The UK’s Implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (March 2019)  accessed 8 May  2020. 44 Blakely and Raphael, ‘British Torture’ (n 38) 245; and Buter, Precarious Life (n 38) 56. Although Blakely and Raphael use the term ‘biopower’ instead of ‘governmentality’ I have retained the more accurate term that Butler uses. See also Michel Foucault, ‘Governmentality’, in Graham Burchell, Colin Gordon, and Peter Miller (eds), The Foucault Effect: Studies in Governmentality: With Two Lectures by and an Interview with Michel Foucault (Chicago: University of Chicago Press 1991), 87–​104; and Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975-​76, Maurio Bertani and Alessandro Fontana (eds) (David Macey tr, New York: Picador, 1997). 45 Blakely and Raphael, ‘British Torture’ (n 38)  246–​49. See also Owen Bowcott, ‘MI5 Policy Gives Agents “Legal Immunity” To Commit Serious Crimes’, The Guardian (London, 5 November 2019) accessed 27 May 2020; ‘Supreme Court Rules Torture and Rendition Claims Against UK Government Should Proceed’ (Justice.Org., 17 January 2017) accessed 28 May 2020; and Banham, Liberal Democracies (n 19) 123–​5.

10  Colonial Terror and the rendition of suspects—​all while repeatedly declaring Britain’s commitments to human rights.46 Blakely and Raphael are undoubtedly right to point to the facilitatory role of British security services, acting as ‘petty sovereigns’, in the perpetuation of torture in the ‘war on terror’. But although there may be something decidedly British about such a role, there is, however, nothing new, or neo-​colonial, about it, nor is it possible to posit a distinct break between the deployment of torture against ‘other others’ in the colonial versus post-​colonial eras.47 Novel configurations of colonial governance undoubtedly emerged in the aftermath of the Second World War, as they did after the First World War, but as Kim Wagner argues, ‘the logic that underpinned the violence by which they were sustained was anything but new’.48 Late colonial regimes simply seem to have become more repressive following the emergence of anti-​colonial nationalist movements because they have been largely analysed in isolation from the structural and systemic violence that not only made colonial rule possible but that gave birth to such movements.49 Torture and other forms of brutal violence may, therefore, have been perpetuated by colonial regimes in ‘exceptional’ or ‘emergency’ conditions, but such violence was far from exceptional.50 To assume it was is to ignore that the exception is merely the explosion, into the open, of violence ‘that is normally contained’, as well as to purge colonialism of its constitutive violence.51 This is not to deny that colonial violence takes different forms, or that there are different degrees or practices of torture. It is, in fact, a key contention of this book that we need to pay attention to the 46 Blakely and Raphael, ‘British Torture’ (n 38)  246–​7, 252–​7; and Banham, Liberal Democracies (n 19) 147; see also Ian Cobain and Ewen MacAskill, ‘The True Scale of UK Role in Torture and Rendition After 9/​11 Revealed’, The Guardia (London, 28 June 2018) accessed 27 May 2020; and Dan Sabbagh, ‘MoD Says Revised Torture Guidance Does Not Lower Standards’, The Guardian (London, 20 May 2019) accessed 27 May 2020. Parliament, the judiciary, civil rights organizations, and the press—​ particularly The Guardian—​have, however, done much to challenge such a narrative. Yet the former has also served to undermine it, as in the sanctioning of the use of evidence obtained through torture by the House of Lords in 2005. See 303 A (FC) v. Secretary of State [2005] UKHL 71, cited in Banham, Liberal Democracies (n 19) 149–​50. 47 The United States also, of course, gave tremendous power to its ‘petty sovereigns’ in the ‘war on terror’, as Butler demonstrates, but in contrast to British personnel they were clearly not restricted to a purely facilitatory role in the perpetuation of torture. See Butler, Precarious Life (n 38). 48 Kim Wagner, ‘ “Calculated to Strike Terror”:  The Amritsar Massacre and the Spectacle of Colonial Violence’, Past and Present 233 (2016), 223. 49 Ibid. On structural violence see n 117. 50 The same can be said for the desire to avoid being seen to perpetuate torture, which is the reason why, according to Simon Webb, the British largely employed colonial subjects to do it. Webb, A History of Torture (n 32) 98. 51 Nancy Scheper-​Hughes, ‘Bodies, Death, and Silence’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 177. As numerous studies have shown, torture can operate as a form of ‘contained’ as well as exceptional violence. See, for example, Darius Rejali, Torture and Modernity: Self, Society, and State in Modern Iran (Boulder, CO: Westview Press 1994); Rejali, Torture and Democracy (n 36); Lokaneeta, Transnational Torture (n 36); George C. Thomas III and Richard A. Leo, Confessions of Guilt: Torture to Miranda and Beyond (New York: Oxford University Press 2012) (hereafter Thomas and Leo, Confessions of Guilt); Rachel Wahl, Just Violence: Torture and Human Rights in the Eyes of the Police (Stanford: Stanford University Press 2017) (hereafter Wahl, Just Violence); and Jinee Lokaneeta, The Truth Machines: Policing, Violence and Scientific Interrogations in India (Ann Arbor, MI: University of Michigan Press 2020) (hereafter Lokaneeta, The Truth Machines); and Laurence Ralph, The Torture Letters: Reckoning With Police Violence (Chicago: University of Chicago Press 2020).

Introduction: Torture, Empire, and Exception  11 forms that colonial violence takes in order to understand the rationales behind it. But though the nature of the violence to which colonized bodies were subject may have varied—​assaulting them with whips embedded with small pieces of iron and then rubbing salt into the wounds in order to extract information, as happened to members of the Cypriot independence EOKA movement, for example, would have posed problems for Indian police officers seeking confessions that would hold up in a court of law—​it was nonetheless ‘baked into the everyday experience of empire’, part of its ‘normal (repressive) functioning’.52 The aim of Colonial Terror is to demonstrate that extraordinary violence was part of the ordinary operation of colonial states. Focusing on India between the early nineteenth century and the First World War, this book explores the centrality of the torture of Indian bodies to the law-​preserving violence of colonial rule.53 Since the Indian state, like all colonial regimes, was reliant on what have conventionally been termed ‘intermediaries’, which included large numbers of what I shall refer to, pace Martha K. Huggins, Mika Haritos-​Fatouros, and Philip G. Zimbardo, as ‘violence workers’, the torture that I will be examining was, therefore, enacted largely by Indians, acting as ‘petty sovereigns’, on Indian bodies.54 But regardless of the motivations of the torturers (which I will examine in Chapter 4), torture was facilitated, systematized, and ultimately sanctioned by first the East India Company and, later, the Raj. This is because the torture carried out by colonial officials, particularly the police—​the ‘official, instituted go-​betweens’ that connected the colonial state to its colonized population—​ benefitted the colonial regime, since in rendering the police a source of terror such violence workers played a key role in the construction and maintenance of state sovereignty.55 It was because torture was so advantageous that neither the Company nor the Raj made concerted efforts to eradicate it, resorting instead to disowning and, occasionally, punishing their violence workers whenever torture erupted into scandal in order to uphold the illusion that torture was a barbaric, atavistic habit that they were keen to suppress.56 This book explores why and how the police in colonial India came 52 Ray Furlough, ‘Cypriots Seek Recompense Over British “Torture” ’, BBC News (London, 20 November 2012) accessed May 18 2020; Richard N. Price, ‘The Psychology of Colonial Violence’, in Phillip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 25 (hereafter Price, ‘The Psychology of Colonial Violence’); and Reynolds, Empire, Emergency (n 15) 37. Torture by officials in colonial India, according to Derek Elliott, was less severe when enacted to secure revenue than to obtain a confession. Derek Llewellyn Elliott, ‘Torture, Taxes and the Colonial State in Madras, c. 1800-​1858’ (PhD Diss., University of Cambridge 2015), 116 (hereafter Elliott, ‘Torture, Taxes’). 53 As my date range demonstrates, I am using the term ‘colonial rule’ to encompass the governance of India by both the East India Company and the Raj, rather than positing the 1857 Revolt as a seminal break in modes of governance. For an analysis of the concept of law-​preserving violence see Walter Benjamin, ‘Critique of Violence’, Reflections:  Essays, Aphorisms, Autobiographical Writings (Edmund Jephcott tr, New York: Shocken 1978), 277–​300 (hereafter Benjamin, ‘Critique of Violence’). 54 Martha K. Huggins, Mika Haritos-​Fatouros, and Philip G. Zimbardo, Violence Workers: Police Torturers and Murderers Reconstruct Brazilian Atrocities (Berkeley: University of California Press 2002) (hereafter Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers). 55 Fanon, Concerning Violence (n 1)  3. Torture thus exacerbated the emotional significance attached to the police, as society’s regulators, of apprehension, anxiety, and fear. K. S. Dhillon, Defenders of the Establishment: Ruler-​Supportive Police Forces of South Asia (Shimla: Indian Institute of Advanced Study 1998), 28 (hereafter Dhillon, Defenders of the Establishment). 56 Webb, A History of Torture (n 32) 100.

12  Colonial Terror to operate as a form of terror, and examines the role of torture as a terrorizing tactic of colonial policing.57 Drawing upon the work of both Giorgio Agamben and Michel Foucault, Colonial Terror argues, furthermore, that it is only possible to understand the terrorizing nature of the colonial police in India by viewing the colonial regime as what I term a ‘regime of exception’. My goal, in using such a term, is to offer new insights into the nature and operation of both colonial law and state sovereignty. Although there has been considerable debate as to whether colonial regimes functioned according to a ‘rule of law’, or whether they can be viewed as states of exception,58 I seek to demonstrate that in the case of India two different forms, or levels, of extraordinarity, had come to characterize the British colonial regime in the operation of its sovereignty by the early nineteenth century.59 The first involved the creation of a state, or spaces, of exception, an ‘insidious politics of emergency’ wrought by widespread emergency regulations through which particular groups or segments of the Indian population were excluded from the law.60 The second level of exceptionality was generated by ‘petty sovereigns’ who, through the enactment of illegal violence in the operation of the law—​namely 57 I am using the term ‘terror’ here in its original sense, which Elleke Boehmer and Stephen Morton designate as ‘a brutal material and corporeal experience of sovereign power in the raw’, or what Ranabir Samaddar describes as ‘uncertainty, the capacity to scare, “terrorize”, violence, symbolic violence, extra-​ ordinary methods, unaccountability, uncertain prospects, different rules (if you understand them) of engagement and murder, and different methods’. Elleke Boehmer and Stephen Morton, ‘Introduction: Terror and the Postcolonial’, in Elleke Bohmer and Stephen Morton (eds), Terror and the Postcolonial: A Concise Companion (Oxford: Wiley-​Blackwell 2010), 12; and Ranabir Samaddar, ‘Colonial State, Terror and Law’, in Imtiaz Ahmed (ed.), Understanding Terrorism in South Asia: Beyond Statist Discourses (Manohar: Regional Centre for Strategic Studies, Colombo 2006), 47. See also Partha Chatterjee, ‘Terrorism: State Sovereignty and Militant Politics in India’, in Carol Gluck and Anna Lowenhaupt Tsing, Words in Motion: Toward a Global Lexicon (Durham, NC: Duke University Press 2009), 240; and Alex Tickell, Terrorism, Insurgency and Indian-​English Literature, 1830-​1947 (New  York and London:  Routledge 2012), 11–​12 (hereafter Tickell, Terrorism, Insurgency). 58 See, for example, Achille Mbembe, ‘Necropolitics’, Public Culture 15/​1 (2003), 11–​40 (hereafter Mbembe, ‘Necropolitics’); Nasser Hussain, The Jurisprudence of Emergency:  Colonialism and the Rule of Law (Ann Arbor:  The University of Michigan Press 2003) (hereafter Hussain, The Jurisprudence of Emergency); Randall Williams, ‘A State of Permanent Exception: The Birth of Modern Policing in Colonial Capitalism’, Interventions:  International Journal of Postcolonial Studies 5/​3 (2003), 322–​44; Thoms Blum Hansen and Finn Stepputat, ‘Introduction’, in Thomas Blom Hansen and Finn Stepputat (eds), Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World (Princeton and Oxford: Princeton University Press 2005), 1–​36; Arun Chowdhury, ‘The Colony as Exception (Or, Why Do I Have to Kill You More than Once?’, Borderlands 6/​3 (2007) (accessed 17 June 2020); Tom Lloyd, ‘States of Exception? Sovereignty and Counter-​insurgency in British India, Ireland and Kenya circa 1810-​1960’ (PhD Diss., The University of Edinburgh 2009); Lauren Benton, A Search for Sovereignty:  Law and Geography in European Empires, 1400-​1900 (New  York:  Cambridge University Press 2010)(hereafter Benton, A Search for Sovereignty); Tickell, Terrorism, Insurgency (n 57); Marcelo Svirsky and Simone Bignall (eds), Agamben and Colonialism (Edinburgh: Edinburgh University Press 2012); Stephen Morton, States of Emergency: Colonialism, Literature and Law (Liverpool: Liverpool University Press, 2013); Helle Rydstrom, ‘Politics of Colonial Violence:  Gendered Atrocities in French Occupied Vietnam’, European Journal of Women’s Studies 22/​ 2 (2015), 191–​ 207; Reynolds, Empire, Emergency (n 15); Durba Ghosh, Gentlemanly Terrorists: Political Violence and the Colonial State in India, 1919-​1947 (New York: Cambridge University Press 2017); and Bhavani Raman, ‘Law in Times of Counter-​ insurgency’, in Aparna Balachandran, Rashmi Pant, and Bhavani Raman, Iterations of Law: Legal Histories from India (New Delhi: Oxford University Press 2018), 120–​46 (hereafter Raman, ‘Law in Times’). 59 I have drawn the basis of such a framework from Santana Khanikar’s insightful work on the violence of the postcolonial Indian state, State, Violence and Legitimacy in India (New Delhi: Oxford University Press 2018) (hereafter Khanikar, State, Violence and Legitimacy). 60 Reynolds, Empire, Emergency (n 15) 90.

Introduction: Torture, Empire, and Exception  13 an ‘accommodation of the illegal’, or ‘lawless enforcement of the laws’—​created what Didier Fassin has characterized as ‘petty states of exception’.61 This is not to suggest, however, that the rule of law was absent in such regimes of exception. Such regimes encompassed, instead, both the suspension of the law and the legalization of exceptional measures and practices, transforming law into what John Comaroff refers to as ‘lawfare’.62 The varying modes of operation of sovereign power in colonial India mean that colonial subjects were thus both included within the domain of colonial law while also being abandoned by it.63 It was in such fertile ground that torture was able to flourish.

The Violence of Empire What animates effective rather than idle colonial history is not its timeliness—​how well it fits current politics and the stories long rehearsed—​but how deeply it disrupts the stories we seek to tell, what untimely incisions it makes into received narratives, how much it refuses to yield to the pathos of moral outrage or to new heroes, subaltern or otherwise.64 For at least a third of Britons the British Empire is something to be proud of, and Britain’s former colonies are better off for having been colonized; no less than a quarter, moreover, wish that Britain still had an empire.65 Few regard it as a source of 61 Khanikar, State, Violence and Legitimacy (n 59) 71–​2; Upenda Baxi, The Crisis of the Indian Legal System (New Delhi: Vikas Publishing House Pvt. Ltd. 1982), 87 (hereafter Baxi, The Crisis); and Didier Fassin, ‘Petty States of Exception: The Contemporary Policing of the Urban Poor’, in Mark Maguire, Catarina Frois, and Nils Zurawski (eds), The Anthropology of Security: Perspectives from the Frontline of Policing, Counter-​ terrorism and Border Control (London: Pluto 2014), 104–​17 (hereafter Fassin ‘Petty States of Exception’); see also Radha Kumar, ‘Police Matters: Law and Everyday Life in Rural Madras, c. 1900-​1960’ (PhD Diss., Princeton University 2015), 249 (hereafter Kumar, ‘Police Matters’). Neeladri Bhattacharya offers an excellent analysis of the ways in which ‘petty sovereigns’ transformed the pre-​colonial practice of begar, or unpaid labour, into a system of forced labour, which was then, through the passage of the 1903 Military Transport Act, ‘sanctified as legal contract’. See Neeladri Bhattacharya, ‘Violence and the Languages of Law’, in Aparna Balachandran, Rashmi Pant, and Bhavani Raman (eds), Iterations of Law: Legal Histories from India (New Delhi: Oxford University Press 2018), 114 (hereafter Bhattacharya, ‘Violence’). 62 John Comaroff, ‘Colonialism, Culture and Law: A Foreword’, Law and Social Inquiry 26 (2001), 306 (hereafter Comaroff, ‘Colonialism, Culture and Law’); and Elizabeth Kolsky, ‘The Colonial Rule of Law and the Legal Regime of Exception: Frontier “Fanaticism” and State Violence in British India’, American Historical Review 120/​4 (2015), 1245 (hereafter Kolsky, ‘The Colonial Rule of Law’). 63 Bhattacharya, ‘Violence’ (n 61) 108. 64 Ann Laura Stoler, ‘Colonial Aphasia: Race and Disabled Histories in France’, Public Culture 23/​1 (2011), 144 (hereafter Stoler, ‘Colonial Aphasia’). 65 ‘How unique are British attitudes to empire?’ (YouGov, 11 March 2020) accessed 1 June 2020. The number of Britons who regard empire in a positive light has apparently fallen, however; in a similar survey in 2014 no less than half the respondents felt that empire was something to be proud of. Furthermore, almost 70 per cent of the 2,703 Britons surveyed in 2019 on whether ‘historical injustice, colonialism and the role of the British Empire’ should be taught in schools approved of such a motion—​ although whether survey respondents regarded ‘historical injustice’ and the ‘British Empire’ as synonymous is unclear. ‘The British Empire is “something to be proud of ” ’ (YouGov, 26 July 2014) accessed 1 June 2020; and ‘Do you think that historical injustice, colonialism and the role of the British Empire should or should not be

14  Colonial Terror shame.66 The belief of British empire-​builders that ‘the British Empire was not a violent concern’, at least not in comparison to the Belgian, Dutch, or German empires, continues, therefore, to be widely held.67 Such a belief is sustained by an education system from which knowledge about or discussion of empire is sedulously excluded,68 a media and popular publishing industry that revels in ‘obfuscatory nostalgia’ about empire,69 and a wide range of academic scholarship, from imperial history to anthropology and international relations,70 that continues to ignore the violence, exploitation, and social suffering upon which empire was built and sustained.71 The work of scholars of imperial and colonial violence has, additionally, often been widely taught as part of the national curriculum?’ (YouGov, 27 November 2019) accessed 1 June  2020. 66 Ibid. Only 19 per cent of Britons, according to the poll, view empire in this light. 67 Esme Cleall, Missionary Discourses of Difference, 1840-​1900: Negotiating Otherness in the British Empire, 1840–1900 (Houndsmills, Hampshire:  Palgrave Macmillan 2012), 145; and Wagner, ‘Savage Warfare’ (n 22) 223. 68 Deana Heath, ‘School Curriculum Continues to Whitewash Britain’s Imperial Past’ (The Conversation, 27 January 2016) accessed 3 June 2020; and Deana Heath, ‘British Empire is Still Being Whitewashed by the School Curriculum—​Historian on Why This Must Change’ (The Conversation, 2 November 2018) accessed 3 June 2020. See also A. D. Burns, ‘The Jewel in the Curriculum: Teaching the History of the British Empire’, History Education Research Journal 12/​2 (2014), 109–​21. 69 Stephen Howe, ‘Colonising and Exterminating? Memories of Imperial Violence in Britain and France’, Histoire@Politique:  Politique, Culture et Société 11 (2010) [DOI:  https://​doi.org/​10.3917.hp.011.0012] (hereafter Howe, ‘Colonising and Exterminating?’). As Paul Gilroy has argued, such nostalgia has functioned as a means of dealing with what he refers to as the ‘postcolonial melancholia’ wrought by the demise of empire. Paul Gilroy, After Empire: Melancholia or Convivial Culture? (London, Routledge 2004). Notable examples of popular historical works that extol empire include Niall Ferguson, Empire:  How Britain Made the Modern World (London: Penguin 2003); Piers Brendan, The Decline and Fall of the British Empire, 1781-​1997 (New York: Knopf 2008); H. W. Crocker, II, The Politically Incorrect Guide to the British Empire (Washington, D.C.: Regnery 2011); and Jeremy Paxman, Empire: What Ruling the World Did to the British (London: Penguin 2012). For an analysis of the portrayal of empire in British television shows see James Morris, ‘Popularisation of Imperial History: The Empire on Television’, The Journal of Imperial and Commonwealth History 1/​1 (1972), 113–​18; and N. C. Fleming, ‘Echoes of Britannia: Television History, Empire and the Critical Public Sphere’, Contemporary British History 24/​1 (2010), 1–​22. 70 Part of the difficulty in regard to academic scholarship is the ways in which empire has, or has failed to be, written into British history since the ‘imperial turn’ in the 1980s, although the ignoring—​or, in some cases, outright denial—​of the violence that pervaded Britain’s empire is not simply a problem particular to British history. See, for example, Keith Windshuttle, The Fabrication of Aboriginal History (Sydney: Macleay Press 2002); Antoinette Burton (ed.), After the Imperial Turn:  Thinking Through and With the Nation (Durham and London: Duke University Press 2003); and Joanna de Groot, Empire and History-​Writing in Britain c. 1750-​2012 (Manchester: Manchester University Press 2013), Ch. 5. For the silence of the disciplines of anthropology and international relations about the violence of empire see Nancy Scheper-​Hughes and Philippe Bourgois, ‘Introduction: Making Sense of Violence’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 6–​8; and Randolph B. Persaud and Narendran Kumarakulasingam, ‘Violence and Ordering of the Third World’, Third World Quarterly 40/​2 (2019), 199–​206. 71 Social suffering, according to Arthur Kleinman, ‘is the effect of the social violence that social orders—​ local, national, global—​bring to bear on people through denying them basic human rights or subjecting them to various forms of deprivation, exploitation and abuse’ (emphasis in original). Arthur Kleinman, ‘The Violences of Everyday Life: The Multiple Forms and Dynamics of Social Violence’, in Veena Das, Arthur Kleinman, Mamphela Ramphele, and Pamela Reynolds (eds), Violence and Subjectivity (Berkeley:  U.C. Press 2000), 226.

Introduction: Torture, Empire, and Exception  15 dismissed.72 For some scholars, it seems, violence is simply too banal to be worth bothering with; as the eminent Oxford professor of imperial and global history, John Darwin, recently observed, studying the violence wrought by empire would not ‘add much to the sum of knowledge’.73 For others aspects of such violence, such as British ‘counterinsurgency’ operations, serve as an inspirational toolkit for grappling with twenty-​first century conflicts.74 As a result there is, arguably, a far larger and richer body of scholarship on the violence of colonial knowledge than there is on the physical violence unleashed by empire.75 The scholarship on violence that does exist focuses, in addition, primarily on cataclysmic events like the Indian Revolt of 1857 and the 1919 Amritsar massacre, which tend to be regarded as ‘discrete event[s]‌and as little more than . . . item[s] on the so-​called “balance-​sheet” of empire’—​not, in other words, as symptoms of the structural and systemic violence of colonialism.76 Even the literature on colonial warfare largely evades, astonishingly, the actual experience of violence, and concentrates primarily on decolonization rather than on conquest.77 Since ‘[t]‌o inhabit imperialist society is virtually by definition to be blind to the cruel reality of imperial domination’, such perspectives on empire are sustained by a culture of denial.78 In addition to being built into state ideologies, as the Matua case 72 The scholarly response to Caroline Elkins’ Pulitzer-​prize-​winning work on the Kenyan Emergency is a case in point. See Elkins, ‘Alchemy of Evidence’ (n 30); Marc Parry, ‘A Historian’s Day in Court’ (Chronicle of Higher Education 62/​38 (2016) accessed 22 May 2020); Susan Carruthers, ‘Being Beastly to Mau Mau’, Twentieth Century British History 16/​ 4 (2005), 489–​96; and Bethwell Ogot, ‘Britain’s Gulag’, Journal of African History 46/​3 (2005), 493–​505. 73 Duncan Bell, ‘A Roundtable on John Darwin’s The Empire Project: Comment: Desolation Goes before Us’, Journal of British Studies 54/​4 (2015), 994, cited in Wagner, ‘Savage Warfare’ (n 22) 218. Darwin is not alone, however, in regarding violence as banal. As Hannah Arendt has argued, it is precisely the sheer ubiquity and banality of violence that has led historians to neglect studying it, since it is difficult to question what appears to be obvious. Hannah Arendt, On Violence (New York: Harcourt 1970), 9. 74 Wagner, ‘Savage Warfare’ (n 22) 220. See, for example, John A. Nagl, Learning To Eat Soup With a Knife: Counterinsurgency Lessons from Malaya and Vietnam (Chicago: University of Chicago Press 2005); Ian Beckett, ‘Another British Way in Warfare:  Charles Callwell and Small Wars’, in Ian Beckett (ed.), Victorians at War: New Perspectives (Chippenham, Wilts: The Society for Army Historical Research 2007), 89–​102; and Thomas R. Mockaitis, ‘The Minimum Force Debate: Contemporary Sensibilities Meet Imperial Practice’, Small Wars & Insurgencies 23/​4–​5 (2012), 762–​80. 75 Elizabeth Kolsky, Colonial Justice in British India:  White Violence and the Rule of Law (New Delhi: Cambridge University Press 2010), 8 (hereafter Kolsky, Colonial Justice). In the case of colonial India, Kama Maclean and Benjamin Zachariah suggest that the lack of emphasis on the violent nature of colonialism until relatively recently is a product of the dominance of British historiography in the study of South Asia, which concentrated on issues such as liberalism and colonial rule, as well as an over-​reliance on the administrative records produced by the colonial state, from which state violence is largely elided. Similar problems have beset the study of other colonial contexts. Kama Maclean and Benjamin Zachariah, ‘Violence, Non-​Violence, the State and the Nation: India, 1858-​1958’, in Louise Edwards, Nigel Penn, and Jay Winter (eds), The Cambridge World History of Violence, Vol. IV (Cambridge: Cambridge University Press 2020), 69. 76 Kim Wagner, Amritsar 1919:  An Empire of Fear and The Making of a Massacre (New Haven and London: Yale University Press 2019), xviii (hereafter Wagner, Amritsar 1919). In the case of the Amritsar Massacre, such a view helps to explain the repeated calls for the British government to apologize for it, as though that would wipe the ‘balance-​sheet’ clean (ibid). 77 Much of the scholarship on decolonization also evades addressing the violence that accompanied it. For exceptions see, for example, Elkins, Imperial Reckoning (n 21); David Anderson, Histories of the Hanged: Britain’s Dirty War in Kenya (New York: W. W. Norton 2005) (hereafter Anderson, Histories of the Hanged); and Bennett, Fighting the Mau Mau (n 21). 78 Christopher Herbert, War of No Pity:  The Indian Mutiny and Victorian Trauma (Princeton and Oxford: Princeton University Press 2009), 5 (hereafter Herbert, War of No Pity). Denial, as Catherine Hall and Daniel Pick note, drawing upon the Oxford English Dictionary, is ‘an unconscious mechanism used to

16  Colonial Terror demonstrates, entire societies can slide into forms of collective denial—​of, for example, forms of cruelty, discrimination, or exclusion which are well known but never openly acknowledged.79 Such disavowal can, however, be shattered, as it was for the British in the face of the shock they experienced at the ‘reign of terror’ perpetrated against Indians by British troops during the Revolt of 1857–​1858 (referred to in imperial historiography as a ‘mutiny’), or what one commentator regarded as ‘a war of extermination . . . in which pity was unknown’.80 According to Christopher Herbert, it was the realization that a ‘strain of genocidal cruelty’ was inherent in Britain’s ‘humanitarian Christian virtue’ that led to the generation of profound psychological trauma in British society.81 For those not so enlightened, denial renders its members what Michael Rothberg refers to as ‘implicated subjects’, whose actions, while neither those of victim, perpetrator, nor bystander, help to produce and perpetuate the legacies of imperial and colonial violence and sustain the configurations of inequality that shape the present.82 This is not to suggest that the violence of empire has been completely expunged from historical memory in Britain. The evidence, particularly during moments of crisis, is simply too extensive to enable such forgetting. But as the Matua case reveals, rather than being forgotten, such violence is instead repeatedly ‘rediscovered’, its visibility, like that of empire itself, ‘a political artefact that has waxed and waned’.83 What is at stake when it comes to empire, Ann Stoler argues, is ‘a dismembering, a difficulty reduce anxiety by denying thoughts, feelings, or facts that are consciously intolerable’. For Hall and Pick, ‘disavowal’ might be a more helpful term to employ in such a context since it embodies notions of turning a ‘blind eye’, or the refutation of something that is right in front of us because it is too disturbing to acknowledge, which entails both knowing and not knowing at the same time. Such ‘blindsight’, or ‘wilful amnesia’, according to Linda Colley, is also a product of ignorance and introversion. Catherine Hall and Daniel Pick, ‘Thinking about Denial,’ History Workshop Journal 84 (2017), 10, 11; Price, ‘The Psychology of Colonial Violence’ (n 52) 36; and Linda Colley, ‘Introduction: Some Difficulties of Empire: Past, Present and Future’, Common Knowledge 11/​2 (2005), 208. See also Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton, N.J.: Princeton University Press 2009), 237–​78 (hereafter Stoler, Along the Archival Grain). 79 Cohen, States of Denial (n 37) 10–​11. 80 John William Kaye, A History of the Sepoy War in India, 1857-​58, Vol. 1 (London: W. H. Allen 1877), 170; and Vivian Dering Majendie, Up Among the Pandies; Or, A Year’s Service in India (London: Routledge, Warne and Routledge 1859), 196, cited in Herbert, War of No Pity (n 78) 9, 175. 81 Herbert, War of No Pity (n 78) 55. See also Joanna de Groot, ‘Depicting Conflict in India in 1857-​ 8: The Instabilities of Gender, Violence, and Colonialism’, Cultural and Social History 14/​4 (2017), 472–​3. The revolt thus revealed the reality of what Albert Memmi calls the ‘Nero’ complex, according to which the colonizers, unable to deal with the realization that they are oppressors instead of the benign civilizers they believe themselves to be, respond with growing contempt for their victims, which is manifested through an irrational desire to exterminate the subject population and an increasingly authoritarian and repressive system of rule. For Zahid Chaudhary it is the alienation of the colonizers induced by such a process, to both their own pain and that of the other, that makes such violence possible. Albert Memmi, The Colonizer and the Colonized (first published in 1957, Boston: Beacon Press 1965); Herbert, War of No Pity (n 78) 74, 80; and Zahid Chaudhary, ‘Phantasmagoric Aesthetics: Colonial Violence and the Management of Perception’, Cultural Critique 59 (2005), 107 (hereafter Chaudhary, ‘Phantasmagoric Aesthetics’). 82 Michael Rothberg, The Implicated Subject:  Beyond Victims and Perpetrators (Stanford:  Stanford University Press 2019), 1. Not all members of a society are, of course, implicated in the same ways, or to the same degrees. For Rothberg ‘[t]‌he point of introducing the ‘implicated subject’ is to draw attention to ambiguous spaces that do not fit neatly into our scripts for explaining violence and injustice’; it is thus ‘an umbrella term that gathers a range of subject positions’. (Ibid f. 7, 13). 83 Angela Woollacott, ‘Making Empire Visible or Making Colonialism Visible? The Struggle for the British Imperial Past’, British Scholar 1/​2 (2009), 163. Ann Laura Stoler makes a similar argument regarding the ‘discovery’ of colonial violence in France. Forgetting, Stoler notes, ‘is an achieved state’. Part

Introduction: Torture, Empire, and Exception  17 speaking, a difficulty generating a vocabulary that associates appropriate words and concepts with appropriate things’.84 The violence of empire is rediscovered, according to Stoler, when it is deemed safe for public consumption and scholarly investigation; the spurt of publications ‘disclosing’ the French use of torture against Algerians in the Algerian War of Independence since the turn of the twenty-​first century, she argues, may now be deemed ‘safe’ because such works offer redemption to those willing to speak (as well as listen to) what had long remained unspoken while leaving unquestioned the systematic violence that is inherent to the ‘normal’ operation of colonial regimes.85 Stoler’s suggestion that colonial violence is rediscovered when it is ‘safe’ to do so raises interesting questions about the growing body of scholarship that has emerged since the onset of the ‘war on terror’ in 2001 that seeks not only to reassess claims that the British Empire was not a ‘violent concern’ but to examine the connections between Britain’s (post)-​imperial present and its imperial past.86 The wide range of issues such scholarship has tackled include: the dynamics of colonial violence;87 sovereignty and state violence;88 emergency/​decolonizing/​’counterinsurgency’ violence89; massacre;90 of the challenge in articulating the violence of empire, I would argue, is what Pierre Bourdieu and Loïc Wacquant refer to as ‘misrecognition’, namely ‘the fact of recognizing a violence which is wielded precisely inasmuch as one does not perceive it as such’. Stoler, ‘Colonial Aphasia’ (n 64) 123, 141; and Pierre Bourdieu and Loïc Wacquant, ‘Symbolic Violence’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell, 2006) 272 (hereafter Bourdieu and Wacquant, ‘Symbolic Violence’). 84 Stoler, ‘Colonial Aphasia’ (n 64) 125. 85 Ibid, 144. See also Robert Aldrich, ‘Colonial Past, Post-​colonial Present: History Wars French-​style’, History Australia 3 (2006), 14.1–​14.10. 86 Howe, ‘Colonising and Exterminating? (n 69)’; and Huw Bennet, ‘Soldiers in the Court Room: The British Army’s Part in the Kenya Emergency under the Legal Spotlight’, The Journal of Imperial and Commonwealth History 39/​5 (2011), 727. As to whether we can refer to a post-​imperial present see Hardt and Negri, Empire (n 38). 87 Mbembe, ‘Necropolitics’ (n 58); Gavin Rand, ‘ “Martial Races” and “Imperial Subjects”: Violence and Governance in Colonial India, 1857-​1914’, European Review of History 13/​1 (2006), 1–​20; Joch McCulloch, ‘Empire and Violence, 1900-​1939’, in Philippa Levine (ed.), Gender and Empire (Oxford: Oxford University Press 2007), 220–​39; Peter Iadicola, ‘The Violence of Empire,’ International Journal of Contemporary Sociology 46/​2 (2009), 185–​212; and Phillip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018). 88 Subrata Bobby Banerjee, ‘Live and Let Die:  Colonial Sovereignties and the Death Worlds of Necrocapitalism’, Borderlands 5/​1 (2006) accessed 17 May 2020; Taylor C. Sherman, State Violence and Punishment in India (London and New York: Routledge 2010) (hereafter Sherman, State Violence); Deana Heath, ‘Bureaucracy, Power and Violence in Colonial India’, in Peter Crooks and Tim Parsons (ed.), Empires and Bureaucracy from Late Antiquity to the Modern World (Cambridge: Cambridge University Press, 2016), 364–​90 (hereafter Heath, ‘Bureaucracy, Power and Violence’); and Condos, The Insecurity State (n 38). 89 Elkins, Imperial Reckoning (n 21); Anderson, Histories of the Hanged (n 77); Bennett, Fighting the Mau Mau (n 21); Matthew Hughes, ‘The Banality of Brutality: British Armed Forces and the Repression of the Arab Revolt in Palestine, 1936-​39’, English Historical Review CXXIV, 507 (2009), 313–​54; and Wagner, ‘Savage Warfare’ (n 22). 90 Lyndall Ryan, ‘Massacre in the Black War in Tasmania 1823-​34: A Case Study of the Meander River Region, June 1827’, Journal of Genocide Research 10/​4 (2008), 479–​99; and ‘Settler Massacre on the Australian Colonial Frontier 1836–​1851’, in Philip Dwyer and Lyndall Ryan (eds), Theatres of Violence: Massacre, Mass Killing and Atrocity Throughout History (New York: Berghahn Books 2012), 94–​109; Doyle, ‘Massacre by the Book’ (n 26); Robert McLain, Gender and Violence in British India: The Road to Amritsar 1914-​1919 (Palgrave Macmillan 2014); and Wagner, Amritsar 1919 (n 76).

18  Colonial Terror genocide;91 frontier violence;92 settler violence;93 the violence of colonial law;94 the violence of colonial policing;95 the violence of colonial prisons;96 convicts, transportation, and indentured labour;97 camps;98 ‘white’ violence99; 91 G. Jan Colijn, ‘Carnage Before Our Time: Nineteenth-​Century Colonial Genocide’, Journal of Genocide Research 5/​4 (2003), 617–​25; Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (New York: Cambridge University Press 2004); A. Dirk Moses, Genocide and Settler Society:  Frontier Violence and Stolen Indigenous Children in Australian History (New York: Berghahn Books 2005); A. Dirk Moses and Dan Stone, Colonialism and Genocide (London and New York: Routledge 2007); Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (New Haven: Yale University Press 2007); A. Dirk Moses (ed.), Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (New York: Berghahn Books 2009); Jürgen Zimmerer and Dominik J. Schaller (eds), Settlers—​Imperialism—​Genocide (London: Routledge 2009); Tom Lawson, The Last Man: A British Genocide in Tasmania (New York: I.B. Taurus 2014); and Damien Short, Redefining Genocide: Settler Colonialism, Social Death and Ecocide (London: Zed Books 2016). 92 Julie Evans, ‘Where Lawlessness is Law: The Settler-​Colonial Frontier as a Legal Space of Violence’, Australian Feminist Law Journal 30/​1 (2009), 3–​22 (hereafter Evans, ‘Where Lawlesness is Law’); Penelope Edmonds, ‘The Intimate, Urbanising Frontier: “Native Camps”, Gender Relations and Settler Colonialism’s Violent Array of Spaces Around Early Melbourne’, in Tracey Banivanua-​Mar and Penelope Edmonds (ed.), Making Settler Colonial Space:  Perspectives on Race, Place and Identity (Basingstoke:  Palgrave UK 2010), 129–​54; Timothy Bottoms, Conspiracy of Silence: Queensland’s Frontier Killing-​Time (Crows Nest, NSW: Allen & Unwin 2013); Nicholas Clements, The Black War: Fear, Sex and Resistance in Tasmania (St Lucia: University of Queensland Press 2014); Kolsky, ‘The Colonial Rule of Law’ (n 62) 1218–​46. 93 Elizabeth Elbourne, ‘The Sin of the Settler:  The 1835–​36 Select Committee on Aborigines and Debates Over Virtue and Conquest in the Early Nineteenth Century British White Settler Empire’, Journal of Colonialism and Colonial Studies 4/​3 (2003) [DOI:  10.1353/​cch.2004.0003]; Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’, Journal of Genocide Research, 8/​4 (2006), 387–​409; and Henry Reynolds, Forgotten Wars (Sydney, N.S.W.: NewSouth Publishing 2013). 94 Hussain, The Jurisprudence of Emergency (n 58); Rande W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press 2005) (hereafter Kostal, A Jurisprudence of Power); Ranabir Samaddar, ‘Colonial State, Terror and Law’ (n 57); Ranabir Samaddar, ‘Law and Terror in the Age of Colonial Constitution Making’, Diogenes 212 (2006), 18–​33 (hereafter Samaddar, ‘Law and Terror’); Ranjan Chakrabarti, Terror, Crime and Punishment: Order and Disorder in Early Colonial Bengal 1800-​1860 (Kolkata: Reader’s Service, 2009); Esmeir, Juridical Humanity (n 36); Mark Condos, ‘License to Kill: The Murderous Outrages Act and the Rule of Law in Colonial India, 1867-​1925’, Modern Asian Studies 50/​2 (2016), 479–​17 (hereafter Condos, ‘License to Kill’); Reynolds, Empire (n 15); and Lyndall Ryan, ‘Martial Law in the British Empire’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 93–​109. 95 Martin Thomas, Violence and Colonial Order:  Police, Workers and Protest in the European Colonial Empires, 1918-​1940 (Cambridge:  Cambridge University Press 2012) (hereafter Thomas, Violence and Colonial Order); and Radha Kumar, ‘Seeing Like a Policeman: Everyday Violence in British India, c. 1900-​ 1950’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 131–​49 (hereafter Kumar, ‘Seeing Like a Policeman’). 96 Satadru Sen, Disciplining Punishment: Colonialism and Convict Society in the Andaman Islands (New Delhi: Oxford University Press 2000); Florence Bernault (ed.) A History of Prison and Confinement in Africa (Portsmouth, NH: Heinemann 2003); Diana Paton, No Bond but the Law: Punishment, Race and Gender in Jamaican State Formation, 1780-​1870 (Durham: Duke University Press 2004); Clare Anderson, The Indian Uprising of 1857-​8:  Prisons, Prisoners and Rebellion (London:  Anthem Press 2007); and Frank Dikötter and Ian Brown (eds), Cultures of Confinement: A History of the Prison in Africa, Asia and Latin America (London: Hurst & Company 2007). 97 Clare Anderson, Convicts in the Indian Ocean:  Transportation from South Asia to Mauritius, 1815-​ 1853 (Houndmills: Macmillan 2000); Alice Bullard, Exile to Paradise: Savagery and Civilisation in Paris and the South Pacific, 1790-​1900 (Stanford:  Stanford University Press 2000); Stephen A. Toth, Beyond Papillon: the French Overseas Penal Colonies, 1854-​1952 (Lincoln: University of Nebraska Press 2006); and Tracey Banivanua-​Mar, Violence and Colonial Dialogue:  The Australian-​Pacific Indentured Labor Trade (Honolulu: University of Hawaii Press 2007). 98 Jonas Kreienbaum, ‘Deadly Learning? Concentration Camps in Colonial Wars Around 1900’, in Volker Barth and Roland Cvetkovski (eds), Imperial Co-​operation and Transfer, 1870-​1930 (London: Bloomsbury, 2015), 219–​35; Aidan Forth, Barbed-​Wire Imperialism: Britain’s Empire of Camps, 1876-​1903 (Berkeley: University of California Press 2017); and Dan Stone, Concentration Camps: A Short History (Oxford: Oxford University Press 2017). 99 Kolsky, Colonial Justice (n 75); and Jordanna Bailkin, ‘The Boot and the Spleen: When Was Murder Possible in British India?’, Comparative Studies in Society and History 48/​2 (2006), 462–​93 (hereafter Bailkin, ‘The Boot and the Spleen’).

Introduction: Torture, Empire, and Exception  19 gendered and sexual violence;100 torture;101 flogging;102 the representation, poetics, and aesthetics of colonial violence;103 violence and humanitarianism;104 the scandal of colonial violence;105 the psychology of colonial violence;106 pain, suffering, and 100 Alison Blunt, ‘Embodying War:  British Women and Domestic Defilement in the Indian “Mutiny”, 1857-​8’, Journal of Historical Geography 26/​ 3 (2000), 403–​ 28; Angela Woollacott, ‘Frontier Violence and Settler Manhood’, History Australia 6/​1 (2009), 11.1–​11.15; Elizabeth Kolsky, ‘The Rule of Colonial Indifference: Rape on Trial in Early Colonial India, 1805-​57’, The Journal of Asian Studies 69/​4 (2010), 1093–​ 117; Elizabeth Kolsky, ‘ “The Body Evidencing the Crime”:  Rape on Trial in Colonial India, 1860-​1947’, Gender & History 22/​1 (2010), 109–​30; Jonathan Saha, ‘The Male State: Colonialism, Corruption and Rape Investigations in the Irrawaddy Delta c. 1900’, The Indian Economic and Social History Review 47/​3 (2010), 343–​76; Ishita Pande, ‘Phulmoni’s Body: The Autopsy, the Inquest and the Humanitarian Narrative on Child Rape in India’, South Asian History and Culture 4/​1 (2013), 9–​30 (hereafter Pande, ‘Phulmoni’s Body’); Deana Heath, ‘Torture, the State and Sexual Violence Against Men in Colonial India’, Radical History Review 126 (2017), 122–​33 (hereafter Heath, ‘Torture, the State and Sexual Violence’); Joanna de Groot, ‘Depicting Conflict in India in 1857-​8: The Instabilities of Gender, Violence, and Colonialism’, Cultural & Social History 14/​4 (2017), 463–​82; and David Anderson and Julianne Weis, ‘The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya, 1952-​60’, Law and History Review 36/​2 (2018), 267–​94. 101 Anupama Rao, ‘Problems of Violence, States of Terror: Torture in Colonial India’, in Steven Pierce and Anupama Rao (eds), Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham and London: Duke University Press 2006), 151–​85 (hereafter Rao, ‘Problems of Violence’); Anuj Bhuwania, ‘ “Very Wicked Children”:  “Indian torture” and the Madras Torture Commission Report of 1855’, SUR: International Journal on Human Rights 10 (2009), 6–​27; and Elliott, ‘Torture, Taxes’ (n 52); and Deana Heath, ‘The Tortured Body: The Irrevocable Tension Between Sovereign and Biopower in Colonial Indian Technologies of Rule’, in Stephen Legg and Deana Heath (eds), South Asian Governmentalities:  Michel Foucault and the Question of Postcolonial Orderings (Cambridge: Cambridge University Press 2018), 222–​44 (hereafter Heath, ‘The Tortured Body’). 102 Stephen Pierce, ‘Punishment and the Political Body: Flogging and Colonialism in Northern Nigeria’, interventions 3/​2 (2001), 206–​21 (hereafter Pierce, ‘Punishment and the Political Body’); Stephen Pete and Annie Devenish, ‘Flogging, Fear and Food: Punishment and Race in Colonial Natal’, Journal of Southern African Studies 31/​1 (2005), 3–​21; Penny Edwards and Hamish Maxwell-​Stewart, ‘ “The Whip Is a Very Contagious Kind of Thing”: Flogging and Humanitarian Reform in Penal Australia’, Journal of Colonialism and Colonial History 17/​1 (2016) [DOI 10.1353/​CCH.2016.006]; Radhika Singha, ‘The “Rare Infliction”: The Abolition of Flogging in the Indian Army, circa 1835-​1920’, Law and History Review 1/​3 (2016), 1–​36; and Amanda Nettlebeck, ‘Flogging as Judicial Violence: The Colonial Rationale of Corporal Punishment’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 111–​30. 103 David Lloyd, ‘The Indigent Sublime: Specters of Irish Hunger’, Representations 92/​1 (2005), 152–​85; Partha Chatterjee, The Black Hole of Empire: History of a Global Practice of Power (Princeton: Princeton University Press 2012); Chaudhary, ‘Phantasmagoric Aesthetics’ (n 81); Nathan K. Hensley, Forms of Empire: The Poetics of Victorian Sovereignty (Oxford: Oxford University Press 2016); and Zahid Chaudhary, Afterimage of Empire: Photography in Nineteenth Century India (Minneapolis and London: University of Minnesota Press 2012). 104 Mario Klarer, ‘Humanitarian Pornography:  John Gabriel Stedman’s Narrative of Five Years Expedition Against the Revolted Negroes of Surinam’, New Literary History 36 (2005), 559–​87 (hereafter Klarer, ‘Humanitarian Pornography’); Anupama Rao and Stephen Pierce, ‘Discipline and the Other Body:  Humanitarianism, Violence, and the Colonial Exception,’ in Stephen Pierce and Anupama Rao (eds), Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham and London: Duke University Press 2006) 1–​35; Christina Twomey, ‘Framing Atrocity: Photography and Humanitarianism’, History of Photography 36/​3 (2012), 255–​64; Zoë Laidlaw, ‘ “Justice to India—​Prosperity to England—​ Freedom to the Slave!” Humanitarian and Moral Reform Campaigns on India, Aborigines and American Slavery’, Journal of the Royal Asiatic Society 22/​2 (2012), 299–​324; Anna Clark, ‘Humanitarianism, Human Rights and Biopolitics in the British Empire, 1890-​1902’, Britain and the World 9/​1 (2016), 96–​111; and Penelope Edmonds and Anna Johnston, ‘Empire, Humanitarianism and Violence in the Colonies’, Journal of Colonialism and Colonial History 17/​1 (2016) [DOI https://​doi.org/​10.1353/​cch.2016.0013]. 105 Nicholas Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge and London:  Harvard University Press 2006) (hereafter Dirks, The Scandal of Empire); and James Epstein, ‘Politics of Colonial Sensation: The Trial of Thomas Picton and the Cause of Louisa Calderon’, American Historical Review 6/​1 (2006), 712–​41 (hereafter Epstein, ‘Politics’); and James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic During the Age of Revolution (Cambridge: Cambridge University Press 2012). 106 Price, ‘The Psychology of Colonial Violence’ (n 52) 25–​51.

20  Colonial Terror trauma;107 and violence and the archive.108 Scholars have also sought to write violence back into the narrative of empire.109 This growing corpus of literature has done a great deal, Darwin’s scepticism notwithstanding, to add to our ‘sum of knowledge’ about empire. But that such scholarship has undoubtedly become more ‘safe’ to pursue is not just a product of widespread opposition to the invasions of Afghanistan and Iraq, and awareness of the torture and other forms of violence that have been perpetrated as a result of these. To some extent, it may also be because much of it, good intentions notwithstanding, elides the structural and quotidian violence of colonialism. As Elizabeth Kolsky has argued in regard to the scholarly focus on the violence of big events, it is in fact ‘the micro-​moments betwixt and between these macro-​events where the violence central to the workings of empire can be found’.110 The same could be said for the focus on ‘bad apples’, or states of emergency. Focusing on such ‘moments’, in other words, or on violence committed by identifiable agents can serve to exonerate empire of its most constitutive violence. The problem, perhaps, is how scholars of empire approach violence. Gyanendra Pandey has observed, in regard to the historiography on modern India, that violence is largely treated ‘as aberration and as absence’; as aberration because ‘violence is seen as something removed from the general run of Indian history: a distorted form, an exceptional moment, not the “real” history of India at all’, and as absence because of the difficulties in encapsulating and signifying the ‘moment’ of violence (emphasis in original).111 The focus on violence in South Asian historiography has largely been, in other words, on the context surrounding violence rather than on the violence itself.112 Since the discipline of history as a whole tends to treat violence as epiphenomenal, namely as a side-​effect of historical events rather than as a subject of analysis in its own right, such a phenomena is by no means unique, however, to South Asian historiography.113 Violence tends, furthermore, to be regarded solely as an act, and not just by scholars of colonialism.114 In his influential essay on violence David Riches, for example, refers to it as ‘an act of physical hurt deemed legitimate by the performer and illegitimate by

107 Veena Das, Life and Words: Violence and the Descent into the Ordinary (forward by Stanley Cavell, Berkeley, Los Angeles, and London: University of California Press 2006) (hereafter Das, Life and Words); Michael Rothberg, ‘Decolonizing Trauma Studies: A Response’, Studies in the Novel 40/​1 & 2 (2008), 224–​34; Herbert, War of No Pity (n 78); and Abigail Ward, Postcolonial Traumas: Memory, Narrative, Resistance (London: Palgrave Macmillan 2015). 108 Elkins, ‘Looking Beyond Mau Mau’ (n 23); and Marisa J. Fuentes, Dispossessed Lives: Enslaved Women, Violence and the Archive (Philadelphia: University of Pennsylvania Press 2016). 109 Richard Price, Making Empire: Colonial Encounters and the Creation of Imperial Rule in Nineteenth Century Africa (Cambridge: Cambridge University Press 2008); Richard Gott, Britain’s Empire: Resistance, Repression and Revolt (London: Verso 2011); and Antoinette Burton, The Trouble with Empire: Challenges to Modern British Imperialism (New York: Oxford University Press 2015). 110 Kolsky, Colonial Justice (n 75) 2. See also Sherman, State Violence (n 88); and Jonathan Saha, ‘Histories of Everyday Violence in British India’, History Compass 9/​11 (2011), 844–​53. 111 Gyan Pandey, ‘In Defense of the Fragment:  Writing About Hindu-​Muslim Riots in India Today’, Representations 37 (1992), 27, 33. 112 Ibid, 27. 113 Bailkin, ‘The Boot and the Spleen’ (n 99) 467. 114 Peter Iadicola, ‘The Violence of Empire’, International Journal of Contemporary Sociology 46/​2 (2009), 190 (hereafter Iadicola, ‘The Violence of Empire’).

Introduction: Torture, Empire, and Exception  21 (some) witnesses’.115 According to Slavoj Žižek there are, however, two distinct forms of violence. The first, subjective violence, consists of the sort of violence that Riches is referring to, namely acts that are both visible and performed by identifiable agents; for Žižek such a form of violence disrupts ‘the “normal”, peaceful state of things’.116 The second, objective violence, includes forms of violence that can be conceptualized more as processes than as acts, such as structural and symbolic violence. Yet since such forms of violence lack clear agents and are largely invisible to us, we tend not to view them as forms of violence—​although they play an important role in sustaining ‘the very zero-​level standard against which we perceive something as subjectively violent’.117 That violence is generally only regarded as encompassing subjective forms is deeply problematic, for Žižek, since in focusing on evil individuals, big events, or fanatical crowds we lose sight both of the causes of such violence and the myriad forms that violence can take (which, in turn, ensures the perpetuation of less visible forms of violence).118 The focus on violence as a violative act also emphasizes the deviance of violence, which masks not only the similarities between, for example, state and anti-​ state violences (although the former benefits from the discursive advantage of being able to reconfigure violence so that it no longer appears as violence), but the ways in which both serve to restructure the world of the peoples touched by them.119 As John Galtung contends in a seminal article on violence, ‘Violence is that which increases the distance between the potential and the actual, and that which impedes the decrease of this distance’ (emphasis in original).120 For Galtung a life expectancy of only thirty years, though the norm in the Neolithic era, would thus be seen as a form of structural violence today since our potential life expectancies are higher than thirty.121 Famine is likewise a form of violence if people starve when such suffering could be avoided—​if it is a product, in other words, of what Akhil Gupta terms ‘malign neglect’.122 When 115 David Riches, ‘The Phenomenon of Violence’, in David Riches (ed.), The Anthropology of Violence (Oxford: Basil Blackwell 1986), 8 (hereafter Riches, ‘The Phenomenon of Violence’). 116 Slavoj Žižek, Violence:  Six Sideways Reflections (London:  Profile Books 2008), 2 (hereafter Žižek, Violence). 117 Ibid. Structural violence, which is constant as opposed to episodic, includes the uneven distribution of resources, education, or medical services as well as the power to decide their distribution (see n 121). Symbolic violence, as Pierre Bourdieu and Loïc Wacquant argue, is ‘the violence which is exercised upon a social agent with his or her complicity’ but that they do not recognize as such (emphasis in original). Bourdieu and Wacquant, ‘Symbolic Violence’, 272 (n 83); see also Pierre Bourdieu, ‘Gender and Symbolic Violence’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 339–​42. 118 Žižek, Violence (n 116) 9. 119 Riches, ‘The Phenomenon of Violence’ (n 115)  32. Colonial states were particularly skilled at re-​ framing the violation of colonialism in humanitarian terms—​as, to borrow from Ishita Pande, ‘ameliorative action’. Pande, ‘Phulmoni’s Body’ (n 100) 10. 120 John Galtung, ‘Violence, Peace, and Peace Research’, Journal of Peace Research 6/​3 (1969), 168 (hereafter Galtung, ‘Violence’). See also Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India (Duke University Press:  Durham and London 2012), 20 (hereafter Gupta, Red Tape); Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley: University of California Press 2005); and Paul Farmer, ‘On Suffering and Structural Violence: A View from Below’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 281–​9. 121 Ibid, 169. 122 Ibid, 171; and Gupta, Red Tape (n 120) 138. Gupta gives, as a shocking example of such ‘malign neglect’, the fact that more people die in India each year from structural violence wrought by the Indian state’s

22  Colonial Terror it comes to empire, therefore, what Riches terms ‘violative violence’ may be the most visible form of violence but the most pervasive, and arguably most long-​lasting in its effects, is ‘the structural violence that results from how the people within and between nations are ordered in terms of life chances’.123 As this discussion of violence suggests, what constitutes colonial violence and how it operates are in much greater need of theorization. What are the connections, for example, between objective forms of violence such as famine and subjective forms such as massacre? Between structural and domestic violence? Between symbolic violence and what the British in colonial India referred to as ‘anarchism’ or ‘revolutionary terrorism’? Between, in other words, not only state and non-​state forms, but different types of violence? We need, in short, to take fuller account both of the sheer physicality of colonialism and its impact on colonized bodies and minds. As Ranabir Samaddar observes, ‘colonial wars, violence, and terror were a physical reality—​bodies were being tormented, killed, forced into labour, starved to death, dumped, or confined and controlled in multiple ways’, all of which marked, furthermore, the ways in which politics was articulated.124 Yet literature on the corporeality of empire remains scanty, particularly in regard to violence; far more attention has arguably been paid to the bodily experience of Europeans within empire than to the suffering and pain inflicted on colonized bodies as a result of it.125 In addition, although discursive analyses have, since the ‘cultural turn’ in historical writing four decades ago, long been regarded as a means of listening to the voices of those who have been silenced,126 they can also serve to silence,127 particularly the failure to provide sufficient food, clean water, medicine, and housing than if there had been a major famine every decade, leading to a ‘missing’ population of what he estimates as 140 million people. But in addition to a failure to meet peoples’ bodily needs, the exclusion of particular groups from forms of recognition such as rights to education, equality before the law, and citizenship rights, all of which is justified on the grounds of moral worth, is also a form of structural violence, although it is so ‘taken for granted in the routinized practices of state institutions . . . that it disappears from view and cannot be thematized as violence at all’. Gupta, Red Tape (n 120) 5, 20–​1, 138; and Hughes and Bourgeois, ‘Introduction’ (n 70) 4. See also Michael Mann, ‘The Autonomous Power of the State: Its Origins, Mechanisms, and Results’, Archives européenes de sociologie 25 (1984), 185–​213; Michael Taussig, ‘Terror as Usual: Walter Benjamin’s Theory of History as State of Siege’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 269–​74 (hereafter Taussig, ‘Terror as Usual’); and Das, Life and Words (n 107). 123 Riches, ‘The Phenomenon of Violence’ (n 115) 32; and Iadicola, ‘The Violence of Empire’ (n 114) 192. It is important not to neglect, furthermore, the impact of psychological violence, which Galtung describes as ‘violence that works on the soul’. Galtung, ‘Violence’ (n 120) 169. 124 Samaddar, ‘Colonial State, Terror and Law’ (n 57), 51. 125 Harald Fischer-​Tiné and Christine Whyte, ‘Introduction: Empires and Emotions’, in Harald Fischer-​ Tiné (ed.), Anxieties, Fear and Panic in Colonial Settings: Empires on the Verge of a Nervous Breakdown (Basingstoke: Palgrave 2017), 12. 126 See Gayatri Chakravorty Spivak’s revised version of her pivotal essay ‘Can the Subaltern Speak?’ in Rosalind Morris (ed.), Can the Subaltern Speak?: Reflections on the History of an Idea (New York: Columbia University Press 2010), 21–​78; and Rajeswari Sunder Rajan’s ‘Death and the Subaltern’, in Morris, Can the Subaltern Speak, 117–​38, for ways in which subaltern can speak but not be heard. 127 As Kim Wagner argues in response to Shahid Amin’s claim that examining the testimony of legal approvers is a means of listening to the voices of peasants caught in the colonial judicial system, subjecting such testimony to a discursive analysis is to reduce ‘[t]‌he conversation between colonizer and colonized . . . to a dialogue between the ventriloquist and his dummy’. Shahid Amin, ‘Approver’s Testimony, Judicial Discourse:  The Case of Chauri Chaura’, in Subaltern Studies V (Delhi:  Oxford University Press India 1987), 168, cited in Kim Wagner, ‘ “In Unrestrained Conversation”:  Approvers and the Colonial

Introduction: Torture, Empire, and Exception  23 sounds of bodies in pain. Since pain involves a transgression of the boundary between what is inside the body and what is extraneous to it, it separates us from others while also connecting us to them.128 Our affective responses to the pain of others serve, furthermore, to construct the border between selves and others—​and, since culture and language shape our experience of pain, between selves and ‘other others’.129 But while separating us from others, pain also connects us to them, since its existence is verified by others bearing witness to it (which thus makes pain, in addition, a sign of truth).130 Language plays a key role in this process, since though pain is difficult to articulate, and hence to communicate to others—​which can render pain, and with it, individuals in pain, invisible—​in revealing pain language discloses something that would have remained hidden.131 Pain is, therefore, ‘a way of being-​in-​the-​world’, which is constituted through language, social interactions, and bodily conduct.132 But intense pain, such as that inflicted through torture, destroys such being-​in-​the-​world—​it is, as Elaine Scarry argues, ‘world-​destroying.’133 In her exploration of the dialectic between the infliction of pain through torture and the ostensible goal of torture, to elicit truth through interrogation, Scarry suggests that in addition to rendering the quest for truth insignificant, the agony of the victim of torture nullifies the world to which such a quest belongs, since in forcing individuals to confess the torturer compels such victims to attest to the world-​destroying nature of their pain and thus to serve as agents of their own self-​ annihilation.134 For Scarry, therefore, ‘what is quite literally at stake in the body in pain is the making and unmaking of the world’, since pain ‘self-​consciously and explicitly Ethnography of Crime in Nineteenth-​century India’, in Kim A. Wagner and Ricardo Roque (eds), Engaging Colonial Knowledge: Reading European Archives in World History (Basingstoke: Palgrave 2011), 156. 128 Sarah Ahmed, ‘The Contingency of Pain’, parallax 8/​1 (2002), 21 (hereafter Ahmed, ‘The Contingency of Pain’). See also Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York and Oxford:  Oxford University Press 1985), 28 (hereafter Scarry, The Body in Pain); Veena Das, ‘Language and Body: Transactions in the Construction of Pain’, in Arthur Kleinman, Veena Das, and Margaret Lock (eds), Social Suffering (Berkeley: University of California Press 1997), 67–​98 (hereafter Das, ‘Language and Body’); and Drew Leder, The Absent Body (Chicago: University of Chicago Press 1990), 11 (hereafter Leder, The Absent Body). 129 David B. Morris, ‘The Languages of Pain’, in Robert Kaplan (ed.), Exploring the Concept of Mind (Iowa City: University of Iowa Press 1986), 93 (hereafter Morris, ‘The Languages of Pain’). 130 Ibid, 25; and Klarer, ‘Humanitarian Pornography’ (n 104) 559. As J. M. Coetzee puts it, ‘Pain is truth; all else is subject to doubt’. For Saidiya Hartman pain also gives humanity a common language while extending such humanity to those who are dispossessed. J. M. Coetzee, Waiting for the Barbarians (2nd edn, Harmondsworth: Penguin 1982), 5 (hereafter Coetzee, Waiting for the Barbarians); and Saidiya V. Hartman, Scenes of Subjection:  Terror, Slavery, and Self-​Making in Nineteenth-​Century America (New  York and Oxford: Oxford University Press 1997), 18. 131 Scarry, The Body in Pain (n 128) 4; and Morris, ‘The Languages of Pain’ (n 129) 90. 132 Joanna Bourke, ‘Introduction’ (Pain and its Meanings, 10 December 2012) accessed 14 May 2018. See also Leder, The Absent Body (n 128) 21. 133 Scarry, The Body in Pain (n 128) 29. What makes torture ‘world-​destroying’, as Darius Rejali asserts, is not simply that torture drives victims into ‘prelinguistic silence’, but that such silence gives states the power to shape the ways in which both the tortured and the communities or societies to which they belong interpret and articulate their own reality. However, Rejali also argues that psychological techniques can be as effective as physical ones in such a process of unworlding, and that for some individuals pain can strengthen rather than undermine their sense of self. Rejali, Torture and Democracy (n 36) 441–​2. See also Allen Feldman, Formations of Violence (Chicago: Chicago University Press 1991); and Veena Das, ‘Language and Body’ (n 128). 134 Ibid.

24  Colonial Terror announces its own nature as an undoing of civilization, acts out the uncreating of the created contents of consciousness’.135 Extreme pain is thus, in short, dehumanizing.136 The challenge pain poses to historians is obvious, for although it is intimately bound up with power, the ways in which it is verbally represented shapes the ways in which it is, in turn, politically represented. Such a phenomenon explains why torture can be described, for example, as ‘information-​gathering’ or ‘intelligence-​gathering’.137 Listening to bodies in pain also risks fetishizing the wound by transforming it into a form of identity, which negates its historicity, transforms survivors into victims, and makes political action impossible.138 In rethinking empire as what J. M. Coetzee refers to as an ‘empire of pain’ my aim, instead, is to remember how Indian bodies came to be wounded in the first place in order to carve out a sphere for political action.139 Through analysing the nature of colonial violence and offering a theory of how it operated, Colonial Terror endeavours to contribute, therefore, to understanding the materiality of colonialism and its impact on subaltern bodies and lives.

Policing, Law, and the Colonial State Whether government is by men, or by law, depends to a marked extent on the nature of the Police.140 Like the corporality of colonialism, colonial policing remains both considerably under-​ studied and under-​theorized.141 In the case of colonial India, until relatively recently 135 Ibid, 23, 38. Drew Leder observes that the painful body is often experienced as something alien to the self; the sense of the body as alien can, furthermore, swell ‘until it can threaten the entirety of one’s world’. But as many critics have observed, not all forms of pain (such as tattooing, piercing, or sadomasochism) result in such subjectivity-​destroying unmaking. What makes the difference, for example, between torture as an act of violation versus a service that people will pay for, according to David Canter, is the different relationships that people have to their bodies. Leder, The Absent Body (n 128) 83; and David Canter, ‘The Violated Body’, in Sean T. Sweeney and Ian Hodder (eds), The Body (Cambridge: Cambridge University Press 2002), 61. See also Wendy Lee, ‘On the (Im)materiality of Violence: Subjects, Bodies, and the Experience of Pain’, Feminist Theory 6/​3 (2005), 277–​95. 136 Esmeir, Juridical Humanity (n 36) 119. 137 Scarry, The Body in Pain (n 128) 12. On the ways in which language can erase violence see also Carol Cohn, ‘Sex and Death in the Rational World of Defense Intellectuals’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 354–​61. 138 Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press 1995). 139 Coetzee, Waiting for the Barbarians (n 130) 23; and Ahmed, ‘The Contingency of Pain’ (n 128) 26. This is not to suggest that all pain can or must be shared. As Veena Das reveals in the case of women who witnessed the violence unleashed by male family members during the partition of India, instead of disclosing or sharing their pain they have, instead, learned to hold it inside in order to enable their lives to continue, which she regards as a movement that renders passivity a form of agency. Breaking such silence, Das suggests, can thus be another form of violence. Veena Das, ‘Language and Body’ (n 128) 85, 88. 140 Dhillon, Defenders of the Establishment (n 55) 20. For former Indian police officer Edmund Cox the Police department in India was no less than ‘the very essence of our administration’, since in addition to being the visible representative of the government there was ‘no other which so much concern[ed] the life of the people’ or ‘upon whose goodwill and uprightness [their] happiness so greatly depend[ed]’. Sir Edmund Cox, Police and Crime in India (first published in 1910, New Delhi: Manu Publications 1976), 7. 141 As Markus Dubber and Mariana Valverde note, police power has attracted considerably less attention than, for example, emergency powers, and not just in the case of colonial policing. Markus D. Dubber

Introduction: Torture, Empire, and Exception  25 the literature on colonial policing was dominated largely by the memoirs of former, primarily British, police officials.142 The scholarship that has emerged since then has concentrated predominantly on the establishment and development of a system of colonial policing,143 as well as on the role of the Indian police in the maintenance144—​ and demise145—​of colonial rule, and some of the challenges this posed to the colonial and Mariana Valverde, ‘Introduction: Policing the Rechtsstaat’, in Markus D. Dubber and Mariana Valverde (eds), Police and the Liberal State (Stanford, CA: Stanford University Press 2008), 1. For scholarship on colonial policing see, for example, Charles Jeffries, The Colonial Police (London: Max Parrish 1952); Thomas Dunlay, Wolves for the Blue Soldiers: Indian Scouts and Auxiliaries with the United States Army 1860-​1890 (Lincoln: University of Nebraska Press 1982); David Arnold, Police Power and Colonial Rule: Madras, 1859-​ 1947 (Delhi:  Oxford University Press 1986) (hereafter Arnold, Police Power); Richard Hill, Policing the Colonial Frontier: The Theory and Practice of Coercive Social and Racial Control in New Zealand, 1767-​1867 (Wellington: V. R. Ward 1986); Mike Brogden, ‘The Emergence of the Police—​The Colonial Dimension’, British Journal of Criminology 27/​1 (1987), 4–​14; Marie Fels, Good Men and True: The Aboriginal Police of the Port Phillip District 1847-​1853 (Melbourne: Melbourne University Press 1988); Anthony Clayton and David Killingray, Khaki and Blue: Military and Police in British Colonial Africa (Athens, Ohio: Ohio University Monographs in International Studies 1989); David M. Anderson and David Killingray, Policing the Empire:  Government, Authority, and Control, 1830-​1940 (Manchester and New  York:  Manchester University Press 1991) (hereafter Anderson and Killingray, Policing the Empire); Philip Terdoo Ahire, Imperial Policing: The Emergence and Role of the Police in Colonial Nigeria 1860-​1960 (Milton Keynes and Philadelphia: Open University Press 1991); Georgina Sinclair, At the End of the Line: Colonial Policing and the Imperial Endgame 1945-​80 (Manchester and New York: Manchester University Press 2006) (hereafter Sinclair, At the End of the Line); and Thomas, Violence and Colonial Order (n 95). 142 Notable examples include T. C. Arthur, Reminiscences of an Indian Police Official (London: Sampson, Low, Marston & Company 1894); Cox, Police and Crime (n 139); C. E. Gouldsbury, Life in the Indian Police (first published in 1912, New Delhi: Manu Publications 1977); J. C. Curry, The Indian Police (London: Faber and Faber 1932) (hereafter Curry, The Indian Police); S. T. Hollins, No Ten Commandments: Life in the Indian Police (Hutchinson:  London 1954); B. N. Lahiri, Leaves from A  Policeman’s Diary (Meerut:  Meenakshi Prakashan 1967); Sir Percival Griffiths, To Guard My People: The History of the Indian Police (London: Ernest Benn Limited); B. N. Lahiri, Before and After (Allahabad: Chugh Publications 1974); Trilok Nath, Forty Years of Indian Police (New Delhi: Concept Publishing Company 1981); and Eric Stracey, Odd Man In: My Years in the Indian Police (New Delhi: Vikas Publishing House Pvt Ltd. 1981). 143 See N. Majumdar, Justice and Police in Bengal 1765-​1793:  A Study of the Nizamat in Decline (Calcutta:  Firma K.  L. Mukhopadhyay 1960); Anandswarup Gupta, Crime and Police in India [Up to 1861] (Agra: Sahitya Bhawan 1974); Anandswarup Gupta, The Police in British India 1861-​1947 (New Delhi:  Concept Publishing Company 1979); J. C. Madan, Indian Police:  Its Development up to 1905 an Historical Analysis (New Delhi: Uppal Publishing House 1980); S. R. Kapse, Police Administration in Bombay, 1600-​1865 (Bombay: Himalaya Publishing House 1987); and Saroj Kumar Bhowmik, Rural Police, Local Justice in Bengal (1772-​1870) (Calcutta: Nalanda Publications 1991). 144 Arnold, Police Power (n 141); Ranjan Chakrabarti, ‘Pax Britannica and the Nature of Police Control in Bengal c.  1800-​1860’, Bengal Past and Present 105/​1-​2 (1986), 78–​99 (hereafter Chakrabarti, ‘Pax Britannica’); Peter Robb, ‘The Ordering of Rural India: The Policing of Nineteenth-​Century Bengal and Bihar’, in Anderson and Killingray, Policing the Empire (n 141) 126–​50 (hereafter Robb, ‘The Ordering’); Dhillon, Defenders of the Establishment (n 55); Michael Silvestri, ‘ “The Dirty Work of Empire”: Policing, Political Violence and Public Order in Colonial Bengal, 1905-​1947’ (PhD Diss., Columbia University 1998) (hereafter Silvestri, ‘ “The Dirty Work” ’); Clea T. Finkle, ‘State, Power, and Police in Colonial North India’ (PhD Diss., University of Washington 1999) (hereafter Finkle, ‘State, Power, and Police’); Arvind Verma, ‘Consolidation of the Raj: Notes from a Police Station in British India, 1865-​1928’, Criminal Justice History 17 (2002), 109–​32; Arnaud Sauli, ‘Circulation and Authority: Police, Public Space and Territorial Control in Punjab, 1861-​1920’, in Claude Markovits, Jacques Pouchepadass, and Sanjay Subrahmanyam (eds), Society and Circulation: Mobile People and Itinerant Cultures in South Asia, 1750-​1950 (Delhi: Permanent Black 2003), 215–​74; and T. K. Vinod Kumar and Arvind Verma, ‘Hegemony, Discipline and Control in the Administration of Police in Colonial India’, Asian Criminology 4 (2009), 61–​78 (hereafter Kumar and Verma, ‘Hegemony, Discipline and Control’). 145 David Arnold, ‘Police Power and the Demise of British Rule in India, 1930-​47’, in David M. Anderson and David Killingray (eds), Policing and Decolonisation:  Politics, Nationalism and the Police

26  Colonial Terror regime.146 Yet despite the widespread acknowledgement in such scholarship of their coercive nature—​as K. S. Dhillon puts it, the Indian police were ‘the main instrument of repression and subjugation of the Indian peoples in the 90 years of British rule in India after the cataclysmic events of 1857’147—​relatively little attention has been paid to everyday policing,148 or to the rationales behind or dynamics of police violence, although some attention has been devoted to the use of torture to extract confessions.149 Such work takes the colonial regime at its word, however, in its oft-​proclaimed desire to eradicate police torture.150 Following Ann Stoler’s elucidation of the importance of reading along rather than against the archival grain in order to interrogate the colonial archive ‘for its regularities, for its logic of recall, for its densities and distributions, for its consistencies of misinformation, omission, and mistake’, Colonial Terror suggests that such desire needs to be radically reassessed.151 The lack of analysis of the dynamics of or rationales behind police violence in colonial India is perhaps surprising given the primacy accorded to coercion and violence

1917-​65 (Manchester and New  York:  Manchester University Press 1992), 42–​61; Sinclair, At the End of the Line (n 141); and Mahmood Farooqui, ‘The Police in Delhi in 1857’, in Crispin Bates (ed.), Mutiny at the Margins: New Perspectives on the Indian Uprising of 1857, Vol. 1: Anticipations and Experiences in the Locality (New Delhi: Sage Publications 2013), 98–​119. 146 David A. Campion, ‘Watchmen of the Raj: The United Provinces Police, 1870-​1931 and the Dilemmas of Colonial Policing in British India’ (PhD Diss., University of Virginia 2002) (hereafter Campion, ‘Watchmen of the Raj’); David A. Campion, ‘Authority, Accountability and Representation:  The United Provinces Police and the Dilemmas of the Colonial Policeman in British India, 1902-​39’, Historical Research 76/​192 (2003), 217–​37; and Gagan Preet Singh, ‘Property’s Guardians, People’s Terror: Police Avoidance in Colonial North India’, Radical History Review 137 (2020), 54–​74. 147 Dhillon, Defenders of the Establishment (n 55), 20. The police also played an important subjugating role prior to 1857, but as I shall demonstrate police violence became more systematized after the 1857 Revolt. 148 Rajnarayan Chandavarkar, Imperial Power and Popular Politics: Class, Resistance and the State in India, 1850-​1950 (Cambridge:  Cambridge University Press 1998) (hereafter Chandavarkar, Imperial Power); Nandini Gooptu, The Politics of the Urban Poor in Early Twentieth-​Century India (Cambridge: Cambridge University Press 2001) (hereafter Gooptu, The Politics of the Urban Poor); Prashant Kidambi, ‘ “The ultimate masters of the city”: Police, Public Order and the Poor in Colonial Bombay, c. 1893-​1914’, Crime, Histoire & Sociétés 8/​1 (2004) [DOI: https://​doi.org/​10.4000/​chs.513] (hereafter Kidambi, ‘ “The ultimate masters’ ”); Radha Kumar, ‘Police Matters’ (n 61); and Radha Kumar, ‘Policing Everyday Life: The FIR in the Tamil Countryside, c. 1900-​50’, The Indian Economic and Social History Review 54/​3 (2017), 361–​87 (hereafter Kumar, ‘Policing Everyday Life’). 149 Douglas Peers, ‘Torture, the Police, and the Colonial State in the Madras Presidency, 1816-​55’, Criminal Justice History: An International Annual 12 (1991), 29–​56; Rao, ‘Problems of Violence’ (n 101); and Kumar, ‘Seeing Like a Policeman’ (n 95). For an overview of such work see Gagan Preet Singh, ‘Police-​ public Relations in Colonial India’ (History Compass, 1 September 2019) [DOI: https://​doi.org/​10.1111/​ hic3.12595]. 150 For scholarship that does not take the colonial regime at its word in its desire to eradicate torture see Heath, ‘Bureaucracy, Power and Violence’ (n 88); Heath, ‘Torture, the State and Sexual Violence’ (n 100); and Heath, ‘The Tortured Body’ (n 101). 151 Ann Laura Stoler, ‘Colonial Archives and the Arts of Governance’, Archival Science 2 (2002), 100. While reading against the archival grain evades the power that shaped the production of the archive (including, for example, the destruction of records, or the fragmentary nature of the archive), reading along it, Stoler argues, makes it possible to ‘distinguish between what was “unwritten” because it could go without saying and “everyone knew it”, what was unwritten because it could not yet be articulated, and what was unwritten because it could not be said’. Stoler, ‘Colonial Archives’, 101; and Ann Laura Stoler, Along the Archival Grain (n 78) 3. See also Michel Foucault, The Archaeology of Knowledge and the Discourse on Language (A. M. Sheridan Smith tr, New York: Pantheon Books 1972), 129–​30.

Introduction: Torture, Empire, and Exception  27 among scholars at the forefront of policing studies, including those working on post-​ colonial India,152 as well as the fact that social theorists have credited the police with virtually unchecked power.153 The ongoing prevalence of a Weberian conception of a bureaucratic, rational state with a monopoly over legitimate violence, though not existing in reality, has undoubtedly impeded discussion of the nature of or limits upon state violence, and not just in regard to colonial India.154 So, too, has the neglect of policing as an attribute of state power in studies of the colonial Indian state.155 Furthermore, although scholars have explored some of the limitations that relying upon a largely poor and indigenous police force placed upon the British colonial regime in India156 little attention has been paid to the lives and experiences of such men, 152 Beatrice Jauregui, Provisional Authority: Police, Order, and Security in India (Ranikhet: Permanent Black 2016), 12 (hereafter Jauregui, Provisional Authority). Prashant Kidambi’s suggestion of a shift, two decades ago, from viewing the colonial Indian police as a coercive instrument of colonial control that was external to society to regarding them as too weak to assume such a role may in part explain such a lacuna (although a focus on coercion has again been at the forefront of more recent scholarship). Kidambi, ‘ “The ultimate masters of the city’ ” (n 148) para 2. The classic study on the coercive nature of the police in colonial India is Arnold, Police Power (n 141); on their purported weakness see Anand Yang, ‘Introduction’, in Anand Yang (ed.), Crime and Criminality in British India (Tucson, AZ:  University of Arizona Press 1986), 1–​25; Chandarvarkar, Imperial Power (n 147); Gooptu, The Politics of the Urban Poor (n 148); and Campion, ‘Watchmen of the Raj’ (n 146). See also Egon Bittner, The Functions of the Police in Modern Society (Bethesda, MD: National Institute of Mental Health, Center for Studies of Crime and Delinquency 1970); Shailendra Misra, Police Brutality: An Analysis of Police Behaviour (New Delhi: Vikas Publishing House Pvt. Ltd. 1986); Egon Bittner, Aspects of Police Work (Boston: Northeastern University Press 1990); Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers (n 54); Beatrice Jauregui, ‘Law and Order:  Police Encounter Killings and Routinized Political Violence’, in Isabelle Clark-​Decès (ed.), A Companion to the Anthropology of India (Oxford: Wiley-​Blackwell 2010), 371–​88; Lokaneeta, Transnational Torture (n 36); Beatrice Jauregui, ‘Just War: The Metaphysics of Police Vigilantism in India’, Conflict and Society 1/​1 (2015), 41–​59; Jauregui, Provisional Authority (n 152); Lokaneeta, The Truth Machines (n 51); Wahl, Just Violence (n 51); and Khanikar, State, Violence and Legitimacy (n 59). 153 Jauregui, Provisional Authority (n 152), 12. See, for example, Benjamin, ‘Critique of Violence’ (n 53); Hannah Arendt, The Origins of Totalitarianism (New York: Schoken 1951); Hannah Arendt, The Human Condition (Chicago: University of Chicago Press 1998); and Jacques Derrida, ‘Force of Law: The “Mystical Foundations of Authority” ’, in Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson (eds), Deconstruction and the Possibility of Justice (New York: Routledge 1992), 3–​67. 154 Lokaneeta, Truth Machines (n 51) 16. See also Max Weber, ‘Bureaucracy’, in Guenther Roth and Claus Wittich (eds), Economy and Society: An Outline of Interpretive Sociology, Vol. 1 (first published in 1921, New York: Bedminster Press 1968), 956–​8; and Max Weber, ‘The Economic System and the Normative Orders’, in Max Rheinstein (ed.), Max Weber on Law, Economy and Society (first published in 1922, Max Rheinstein and Edward A. Shils tr, Cambridge, MA: Harvard University Press 1954), 10–​40. 155 The same is true, however, of the post-​colonial state. The scholars who do explore the relationship between violence, policing, and the state—​individuals such as K.  G. Kannabrian, Kandalla Balagopal, and Ujjwal Singh, are also all, notably, civil liberties and democratic rights activists. Lokaneeta, The Truth Machines (n 51) 11–​12. See also K. G. Kannabiran, The Wages of Impunity: Power, Justice, and Human Rights (New Delhi: Orient Longman 2003); K. Balagopal, ‘Deaths in Police Custody: Whom and Why Do the Police Kill?’, Economic and Political Weekly (22 November 1986), 2028–​29 (hereafter Balagopal, ‘Deaths in Police Custody’); and Ujjwal Kumar Singh, State, Democracy, and Anti-​Terror Laws in India (New Delhi: Sage 2007). Lokaneeta also delineates four other bodies of scholarship that examine the nature of state violence, of which police violence is situated as an aspect: testimonial narratives by those who have been the victims of state violence; empirical work on sites of state violence; works on impunity for those who commit violence; and scholarship on policing in contemporary India. Lokaneeta, The Truth Machines,  14–​15. 156 Arnold, Police Power (n 141); Lata Singh, ‘Locating the Bihar Constabulary, 1920-​22: An Exploration into the Margins of Resistance’, Social Scientist 30/​9/​10 (2002), 47–​71 (hereafter Singh, ‘Locating the Bihar Constabulary’); William Gould, ‘The Dual State: The Unruly “Subordinate”, Caste, Community and Civil Service Recruitment in North India, 1930-​1955’, Journal of Historical Sociology 20/​1/​2 (2007), 13–​ 43 (hereafter Gould, ‘The Dual State’); Bhavani Raman, ‘The Familial World of the Company’s Kacceri in

28  Colonial Terror or to what drove members of what T. K. Vinod Kumar and Arvind Verma term the ‘subjugated masses’ to become its violence workers—​nor, as I aim to demonstrate, to the ways in which dependence upon such workers in many ways benefitted the colonial regime by enabling it to displace the blame for its inherent violence onto its victims.157 For many scholars of policing, the roots of police violence can be traced either to practices of normalizing discipline wrought through bureaucracies or to manifestations and relations of sovereignty.158 In the case of India, the disciplinary functions of the police, along with their growing bureaucratization, are clear from at least the 1830s, as are the ways in which such bureaucratization enabled police violence.159 What is apparent far earlier, however, are the ways in which the Indian police served to both construct and maintain the sovereignty of the colonial state. There has, to be sure, been considerable discussion among scholars of policing in colonial India of the Early Colonial Madras’, Journal of Colonialism and Colonial History 9/​2 (2008) [DOI: 10.1343/​cch.0.0011]; Anastasia Piliavsky, ‘The Moghia Menace, or the Watch Over Watchmen In British India’, Modern Asian Studies 47/​3 (2013), 751–​79 (hereafter Piliavsky, ‘The Moghia Menace’); Partha Pratim Shil, ‘Police Labour and State-​Formation in Bengal, c. 1860-​c. 1950’ (PhD Diss., University of Cambridge 2016); and Partha Pratim Shil, ‘The “Threatened” Constabulary Strikes of Early Twentieth-​Century Bengal’, South Asian Studies 33/​2 (2017), 165–​79. 157 Kumar and Verma, ‘Hegemony, Discipline and Control’ (n 144) 65. For the ways in which policing groups were co-​opted into serving the colonial regime see Finkle, ‘State, Power and Police’ (n 144). For analyses of how individuals become violence workers and the effects that it has on them see, for example, Christopher Browning, Ordinary Men:  Reserve Police Battalion 101 and the Final Solution in Poland (New York: Harper Collins 1992); Daniel Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York: Alfred A. Knopf 1996); and Huggins, Haritos-​Fatouros, and Zambardo, Violence Workers (n 54). 158 Jauregui, Provisional Authority (n 152) 12. Martin Thomas, however, makes the compelling argument that there is a direct link between the nature and scale of police oppression and the economic structures of colonies. Thomas, Violence and Colonial Order (n 95) 2–​5. For work on discipline, governmentality, policing, and coercion see Jean Comaroff and John L. Comaroff, ‘Criminal Obsessions, after Foucault: Postcoloniality, Policing, and the Metaphysics of Disorder’, in Jean and John L. Comaroff, Law and Disorder in the Postcolony (Chicago:  University of Chicago Press 2008), 273–​98 (hereafter Comaroff and Comaroff, ‘Criminal Obsessions); and Fassin, ‘Petty States of Exception’ (n 61). For scholarship on sovereignty, policing, and coercion see Veena Das and Deborah Poole, ‘State and its Margins: Comparative Ethnographies’, in Veena Das and Deborah Poole, Anthropology in the Margins of the State (Santa Fe: School of American Research Press; Oxford: James Currey 2004), 3–​33 (hereafter Das and Poole, ‘State and its Margins’); Thomas Blom Hansen and Finn Stepputat (eds), Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World (Princeton and Oxford: Princeton University Press 2005); and Thomas Blom Hansen and Finn Stepputat, ‘Sovereignty Revisited’, Annual Review of Anthropology 35 (2006), 295–​315. For an argument that examines the interrelationships between policing, governmentality, and sovereignty see also Marianna Valverde, ‘Police, Sovereignty, and Law: Foucaultian Reflections’, in Markus D. Dubber and Mariana Valverde (eds), Police and the Liberal State (Stanford, CA: Stanford University Press 2008), 15–​32. 159 Jonathan Saha, Law, Disorder and the Colonial State:  Corruption in Burma c.  1900 (Basingstoke: Palgrave Macmillan 2013), 53 (hereafter Saha, Law, Disorder and the Colonial State). See also Kumar, ‘Seeing Like a Policeman’ (n 95). According to Clea Finkle, in her superb dissertation on policing and state power in colonial north India, the Indian police began to assume a disciplinary function from 1830 (in part as a result of the transformation of the East India Company’s charter from a trading concern to a solely administrative one, and in part the ‘improving’ drive of the Utilitarian and Evangelical movements), as is apparent in the changing nature of police reports. Although these had previously contained obligatory descriptions of major crimes and tables on convictions and punishments they began ‘to encompass a much greater sweep of “the social” and a greater interest in rendering its everyday practices into the language of law and order’. Finkle, ‘State, Power and Police’ (n 144) 79. See also Eric Stokes, The English Utilitarians and India (New York: Oxford University Press 1959).

Introduction: Torture, Empire, and Exception  29 extent to which the Indian police followed either the civilian model of policing developed in Britain from the early nineteenth century or the paramilitary model known as the ‘Irish model’.160 But while other colonial police forces were undoubtedly more militarized than the Indian police, the latter were nonetheless structured according to ‘the notion of . . . a para-​military organization’ (emphasis added), as is evident in the emphasis placed, in the ostensibly new system of civilian policing developed after the 1857 Revolt, on drill and parade, weapons training, a hierarchical and regimented structure, armed units, and the supremacy of an officer cadre consisting of ex-​ military men.161 Rather than disciplinary power gradually usurping sovereign power, as Michel Foucault has argued happened in Europe beginning in the eighteenth century, what the Indian police therefore reveal are the ways in which sovereign power could, at the hands of ‘petty sovereigns’, continue to predominate in colonial contexts by working through disciplinary power.162 Their role in the maintenance of sovereign power demonstrates, furthermore, that despite their virtual absence from studies of the Indian state, the police in colonial India were, to borrow from Jean and John Comaroff, ‘a privileged site for staging efforts . . . to summon the active presence of the state into being, to render it perceptible to the public eye, [and] to produce both rulers and subjects who recognize its legitimacy’.163 In other words, it was through their performance of the colonial state that the police made it real. Such an insight builds on the work of scholars such as Philip Abrams, who argues that rather than being a material object, either concrete or abstract, the state is instead imagined into existence by societies in diverse ways.164 For Timothy Mitchell, drawing upon Michel Foucault’s understandings of the ways in which practices of discipline and governmentality de-​centre the state, states come to be imagined through the metaphysical effect of practices that make them, as a structural effect, appear to exist.165 Although historians have tended to study the colonial state as a monolithic entity, such 160 David M. Anderson and David Killingray, ‘Consent, Coercion and Colonial Control: Policing the Empire, 1830-​1940’, in Anderson and Killingray, Policing the Empire (n 141)  4. See also Clive Emsley, ‘Policing the Empire/​Policing the Metropole:  Some Thoughts on Models and Types’, Crime, History & Societies 18/​2 (2014), 5–​25. 161 Dhillon, Defenders of the Establishment (n 55) 18; and Baxi, The Crisis (n 61) 106. The extent to which the Indian police was militarized varied from province to province, although its militarization was nowhere more apparent than on India’s frontiers. Such a model of policing, as Upendra Baxi argues, is an impersonal and alienating one, in which stress is laid on obedience, procedure, the stifling of innovation, and disregard for the interests of the public. Baxi, The Crisis (n 61) 107–​8. See also Rajnarayan Chandarvarkar, ‘Customs of Governance: Colonialism and Democracy in Twentieth Century India’, Modern Asian Studies 41/​3 (2007), 450 (hereafter Chandarvarkar, ‘Customs of Governance’); Kolsky, ‘The Colonial Rule of Law’ (n 62); Condos, ‘License to Kill’ (n 94); and Dilip K. Das and Arvind Verma, ‘The Armed Police in the British Colonial Tradition—​The Indian Perspective’, Policing: An International Journal of Police Strategies & Management 21/​2 (1998), 354–​67. 162 Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan tr, London: Penguin 1977). Colonial states, like all states, were dependent on surveillance and discipline in addition to violence and coercion; what differentiates the former from the latter is the predominance of violence and coercion over surveillance and discipline. John Comaroff, ‘Governmentality, Materiality, Legality’, in Jan-​ Georg Deutsch, Peter Probst, and Heike Schmidt (eds), African Modernities: Entangled Meanings in Current Debate (Oxford: James Currey 2002), 123 (hereafter Comaroff, ‘Governmentality, Materiality, Legality’). 163 Comaroff and Comaroff, ‘Criminal Obsessions’ (n 158) 280. 164 Philip Abrams, ‘Notes on the Difficulty of Studying the State’, Journal of Historical Sociology 1/​1 (1988),  58–​89. 165 Timothy Michell, ‘The Limits of the State: Beyond Statist Approaches and Their Critics’, American Political Science Review 85/​1 (1991), 77–​96; and Timothy Mitchell, ‘Society, Economy, and the State Effect’,

30  Colonial Terror insights show that ‘[t]‌he “colonial state” describes not a thing but a genus of historically fluid forms and processes’.166 Colonial states were thus not only imaginary and performative constructs but fragmentary and ‘fuzzy’ ones as well.167 In response to such insights, a growing body of scholarship has begun to explore the everyday state in colonial India, as well as how it was experienced by its colonized subjects, although relatively little attention has yet been paid to the role played by Indian subordinates in its construction.168 Yet the Indian state was not, as Ranajit Guha insists, ‘an absolute externality . . . with no mediating depths, no space . . . for transactions between the will of the rulers and that of the ruled’.169 The vast numbers of Indian subalterns who constituted its labour force made such a rigid boundary between state and society impossible, and nowhere is this more apparent than in the role played by the police, ‘the edge of where “the state” meets “. . . society” ’.170 This is because, in addition in Aradhana Sharma and Akhil Gupta, Anthropology of the State: A Reader (Oxford: Blackwell 2006), 169–​ 86. For Foucault, the state was ‘maybe . . . only a composite reality and a mythicized abstraction whose importance is much less than we think’. Michel Foucault, Security, Territory, Population: Lectures at the College de France 1977-​78, Michel Snellart (ed.) (Graham Burchell tr, New York: Palgrave Macmillan 2007), 109. 166 Comaroff, ‘Governmentality, Materiality, Legality’ (n 162) 121. Akhil Gupta goes so far as to suggest that any attempt to understand the state will inevitably produce ‘misrecognition’, since observing the state through a particular bureaucracy, level, or region produces only a partial understanding of it. Gupta, Red Tape (n 120) 53. 167 In the Indian case the scholarship that examines the state in such terms focuses primarily on the post-​colonial era. See, for example, Akhil Gupta, ‘Blurred Boundaries:  The Discourse of Corruption, the Culture of Politics and the Imagined State’, American Ethnologist 22/​2 (1995), 375–​402 (hereafter Gupta, ‘Blurred Boundaries’); C. J. Fuller and Véronique Bénéï (eds) The Everyday State and Society in Modern India (London:  Hurst 2001); Thomas Blum Hansen and Finn Stepputat (eds), States of Imagination:  Ethnographic Explorations of the Postcolonial State (Durham, NC:  Duke University Press 2001); Stuart Corbridge, Glyn Williams, Manoj Kumar Srivastava, and René Véron (eds), Seeing the State: Governance and Governmentality in India (Cambridge: Cambridge University Press 2005); Lloyd. I. Rudolph and John Kurt Jacobsen (eds), Experiencing the State (Delhi: Oxford University Press 2006); and Taylor C. Sherman, William Gould, and Sarah Ansari (eds), ‘Special Issue: Society and the Everyday State in India and Pakistan’, Modern Asian Studies 45/​1 (2011). On the ‘fuzzy’ state see Gould, ‘The Dual State’ (n 156) 14. 168 Saha, Law, Disorder and the Colonial State (n 159) 7. The scholarship on the colonial administrative service, for example, concentrates almost entirely on its higher echelons. See B. B. Misra, The Bureaucracy in India: An Historical Analysis of Development up to 1947 (Delhi: Oxford University Press 1977); Clive Dewey, Anglo-​Indian Attitudes:  The Mind of the Indian Civil Service (London:  Bloomsbury 1993); and David C. Potter, India’s Political Administrators: From ICS to IAS (Delhi: Oxford University Press 1996). For scholarship that does examine the role of Indian subordinates in the construction of the colonial state see Robert Eric Frykenberg, Guntur District, 1788-​1848: A History of Local Influence and Central Authority in South India (New York: Oxford University Press 1965); David Arnold, ‘Bureaucratic Recruitment and Subordination in Colonial India: The Madras Constabulary, 1859-​1947’, in Ranajit Guha (ed.), Subaltern Studies IV: Writings on South Asian History and Society (Delhi: Oxford University Press 1985), 1–​53 (hereafter Arnold, ‘Bureaucratic Recruitment’); Finkle, ‘State, Power and Police’ (n 144); Chandavarkar, Imperial Power (n 148); Gould, ‘The Dual State’ (n 156); William Gould, Bureaucracy, Community and Influence in India: Society and the State,1930s-​1960s (Abingdon, Oxon: Routledge 2011); Bhavani Raman, Document Raj: Writing and Scribes in Early Colonial South India (Chicago: University of Chicago Press, 2012); and Jonathan Saha, ‘A Mockery of Justice? Colonial Law, the Everyday State, and Village Politics in the Burma Delta, c. 1890-​1910’, Past and Present 217/​1 (2012), 187–​212. 169 Ranajit Guha, Dominance without Hegemony:  History and Power in Colonial India (Cambridge, Mass.: Harvard University Press 1997), 65 (hereafter Guha, Dominance without Hegemony). 170 Indian police sub-​inspector, quoted in Jauregui, Provisional Authority (n 152) 22. See also Das and Poole, ‘State and its Margins’ (n 158) 13–​14; and Beatrice Jauregui, ‘Civilised Coercion, Militarised Law and Order: Security in Colonial South Asia and the Blue in Green Global Order’, in Marleen Easton, Monica

Introduction: Torture, Empire, and Exception  31 to being the most visible, quotidian emblem of state power, they were also deeply embedded in local social and political networks.171 Although some scholars have suggested that the police were effectively amalgamated into the colonial state, Lata Singh contends that ‘they could not be reduced to a mere mechanised and dehumanised agent of colonial control’.172 Their frequent involvement in collective violence intimates the impossibility of such a task.173 The Indian police were, instead ‘split subject[s]‌’, who drew upon state power to protect the interests of local elites while tyrannizing more marginal members of society.174 But although police violence ostensibly undermined the authority of the colonial state, Nandini Gooptu suggests that police tyranny was given ‘free reign’ because of its disciplinary value.175 Thus, while the police themselves needed to be harshly disciplined in order to prevent them from enacting the state to suit their own purposes, and not all elements of the state (notably the higher echelons of the legal system) regarded police violence in the same way, their performance of the state as powerful and oppressive was ultimately a boon for the colonial regime.176 The fragmentary and performative nature of the colonial state in India means that regulation inevitably co-​existed with resistance, power with paralysis, and legitimacy with illegality, but this does not translate into a state that was inherently fragile.177 Its

den Boer, Jelle Janssens, Rene Moelker, and Tom Vanderbeken (eds), Blurring Military and Police Roles (The Hague: Eleven International Publishing 2010), 377–​8 (hereafter Jauregui, ‘Civilised Coercion’). Akhil Gupta suggests that the everyday practices of state officials may actually aid in constructing such a boundary. That the Indian police were enmeshed in local politics was so widely known that it was taken into account in their recruitment—​primarily, in light of the way in which the colonial regime viewed Indian identity in communitarian terms, through privileging particular religious and caste groups. Gupta, Red Tape (n 120) 55; and Gould, ‘The Dual State’ (n 156) 17, 21–​9. 171 Chandavarkar, Imperial Power (n 148) 81; and Chandavarkar, ‘Customs of Governance’ (n 161) 451–​3. 172 Lata Singh, ‘Locating the Bihar Constabulary’ (n 156) 62. See also Finkle, ‘State, Power and Police’ (n 144) 288. For scholarship that suggests that the police were essentially co-​opted by the colonial state see David Arnold, ‘The Police and Colonial Control in South India’, Social Scientist 4/​12 (1976), 3–​16; Arnold, ‘Bureaucratic Recruitment’ (n 168); Ranajit Guha, ‘On Some Aspects of the Historiography of Colonial India’, in Ranajit Guha and Gayatri Chakravorty Spivak (eds), Selected Subaltern Studies (New York: Oxford University Press 1988), 35–​44; and Shahid Amin, Event, Metaphor, Memory:  Chauri Chaura 1922-​1992 (Delhi: Oxford University Press 1995). 173 Arnold, Police Power (n 141) 63; Finkle, ‘State, Power and Police’ (n 144) 258, 281; Bhangya Bhukya, ‘ “Delinquent subjects”: Dacoity and the Creation of a Surveillance Society in Hyderabad State’, The Indian Economic and Social History Review 44/​2 (2007), 192; Piliavsky, ‘The Moghia Menace’ (n 156); and David Arnold, ‘The Poison Panics of British India’, in H. Fischer-​Tiné (ed.), Anxieties, Fear and Panic in Colonial Settings: Empires on the Verge of a Nervous Breakdown (Basingstoke: Palgrave 2017), 64–​5. 174 Arnold, Police Power (n 141) 163–​5; and Kumar, ‘Policing Everyday Life’ (n 148) 368. 175 Gooptu, The Politics of the Urban Poor (n 148) 134. See also Saha, Law, Disorder and the Colonial State (n 159) 5, 9–​10; and Bailkin, ‘The Boot and the Spleen’ (n 99). It was the fragmentary nature of the colonial state that made such free reign possible, since the fact that state institutions can act independently makes it possible for states to acquire legitimacy for particular aspects of their governance (such as, for example, maintaining ‘law and order’) despite police violence. See Gupta, Red Tape (n 120); and Khanikar, State, Violence (n 59) 126. 176 Saha, Law, Disorder and the Colonial State (n 159) 72; and Julia Eckert, ‘The Trimurti of the State: State Violence and the Promises of Order and Destruction’, Working Paper No. 80, Max Planck Institute for Social Anthropology Working Papers, Max Planck Institute for Social Anthropology, 2005, 16. The fragmentary nature of the state, as Eckerts notes, ensures that the state ‘speaks in many voices’ in regard to violence (Eckert, ‘The Trimurti of the State’, 16). 177 Comaroff, ‘Governmentality, Materiality, Legality’ (n 162)  121; and Saha, Law, Disorder and the Colonial State (n 159) 66.

32  Colonial Terror cultural and ideological grounding in conquest, which made militarism one of its defining features, ensured that this was impossible.178 Although there is an ongoing tension in studies of the colonial state, between views of it as intrusive, uncompromising, and virtually omnipotent, and as effecting a major transformation of Indian society, to a ‘limited Raj’ that was weak and lacking in the resources and will to be so intrusive—​ or as having, as Ranajit Guha has argued, dominance without hegemony—​focusing on the Indian police reveals that ‘the truth lies somewhere in between’.179 The violence of the colonial state undoubtedly was, as a number of scholars have shown, a product of its real and perceived vulnerabilities.180 This is particularly true of its most spectacular and exceptional forms. But the structural and systemic violence perpetrated by the Indian police also reveals a state for which its inherent weakness—​of its need, in other words, to rely on Indian subordinates—​was also the key to its strength, since it was their performance of the state that ultimately made India governable for its alien occupiers. But if the state in colonial India was dependent on police violence, what does this reveal about the state’s relationship to the ‘rule of law’, not least since the Indian police were regarded as law’s emissary—​as being central, in other words, to the construction of such a rule?181 The ‘rule of law’, through which the British had begun to cloak the moral legitimacy of their rule in India from the late eighteenth century, became the foremost signifier of ‘civilization’ and state legitimacy in a racialized political system in which consent could not be secured through electoral processes.182 It thus not only 178 Douglas Peers, ‘State, Power, and Colonialism’, in Douglas M. Peers and Nandini Gooptu (eds), India and the British Empire (Oxford: Oxford University Press 2012), 30 (hereafter Peers, ‘State, Power, and Colonialism’); and James Lees, ‘A “Tranquil Spectator”: The District Official and the Practice of Local Government in Late Eighteenth-​Century Bengal’, The Journal of Imperial and Commonwealth History 38/​1 (2010), 1. See also David E. Omissi, The Sepoy and the Raj: The Indian Army, 1860-​1940 (London: Palgrave Macmillan 1994); Douglas Peers, Between Mars and Mammon: Colonial Armies and the Garrison State in Nineteenth-​Century India (London: I. B. Taurus 1995); Seema Alavi, The Sepoys and the Company: Tradition and Transition in Northern India 1770-​1830 (Delhi: Oxford University Press 1998); Kaushik Roy, The Army in British India: From Colonial Warfare to Total War, 1857-​1947 (London: Bloomsbury 2012); James Hevia, The Imperial Security State: British Colonial Knowledge and Empire-​Building in Asia (Cambridge: Cambridge University Press, 2012); and Condos, The Insecurity State (n 38) 40–​55. 179 Guha, Dominance without Hegemony (n 169); and Peers, ‘State, Power, and Colonialism’ (n 178) 41. On the conception of the ‘limited Raj’ see Anand Yang, The Limited Raj: Agrarian Relations in Colonial India, Saran District, 1793-​1920 (Delhi: Oxford University Press 1989). 180 See Kim Wager, ‘Treading Upon Fires: the “Mutiny”-​motif and Colonial Anxieties in British India’, Past & Present 218/​1 (2013), 159–​97; Wagner, ‘ “Calculated to strike terror” ’ (n 48); Wagner, Amritsar 1919 (n 76); and Condos, The Insecurity State (n 38). 181 Kumar, ‘Police Matters’ (n 61)  2; and Silvestri, ‘ “The Dirty Work of Empire” ’ (n 144)  3. Indian policemen—​particularly Sikhs, who were regarded by the British as a ‘marital race’—​played such a vital role as emissaries of law that they were recruited to develop other British colonial police forces. See Thomas Metcalf, Imperial Connections:  India in the Indian Ocean Arena, 1860-​1920 (Berkeley, Los Angeles and London: University of California Press 2007), Ch. 4; and Gajendra Singh, ‘India and the Great War: Colonial Fantasies, Anxieties and Discontent’, Studies in Ethnicity and Nationalism 14/​2 (2014), 347. 182 Nasser Hussain, ‘Towards a Jurisprudence of Emergency:  Colonialism and the Rule of Law’, Law and Critique 10 (1999), 97 (hereafter Hussain, ‘Towards a Jurisprudence of Emergency’); and Hussain, The Jurisprudence of Emergency (n 58) 3. See also Jörg Fisch, ‘The Role of International Law in the Territorial Expansion of Europe, 16th-​20th Centuries’, International Center for Comparative Law and Politics Review 3/​1 (2000), 4–​13. The phrase ‘rule of law’, Hussain notes, is ‘notoriously difficult to pin down’, since in addition to referring to government by fixed rules that apply to all it also signifies ideals of justice and human dignity and ‘the victory of reason over will, the universal over the contingent and idea over matter’. Hussain, ‘Towards a Jurisprudence of Emergency’, 96–​7. See also Sandra den Otter, ‘Law, Authority, and Colonial

Introduction: Torture, Empire, and Exception  33 bound the colonial state together but legitimized ‘all aspects of [its] power, capillary and coercive, volitional and violent, arterial and instrumental’ (emphasis added).183 That law could legitimate such a diverse array of state practices of power demonstrates that colonial law, like the states that it served to construct, had neither the coherence nor consistency that it tends to be granted, particularly since the bulk of the scholarship on law in colonial India focuses on its legislative aspects.184 It was made up, instead, of a complex gallimaufry of institutions and practices.185 Violence was, in addition, central to its construction, particularly objective forms.186 As Austin Sarat argues, the violence ‘authorized . . . or condoned by law occurs with all the abnormality of bureaucratic abstraction’; it is generally, therefore, ‘untraceably dispersed’.187 But such dispersal—​including at the hands, for example, of the police acting as ‘petty sovereigns’—​also makes the violence of the law difficult to control. The problem for the British was that despite former Indian police official J. C. Curry’s contention that ‘[e]‌very official act of every police officer in India—​from the highest to the lowest—​is based on law and on the ‘Rule of Law’ [sic], the police as an arm of legality could only operate in a field of illegality, namely both through and beyond the law, which created a blurred boundary between where the force of law ended and the law of force began.188 It was thus through the colonial police that the rule of law was most intimately linked to legal exceptionalism. While this undoubtedly posed problems for the colonial regime, that such a boundary even existed was obscured by a Rule’, in Douglas M. Peers and Nandini Gooptu (eds), India and the British Empire (Oxford:  Oxford University Press 2012), 168–​90. 183 Comaroff, ‘Governmentality, Materiality, Legality’ (n 162) 127. 184 Kumar, ‘Police Matters’ (n 61) 2. The plurality of law in colonial India made such coherence impossible, both in terms of its admixture of alien and indigenous law and the legal diversity within British colonial law (across time as well as space, such as in the differences between what were known as ‘regulation’ versus ‘non-​regulation’ provinces) in regard to legislation as well as practice. See, for example, Benton, A Search for Sovereignty (n 58) 239–​65. 185 Saha, ‘A Mockery of Justice’, 190; see also Comaroff, ‘Colonialism, Culture and Law’ (n 62). For scholarship on colonial India that does examine practices of law see, for example, Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press 1998); Indrani Chatterjee, Gender, Slavery and Law in Colonial India (New Delhi:  Oxford:  Oxford University Press 1999); Mahua Sarkar, Justice in a Gothic Edifice: The Calcutta High Court and Colonial Rule in Bengal (Calcutta: Firma KLM Private Ltd 1997); Kolsky, Colonial Justice (n 75); Mitra Sharafi, Law and Identity in Colonial South Asia (New York: Cambridge University Press 2014); Rachel Lara Sturman, The Government of Social Life in Colonial India:  Liberalism, Religious Law, and Women’s Rights (New  York:  Cambridge University Press 2012); and Saha, Law, Disorder and the Colonial State (n 159). 186 It is for this reason, as Taylor Sherman contends, that defining colonial violence against a purportedly just ‘rule of law’ is problematic. Sherman, State Violence (n 88) 174. See also Austin Sarat and Thomas R. Kearns, ‘A Journey Through Forgetting: Towards a Jurisprudence of Violence’, in Austin Sarat and Thomas R. Kearns (eds), The Fate of Law (Ann Arbor: University of Michigan Press 1991); Austin Sarat and Thomas R. Kearns (eds), Law’s Violence (Ann Arbor: University of Michigan Press 1992); Austin Sarat, ‘Situating Law Between the Realities of Violence and the Claims of Justice’, in Austin Sarat (ed.), Law, Violence, and the Possibility of Justice (Princeton and Oxford: Princeton University Press 2001), 3–​16 (hereafter Sarat, ‘Situating Law’); Austin Sarat (ed.), Pain, Death, and the Law (Ann Arbor: University of Michigan Press 2001); and Benjamin, ‘Critique of Violence’ (n 53). 187 Sarat, ‘Situating Law’ (n 186) 3. 188 Curry, The Indian Police (n 142) 9. See also Samaddar, ‘Law and Terror’ (n 94)52; and Michael Taussig, ‘The Injustice of Policing: Prehistory and Rectitude’, in Austin Sarat and Thomas Kearns (eds), Justice and Injustice in Law and legal Theory (Ann Arbor: the University of Michigan Press 1996), 24 (hereafter Taussig, ‘The Injustice of Policing’).

34  Colonial Terror largely overlooked aspect of colonial law, namely its performative nature.189 As former District Magistrate Robert Carstairs put it, even though colonial officials had little faith in the efficacy of colonial law they had to ‘go through the form’ of performing it.190 For the colonial regime the existence of a rule of law was less important, in other words, than maintaining the facade of one.191

Sovereignty, Torture, and Terror Sovereignty is often more myth than reality, more a story that polities tell about their own power than a definite quality they possess.192 That the British clung to the notion that they were bringing the ‘rule of law’ to India, despite voluminous evidence that the law they brought served only their own political and economic interests, is surely a sign of the ‘hallucinatory effects’ of their own ideology.193 But such a notion may also have been spurred by the discomfort, as William Rasch submits, generated by the figure of the sovereign in democratic states; for the British sovereignty was replaced by the rule of law, according to such a reading, because such a rule supplanted ‘the naked and arbitrary force of a wilful sovereign power’.194 This is not to propose that the aim of the rule of law in colonial India was to place constraints on executive authority. It was, instead, to make the implementation of sovereign power more respectable, to couch ‘the colonial state’s iron fist in a velvet glove’.195 The needs of a regime of conquest required, in short, placing strong discretionary authority in executive power.196 The colonizers may have endeavoured to retain such authority in European hands, but in light of their small numbers, the ability to wield sovereign power—​including through the subversion of the rule of law—​had out of necessity to be accorded to even the lowliest police official in order to ensure the maintenance of colonial rule. Yet although the colonial regime routinely resorted to attempts to maintain its sovereignty through suspending the rule of law in what it regarded as exceptional situations—​for Lauren Benton a key characteristic of colonial states with divided or quasi-​sovereignty197—​it also accommodated the torture and other forms of 189 As Michael Taussig suggests, theatrical performance, in which the courtroom functions as the play within the play, ‘sets the stage for the recurring drama of force and fraud at the heart of the system of justice’. Taussig, ‘The Injustice of Policing’ (n 188) 24. 190 Robert Carstairs, The Little World of an Indian District Officer (London: Macmillan and Co. 1912), 27. 191 The British, Rande Kostal puts it, had ‘a deeply ingrained deference to the forms of law’ (emphasis added). Kostal, A Jurisprudence of Power (n 94) 7. 192 Benton, A Search for Sovereignty (n 58) 238. 193 Guha, Dominance Without Hegemony (n 169) 67. 194 William Rasch, ‘From Sovereign Ban to Banning Sovereignty’, in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 95. 195 Condos, ‘License to Kill’ (n 94) 514. 196 Hussain, ‘Towards a Jurisprudence of Emergency’ (n 182) 101; and Benton, A Search for Sovereignty (n 58) 262. 197 Benton, A Search for Sovereignty (n 58) 241. For Nasser Hussain, what made colonial sovereignties unique was that emergency played such a crucial role in their constitution. Hussain, The Jurisprudence of Emergency (n 58).

Introduction: Torture, Empire, and Exception  35 violence perpetrated by the police as an expression of sovereign power through the institutionalized acceptance of the illegal within the rule of law.198 Such accommodation demonstrates the ways in which emergency powers operated in colonial contexts as ‘an institutional . . . and racialised technique of governance’, rather than simply being a temporary response to a perceived crisis.199 It also reveals the role of the police in colonial India both in making state sovereignty manifest and in constructing what I have referred to as a regime of exception.200 In contrast to the standard orthodoxy that modern notions of state sovereignty emerged in the aftermath of the 1648 Peace of Westphalia, critical-​legal scholars have demonstrated that they were instead shaped by colonial encounters from the late fifteenth century.201 In the positivist international law that emerged as a result of such encounters, indigenous peoples were designated as being inferior to Europeans, disqualified as sovereigns, and denied dominion over their lands, while being rendered liable to physical force if they challenged such claims.202 But the process of acquiring sovereignty over such peoples entailed more than simply claiming a monopoly over the legitimate use of violence.203 It also involved, as Julie Evans argues, legally transforming them from ‘the abandoned subjects of international law (and, therefore, the objects of its force)’ to subjects who were ‘more fully within the pale of the individual colony’s domestic legal system in another, different, form of subjection to violence and discrimination otherwise condemned in law’ (emphases added).204 Such variable incorporation of subjects under the rule of law illuminates the ways in which empire served to fracture conceptions of subjectivity as law came to distinguish different ‘kinds of people’ living under its protection.205 This does not mean, however, that law 198 Santana Khanikar charts a similar process for post-​colonial India, one in which ‘extraordinarity’ thus becomes ‘a routine practiced in an institutionalized fashion and perceived as part of the practice of policing’. Khanikar, State, Violence (n 59) 73. 199 Reynolds, Empire, Emergency (n 15) 70. 200 For the role of the police in constructing the ‘ethos’ of sovereignty see William E. Connolly, ‘The Complexities of Sovereignty’, in Matthew Calarco and Stephen DeCaroli, Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 33. 201 Evans, ‘Where Lawlessness is Law’ (n 92) 10–​11. See also Robert A. Wiliams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990); Peter Fitzpatrick, Modernism and the Grounds of Law (New York: Cambridge University Press 2001); Sudipta Sen, Distant Sovereignty: National Imperialism and the Origins of British India (New York: Routledge 2002); and Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press 2005) (hereafter Anghie, Imperialism, Sovereignty). 202 Such a positivist analysis, according to which the duties and rights of international law were regarded as discrete historical products rather than as inherent in the human condition, had superseded notions of natural law by the early nineteenth century. David Strang, ‘Contested Sovereignty: The Social Construction of Colonial Imperialism’, in Thomas J. Biersteker and Cynthia Weber (eds), State Sovereignty as Social Construct (Cambridge: Cambridge University Press 1996), 33. 203 The British claimed such a monopoly in the case of India even though the limitations of colonial power meant that sovereignty was inevitably layered. Benton, A Search for Sovereignty (n 58) 31; and Radhika Singha, ‘The Privilege of Taking Life: Some “Anomalies” in the Law of Homicide in the Bengal Presidency’, The Indian Economic and Social History Review 30/​2 (1993), 181–​2. 204 Evans, ‘Where Lawlessness is Law’ (n 92) 5. As Anthony Anghie argues, ‘The ambivalent status of the non-​European entity, outside the scope of law and yet within it, lacking international capacity and yet necessarily possessing it . . . was never satisfactorily denied or resolved’. Anghie, Imperialism, Sovereignty (n 201) 81. 205 Paul D. Halliday, Habeas Corpus: From England to Empire (Harvard: The Belknap Press of Harvard University Press 2010), 281, 287–​93 (hereafter Halliday, Habeas Corpus); and Raman, ‘Law in Times’ (n 58) 124.

36  Colonial Terror was absent in colonial contexts, even during states of emergency.206 When necessary, illegal violence could be legalized retroactively, moreover, through either the declaration of martial law, in which ‘normal’ law is suspended and is replaced by military authorities acting according to a different legal lexicon, or the passage of emergency legislation.207 As torture is ‘the quintessential act of exception’, the torture perpetrated by the police in colonial India offers an important lens through which to study such processes.208 In his magisterial study of torture perpetrated by democratic states, Darius Rejali outlines several means through which democratic states come to enact torture.209 In what he refers to as the ‘national security’ model, torture is perpetuated in states of emergency or exception as a means of re-​asserting state sovereignty, as we have seen in the case of colonial Kenya.210 In the juridical model, on the other hand, torture does not emerge where ‘normal’ law is suspended; it is a product, instead, of the way in which law operates in ‘normal’ times.211 It is this model, in which ‘an enabling legal environment  . . .  plants the seeds of torture’, which according to Rejali it does primarily through privileging confessions as forms of evidence, that most concerns me in this book.212 In this model, torture largely operated according to Jeremy Bentham’s unpublished musings as an act in which ‘a person is made to suffer any violent pain of body in order to compel [them] to do something or to desist from doing something which done or desisted 206 Law cannot, in other words, be suspended through law. To take the example of habeas corpus, it is never actually suspended; the law’s powers to detain subjects are, instead, increased. Nor are there any externalities to the rule of law since such a rule implies the movement of law into all spaces of sovereignty in light of the ways of which law is included through its exclusion—​creating, to borrow from Law member to the Government of India, James Fitzjames Stephen, ‘ “dead-​alive” ’ law. In the case of the emergency, Nasser Hussain, drawing from Jacques Derrida, suggests that its relationship to the rule of law is one of supplementarity, since ‘the supplement adds to the original in a mode that is both agonistic and formative—​ a necessary addition which threatens to re-​place the original’. Halliday, Habeas Corpus (n 205)  248–​9; Proceedings of the Legislative Council, 27 March 187, Fitzjames Stephen on the Indian Evidence Bill, V/​ 9/​12, BL, cited in Sandra den Otter, ‘”A Legislating Empire”: Victorian Political Theorists, Codes of Law, and Empire’, in Duncan Bell (ed.), Victorian Visions of Global Empire (Cambridge: Cambridge University Press 2007), 92; and Hussain, The Jurisprudence of Emergency (n 58)  99. See also Jacques Derrida, Of Grammatology (Baltimore: Johns Hopkins University Press 1976), 144–​5; Agamben, Homo Sacer (n 4) 18; and Raman, ‘Law in Times’ (n 58). 207 Evans, ‘Where Lawlessness is Law (n 92)  5, 21; and Benton, A Search for Sovereignty (n 58)  290. For scholarship on the role of martial law in the maintenance of empire see Hussain, A Jurisprudence of Emergency, Ch. 4; Kostal, A Jurisprudence of Power (n 94); David Dyzenhaus, ‘The Puzzle of Martial Law’, University of Toronto Law Journal 59/​1 (2009), 1–​64; and Ryan, ‘Martial Law in the British Empire’ (n 94). The frequent resort to martial law and emergency legislation reveals, as John Reynolds argues, that the British Empire was ‘the site of the most established, sophisticated and pervasive system of emergency rule and legislation’. Reynolds, Empire, Emergency (n 15) 69. 208 Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances (Cambridge:  Cambridge University Press 2013), 199 (hereafter Farrell, The Prohibition of Torture). 209 Although colonial India was clearly not a democratic state, torture in colonial India was perpetrated on behalf of one. 210 Rejali, Torture and Democracy (n 36) 49. 211 Ibid, 46. 212 Ibid, 54. See also Thomas and Leo, Confessions of Guilt (n 51). Torture was legally part of the judicial process during England’s early encounter with India (as well as illegally, as a means of extorting confessions), though this was no longer the case during the period of British rule. Edmond J. Smith, ‘Reporting and Interpreting Legal Violence in Asia: The East India Company’s Printed Accounts of Torture, 1603-​24’, The Journal of Imperial and Commonwealth History 46/​4 (2018), 605, 612–​13.

Introduction: Torture, Empire, and Exception  37 from the penal application is immediately made to cease’.213 For Bentham, writing in the aftermath of the 1798 Irish Rebellion, torture could be justified on utilitarian grounds—​namely by inducing the victim to disclose information that will benefit society at large—​as a means of dealing with recalcitrant colonial subjects, who in addition to being ‘at once . . . “criminal[s]‌” and . . . enemy soldier[s], or rather neither quite one nor the other’, endeavoured to assume the status of sovereign by declaring themselves an exception to the law.214 Torture was not legal in colonial India and was rarely explicitly justified, but its use was, as we shall see, nonetheless legitimated as a practice of law. Its operation thus demonstrates the ways in which torture violates the rule of law while maintaining a connection to the juridical order, since the victim of torture, though deprived of rights in the face of the sovereign power of the state, is nevertheless encapsulated within the state’s notion of order.215 It is through the institutionalization of torture that the exception becomes, in addition, normativized.216 But if the act of torture marks the threshold between the inside and the outside, and thus operates, to borrow from Giorgio Agamben, as a form of ‘inclusive exclusion’, then it also serves to reduce its victims to what Agamben refers to as ‘homo sacer’, or a form of ‘bare life’, namely those who are capable of being killed with impunity.217 In her study of police torture in contemporary India, where approximately 1,500 people die in custody each year, Rachel Wahl argues that for the Indian police there are two groups of people: those whom they regard as worthy of rights under the law and those whom they do not, and who thus, in the words of one police officer, ‘must 213 ‘Of Torture’, Bentham Papers, Box 46/​63–​7, University College London Library, cited in Jeremy Davies, ‘The Fire-​Raisers: Bentham and Torture’, 19: Interdisciplinary Studies in the Long Nineteenth Century 15 (2012), 5–​6 [DOI:  https://​doi.org/​10.16995/​ntn.643] (hereafter Davis, ‘The Fire-​Raisers’); see also William Twining, ‘Bentham on Torture’, Northern Ireland Legal Quarterly 24/​3 (1973), 305–​57. This is not to say that torture in colonial India could not take other forms, such as mental suffering, nor that it did not have long-​term psychological, cultural, social, and inter-​generational effects. Bentham’s understanding is, however, largely the way in which torture was understood in colonial India. 214 Davies, ‘The Fire-​Raisers’ (n 213) 5, 20. Bentham’s understanding of torture can only be deduced from fragmentary texts, written between 1780 and 1804, in his voluminous archive of aborted projects of legal criticism. These have, however, been subject to considerable recent debate on the ethical use of torture. Davies, ‘The Fire-​Raisers’ (n 213) 1–​2; see also Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002), 131–​63. 215 Farrell, The Prohibition of Torture (n 208) 173. 216 According to Upendra Baxi torture is institutionalized when: ‘(i) judicious use of custodial torture is seen both as necessary and justified for the performance of role-​obligations; (ii) there is discretion to use torture, which is fairly widespread (and not hierarchically concentrated), and determinations are consciously made, within the organization, in the exercise and review of this discretion; and (iii) consequentially, the organization as a whole supports these recourses to torture in a variety of ways, even by providing functional and moral justifications, often publicly’. Baxi, The Crisis (n 61) 123. See also Wahl, Just Violence (n 51). 217 Agamben, Homo Sacer (n 4) 21. I have referred to homo sacer as a form of bare life since rather than being synonymous with bare life homo sacer is bare life that is included within the political order. John Reynolds suggests that ‘repressive inclusion’ is a more useful term to encapsulate the experiences of those who are both outside and inside the juridical order in light of the ways in which ‘[i]‌ntermittent crises and moments of exception are bridged and transcended by mundane everyday legal techniques of control and oppression’. I have sought to encapsulate these various forms of exception, however, through the concept of a regime of exception. Steven DeCaroli, ‘Boundary Stones: Giorgio Agamben and the Field of Sovereignty’, in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 52; and Reynolds, Empire, Emergency (n 15) 211.

38  Colonial Terror be eradicated like . . . weeds’.218 Though not couched in the language of rights, the police in colonial India likewise viewed Indian society in terms of ‘gradations’, in which the most marginal members, namely the lower castes and religious minorities, were deemed the most expendable.219 But as it was largely the lower rungs of the colonial police—​men who, like so many of their victims, were, in the words of former Indian police official T. C. Arthur, kept in such a state of impoverishment that they were little more than ‘shambling scarecrows’—​who enacted torture, and the police, like the torturer (for our purposes largely one and the same) are both inside and outside the field of sovereign decision, then ‘victims’ and ‘perpetrators’ were not immutable categories in colonial India.220 As in the case of the estimated 5,000 subordinate police who were ‘sent adrift’ during a famine as part of an attempt to reduce police expenditure—​or, doubtless, some of the one-​third of the entire police force of the province of Bengal who were, in any given year, deemed ‘unfit’ for service—​the colonial regime’s violence workers, like their victims, could be rendered homo sacer.221 They were not expendable, however, as a means of eradicating torture, since few police officers were sentenced to death for committing torture in colonial India, even when torture resulted in the demise of the victim. Abolishing torture was no more an aim of the British colonial state in India than was the eradication of corruption in light 218 Wahl, Just Violence (n 51) 56; and Grace Pelly, Jai Singh, Independent People’s Tribunal on Torture, Extra-​Judicial Killings and Forced Disappearances, and Human Rights Law Network, State Terrorism: Torture, Extra-​Judicial Killings and Forced Disappearances in India: Report of the Independent People’s Tribunal 9-​10 February 2008 (New Delhi: Human Rights Law Network 2009), 100 (hereafter Pelly, State Terrorism). See also Balagopal, ‘Deaths in Police Custody’ (n 155) 2028–​29; and Nitya Ramakrishnan, In Custody: Law, Impunity and Prisoner Abuse in South Asia (New Delhi: Sage 2013). Their reduction to bare life is clear for torture victims; as one victim informed the Independent People’s Tribunal on Torture, Extra-​Judicial Killings and Forced Disappearances, her torturers ‘ “did not really care” ’ for her life, since in their understanding she was already dead, and torture was merely a means to dispose of her body. Pelly, State Terrorism (n 218) 75. 219 Indian police officer, personal interview, cited in Wahl, Just Violence (n 51) 59. See also Heath, ‘Torture, the State and Sexual Violence’ (n 100). On the nature of caste as a system of graded inequalities see B. R. Ambedkar, ‘Castes in India: Their Mechanism, Genesis and Development’, in Frances W. Pritchett (ed.), Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1 (Bombay: Education Department, Government of Maharashtra, 1979), 3–​22. 220 Farrell, The Prohibition of Torture (n 208)  246; Jauregui, Provisional Authority (n 152)  104; and Jauregui, ‘Civilised Coercion’ (n 170)  374. For the challenges such affective engagement with perpetrators of violence poses see also Beatrice Jauregui, ‘Intimacy: Personal Policing, Ethnographic Kinship and Critical Empathy in Northern India’, in Didier Fassin (ed.), Writing the Worlds of Policing: The Difference Ethnography Makes (Chicago: University of Chicago Press, 2018), 62–​91. 221 Miyan Mithu Khan, Confessions of a Constable (Benares: E. J. Lazarus and Co., Medical Hall Press 1875), 132; and Peter Robb, ‘The Ordering of Rural India’ (n 144) 128. According to Beatrice Jauregui the police rank-​and file in post-​colonial India are not homo sacer since they are paid professionals and are not generally consigned to physical death; for her the fact that 30,000 of them have died in the line of duty since 1961 demonstrates that they are, instead, simply expendable. A poem from the Calcutta Police Journal, published in 1939, captures the sense of expendability felt by the police themselves: And don’t worry for the Policeman Let him go to the Devil If he dies—​ Well, let him die, It is his duty to get murdered Sometimes [277] . . . A feared, detestable, lonely figure In the crowd. But the fact that the police themselves, as Rachel Wahl puts it, ‘feel excluded from the category of “humans” ’ suggests that such expendability, in both the colonial era and the present, can cross over into homo

Introduction: Torture, Empire, and Exception  39 of the role of both in constructing the state’s sovereignty.222 What made the subordinate police expendable, instead, was the role the state’s disciplining of them played in such construction. For the problem for the colonial regime was that the security value of the Indian police resided not only in their oppressive or disciplinary functions, but in their value as informants.223 As an occupying force, such a regime was reliant, as numerous scholars have demonstrated, on information—​on, in particular, the function of the police as intermediaries between the state and society.224 As a security tool their use therefore had to be finely calibrated, since they posed a threat to the colonial regime if they were given either too little or too much free reign. The colonial state’s sovereignty, then, was constructed as much through reining in the Indian police, of disciplining them, as it was through giving them free reign.225 As such, the colonial regime had no need to improve the dire condition of its subordinate police; such a condition instead made it possible for it to displace blame for the violence on which it depended onto colonized men, who were as much victims of such violence as perpetrators of it.226 When it came to torture, therefore, it was only when the colonial regime’s demand or expectation for the police to enact it became too obvious—​when it erupted, in other words, into scandal—​that the state made ostensible attempts to eradicate it as a policing practice.227 According to Nicholas Dirks, no imperial ambition can ever sacerization. Jauregui, Provisional Authority (n 152) 104–​5, 88; Ashu Chatterjee, ‘The Policeman’, Calcutta Police Journal 1 (1939), 5–​9, cited in Silvestri, ‘ “The Dirty Work of Empire” ’ (n 144) 277–​8; and Wahl, Just Violence (n 51) 171. See also Baxi, The Crisis (n 61) 86–​92. 222 Baxi, The Crisis (n 61) 99–​102; Robb, ‘The Ordering of Rural India’ (n 144) 134; and Saha, Law, Disorder and the Colonial State (n 159) 9–​10, 18–​19. See also Akhil Gupta, ‘Blurred Boundaries’ (n 167); and Ranajit Guha, ‘Two Campaigns’, in The Small Voice of History: Collected Essays (Delhi: Permanent Black 2002), 612–​ 28. In contrast to torture, however, corruption, like colonial constructions of criminality, was a discursive product of colonial rule. As in the case of torture it was, however, used to discipline Indians, particularly subordinate officials—​albeit not too harshly, considering the positive effect it had in tying both subordinate officials and indigenous elites to colonial rule. In regard to policing and corruption Michael Taussig avers that there is no such thing as policing ‘before’ or ‘outside’ of corruption, since ‘corruption . . . sets the decisive parameters such that policing is a form of corruption’ (emphasis in original). Robb, ‘The Ordering of Rural India’ (n 144) 134; and Taussig, ‘The Injustice of Policing’ (n 188) 20; see also Gupta, ‘Blurred Boundaries’ (n 167); and Gupta, Red Tape (n 120) 76–​138. 223 Chakrabarti, ‘Pax Britannica’ (n 144) 78; Finkle, ‘State, Power and Police’ (n 144) 58, 188–​94; and Silvestri, ‘ “The Dirty Work of Empire” ’ (n 144) 70. 224 The expectation that the police ‘should mix as much as possible with people of the locality, get on intimate and friendly terms with them and try to induce them to talk’ was clearly enshrined in police training manuals. W. Swain, Manual for the Instruction of Constables in their Duties (Calcutta 1903), cited in Silvestri, ‘ “The Dirty Work of Empire” ’ (n 144) 70. 225 Finkle, ‘State, Power and Police’ (n 144)  6–​15, 48; Kumar and Verma, ‘Hegemony, Discipline and Control’ (n 144) 65; Piliavsky, ‘The Moghia Menace’ (n 156); and Jauregui, Provisional Authority (n 152) 147–​ 8. Akhil Gupta’s observation that ‘[s]‌tructural violence against the poor . . . is constitutive of the state’ is thus as apt regarding the colonial state as it is of its post-​colonial successor. Gupta, Red Tape (n 120) 72. 226 Clea Finkle suggests that it was only through their criminality that members of the subordinate police in colonial India could achieve a subject position. Finkle, ‘State, Power and Police’ (n 144) f. 63, 146. 227 Although torture is an open secret in imperial and colonial contexts it erupts into public discourse only when it becomes a scandalous spectacle. In his study of flogging scandals in colonial Nigeria Steven Pierce suggests that even in cases in which such a punishment was legal and carried out with careful attention to approved procedure it appeared, as a form of spectacle, to be both cruel and demeaning; the British repugnancy towards flogging thus stemmed, according to Pierce, not from the flogging itself but from the pathos induced by the spectacle of its application. Pierce, ‘Punishment and the Political Body’ (n 102) 209.

40  Colonial Terror be divorced from scandal since scandal is, ultimately, ‘what empire is all about’.228 But rather than undermining empire, such scandals ‘become ritual moments in which the sacrifice of the reputation of one or more individuals allows many more to continue their scandalous ways’.229 As Dirks argues, what must be erased is not the underlying systemic causes of scandal but the scandal itself. When it comes to empire, scandalous revelations about transgressions of the rule of law simply serve, therefore, to ensure the re-​legitimization of existing norms while making empire appear to be a natural expansion of the sovereignty of the conquering power.230 Since institutionalized torture operates as a form of terror, one that seeks to infiltrate the ‘life-​worlds’ of the peoples who are subjected to it, the eruption of torture into scandal did nothing, therefore, to undermine the reliance of the British colonial regime in India on the terror perpetrated by the police, or the power of police thanas (stations) ‘to symbolise the authority, the primary unit of the alleged “Rule of Law”, its attendant terror and the exploitative nature of . . . alien rule’.231 This was inevitable in light both of the salutary role that ‘a proper degree of terror’ was regarded as having in the governance of colonized peoples, and because torture operated as a form of collective disciplining.232 While many scholars have noted the reliance of colonial regimes on terror during times of crisis, what I am suggesting in Colonial Terror, therefore, is that terror was central to the operation of colonial systems of rule.

Colonial Terror Colonial Terror begins, however, not with torture or terror but with a reconsideration of the nature of colonial violence, since as I argue in Chapter 1, ‘Violence, the Exception, and Bare Life’, rather than being an aberrant act of violence, police torture in colonial India was instead simply a visible manifestation of a much broader history of quotidian, structural, and ‘civilizing’ violence. Such forms of violence, the chapter suggests, ruptured and unmade the world of the colonized, who in turn resorted to violence as a means of world-​making or re-​worlding. The chapter examines, in addition, how violence operated in relation to the exception through engaging with both Giorgio Agamben’s work on states of exception and Foucault’s insights on governmentality, and argues that two levels of exceptionality were in operation in contexts such as colonial India that essentially transformed them into regimes of exception in which much of the colonized population was rendered homo sacer. 228 Dirks, The Scandal of Empire (n 105) 35. 229 Ibid, 30. 230 Epstein, ‘Politics of Colonial Sensation’ (n 105) 739; and Dirks, The Scandal of Empire (n 105) xii. Scandals also serve to affirm the colonizers’ view of the colonized. 231 Marita Sturken, ‘Comfort, Irony, and Trivialization: The Mediation of Torture’, International Journal of Cultural Studies 14/​4 (2011), 426; Taussig, ‘Terror as Usual’ (n 122) 269; and Chakrabarti, ‘Pax Britannica’ (n 144) 78. On the effects of living with terror see Linda Green, ‘Living in a State of Fear’, in Nancy Scheper-​ Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 186–​95. 232 Letter, Sir John Craddock to Lord Liverpool, 1812, cited in Price, ‘The Psychology of Colonial Violence’ (n 52) 37. See also Ben Maclennan, A Proper Degree of Terror: John Graham and the Cape’s Eastern Frontier (Johannesburg: Ravan Press 1986).

Introduction: Torture, Empire, and Exception  41 Chapter 2, ‘The Facilitators I: Policing’, focuses on the role of atrocity facilitators, particularly colonial officials and the British government, in the governmentalization of torture by the police and other officials in colonial India, and examines the ways in which, following the transfer of India’s governance from the East India Company to the Crown in 1858, the extra-​legal violence of torture became systematized in India as a technology of colonial rule. Beginning with an analysis of what led to the perpetration of torture by state officials, the existence of which had long been known in both India and Britain, to erupt into scandal in 1854, the chapter interrogates how the commission set up to investigate torture led to the emergence of a new facilitatory discourse that served both to deny the existence of torture and the structural violence that underpinned it, as well as to displace blame for it from the colonial regime to its Indian subordinates. The chapter further explores how police reform in the commission’s aftermath was designed not to eradicate torture or ensure the welfare of the Indian populace, but to safeguard the coercive and terrorizing powers of the colonial state. Chapter 3, ‘The Facilitators II: Law and “Justice” ’, continues the exploration of the ways in which torture was facilitated in colonial India by analysing the role of the judicial system in such a process. It argues that the creation of an enabling legal environment for torture was vital to the construction of India as a regime of exception. The chapter examines how, although extra-​legal torture was enshrined as an offence in the Indian Penal Code, and other legal provisions were made during the course of the nineteenth century to make it more difficult for the police to commit torture, the law, and with it the wider judicial system, ultimately did little to limit their official discretion to do so, most notably through privileging confessions over other forms of evidence. The chapter also considers the nature and operation of the judicial system in the nineteenth and twentieth centuries, particularly how the recruitment and training (or lack thereof) of magistrates and judges, colonial evidentiary norms, the over-​ reliance on medical testimony, the management of police violence extra-​judiciously, and the lack of separation of powers between the judiciary and the executive enabled police torture. Chapter 4, ‘The Perpetrators’, turns from the facilitation of torture to its perpetration. It endeavours to explicate the agency of the torturers, especially why they chose to do what they did, through analysing the key factors that transformed Indian police officers into perpetrators of torture, who the police tortured, and how they did so. Focusing on why sexual violence, in particular, became a key component of Indian policing, the chapter draws upon what Ervin Straub terms the ‘three levels’ of torture in order to elucidate the motivations and psychological processes that drove subaltern Indian men to become torturers, the particular group dynamics and institutional structures that led to the production of a culture of torture in the Indian police, and the historical processes and cultural characteristics that provided fertile ground for the emergence of torture and other forms of extreme harm doing.233 Since torturers are made, not born, the chapter suggests, in addition, that police torturers in colonial India be viewed not only as perpetrators of colonial violence but as victims of it.

233 Ervin Straub, ‘The Psychology and Culture of Torture and Torturers’, in Peter Suedfeld (ed.), Psychology and Torture (New York: Hemisphere Publishing Co. 1990), 49–​76.

42  Colonial Terror Colonial Terror concludes by exploring how the colonial regime’s attempts, in the decades following the Madras torture commission, to deny the ongoing prevalence of torture in the Indian police began to unravel in the early twentieth century thanks to the emergence of a voluble Indian press and a mass nationalist movement. But it was not until 1909, following the failure of a series of high-​profile ‘conspiracy’ trials due to the ongoing reliance of the police on extorted confessions as their primary form of evidence, combined with pressure exerted by yet another group of reformist MPs, that torture once again erupted into scandal. The Indian and British governments were thus forced to act, but although the actions they took exposed the sheer scale of police torture in colonial India, they did little, once again, to attempt to eradicate it, since eradication was impossible thanks to the importance of torture to the maintenance of colonial rule. They endeavoured, instead, therefore, to make it disappear by renaming it, as well as to transform India into a fully-​fledged state of exception in which police torture could continue to flourish, freed from the constraints placed on it by the rule of law. As this introduction has undoubtedly made clear, this book is a work of history. But it is history that is deeply theoretically formed. As such it takes Ethan Kleinberg, Joan Wallach Scott, and Gary Wilder’s paean to Clio, the muse of history, seriously, namely that without theory history is but tales that signify little beyond themselves, leaving ‘the operations of power/​and sources of injustice . . . mystified,/​impenetrable to us mortals’.234 This is a work, therefore, of critical history. As such it treats theory as a ‘worldly practice’ through seeking not only to link the present to the past but to challenge the logic of both in order to question the certainties of the present and to generate possibilities for a different sort of world.235 This book has been a long time in the making, during the course of which right-​wing regimes have risen to power in the United States, Britain, India, and other parts of the world that are predicated on a politics of hate, of a purported ‘us’ versus ‘them’, and which have been fuelled in innumerable ways by empire and its legacies. Such developments, and the many forms of resistance that have arisen in response to them, have played out in events ranging from Brexit to national responses to the COVID pandemic, and made apparent what is all too often ignored or unseen by those implicated in the structural and economic violence—​including torture—​that continues to thrive in empire’s wake, namely its ongoing impact on the bodies of those regarded as racial, ethnic, religious, or cultural others. The time has therefore never been more pressing to offer new interventions into debates and struggles regarding colonial history and its legacies.

234 Ethan Kleinberg, Joan Wallach Scott, and Gary Wilder, ‘Theses on Theory and History’ (Wild On Collective, May 2018) accessed 8 August 2019. I thank Jonathan Saha for this reference. 235 Ibid.

1

Violence, the Exception, and Bare Life To characterize any conduct whatever towards a barbarous people as a violation of the law of nations, only shows that he who so speaks has never considered the subject.1

To understand how torture functioned as a technology of colonial rule in India we need to begin by reconsidering the nature of colonial violence, since although torture is generally studied as an aberrant or exceptional act of violence, particularly when enacted by democratic states, in colonial India it was instead simply a manifestation, or symptom, of a much broader history of structural violence that operated in what I have termed a regime of exception. Before we can understand the operation of colonial torture, which I will examine in the following chapters, we need a better understanding, therefore, of colonial violence and its effects, as well as of how such violence operates in relation to the exception. That is the focus of this chapter. In considering such issues I will engage with Giorgio Agamben’s work on states of exception which, while it has been subjected to considerable critique, has received little sustained analysis in terms of its applicability to the study of former colonies. I am not, however, suggesting that scholars of colonialism should adopt Agamben’s arguments wholesale; although they offer valuable tools with which to think through the ways in which the exception operated in colonial contexts they should nonetheless be approached with considerable caution, not least since their vision of exceptionality is limited by Agamben’s emphasis on a strong, unified sovereignty. To overcome such limitations I will therefore combine such arguments with Foucault’s insights on governmentality in order to demonstrate that two levels of exceptionality were in operation in colonies such as India that effectively transformed them into regimes of exception in which much of the colonized population was rendered homo sacer. My intent is not, however, to reduce all colonial subjects to victims. Not only is resistance still possible for those made homo sacer, but particular groups faced the brunt of the colonial state’s sovereign violence more than others, and the experiences of the individuals reduced to bare life also vary according to class, caste, age, and gender. My goal is, rather, to challenge some of the frames of reference through which colonial states and the violence they enacted are discussed.

1 John Stuart Mill, Dissertations and Discussions:  Political, Philosophical, and Historical, Vol. 3 (New York: Henry Holt & Co. 1874), 253. Colonial Terror. Deana Heath, Oxford University Press (2021). © Deana Heath. DOI: 10.1093/​oso/​9780192893932.003.0002

44  Colonial Terror

Rethinking Colonial Violence A file of sweepers . . . [s]‌tarveling wretches, with stick-​like limbs and knees too feeble to be straightened, draped in earth-​coloured rags . . . were like a procession of shrouded skeletons walking.2 Violence was not a peripheral or aberrant aspect of colonialism. What made violence central to the operation of European empires, according to Michael Hardt and Antonio Negri, was that ‘The European Self needs violence and needs to confront its Other to feel and maintain its power, to remake itself continually.’3 Such violence was justified, however, on the grounds that colonized societies were ‘backward’, lacking in rationality, inherently violent, and had higher thresholds of pain (or, as Fanon put it, were regarded as ‘a sort of quintessence of evil’), and hence violence was the only possible way to govern them.4 Violence, as a consequence, came to constitute the essence of the difference of the colonized, and to demarcate everything that the colonizers found unfamiliar or threatening among the peoples whom they sought to subjugate.5 It was thus an important means through which indigenous peoples were discursively and physically racialized, infantilized, de-​masculinized, and, ultimately,

2 George Orwell, Burmese Days (San Diego, New York and London: Harcourt Brace Jovanovich 1934), 76. As Orwell wrote, two years after he resigned from his post in the Indian police in Burma (then governed as part of British India), the severity of Britain’s economic exploitation of Burma was such that the relationship between the two was one of master and slave. George Orwell, A Kind of Compulsion: 1903-​36, in Peter H. Davison (ed.) Complete Works of George Orwell, Vol. 10 (London: Secker and Warbug 1998), 147, cited in Pankaj Mishra, ‘More Trouble Than It Is Worth’, Common Knowledge 11/​3 (2005), 434. 3 Michael Hardt and Antonio Negri, Empire (Cambridge, MA:  Harvard University Press 2000), 129. While a product of fear and anxiety, such violence dehumanized both the colonizer and the colonized. See Frantz Fanon, The Wretched of the Earth, (first published in 1961, Constance Farrington tr., New York: Grove Press 1963), 249–​310 (hereafter Fanon, The Wretched of the Earth); Albert Memmi, The Colonizer and the Colonized (first published in 1957, Boston, MA: Beacon Press 1965); and Aimé Cesairé, Discourse on Colonialism (first published in 1950, New York: Monthly Review Press 2000). For the role of the other in constructing the European self, see Edward Said, Orientalism (New York: Pantheon 1978). 4 Jamal Barnes, A Genealogy of the Torture Taboo (London and New York: Routledge 2017), 50; Dane Kennedy, ‘Minds in Crisis:  Medico-​moral Theories of Disorder in the Late Colonial World’, in Harald Fischer-​Tiné (ed.), Anxieties, Fear and Panic in Colonial Settings:  Empires on the Verge of a Nervous Breakdown (Basingstoke:  Palgrave 2017), 28; Catherine Hall and Danial Pick, ‘Thinking about Denial’, History Workshop Journal 84 (2017), 6; and Frantz Fanon, Concerning Violence (first published in 1963, Constance Farrington tr., London: Penguin 2008), 8 (hereafter Fanon, Concerning Violence). For justifications of colonial violence, in particular the ways in which the colonizers assigned blame for their own atrocities onto the colonized, see Octave Mannoni, Prospero and Caliban: The Psychology of Colonization (first published in 1956, Ann Arbor:  University of Michigan Press 1990); Ashis Nandy, The Intimate Enemy: Loss and Recovery of Self Under Colonialism (Delhi: Oxford University Press 1983) (hereafter Nandy, The Intimate Enemy); Partha Chatterjee, The Black Hole of Empire: History of a Global Practice of Power (Princeton: Princeton University Press 2012); and Richard N. Price, ‘The Psychology of Colonial Violence’, in Phillip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 34–​6, 41–​2 (hereafter Price, ‘The Psychology of Colonial Violence’). 5 Esme Cleall, Missionary Discourses of Difference, 1840-​1900: Negotiating Otherness in the British Empire, 1840-​1900 (Houndsmills, Hampshire: Palgrave Macmillan 2012), 133. Richard Price argues that, in addition to being a product of fear, colonial violence was constitutive of racial ideology rather than being simply a product of it. Price, ‘The Psychology of Colonial Violence’ (n 4) 29–​34.

Violence, the Exception, and Bare Life  45 ‘civilized’—​or, as Talal Asad puts it, made ‘fully human’.6 Such ‘civilizing’ violence differed, however, from types of violence that were regarded as unproductive and disproportionate cruelty and so were made legally punishable (such as, in the case of colonial India, sati, thuggee, and hookswinging), since it entailed the infliction of what Asad refers to as ‘calculated cruelties’ (emphasis in original).7 As Samera Esmeir argues, provided that violence was properly administered and categorized, and had a productive, disciplinary function, then even forms of violence such as whipping, chaining in irons, or torture could be regarded as both humane and ‘civilizing’.8 Cruelties such as letting peasants starve to death in the course of transforming them into self-​sufficient cultivators (forms, in other words, of unreasonable violence) were therefore rationalized as being a necessary, albeit exceptional, response to native unreason.9 The colonized were not only, however, the victims of violence inflicted by the colonizers. They were also active agents in inflicting violence on each other, since violent, interpersonal crime among the colonized increased under colonial rule as a result of the social dislocation and economic disorder wrought by colonialism.10 Colonial officials were well aware, for example, of the linkages between high revenue assessments, the lengths to which revenue collectors were forced to go in order to collect them,

6 Talal Asad, ‘On Torture, or Cruel, Inhuman and Degrading Treatment’, in Arthur Kleinman, Veena Das, and Margaret Lock (eds), Social Suffering (Berkeley: University of California Press 1997), 293 (hereafter Asad, ‘On Torture’). 7 Ibid, 294, 299; and Samera Esmeir, Juridical Humanity:  A Colonial History (Stanford:  Stanford University Press 2012), 142, 145 (hereafter Esmeir, Juridical Humanity). For torture as a form of ‘civilizing’ violence see also Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances (Cambridge: Cambridge University Press 2013), 246. For an excellent example of the way in which flogging was used as a ‘calculated cruelty’ to effect the reform of Nigerian bodies (and, with it, their evolutionary advancement) through distinguishing ‘good’ flogging from ‘bad’ see Stephen Pierce, ‘Punishment and the Political Body: Flogging and Colonialism in Northern Nigeria’, Interventions 3/​2 (2001), 206–​21; see also Amanda Nettlebeck, ‘Flogging as Judicial Violence: The Colonial Rationale of Corporal Punishment’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 118. 8 Esmeir, Juridical Humanity (n 7) 145; see also Jörg Fisch, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law 1769-​1817 (Wiesbaden: Steiner 1983), 42–​3 (hereafter Fish, Cheap Lives). It is for this reason, Esmeir argues, that ostensibly humanitarian interventions designed to alleviate some kinds of suffering could generate new forms of violence. 9 Asad, ‘On Torture’ (n 6) 299; see also Achille Mbembe, ‘Necropolitics’, Public Culture 15/​1 (2003), 19 (hereafter Mbembe, ‘Necropolitics’); and Neeladri Bhattacharya, ‘Violence and the Languages of Law’, in Aparna Balachandran, Rashmi Pant, and Bhavani Raman, Iterations of Law: Legal Histories from India (New Delhi: Oxford University Press 2018), 100–​1 (hereafter Bhattacharya, ‘Violence and the Languages of Law’). 10 See, for example, David Arnold, ‘Dacoity and Rural Crime in Madras, 1860-​1940’, The Journal of Peasant Studies 6/​2 (1979), 140–​67 (hereafter Arnold, ‘Dacoity and Rural Crime’); Ranajit Guha, Elementary Aspects of Peasant Insurgency in Colonial India (New Delhi:  Oxford University Press 1983) (hereafter Guha, Elementary Aspects of Peasant Insurgency); Bhangya Bhukya, ‘ “Delinquent subjects”: Dacoity and the Creation of a Surveillance Society in Hyderabad State’, The Indian Economic and Social History Review 44/​2 (2007), 179–​212; Heather Douglas and Mark Finnane, Indigenous Crime and Settler Law:  White Sovereignty after Empire (Basingstoke:  Palgrave Macmillan 2012); and Santosh Abraham, ‘Constructing the “Extraordinary Criminals”: Mappila Muslims and Legal Encounters in Early British Colonial Malabar’, Journal of World History 25/​2-​3 (2014), 373–​95. Ranajit Guha gives as an example of how such a process works the case of the Lodhas, traditionally forest-​dwellers who by the turn of the twentieth century had been largely deprived of their forests and who were thus forced to take to crime in order to survive, although they remained largely in a situation of permanent semi-​starvation. The colonial regime dealt with such a situation by declaring them, in 1916, a ‘criminal tribe’. Guha, Elementary Aspects of Peasant Insurgency,  83–​5.

46  Colonial Terror and the proliferation of banditry.11 In the case of India, although interpersonal violence decreased for a short period of time after territories were ‘annexed’, this was followed by an upsurge in dacoity and other forms of violent, interpersonal crime among the colonized that punitive measures by the colonial regime were unable to check.12 Interpersonal violence among the colonized rose, moreover, in times of dearth, economic transformation, or social stress, or the violence wrought, as Fanon brusquely puts it, by ‘famine, eviction. . .  because [they have] not paid the rent, the mother’s dried-​up breasts, children like skeletons, the building-​yard which has closed down’, which were frequently induced (or not alleviated) by colonial laws and policies.13 Yet it is not interrogated as an effect of the objective violence of colonialism, namely of the ways in which the colonized, in Fanon’s words, manifested the ‘aggressiveness which [had] been deposited in [their] bones against [their] own people’ (emphasis added)—​a process that he terms ‘collective autodestruction’.14 Violence perpetrated by the colonized is instead generally framed ‘either as the excess of colonial surplus extraction or as collective projects of rebellion and counterinsurgency’.15 The forms subaltern violence takes, the rationales behind particular forms of violence, the effects of violence on colonized bodies, or the broader culture of structural violence in which peasant lives are enmeshed have, in addition, received little critical attention. Violence, as a result, has been neutered of its real historical import and legacies. That the subjugated might wish to mitigate the nature or impact of such forms of violence is fairly obvious. Few slave narratives, for example, talk about the violence that existed within slave communities.16 But why the scholarship on even a very particularized or gendered form of violence such as sati, or widow immolation, should do so is less clear. Sati has been widely studied as an aspect of colonial and indigenous discourses and ideologies, as a ritualized form of gender oppression, and as a form 11 Tom Lloyd, ‘Thuggee, Marginality and the State Effect in Colonial India, Circa 1770-​1840’, The Indian Economic and Social History Review 45/​2 (2008), 207 (hereafter Lloyd, ‘Thuggee, Marginality and the State Effect’). 12 Arnold, ‘Dacoity and Rural Crime in Madras’ (n 10) 140. 13 Fanon, The Wretched of the Earth (n 3) 307. Murder rates, for example, increased exponentially during times of rising prices, famine, or mass violence. There was thus a large increase in murders in Madras in 1877, including horrific cases of starving mothers killing their children, because of famine. The murder rate likewise soared in Madras between 1912 and 1914 due to high food prices and the outbreak of the First World War (particularly following the shelling of Madras by a German cruiser, which led to a mass exodus and a further rise in prices). From 647 murders in 1912, the murder rate jumped to 689 the following year and to 704 in 1914. But murder rates rose steadily during the colonial period regardless of dearth. While the murder rate throughout India in 1880 was 1,779, this rose to 2,291 in 1886, 2,450 in 1888, and 2,546 in 1891. Anandswarup Gupta, The Police in British India 1861-​1947 (New Delhi:  Concept Publishing Company 1979), 86, 152, 332, 333 (hereafter Gupta, The Police in British India 1861-​1947). 14 Fanon, Concerning Violence (n 4)  20, 23. ‘Every colony’, according to Fanon, ‘tends to turn into a huge farmyard, where the only law is that of the knife’. Fanon, The Wretched of the Earth (n 3) 308; see also Paulo Freire, Pedagogy of the Oppressed (first published in 1970, Myra Bergman Ramos tr., New York and London: Continuum 2005); and Nandy, The Intimate Enemy (n 4). Such a process of auto-​destruction is perhaps most evident (or, at least, most documented) in settler colonial contexts. See, for example, Mark Finnane and Jonathan Richards, ‘ “You’ll get nothing out of it”? The Inquest, Police and Aboriginal Deaths in Colonial Queensland’, Australian Historical Studies 35/​123 (2004), 84–​105. 15 Anupama Rao and Steven Pierce, ‘Discipline and the Other Body: Humanitarianism, Violence, and the Colonial Exception’, in Steven Pierce and Anupama Rao (eds), Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham and London: Duke University Press 2006), 21. 16 Stephen Berry, ‘The Historian as Death Investigator’, in Stephen Berry (ed.), Weirding the War: Stories from the Civil War’s Ragged Edges (Athens, GA: University of Georgia Press 2011), 181.

Violence, the Exception, and Bare Life  47 of anti-​colonial resistance, but not as part of a broader history of embodied violence against Indian women.17 Ania Loomba suggests that although ‘Widow immolation is one of the most spectacular forms of patriarchal violence’, representations of sati have tended both to homogenize it and analyse it in isolation from its ideological, social, and economic fabric.18 The focus on discourse, in particular, obscures the reality of sati as an act of violence against women that has both a particular genealogy and wide-​ ranging socio-​cultural effects. The scholarship on sati also demonstrates that when it comes to violence, scholars of colonialism continue to mine issues that the colonial state itself chose to target as sites of legal intervention, not those that it did not. Scholars generally take one of two approaches (or combine them) when referring to violence perpetrated by the colonized. The first is to relate it to precolonial forms of violence. In her study of a public scandal in the Bombay Presidency in 1855, for example, in which a native police officer was accused of directing the torture of the chief suspect in a case of theft, Anupama Rao locates the phenomenal public support for the officer’s behaviour in the socio-​political organization of the Deccan prior to the onset of colonial rule in 1818.19 The other approach is to root indigenous forms of violence in colonial economic policy and administrative systems (such as harsh taxes and the expropriation of land) and the disruptions these caused to pre-​colonial economies, systems of governance, social hierarchies, and norms. Mike Davis offers an example of such an approach in his chilling account of a series of largely preventable late-​ Victorian famines that were responsible for the deaths of up to sixty million people in Asia, Africa, and Latin America. He reveals not only the horrific effects that starvation had on human bodies and minds, from reducing individuals to mere skeletons to driving them to such insanity that they could kill and eat their own children, but the shocking disregard for the suffering of ‘other others’ among the imperial and colonial regimes that were largely responsible for such horrors.20 In the case of colonial India, in addition to doing little to help prevent famine or provide aid to the victims, the governments of famine-​affected regions implemented militarized tax-​collection campaigns to squeeze from famished survivors what in even good years were excessive revenue demands.21 In such conditions, in which the ties that bound families and 17 Susmita Roye provides an overview of the various scholarly approaches to sati in ‘Suttee Sainthood through Selflessness: Pain of Repression or Power of Devotion?’, South Asia Research 31/​3 (2011), 281–​99. 18 Ania Loomba, ‘Dead Women Tell No Tales:  Issues of Female Subjectivity, Subaltern Agency and Tradition in Colonial and Post-​Colonial Writings on Widow Immolation in India’, History Workshop Journal 36 (1993), 209. 19 Anupama Rao, ‘Problems of Violence, States of Terror: Torture in Colonial India’, in Steven Pierce and Anupama Rao (eds), Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham and London: Duke University Press 2006), 151–​85. 20 Mike Davis, Late Victorian Holocausts: El Niño Famines and the Making of the Third World (London and New York: Verso 2001), 7 (hereafter Davis, Late Victorian Holocausts). As the journalist and famine reporter William Digby observed in 1901, ‘So much has the fact of famine having come to stay grown into the warp and woof of our ordinary life in Britain, that we hear of tens of millions of our fellow-​subjects actually perishing, and [ . . . ] it is true that we pass by on the other side of the way as if the fact concerned us not at all. Or, we say, “A Good thing, surely. There are too many people in India” ’. William Digby, Prosperous British India: A Revelation From Official Records (London: Unwin 1901), 120–​1, cited in Upamanyu Pablo Mukherjee, Natural Disasters and Victorian Empires: Famines, Fevers and the Literary Culture of South Asia (Houndmills, Basingstoke: Palgrave Macmillan 2013), 45. 21 Davis, Late Victorian Holocausts (n 20) 302. In 1897–​1898, for example, a major famine year in India, cultivators were forced to pay their taxes by selling their food grains, £10 million worth of which were exported that year (and even more the year following). Romesh Chunder Dutt, The Economic History of India

48  Colonial Terror communities completely unravelled, social order was only preserved through terror (one reason why expenditures on the military and the police in colonial India in the late nineteenth century were never less than a third of the country’s annual budget).22 Gayatri Spivak has described the effects of colonialism on the colonized as a process of ‘worlding’, which entails the creation of fictions (such as ‘India’) whose task is ‘to produce a whole collection of “effects of the real” ’.23 Such a process of worlding shapes the subjectivities of the colonized, since it obliges them both to recognize the mastery of the colonizers and to see themselves as ‘other’.24 But there are also more material ‘effects of the real’, wrought by the process of state-​formation that accompanied Britain’s exploitation of the sub-​continent.25 While this produced a rupture, in bursting the boundaries of the mother-​state, it also gave rise to a repetition, since it created a ‘state-​ within-​a-​state’ in which the branch was larger than the tree.26 For Spivak, therefore, to ‘define colonialism as either rupture or continuity alone might thus be to reduce overdetermination to a species of determinism’.27 Yet the process that Spivak describes, although it generated a measure of continuity for the colonizing society (by producing an off-​shoot of the English state), also entailed the use of violence as what Ingo Schröder and Bettina Schmidt refer to as ‘a resource in world making . . .’.28 As a result, it unleashed a traumatic process of unworlding for the colonized, since the annihilation of the world is tied not only to cataclysmic events, or to forms of violence such as torture, but to the forms of violence inherent in the ‘ordinary’.29

in the Victorian Age: From the Accession of Queen Victoria in 1837 to the Commencement of the Twentieth Century (6th edn, London: Kegan Paul, Trench, Trubner & Co. Ltd. 1903), 534 (hereafter Dutt, The Economic History of India). 22 Davis, Late Victorian Holocausts (n 20) 302. 23 Gayatri Chakravorty Spivak, ‘The Rani of Sirmur:  An Essay in Reading the Archives’, History and Theory 24/​3 (1985), 254 (hereafter Spivak, ‘The Rani of Sirmur’). 24 Ibid, 249. 25 Ibid, 259. 26 Ibid, 260. 27 Ibid, 262. 28 Ingo W. Schröder and Bettina E. Schmidt, ‘Introduction’, in Anthropology of Violence and Conflict (London: Routledge 2001), 9 (hereafter Schröder and Schmidt, ‘Introduction’). Ranabir Samaddar suggests some of the many forms such world-​making violence took, including ‘assassination, internment, deportation, exile, physical torture, random death penalty, increasing monopolization by the colonial state of the means of violence and murder . . . incarceration, artillery development, punitive taxation, collective punishment . . . race violence, forced labour employed by the army, and starving massive groups of people to death’. Ranabir Samaddar, ‘Law and Terror in the Age of Colonial Constitution Making’, Diogenes 212 (2006), 19. 29 Veena Das, Life and Words: Violence and the Descent into the Ordinary (foreword by Stanley Cavell, Berkeley, Los Angeles, and London: University of California Press 2006), 7 (hereafter Das, Life and Words); and Liz Philipose, ‘The Politics of Pain and the End of Empire’, International Feminist Journal of Politics 9/​1 (2007), 60 (hereafter Philipose, ‘The Politics of Pain’). I  am not suggesting that the impact of such unworlding was uniform, or that the colonized lacked agency in resisting or subverting it. For Fanon violence as a response to the unmaking of the world operates as an assertion of agency, as a ‘cleansing force’ that serves to restore self-​respect and, with it, the sense that ‘colonialism does not exist, that everything is going on as before, that history continues’. It therefore functions as a valuable tool in world making or reworlding. Fanon, Concerning Violence (n 4) 65; and Schröder and Schmidt, ‘Introduction’ (n 9) 9; see also Susan Brison, Aftermath: Violence and the Remaking of a Self (Princeton: Princeton University Press 2002); and Deana Heath, ‘Trauma, History and the Legacies of Colonial Violence’, ISRF Bulletin, special issue on ‘Mind and Violence’ XIX (2019), 9–​14.

Violence, the Exception, and Bare Life  49 The nature of such unworlding violence is apparent if we compare colonial India to its Mughal predecessor. To take the case of standards of living, in contrast to British India, Mughal India was virtually famine-​free, thanks both to state policies to protect peasants in times of dearth and a lower and more flexible system of revenue assessment, and per capita income, food consumption, and life expectancy (which by the end of the nineteenth century had dropped to an incredible 23.7 years) were considerably higher than in British India.30 Indeed, although in the mid-​seventeenth century Indian per capita GDP was over 80 per cent that of Britain’s, by 1871 it had fallen to less than 15 per cent.31 Indian GDP, and with it living standards, began to decline dramatically following the onset of colonial rule in the eighteenth century, but it was only during the nineteenth century that the majority of the Indian population was reduced to ‘bare bones’ subsistence.32 Excessive land revenue demands, from which the Company and later Raj derived most of their income, were a main cause of such unworlding violence.33 Though the land tax in north India dropped from a staggering 83 per cent in 1822 to 75 per cent in 1833 and 66 per cent in 1844, as Romesh Chunder Dutt argued in his pioneering economic history of India, this was still ‘a crushing demand which left the landlords and cultivators of Northern India resourceless’.34 Things were no better in other parts 30 Mike Davis, Late Victorian Holocausts (n 20) 311–​12; Stephen Broadberry and Bishnupriya Gupta, ‘Indian GDP, 1600-​1871: Some Preliminary Estimates and a Comparison With Britain’, Working Paper, Coventry: University of Warwick, Department of Economics (CAGE Online Working Paper Series, Vol. 2010)  accessed 18 May 2018 (hereafter Broadberry and Gupta, ‘Indian GDP’); and Peter Heehs, The Bomb in Bengal: The Rise of Revolutionary Terrorism in India 1900-​1910 (2nd edn, Oxford: Oxford University Press 2004), 4. In contrast to British India, in ancient India the sovereign was expected to undertake various forms of relief in times of famine, put a check on grain hoarding, and reduce revenue demands. A. J. Monahan, The Early History of Bengal (Oxford: Oxford University Press Humphrey Milford 1925), 114, 138. 31 Broadberry and Gupta, ‘Indian GDP’ (n 30) 2. 32 Robert C. Allen, The British Industrial Revolution in Global Perspective (Cambridge:  Cambridge University Press 2009), n.p., cited in Broadberry and Gupta, ‘Indian GDP’ (n 30) 25. Indian GDP had, nonetheless, begun to decline prior to the onset of colonial rule, thanks to the gradual break-​up of the Mughal empire and internal social and economic upheaval. Some scholars have, however, argued that Indian GDP was on a par with Britain’s until the late eighteenth century. See, for example, Andre Gunder Frank, ReOrient: The Silver Age in Asia and the World Economy (Berkeley: University of California Press 1998); and Kenneth Pomeranz, The Great Divergence: China, Europe, and the Making of the Modern World Economy (Princeton: Princeton University Press 2010). 33 Obtaining the maximum possible rent revenue remained, according to Irfan Habib, ‘the basic pillar’ of Company rule until 1850, although the effects of such a policy were far from mitigated thereafter. Other factors that contributed to such unworlding included deindustrialization, customs and duties, the phenomenal growth of landlordism, moneylending, and peasant indebtedness, and what came to be known as ‘home charges’—​which, according to one estimate, had by 1840 reached the staggering sum of £8.4 billion. There were, however, no end of factors that led to wide-​scale impoverishment. As an article in the Calcutta Review asserted in 1856, in the case of Bengal, the average cultivator was ‘reduced to practical slavery . . . under grievously offensive rent laws; . . . [was] liable to be seized and imprisoned, and to have his crops seized, on false ex-​parte statements, by his landlord, without the slightest hope of redress; liable to extortionate and arbitrary exactions of increased rent;. . . and lastly, liable to be expelled and ousted, not for his own default, but after his own rent had been paid, for the default of his landlord in paying his rent to government’. Irfan Habib, ‘Colonization of the Indian Economy, 1757’, Social Scientist 3/​32 (1975), 35; Dutt, The Economic History of India (n 21) 116; Guha, Elementary Aspects of Peasant Insurgency (n 10) 7–​8; and ‘The Commerce, Resources, and Prospects of India’, The Calcutta Review LVI (June 1857), 437. 34 Dutt, The Economic History of India (n 21) 47; and John F. Richards, ‘The Finances of the East India Company in India, c. 1766–​1859’, Economic History Working Papers No 153/​11, Department of Economic History, London School of Economics and Political Science 2011. Although pre-​colonial revenue systems were repressive they were also flexible, since taxes could be paid either in cash or produce, and remissions

50  Colonial Terror of India. In the Deccan, for example, ‘Every effort, lawful and unlawful, was made to get the utmost out of the wretched peasantry, who were subjected to torture, in some instances cruel and revolting beyond all description if they could not yield what was demanded.’35 It was likewise impossible for peasants to meet the excessive revenue demand in Madras, which had a predominantly ryotwari system of settlement.36 The Indian peasantry, according to Dutt, was thus ‘crushed to the ground  . . .  ’.37 Assessments were, moreover, ascertained through ‘guess-​work’, which made agricultural prosperity impossible (particularly since taxes were increased at the first signs of prosperity, and peasants had no legal means of redress against unfair revenue assessments).38 Things improved little for the Indian peasantry in the second half of the nineteenth century; according to Dutt land revenue actually increased by 50 per cent.39 By the turn of the twentieth century Indians were, as a result, being taxed 40 were given in bad years. Under the Company, however, not only were revenue demands increased, but such demands had to be paid in cash, and remissions were given sparingly. Derek Llewellyn Elliott, ‘Torture, Taxes and the Colonial State in Madras, c. 1800-​1858’ (PhD Diss., University of Cambridge 2015), 6. 35 Bombay Administration Report of 1872-​73, 41, cited in Dutt, The Economic History of India (n 21) 52. Dutt is specifically referring, here, to the first land revenue settlement, commenced in 1824 to 1828. Such excessive revenue demands forced many cultivators to abandon their homes and flee to neighbouring states, which led to considerable amounts of land being removed from cultivation. 36 In the ryotwari system, first introduced in 1792 in parts of Madras (and by 1820 in most of the province), and later extended to Bombay, Assam, and Coorgh, peasants were invested with ownership rights. Provincial governments therefore collected taxes directly from peasants rather than, as in the case of the Bengal Permanent Settlement (introduced in 1793), from large landlords. Although the system was designed, ironically, to protect peasants from ‘illegal exactions’, since it necessitated direct contact between peasants and government officials it simply exposed peasants to exactions from such officials, rather than, as in the case of the Permanent Settlement, from the cutcherries (administrative offices) of zamindars (large landowners). Nicholas Hoover Wilson, ‘From Reflection to Refraction:  State Administration in British India, circa 1770-​1885’, American Journal of Sociology 116/​5 (2011), 1455; and Jacques Pouchepadass, ‘Itinerant Kings and Touring Officials: Circulation as a Modality of Power in India, 1700-​1947’, in Claude Markovits, Jacques Pouchepadass, and Sanjay Subrahmanyam (eds), Society and Circulation: Mobile People and Itinerant Cultures in South Asia, 1750-​1950 (Delhi: Permanent Black 2003), 254. See also Ranajit Guha, A Rule of Property for Bengal (Paris: Mouton & Co. 1963); P. J. Marshall, Bengal: The British Bridgehead. Eastern India 1740-​1828 (Cambridge: Cambridge University Press 1987), 117–​27; and Burton Stein, Thomas Munro: The Origins of the Colonial State and His Vision of Empire (Delhi: Oxford University Press 1989). 37 Dutt, The Economic History of India (n 21) 54. 38 Ibid, 49, 52. According to The Revelations of an Orderly, first published in 1846 by ‘Panchkouree Khan’ (the pseudonym of an unnamed Company official), in addition to revenue assessments often being conducted by European officials who went ‘hunting and shooting through the length and breadth of the district entrusted to them, and formed their opinion of the nature and value of the soil they had ridden over’, the Indian officers employed in survey work were so poorly paid that the whole process was riven with corruption—​to the great detriment of the peasant, particularly since cultivators had no right of appeal on the amount of their assessment to an independent tribunal. The Bombay Revenue Jurisdiction Act of 1876, for example, specifically prohibited cultivators from seeking redress from harsh revenue assessments in civil courts. Panchkouree Khan, The Revelations of an Orderly, Being an Attempt to Expose the Abuses of Administration by the Relation of Every-​day Occurrences in the Mofussil Courts (first published in 1846, Calcutta: Englishmen Press 1857), 78; and Dutt, The Economic History of India (n 21) 334. 39 Dutt, The Economic History of India (n 21) 459. For Dutt, although some stability in land assessments was established in northern India in 1855 (with the fixing of the settlement at 50 per cent of the assessed land value) and in southern India in 1865, this was undermined by the repeated imposition of additional taxes on land in the final decades of the nineteenth century, which considerably increased the revenue burden on cultivators. Settlement operators, furthermore, who were given more absolute powers as the century progressed, repeatedly ignored the rules for assessment and imposed excessively high revenues. The effect of such policies on peasants is clear from a study of malarial deaths in 1875, in which it was revealed that mortality was highest amongst day-​labourers (37 per cent) and peasant cultivators (31 per cent). Ibid,

Violence, the Exception, and Bare Life  51 per cent more than their counterparts in Britain, a situation that ensured that a large percentage lived in a state of permanent semi-​starvation.40 As a witness to the 1848 Cotton Committee observed, British colonial rule had, therefore, ‘generally tended to the impoverishment and abasement of the people’.41 Such unworlding violence is also apparent in the case of jurisprudence. The pre-​ colonial Indian state intervened in domestic, caste, and community life to regulate interpersonal relations in an effort, according to Dilbaugh Singh, not only to maintain social order but to ‘to uphold the honour and self-​respect of individuals . . .’.42 It therefore imposed stringent punishments on individuals and even entire communities for actions that violated codes of conduct that governed family and social life, including insulting one’s elders, violence against women, a failure to show due respect (even to members of the lower castes), and transgressions of caste norms.43 Although elements of this pre-​colonial legal system persisted under British rule, these had to co-​exist with ‘an alien legal system masquerading as law’—​a system that was superimposed, despotic, and concerned primarily with its self-​preservation rather than the well-​being of its subjects—​and that transformed the colonized into aliens in their own homelands.44 As James Fitzjames Stephen, law member to the government of India (1869–​1872), 400, 489, 502; and Sugata Bose, The New Cambridge History of India, III: 2, Peasant Labour and Colonial Capital: Rural Bengal Since 1770 (New Delhi: Cambridge University Press 1993), 25. 40 Dutt, The Economic History of India (n 21) 603–​4. The nature, and effects, of colonial taxation policies were, however, far from uniform. In Punjab, for example, which was not annexed to British India until 1849, what were regarded as generous tax assessments, rather than the maximization of profits, became the norm from the 1850s as a means of warding off rural discontent, a policy consolidated in the aftermath of the 1857–​1858 Revolt in order to protect what had become the prime recruiting ground of the Indian army—​although by the mid-​1860s the land tax amounted, as in the rest of north India, to no less than 50 per cent of the value of all produce. R. K. Mazumder, The Indian Army and the Making of Punjab (New Delhi: Permanent Black 2003), Ch. 3; and Mark Condos, The Insecurity State: Punjab and the Making of Colonial Power in British India (Cambridge: Cambridge University Press 2017), 87–​8 (hereafter Condos, The Insecurity State). 41 Report from the Select Committee on the Growth of Cotton in India (1848), 262–​3, cited in Dutt, The Economic History of India (n 21) 136. As Zak Leonard argues, a key concern of the committee, however, was the impact such impoverishment had on hindering the increase of cotton production in India. Zak Leonard, ‘ “A Blot on English Justice”: India Reformism and the Rhetoric of Virtual Slavery’, Modern Asian Studies (2020), 27 (hereafter Leonard, ‘ “A Blot on English Justice” ’). 42 Dilbagh Singh, ‘Regulating the Domestic: Notes on the Pre-​colonial State and the Family’, Studies in History 19/​1 (2003), 78. 43 Ibid, 70–​9; and Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press 1998), 10 (hereafter Singha, A Despotism of Law). The practices that Singh describes are in stark contrast to those of the colonial regime, which created a legal and administrative framework that normativized violence against particular groups. Since unworlding ‘requires a return to and mutilation of the domestic, the ground of all making’, this inevitably included women. Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York and Oxford: Oxford University Press 1985), 45 (hereafter Scarry, The Body in Pain). See also Radhika Singha, ‘Making the Domestic More Domestic:  Criminal Law and the “head of the household”, 1772-​1843’, The Indian Economic and Social History Review 33/​3 (1996), 309–​43; and Indrani Chatterjee, Gender, Slavery and Law in Colonial India (New Delhi: Oxford University Press 1999). 44 Spivak, ‘The Rani of Sirmur’ (n 23) 250; and Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (New Delhi: Cambridge University Press 2010), 31. Such alienation was apparent to those who rubbed noses with the British within the colonial criminal justice system, such as B. N. Lahiri, who as the first Indian officer recruited directly into the Indian police (in 1922), found himself ‘at times oppressed by a feeling of loneliness, which made me wonder where I was and if I at all stood on my native soil’. B. N. Lahiri, Before and After (Allahabad: Chugh Publications 1974), 13.

52  Colonial Terror pronounced, the legal codes developed by the British in India were ‘eminently well calculated . . . to beat down wrongdoers, to extort respect [and] to enforce obedience’.45 Stephens thus reveals the violence that underpinned the imposition of an alien legal system in a colonial context such as India (or, rather, of a hodgepodge of alien and indigenous law). To take the case of the death penalty, while Indian rulers had rarely imposed it (for the British a sign of ‘deficiency of vigour in criminal justice’), their colonial successors sought to create a stronger link between sovereignty and the state’s prerogative to take the lives of its subjects.46 That colonial law courts were a source of terror for those subjected to them is suggested by Calcutta High Court Justice Seton-​ Karr, who excused discrepancies on the part of the testimonies of several Indians charged with dacoity due to their ‘terror and want of presence of mind’ when charged with such a crime and in being ‘brought face to face, for the first time in their lives, probably with all the apparatus of a Court of Justice’.47 When it came to colonial justice, therefore, not only did legal interpretation operate ‘in a field of pain and death’, as Robert Cover has argued, but such pain and death ‘destroy[ed] the world that “interpretation” calls up’.48 That the pain and suffering of those subjected to such forms of violence continues to remain largely invisible is a product, in part, of the humanitarian responses to pain that began to emerge in the Anglo-​American world in the eighteenth century, a time when the infliction of pain was becoming associated with savagery and barbarism.49 Pain itself therefore became increasingly regarded not only as improper and taboo, but as obscene and titillating.50 Pornography, too, came to demonstrate 45 James Fitzjames Stephen, A History of the Criminal Law of England, Vol. 3 (London:  Macmillan 1883), 345, cited in Anjali Arondekar, For the Record:  On Sexuality and the Colonial Archive in India (Durham: Duke University Press 2009), 81. 46 Singha, A Despotism of Law (n 43) 52; Nicholas B. Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge and London: Harvard University Press 2006), 221 (hereafter Dirks, The Scandal of Empire); Fisch, Cheap Lives (n 8) 31, 39, 72, 78; and Sumit Guha, ‘An Indian Penal Regime: Maharashtra in the Eighteenth Century’, Past and Present 147 (1994), 123. See also B. S. Jain, Administration of Justice in Seventeenth Century India: A Study of Salient Concepts of Mughal Justice (Delhi: Metropolitan Book Co. 1970), 72–​3. Since the East India Company’s criminal courts applied a modified version of Islamic law, which in contrast to the hundreds of capital offences in British law virtually limited capital punishment to cases of wilful murder (albeit with restrictions), the Company was constrained in its use of the death penalty until the enactment of the Indian Penal Code in 1862 (as the Sudder Diwani Adalut lamented in 1814, it could not pronounce a capital sentence as often as it deemed necessary because of ‘the scrupulous exactness of evidence required by the Mahomedan law’). Thereafter, colonial courts made liberal use of the death penalty, particularly at times when the colonial state’s sovereignty was under threat. In 1908, for example, a time of widespread resistance to the colonial regime, 504 individuals were sentenced to death, a figure which rose to 516 the following year. Fisch, Cheap Lives (n 8) 29; Singha, A Despotism of Law (n 43) 239; Report of the Sudder Adalut, 26 July 1814, Selection of Papers from the Records at East-​India House, Relating to the Revenue, Police, and Civil and Criminal Justice under the Company’s Governments in India, Vol. II (London 1820), 258–​89, cited in Anandswarup Gupta, Crime and Police in India [Up to 1861] (Agra: Sahitya Bhawan, 1974), 111; and ‘India in Parliament: House of Commons’, Amrita Bazar Patrika (Calcutta 11 April 1909), 8. 47 ‘Calcutta High Court: Appellate Jurisdiction, 6th December 1865’ (Before the Hon’ble Mr. F. B. Kemp and Seton-​Karr, Judges), The Times of India (London, 27 December 1865). 48 Robert M. Cover, ‘Violence and the Word’, in Bruce B. Lawrence and Aisha Karim (eds), On Violence: A Reader (Durham and London: Duke University Press 2007), 293. 49 Margaret Abruzzo, Polemical Pain: Slavery, Cruelty and the Rise of Humanitarianism (Baltimore: Johns Hopkins University Press 2011). 50 Karen Halttunen, ‘Humanitarianism and the Pornography of Pain in Anglo-​American Culture’, American Historical Review 100/​2 (1995), 304 (hereafter Halttunen, ‘Humanitarianism and the Pornography of Pain’).

Violence, the Exception, and Bare Life  53 a growing penchant for scenarios of pain, suffering, and torture, so it is perhaps not surprising that ostensibly humanitarian responses to the suffering of the victims of imperial and colonial violence could take the form of what Mario Klarer terms ‘humanitarian pornography’.51 What rendered the spectacle of the colonized and tortured body a site of eroticism, as well as empathy, was that humanitarian sympathy, rather than demolishing the distance between the spectator and the suffering victim, served instead to increase it, and to objectify the sufferers.52 As Edmund Burke put it, pain and suffering became ‘delightful’ when viewed at a distance.53 Such a sensibility, rather than leading to the eradication of pain practices such as torture, thus led instead to their growing privatization.54 The pain and suffering to which colonized peoples were subject has also been rendered invisible, however, by the lack of world-​extension of colonialism’s victims. As Elaine Scarry observes, privileged groups generally justify the preservation of their privileges not on the pain or suffering of those less fortunate but on the fact that ‘the latter have less world’ (i.e. education, property, drive, etc.); it is precisely, however, the pain and suffering of those with ‘less world’ that dispels their ‘world-​extension’.55 For the colonized, therefore, their pain and hunger dissolved their world-​extension, which, in turn, continues to obscure their pain and hunger. Such a paradox reveals one of the many ways in which violence subjectifies or de-​subjectifies depending on how it 51 Ibid, 314; and Mario Klarer, ‘Humanitarian Pornography: John Gabriel Stedman’s Narrative of Five Years Expedition Against the Revolted Negroes of Surinam’, New Literary History 36 (2005), 581 (hereafter Klarer, ‘Humanitarian Pornography’). 52 Klarer, ‘Humanitarian Pornography’ (n 51) 559. Liz Philipose suggests that imperialism hinders our ability to see the pain experienced by its victims since it undermines the emotional literacy of those who benefit from it. Such an effect was exacerbated, from the mid-​nineteenth century, by the emergence of a body of literature that functioned as both science and pornography and that posited an innate sexual disparity between different peoples. See Philipose, ‘The Politics of Pain and the End of Empire’ (n 29) 60; and Lisa Z. Sigel, Governing Pleasures: Pornography and Social Change in England, 1815-​1914 (New Brunswick, New Jersey and London: Rutgers University Press 2002), 60. 53 Edmund Burke, A Philosophical Enquiry into the Origin of Our Ideas of the Sublime and Beautiful (London: Printed for R. and J. Dodlsey 1757), 14, emphasis added, cited in Halttunen, ‘Humanitarianism and the Pornography of Pain’ (n 50) 309. 54 As Randall McGowen has argued in the case of public execution in England, the movement to privatize execution was driven as much by the desire to separate individuals from the violence of punishment as it was to curb the amount of violence employed in such punishment. In British colonies, on the other hand, such concerns were undermined by the need to demonstrate the might of sovereign power; punishment (like torture) thus retained elements of spectacle long after this ceased to be regarded as acceptable in Britain. A Bombay regulation from 1827, for example, enjoined that public executions were to take place during the daytime at locations that afforded ‘the greatest possible publicity’ to them and ‘conducted in a manner calculated to impress the spectators with awe’. Randall McGowen, ‘ “Civilizing Punishment”: The End of the Public Execution in England’, Journal of British Studies 33/​3 (1994), 2801; and Bombay Regulation 14, 1827, s. 4, 1–​2, cited in Fisch, Cheap Lives (n 8), 43. See also Kim Wagner, ‘ “Calculated to Strike Terror”: The Amritsar Massacre and the Spectacle of Colonial Violence’, Past and Present, 233 (2016), 185–​225; Kim Wagner, Amritsar 1919: An Empire of Fear and The Making of a Massacre (New Haven and London: Yale University Press 2019); and Condos, The Insecurity State (n 40) 103–​4, 126–​39, 161–​3. 55 Scarry, The Body in Pain (n 43) 331; see also David Lloyd, Anomalous States: Irish Writing and the Post-​ Colonial Moment (Durham, NC: Duke University Press), 128. We can see this in the ways in which the proliferation of colonial states of emergency in the 1950s formed the milieu to the drafting of the foundational international human rights treaties, which, as John Reynolds notes, allowed ‘the response to an imperial crisis of a particular historical moment to be ensconced in liberal human rights discourse’. John Reynolds, Empire, Emergency and International Law (Cambridge: Cambridge University Press 2017), 70, Ch. 4 (hereafter, Reynolds, Empire, Emergency).

54  Colonial Terror is constructed through categories of race, class, and gender, which in colonial contexts renders the colonized caught in ‘a third zone between subjecthood and objecthood’.56

Colonialism, The Exception, and Bare Life . . . all Indians, as British subjects liable to become homo sacer, inhabit a legal border.57 The unworlding nature of colonial violence was made possible by the exceptional nature of colonial governance. As Thomas Blum Hansen and Finn Stepputat argue, the ways in which sovereign power was constituted through the exercise of violence over colonized bodies ensured that colonies ‘constituted almost permanent zones of “exception” ’.58 But what was the nature of such exceptionality? If, furthermore, colonial sovereignties were always only partial and provisional (not least because they were unable to secure a monopoly over violence), and were likewise constituted through practices that were widely dispersed, then how were such ‘permanent zones’ of exception constructed?59 In addition, were all members of colonized societies rendered homo sacer, or only some?60 Colonies undoubtedly constituted what Achille Mbembe has termed ‘terror formations’, but as I have already suggested colonial sovereignties did not entirely reside, as Mbembe contends, in the operation of power outside the law.61 This means that, although the exception was normativized in colonial contexts, the ways in which it operated varied considerably across time and space. It follows, therefore, that though large swathes of colonized populations were reduced to bare life, not all were.62 The ways in which what I have termed the regime of exception operated in colonial contexts were, in other words, complex. In order to examine such complexity, I shall begin by analysing Giorgio Agamben’s work on states of exception, despite the fact that it has been critiqued precisely for its lack of complexity, or at least for its a-​historicism, homogeneity (especially its failure 56 Wendy Lee, ‘On the (Im)materiality of Violence: Subjects, Bodies, and the Experience of Pain’, Feminist Theory 6/​3 (2005), 290; and Mbembe, ‘Necropolitics’ (n 9) 12. In the case of law, for example, violence therefore serves to preserve the right to make law the domain of some individuals and not others. Lee, ‘On the (Im)materiality of Violence’, 286. 57 Alex Tickell, Terrorism, Insurgency and Indian-​ English Literature, 1830-​ 1947 (New  York and London: Routledge 2012), 225 (hereafter Tickell, Terrorism, Insurgency). 58 Thomas Blom Hansen and Finn Stepputat, ‘Introduction’, in Thomas Blom Hansen and Finn Stepputat (eds), Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World (Princeton and Oxford: Princeton University Press 2005), 18 (hereafter Hansen and Stepputat, ‘Introduction’). See also Thomas Blom Hansen and Finn Stepputat, ‘Sovereignty Revisited’, Annual Review of Anthropology 35 (2006), 303 (hereafter Hansen and Stepputat, ‘Sovereignty Revisited’). 59 Hansen and Stepputat, ‘Introduction’ (n 58) 3, 20. 60 We should ask similar questions about the relationship between postcoloniality and bare life, rather than simply assume that the postcolony takes on what one scholar has termed ‘the normal state entitlement of exception’. Christine Sylvester, ‘Bare Life as a Development/​postcolonial Problematic’, The Geographical Journal 172/​1 (2006), 69. 61 Mbembe, ‘Necropolitics’ (n 9) 23. 62 We need to be wary of assuming, in other words, as Alex Tickell contends, that ‘the status of the colonized as “bare life” is revealed in the inherently partial nature of colonial citizenship’. Tickell, Terrorism, Insurgency (n 57) 143.

Violence, the Exception, and Bare Life  55 to consider issues such as race and gender), over-​emphasis on law and, most glaringly for our purposes, its lack of attention to imperialism and colonialism, particularly its singling out of the camp and not the colony as the paradigmatic state of exception and its elision of the role of imperialism in shaping western geopolitics.63 As a result, the applicability of Agamben’s work to colonial contexts has been widely rejected. Literary scholar Johan Geertsema, for example, derides its usefulness on the grounds that colonies were never legal ‘black holes’, that lawless violence operated in conjunction with law, and that the colonized were often included within the so-​called ‘rule of law’, or at least segments of colonized populations.64 The fact that the colonized could resist being rendered bare life, for Geertsema, is also a sign that they were not—​or, at least, not always. But although Geertsema is certainly right to question the universality of the colonial exception, and to highlight the role of law in the operation of colonial violence, when it comes to law Agamben does not, in fact, regard the state of exception as one of lawlessness. Law is, in fact, in force in the exception—​it is simply not applied. What Judith Butler terms a ‘paralegal universe’ is instead constructed, or is referred to as law, but is instead dominated by executive power, and is hence ‘a force of law without law’.65 For Agamben, there is thus a distinction between the juridical order and law, although the exception is neither purely juridical nor extra-​legal since it is neither inside nor outside of the juridical order but on the threshold of both.66 The maintenance of sovereign power is therefore situated not in law but in the power to undertake whatever

63 Simone Bignall and Marcelo Svirsky, ‘Introduction’, in Marcelo Svirsky and Simone Bignall (eds), Agamben and Colonialism (Edinburgh:  Edinburgh University Press 2012), 1–​2 (hereafter Bignall and Svirsky, ‘Introduction’). Like Agamben, Foucault has also been subject to considerable critique for his neglect of colonialism. He did, however, link the ‘colonizing genocide’ of colonialism to the emergence of state racism, in addition to elucidating the role of racism in generating a hierarchy between those deemed physically and morally superior and those who were not (and with it, through the operation of biopolitics, those regarded as being worthy of living and those who were not). He also discussed colonialism in ancient empires at considerable length. Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975-​76, Maurio Bertani and Alessandro Fontana (eds) (David Macey tr., New York: Picador 1997), 257 (hereafter Foucault, ‘Society Must Be Defended’); Anne Laura Stoler, Carnal Knowledge and Imperial Power:  Race and the Intimate in Colonial Rule (Berkeley:  University of California Press 2002); Stephen Legg, ‘Beyond the European Province: Foucault and Postcolonialism’, in Jeremy W. Crampton and Stuart Elden (eds), Space, Knowledge and Power: Foucault and Geography (Ashgate: Aldershot 2007), 265–​ 88; and Stephen Legg, ‘Colonial and National Truth Regimes: Empire, Europe and the Latter Foucault’, in Stephen Legg and Deana Heath (eds), South Asian Governmentalities: Michel Foucault and the Question of Postcolonial Orderings (Cambridge: Cambridge University Press 2018), 104–​31. 64 Johan Geertsema, ‘Exceptions, Bare Life and Colonialism’, in Victor V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge:  Cambridge University Press 2008), 352–​55. On the concept of legal ‘black holes’ see Johan Steyn, ‘Guantanamo Bay: The Legal Black Hole’, International and Comparative Law Quarterly 53/​1 (2004), 1–​15. 65 Judith Butler, Precarious Life: The Powers of Mourning and Violence (London and New York: Verso 2004), 6, 1 (hereafter Butler, Precarious Life); and Giorgio Agamben, State of Exception (Kevin Attrell tr., Chicago and London: The University of Chicago Press 2005), 39–​40 (hereafter Agamben, State of Exception). 66 Agamben, State of Exception (n 65)  23, 27; and Tom Frost, ‘Agamben’s Sovereign Legalization of Foucault’, Oxford Journal of Legal Studies 30/​3 (2010), 557 (hereafter Frost, ‘Agamben’s Sovereign Legalization’). It is because of the blurring of such a boundary, according to Agamben, that ‘violence passes over into law and law passes over into violence’. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-​Roazen tr., Stanford: Stanford University Press 1998), 202 (hereafter Agamben, Homo Sacer).

56  Colonial Terror exceptional means are deemed necessary to maintain the security of the state.67 It is when such a state of exception becomes the norm—​when the relation between life and law, in other words, is governed permanently by exception—​that, Agamben argues, ‘the juridico-​political system transforms itself into a killing machine’.68 This does not mean, as Geertsema rightly observes, that resistance to the exception is not possible. But what he overlooks is that, while subaltern subjects should not be regarded either as bearers of exceptionality or as ‘subjects to whom all manner of things are done, often in arbitrary and violent ways, but [who are] rarely agents in their own right’, the existence of resistance does not negate the reduction of those resisting to bare life.69 In his understanding of resistance, Agamben draws heavily from Foucault, for whom power is both relational and productive, and according to whom power relations cannot exist without resistance.70 Power relations differ, however, from what Foucault terms ‘relations of violence’, since while the former acts upon the actions of others rather than acting directly upon them (hence the ‘other’ over whom power is exercised must be acknowledged as a ‘person who acts’), a relationship of violence ‘acts upon a body of things; it forces, it bends, it breaks on the wheel, it destroys, or it closes the door on all possibility’.71 Since sovereign power is a relationship of violence rather than a power relation, this means that bare lives are, for Agamben, lives lived outside power relations.72 For those reduced to bare life resistance cannot be sought, therefore, either through an escape from power relations or through a reinstatement of the distinction between what Agamben delineates as zoē (mere biological existence, or bare life) and bios (life that is politically authorized), since such a 67 Agamben, State of Exception (n 65) 205; and Susan Dianne Brophy, ‘Lawless Sovereignty: Challenging the State of Exception’, Social & Legal Studies 18/​2 (2009), 203 (hereafter Brophy, ‘Lawless Sovereignty’). 68 Agamben, State of Exception (n 65) 86. 69 William Walters, ‘Act of Demonstration: Mapping the Territory of (Non)-​Citizenship’, in Engin F. Isin and Greg M. Nielsen (eds), Acts of Citizenship (London: Zed Books 2008), 188, cited in Marcelo Svirsky, ‘The Cultural Politics of Exception’, in Marcelo Svirsky and Simone Bignall (eds), Agamben and Colonialism (Edinburgh: Edinburgh University Press 2012), 60. As Thomas Blum Hansen and Finn Stepputat argue, bare life is ‘the site upon which sovereign violence always inscribes itself but also encounters the most stubborn resistance’. Hansen and Stepputat, ‘Introduction’ (n 58) 11. The history of subaltern agency has, of course, been central to the writings of subaltern studies scholars, who have written against what Akhil Gupta refers to as an ‘anthropology of abjectness’. Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India (Duke University Press: Durham and London 2012), 25 (hereafter Gupta, Red Tape). See, for example, Ranajit Guha, ‘The Prose of Counterinsurgency’, in Ranajit Guha (ed.), Subaltern Studies II: Writings on South Asian History and Society (Oxford University Press 1983), 1–​42; and Shahid Amin, ‘Gandhi as Mahatma: Gorakhpur District, Eastern UP, 1921-​2’, in Ranajit Guha (ed.), Subaltern Studies III (New Delhi: Oxford University Press 1984), 1–​61. 70 Michel Foucault, Power/​Knowledge: Selected Interviews and Writings, 1972-​1977, Colin Gordon (ed.) (first published in 1972, Colin Gordon, Leo Marshall, John Mepham, and Kate Soper tr., New York: Pantheon 1980), 142; Michel Foucault, ‘The Subject and Power’, Critical Inquiry 8 (1982), 790 (hereafter Foucault, ‘The Subject and Power’); Colin Gordon, ‘Government Rationality: An Introduction’, in Graham Burchell, Colin Gordon, and Peter Miller (eds), The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press 1991), 5; and Frost, ‘Agamben’s Sovereign Legalization’ (n 66) 563–​4. For Foucault, the ‘conduct of conduct’ was intimately interwoven with opposing ‘counter-​conducts’. See Michel Foucault, Security, Territory, Population: Lectures at the College de France 1977-​78 (Michel Snellart ed., Graham Burchell tr., New York: Palgrave Macmillan 2007) (hereafter Foucault, Security, Territory, Population). 71 Foucault, ‘The Subject and Power’ (n 70) 789. 72 Jenny Edkins and Véronique Pin-​Fat, ‘Introduction: Life, Power, Resistance’, in Jenny Edkins, Véronique Pin-​Fat, and Michael J. Shapiro, Sovereign Lives: Power in Global Politics (New York and London: Routledge, 2004), 7–​8 (hereafter Edkins and Pin-​Fat, ‘Introduction’).

Violence, the Exception, and Bare Life  57 distinction is the originary activity of sovereign power.73 Jenny Edkins and Véronique Pin-​Fat suggest that resistance must instead be sought through constructing sovereign power as a power relation, which can be done by a refusal to draw distinctions between zoe and bios, or human and inhuman.74 Resistance is also possible through accepting bare life, or through transforming it into what Agamben terms a ‘form-​of-​ life’, which—​though in an extreme way—​is a sort of liberty, if only of the possibility of being a law unto oneself.75 Despite Agamben’s deeply problematic disregard of colonialism in his analysis of sovereign power, since colonial states were constituted through a politics of racial difference and legal exclusion, of sovereignty over subjects versus citizens, they are, in fact, ‘the location par excellence where the controls and guarantees of judicial order can be suspended . . .’.76 We should be asking, then, not whether colonies can be conceptualized as states of exception but when the exception becomes the norm.77 Such a process had, in fact, taken place in most colonial contexts by the late nineteenth century, including colonial India, in which ‘an emergency executive power that [was] nonjusticiable and more or less permanent’ had become deeply entrenched in the structures of the colonial state.78 For Nasser Hussain, such a development is 73 Agamben, Homo Sacer (n 66) 1, 80–​6; and Patricia Owens, ‘Reclaiming “Bare Life”? Against Agamben on Refugees’, International Relations 23/​4 (2009), 573. 74 Edkins and Pin-​Fat, ‘Introduction’ (n 72) 13. Edkins and Pin-​Fat offer, as an example, the case of the Kurdish poet and refugee Abbas Amini, who went on hunger strike and sewed up his eyes, ears, and mouth in protest against his own treatment and that of other refugees in the U.K. Such a form of protest, in revealing the relationship of violence into which he had been placed, also drew attention to his own status as bare life and thus enabled him to take back the ability to speak politically. See also Jenny Edkins and Véronique Pin-​Fat, ‘Through the Wire: Relations of Power and Relations of Violence’, Millennium: Journal of International Studies 34/​1 (2005), 15; Jenny Edkins, ‘Whatever Politics’, in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 70–​108; and Mark Rifkin, ‘Indigenising Agamben: Rethinking Sovereignty in Light of the “Peculiar” Status of Native Peoples’, in Marcelo Svirsky and Simone Bignall (eds), Agamben and Colonialism (Edinburgh: Edinburgh University Press 2012), 77–​109. 75 Giorgio Agamben, Means Without Ends (Vincenzo Binetti and Cesare Casarino tr., Minnesota: University of Minnesota Press, 2000); Edkins and Véronique Pin-​Fat, ‘Introduction’ (n 72) 16; and Steven DeCaroli, ‘Boundary Stones:  Giorgio Agamben and the Field of Sovereignty’, in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 68 (hereafter DeCaroli, ‘Boundary Stones’). The limited scope that Agamben gives to resistance has, however, been widely critiqued. See, for example, Simone Bignall and Marcelo Svirsky, ‘Introduction’ (n 63) 3; Ernesto Laclau, ‘Bare Life or Social Indeterminacy?’, in Matthew Calarco and Steven DeCaroli, Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 19–​22 (hereafter Laclau, ‘Bare Life’); and Frost, ‘Agamben’s Sovereign Legalization’ (n 66) esp. 570–​5. 76 Mbembe, ‘Necropolitics’ (n 9) 19; and John Comaroff, ‘Governmentality, Materiality, Legality’, in Jan-​ Georg Deutsch, Peter Probst, and Heike Schmidt (eds), African Modernities: Entangled Meanings in Current Debate (Oxford: James Currey 2002), 127–​8 (hereafter Comaroff, ‘Governmentality, Materiality, Legality’). See also Bhattacharya, ‘Violence and the Languages of Law’ (n 9) 117; and Francois Zammit, ‘A Postcolonial Reading of Agamben’s Homo Sacer project’, paper presented at Engaging the Contemporary, University of Malta, 16–​17 November 2017 (hereafter Zammit, ‘A Postcolonial Reading’). 77 In the case of Ireland, for example, Gerry Kearns argues that it was from the time of the famine onwards that the colony was rendered a state of exception. Gerry Kearns, ‘Bare Life, Political Violence, and the Territorial Structure of Britain and Ireland’, in Derek Gregory and Allan Pred (eds), Violent Geographies: Fear, Terror, and Political Violence (New York and London: Routledge 2007), 18 (hereafter Kearns, ‘Bare Life’). 78 Hansen and Steputtat, ‘Introduction’ (n 58)  19–​ 20; and Nasser Hussain, The Jurisprudence of Emergency:  Colonialism and the Rule of Law (Ann Arbor:  The University of Michigan Press 2003), 74 (hereafter Hussain, The Jurisprudence of Emergency). Alex Tickell traces such a turning point to the 1857–​ 1858 Revolt, in which the British ‘effectively scapegoat[ed] the whole Indian population as homines sacrii,

58  Colonial Terror attributable to the problematics posed by governing people who were neither slaves nor free subjects, which necessitated a conception of sovereignty in which both the rule of law and the emergency came to play a central role.79 But although a number of scholars have argued that the exception emerged in India in the early nineteenth century in relation to particular criminal groups,80 the management of which was deemed to require a suspension of the juridical order, it was not only particular groups who were abandoned by colonial sovereignty but large swathes of the Indian population, and from the onset of colonial rule.81 From the time of its assumption of the grant of Diwani in 1765, a ploy through which the East India Company came to assume sovereign rights over revenue, law, land, and trade in Bengal, ‘What was supposed to have been a trading company with an eastern monopoly vested by Parliament had become a rogue state: waging war, administering justice, minting coin, and collecting revenue over Indian territory.’82 The Company’s exploitation of Bengal was, in fact, so rife—​according to Edmund Burke, in a critique echoed over a century later by Romesh Chunder Dutt, it constituted an unsustainable ‘drain of wealth’ that had transformed Bengal into a wasteland—​that it led to a famine in 1769 in which ten million people, a third of the population of Bengal, died.83 Even after the Company was reined in and made subject to Parliament in the early 1780s, it remained, in many ways, a rogue state, as the Company’s excessive revenue demands, which were extracted through both torture and military force, revealed.84 and beyond the law’. Central to such scapegoating, Tickell argues, was a process of mourning, one which sought to maintain colonial sovereignty through generating a sense of victimhood by differentiating between grievable and ungrievable lives. Tickell, Terrorism, Insurgency (n 57) 77; and Alex Tickell, ‘Cawnpore, Kipling and Charivari: 1857 and the Politics of Commemoration’, Literature and History 18/​2 (2009), 4. See also Zahid R. Chaudhary, Afterimage of Empire: Photography in Nineteenth Century India (Minneapolis and London: University of Minnesota Press 2012), 14. 79 Hussain, The Jurisprudence of Emergency (n 78) 25. 80 Such penal groups included, for example, what the British labelled ‘criminal tribes’, which by the end of colonial rule in1947 had come to include 128 tribes or castes encompassing 3.5 million people. Andrew J. Major, ‘State and Criminal Tribes in Colonial Punjab:  Surveillance, Control and Reclamation of the “Dangerous Classes” ’, Modern Asian Studies 33/​3 (1999), 657. 81 See, for example, Lloyd, ‘Thuggee, Marginality and the State Effect’ (n 11); and Tickell, Terrorism, Insurgency (n 57). The abandonment of large numbers of Indians is exemplified by the wide range of repressive legislation enacted during the course of the nineteenth century, including: The 1804 Bengal State Offences Regulation; the 1808 Madras State Offences Regulation; Madras Regulation VII of 1818; the 1818 Bengal State Prisoners Regulation; Madras Regulation II of 1819; Bombay Regulation XXV of 1827; the 1857 State Offences Act; the 1857 Forfeiture Act; the 1858 State Prisoners Act; the 1864 Whipping Act; the 1867 Press and Registration of Books Act; and the 1899 Official Secrets Act, not to mention the Indian Penal and Criminal Procedure Codes of 1861. In addition, although an amendment to the Criminal Procedure Code in 1882 gave the High Courts of Calcutta, Bombay, and Madras the power to issue writs of habeas corpus, such a remedy was denied to individuals detained under a number of the above acts. Gupta, The Police in British India 1861-​1947 (n 13) 92. 82 Dirks, The Scandal of Empire (n 46) xiii, 13. The East India Company was thus, in the words of Joel Balkan, the ultimate, ‘pathological’, corporation. See Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (New York: Free Press 2004). 83 Dirks, The Scandal of Empire (n 46) 53, 134. 84 Ibid, 183; and Edmund Burke, The Works, Vol. III, Speeches on the Impeachment of Warren Hastings (London: Bell & Daldy 1868), 185–​229. By the 1830s the Company’s drain of wealth from India had become, according to Zak Leonard, ‘vampiric’, since in the face of the huge transmission of the private fortunes by Company officials (which totalled half a million pounds annually), home charges, high interest payments on the Indian debt, and excessive military costs the colonial government was left with only a fifth of the revenue it collected with which to operate. Leonard, ‘ “A Blot on English Justice” ’ (n 41) 24.

Violence, the Exception, and Bare Life  59 Famines offer a stark illustration of how the exception can become normativized in colonial contexts since they lay bare the conflict between the extractive nature of colonialism and the biological needs of colonial subjects, a conflict which the colonizers largely resolved by convincing themselves that it was in the general interests of the colonized for them to die. As the geographer Gerry Kearns argues, the use of famines as a means of social and economic engineering is a particularly insidious form of biopolitics, since in addition to envisioning societies as having a materiality that is embodied in both economic and biological laws, it uses these ‘to enhance the economic value of local resources for the external metropole, even at the expense of “letting die” many of the people indigenous to the colony’ (a dynamic that Subrata Bobby Banerjee refers to as ‘necrocapitalism’).85 It is also important to note that famine relief, if it can be called that, since emaciated famine victims were forced to labour for food wages that were not sufficient to keep them alive, was mediated through the camp. We can, therefore, trace what Agamben views as ‘the political space of modernity’ not to Nazi concentration camps but to biopolitical ‘welfare’ measures in the colonies that transformed centres of famine relief into extermination camps in which millions of men, women, and children were abandoned, or let die—​although those so reduced to bare life often resisted such a lot by undertaking ‘famine strikes’.86 This is not to suggest that no problems remain regarding Agamben’s conceptualization of the state of exception, or its applicability to colonial contexts. In contrast to the fragmentary and imaginary state that I have suggested was the norm in colonial contexts, which had no option but to share sovereignty, Agamben envisions the state as unified and sovereignty as singular and powerful. It is the state’s monopoly on violence, for Agamben (drawing on Carl Schmitt), that makes the exception possible, and that by extension produces hominis sacri, since it is the sovereign injunction which positions particular categories of people as outside the law—​and as capable, therefore, of being killed with impunity.87 Such a glaring disconnect between Agamben’s 85 Kearns, ‘Bare Life’ (n 77) 7. For insightful analyses of the biopolitics of Irish famines see also David Lloyd, ‘The Indigent Sublime: Specters of Irish Hunger’, Representations 92/​1 (2005), 152–​89; and David Nally, ‘ “That Coming Storm”: The Irish Poor Law, Colonial Biopolitics, and the Great Famine’, Annals of the Association of American Geographers 98/​3 (2008), 714–​41. ‘Necrocapitalism’ refers to the ways in which capitalist practices can contribute to what Foucault termed ‘the subjugation of life to the power of death’ through ‘the accumulation by dispossession and the creation of death worlds in colonial contexts’ (emphasis in original). Subrata Bobby Banerjee, ‘Live and Let Die: Colonial Sovereignties and the Death Worlds of Necrocapitalism’, Borderlands 5/​1 (2006) accessed 17 May 2020. See also Warren Montag, ‘Necro-​economics: Adam Smith and Death in the Life of the Universal’, Radical Philosophy 134 (2005), 7–​17. 86 Agamben, Homo Sacer (n 66) 174; and Tickell, Terrorism, Insurgency (n 57) 125, 127, 167, 209. See also Davis, Late Victorian Holocausts (n 20)  42–​3; David Atkinson, ‘Encountering Bare Life in Italian Libya and Colonial Amnesia in Agamben’, in Marcelo Svirsky and Simone Bignall (eds), Agamben and Colonialism (Edinburgh:  Edinburgh University Press 2012), 155–​77; and Aidan Forth, Barbed-​Wire Imperialism: Britain’s Empire of Camps, 1876-​1903 (Berkeley: University of California Press 2017), Ch. 2. It is important to note, however, that the camp can serve not only as a place where citizens are deprived of their rights and reduced to bare life but where such rights can be slowly restored. Gupta, Red Tape (n 69) 7. See also Didier Fassin, ‘Compassion and Repression: The Moral Economy of Immigration Policies in France’, Cultural Anthropology 20/​3 (2005), 362–​87; and Ananya Vajpeyi, Prolegomena to the Study of People and Places in Violent India (New Delhi: WISCOMP Foundation 2007). 87 Arjun Chowdhury, ‘The Colony as Exception (Or, Why Do I  Have to Kill You More than Once?)’, Borderlands 6/​3 (2007). accessed 18 May 2020 (hereafter Chowdhury, ‘The Colony as Exception’); and Gupta, Red Tape (n 69) 17. See

60  Colonial Terror preconditions for the state of exception with colonial realities has prompted Arjun Chowdhury to question whether there can, in fact, ‘be an exception without a sovereign who can decide?’88 The answer, for Chowdhury, is a tentative ‘maybe’, although it is dependent not on law but on what Achille Mbembe refers to as ‘the fait accompli’ (which means that it does not necessitate the consent of the defeated), and the colonized can only be reduced to bare life if they are first recognized by the colonizers as human.89 For Akhil Gupta, the problem with Agamben’s conception of homo sacer is, instead, that it deviates from Foucault’s conception of biopolitics, in which there is a distinction between ‘being killed’ and ‘being let die’.90 Yet, as Gupta admits, structural forms of violence, such as denying the poor food, clothing, or shelter—​all products of uncaring, and all ubiquitous in colonial India—​are a form of killing which can be done with impunity, since they neither contravene the law nor are subject to punishment or restitution.91 While their critiques differ, what Chaudury and Gupta share in their evaluation of Agamben’s arguments is a concern with de-​subjectification, particularly whether the de-​subjectification inflicted on those whose humanity is not recognized is the same as that to which homo sacer are subjected. For Chowdhury such concerns relate, in also Carl Schmitt, Political Theology: Four Chapters on Sovereignty (George Schwab tr., Cambridge: MIT Press, 1985). 88 Chowdhury, ‘The Colony as Exception’ (n 87). 89 Mbembe, On the Postcolony (Berkeley: University of California Press 2001), 183, cited in Chowdhury, ‘The Colony as Exception’. Since the colonizer does not always recognize the colonized as human, this prevents the sovereign from knowing the governed, including whether they are alive or dead, which is why the colonizer must repeatedly kill the colonized. As Chowdhury contends, ‘If this is a biopolitics, it is one of ghosts and shadows, not of blood groups and birth rates.’ Chowdhury, ‘The Colony as Exception’ (n 87). 90 Gupta, Red Tape (n 69) 16. Agamben shares Foucault’s assumption that modernity is marked by a form of power, which Foucault terms biopower, that both produces and separates marginal behaviours and identities and which, while they deviate from the norm, also serve to construct it (although for Agamben such a form of power pre-​dates modernity). He also, like Foucault, views such power as endeavouring to make the management of life one of the primary aims of politics. But for Foucault, biopower operates at two different levels, that of the individual (disciplinary power) and the population (governmentality); it is also achieved through processes of ‘normalization’, since it entails measures to discipline individuals and transform their subjectivities in an effort to enhance their life processes and make them ‘live’. For Agamben, on the other hand, biopower operates only at the level of the individual and, like Achille Mbembe’s concept of ‘necropolitics’, it operates as a politics of death, since it is founded on the sovereign’s right to exclude individuals or groups from the body politic that are deemed a threat to its well-​being. Yet such an understanding of biopolitics is not, perhaps, quite as far from Foucault’s as it seems, since for Foucault the life processes of some individuals and groups can be enhanced through letting those who are deemed a threat to such processes die. See Foucault, ‘Society Must Be Defended’ (n 63) 253–​60; Andreas Kalyvas, ‘The Sovereign Weaver: Beyond the Camp’, in Andrew Norris (ed.), Politics, Metaphysics, and Death: Essays on Giorgio Agamben’s Homo Sacer (Durham, NC: Duke University Press 2005), 111; Anupama Rao, ‘Violence and Humanity: Or, Vulnerability as Political Subjectivity’, Social Research 78/​2 (2001), 627; Mika Ojakangas, ‘Impossible Dialogue on Bio-​power’, Foucault Studies 2 (2005), 5–​28; Catherine Mills, ‘Biopolitics, Liberal Eugenics, and Nihilism’, in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 180–​202; Paul Patton, ‘Agamben and Foucault on Biopower and Biopolitics’, in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life (Stanford:  Stanford University Press 2007), 203–​18; Mathew Coleman and Kevin Grove, ‘Biopolitics, Biopower, and the Return of Sovereignty’, Environment and Planning D: Society and Space 27 (2009), 495; and Deana Heath, ‘The Tortured Body:  The Irrevocable Tension Between Sovereign and Biopower in Colonial Indian Technologies of Rule’, in South Asian Governmentalities: Michel Foucault and the Question of Postcolonial Orderings (Cambridge: Cambridge University Press 2018), 222–​44. 91 Gupta, Red Tape (n 69) 17.

Violence, the Exception, and Bare Life  61 particular, to race, since in addition to ignoring race, Agabmen’s preoccupation with legal ordering disguises forms of racialized socio-​economic ordering.92 What do we make, for example, of both historic and contemporary forms of violence against the bodies of people of colour that exhibit forms of homo sacerization but that, while they are or were once legal served to abandon subjects and render them susceptible to early deaths?93 For Alexander Weheliye, such forms of violence reveal that the real zone of indistinction is not that between inside and outside the law, but between blackness and racism; it is thus blackness that is the state of exception, and homo sacerization is simply another term for racism.94 Such an approach suggests that homo sacerization is a process through which ‘various categories of being, different modalities of life and death, power and oppression, pain and pleasure, inclusion and exclusion, form a continuum that embodies the hidden and not-​so-​veiled matrices of contemporary sovereignty’.95 Although Agamben is right to envision the sovereign ban as an incomparable exteriority, the variety of situations to which it can be applied is thus far wider than what can be subsumed under the category of homo sacer. This does not, furthermore, necessarily entail increasing control by an overly-​powerful state, and nor is there an unyielding opposition between sovereignty and bare life.96 For Erneastau Laclau, Agamben has failed, in effect, to see ‘the problem of the inscribable/​uninscribable, of the inside/​outside, in its true universality’, since for those rendered external to the law such exteriority can be the starting point for new, collective forms of identification that create their own ‘law’ (which is both external and internal to that of the state).97 Viewing homo sacerization in terms of a continuum likewise raises new possibilities of resistance. Such possibilities, as well as the processes through which individuals can be rendered homo sacer, expand even further if we embrace a more pluralistic conception of the exception, one which allows for a more nuanced and disruptive role for law and legality.98

92 See Charles R. Venator-​Santiago, ‘From Insular Cases to Camp X-​Ray: Agamben’s State of Exception and United States Territorial Law’, Studies in Law, Politics and Society, 39 (2006), 15–​55; David Whyte, ‘Naked Labour:  Putting Agamben to Work’, The Australian Feminist Law Journal 31 (2009), 57–​76; Aihwa Ong, Neoliberalism as Exception:  Mutations in Citizenship and Sovereignty (Durham:  Duke University Press 2006); John Reynolds, ‘The Political Economy of States of Emergency’, Oregon Review of International Law 14/​1 (2012), 85–​130; and John Reynolds, Empire, Emergency and International Law (n 55). 93 Alexander G. Weheliye, ‘Pornotropes’, Journal of Visual Culture 7/​1 (2008), 69–​70 (hereafter Weheliye, ‘Pornotropes’). 94 Ibid. See also Ruth Wilson Gilmore, ‘Fatal Couplings of Power and Difference: Notes on Racism and Geography’, The Professional Geographer 54/​1 (2002), 15–​24; Angela Davis, Abolition Democracy: Beyond Empire, Prisons and Torture (New  York:  Seven Stories Press 2005); Joan Dayan, ‘Legal Slaves and Civil Bodies’, Nepantla: Views from the South 2/​1 (2007), 3–​39; and Alexander Weheliye, Habeas Viscus: Racializing Assemblages, Biopolitics and Black Feminist Theories of the Human (Durham: Duke University Press 2014). 95 Weheliye, ‘Pornotropes’ (n 93) 69. 96 Laclau, ‘Bare Life’ (n 75) 18. 97 Ibid, 15, 17. Mohandas Gandhi’s political tactics, particularly his use of public fasting, offer another case in point, since they represent a call for sovereignty that includes, rather than excludes, bare life. Tickell, Terrorism, Insurgency (n 57) 221–​2. 98 I am borrowing, here, from the arguments of John Reynolds on emergencies. See Empire, Emergency (n 55) 273.

62  Colonial Terror

Governmentality and ‘Petty Sovereigns’ For localities or races having peculiarities, especially those reputed backward . . . the policy adopted was to introduce into their administration a large portion of the element of human discretion . . .99 In order to do this we need to turn again, however, to violence, the significance of which as a power construct has largely been overlooked in critiques of Agamben. The exception may make violence possible, or, indeed, normativize it, in other words, but this does not explain what forms of violence the exception enables, how such violence operates, or how it is differentiated between individuals according to their gender, race, class, caste, or age.100 Both racial slavery and the Holocaust, for example, took place in states of exception, but the forms of violence perpetrated in such states differed since the purpose of slavery, in contrast to that of the Holocaust, was not to exterminate the enslaved but to exploit and subdue them.101 That Agamben is aware that the forms of violence may vary to which individuals who are reduced to bare life are subject is evident in his observation that, in spaces of exception, ‘whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign . . .’ (emphasis added).102 The phrase ‘whether or not’ implies that even in spaces of exception (such as famine camps, for example), violence is not inevitable, and nor is the form it takes. It is, instead, dependent upon the ‘experts’ who regulate it. Although Agamben neglects to pursue the significance of this insight (doubtless because he is not interested in homo sacerization as a process), what it signifies is that we cannot analyse sovereign and juridical power in isolation from two other forms of power elaborated by Foucault, namely disciplinary power and governmentality.103 For Foucault disciplinary power, much like violence, acts upon bodies; in contrast to juridical power, which operates through a legal/​illegal binary, disciplinary power is able to make finer distinctions about who should be governed, and how, through the operation of norms.104 It is, in addition, exercised through surveillance as well as 99 Robert Carstairs, The Little World of an Indian District Officer (London: Macmillan and Co. 1912), 225. Such officials, according to Carstairs, initially did their work ‘without written rules of any kind’, while the rules, once issued, ‘no doubt embodied their experience’. Ibid, 229. 100 Ewa Plonowska Ziarek, ‘Bare Life’, in Henry Sussman (ed.), Impasses of the Post-​Global: Theory in the Era of Climate Change, Vol. 2 (Open Humanities Press: University of Michigan Library 2012), 194. Ziarek critiques Agamben not only for viewing homo sacer as capable of being killed with impunity but not subject to other forms of violence, such as rape, but for ignoring the fact that the individuals reduced to bare life suffer different forms of violence depending upon their gender, class, race, and ethnicity. Ibid, 198. 101 Weheliye, ‘Pornotropes’ (n 93) 68. 102 Agamben, Homo Sacer (n 66) 174. 103 The various forms of power that Foucault elucidated are rarely, however, examined together. Stephen Legg, ‘An International Anomaly? Sovereignty, the League of Nations and India’s Princely Geographies’, Journal of Historical Geography XXX (2013), 2. 104 Johanna Oksala, ‘The Management of State Violence:  Foucault’s Rethinking of Political Power as Governmentality’, Graduate Faculty Philosophy Journal 26/​2 (2007), 55 (hereafter Oksala, ‘The Management of State Violence’); and Foucault, ‘The Subject and Power’ (n 70). This is not to assume, as Agamben erroneously does, that law and discipline are opposed. They are, instead, intimately related, since for Foucault law is one of the means through which disciplinary power operates. See Nikolas Rose and Mariana Valverde, ‘Governed by Law?’, Social & Legal Studies 7/​4 (1998), 541–​51; Viktor Tadros, ‘Between Governance and

Violence, the Exception, and Bare Life  63 through more violent means of controlling bodies, not only to punish or restrict them, but to transform their subjectivities through correcting, rehabilitating, and restoring them.105 When it intersects with governmentality, furthermore, which entails the use both of managerial techniques and administrative apparatuses, as well as particular tactics—​including violence—​to care for, monitor, and manage populations to ensure their well-​being (or that of the state), we can see how violence can become ‘professionalized, rationalized and bureaucratized’ outside of the law.106 In colonial contexts the exception was thus normativized not simply through the suspension of the law but through governmental practices, particularly through the aegis of what Darius Rejali terms ‘security bureaucracies’.107 Since bureaucracies ‘replace the openness and stability of law with the ad hoc technicalities of administration’, it is the regulations and procedures of such bureaucracies that, in usurping the role of law, lead to the abandonment of those individuals subjected to them (even when implementing purportedly welfarist measures).108 The sovereignty produced by such ‘petty sovereigns’ is therefore ‘not the sovereignty of unified power under the conditions of legitimacy . . . ’.109 It is, instead, a lawless, prerogatory, and rogue form of power in which the executive, in conjunction with security forces, becomes the final arbiter of individuals’ guilt or innocence, as well as their punishment—​including death.110

Discipline: The Law and Michele Foucault’, Oxford Journal of Legal Studies 18/​1 (1998), 75–​103; and Ben Golder and Peter Fitzpatrick, Foucault’s Law (Abingdon: Routledge 2007). 105 For a fascinating elucidation of the ‘economy of suffering’ produced by disciplinary power, see Laura Bear, ‘An Economy of Suffering: Addressing the Violence of Discipline in Railway Workers’ Petitions to the Agent of the East Indian Railway, 1930-​47’, in Steven Pierce and Anupama Rao (eds), Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham and London: Duke University Press 2006), 243–​72. 106 Oksala, ‘The Management of State Violence’ (n 104)  60; see also Nikolas Rose, Pat O’Malley, and Mariana Valverde, ‘Governmentality’, Annual Review of Law and Social Science, 2 (2006), 83–​104. Whereas for Agamben violence enters biopolitics through the execution of sovereign power, which means that the origin of sovereign power is coterminous with the state of exception, for Foucault it does so through governmentalizing processes, although both locate the body as the site of the performance of such power. But as Indrani Chatterjee reveals, in a perceptive analysis of the ways in which the British colonial regime abandoned traditional Indian forms of pastoral care, violence can also ensue from the abandonment of governmentalizing practices. Butler, Precarious Life (n 65)  52–​5; Hansen and Stepputat, ‘Sovereignty Revisited’ (n 58)  297, 302; and Indrani Chatterjee, ‘Pastoral Care, Pastoral Power and the Creation of Disobedient Subjects Under Colonialism’, in Stephen Legg and Deana Heath (eds), South Asian Governmentalities:  Michel Foucault and the Question of Postcolonial Orderings (Cambridge:  Cambridge University Press 2018), 56–​78. 107 Darius Rejali, Torture and Democracy (Princeton and Oxford: Princeton University Press 2007), 46. Foucault, notably, referred to governmentality as ‘security’ in the first three lectures of his 1977–​1978 lecture series at the College de France, before switching to the term ‘governmentality’ in the fourth. Marianna Valverde, ‘Police, Sovereignty, and Law:  Foucaultian Reflections’, in Markus D. Dubber and Mariana Valverde (eds), Police and the Liberal State (Stanford, CA: Stanford University Press 2008), 23, 28–​9; see also Foucault, Security, Territory, Population (n 70). 108 Nasser Hussain, ‘Hyperlegality’, New Criminal Law Review:  An International and Interdisciplinary Journal 10/​4 (2007), 520 (hereafter Hussain, ‘Hyperlegality’); Bignall and Svirsky, ‘Introduction’ (n 63) 5; and Gupta, Red Tape (n 69) 33. On the deadly intertwining of race and bureaucracy see also Hannah Arendt, The Origins of Totalitarianism (New York: Schoken 1951). 109 Butler, Precarious Life (n 65) 56. 110 Ibid.

64  Colonial Terror But this does not mean that petty sovereignty is always lawless in colonial contexts.111 Illegal violence can, in addition, be legalized through what Nasser Hussain refers to as ‘hyperlegality’. Hyperlegality, Hussain argues, operates through two mechanisms: the creation of new categories of being within the law, which renders individuals subject to new powers (such as, for example, surveillance and detention) administered by experts; and ‘special venues in the law’, in particular tribunals and commissions.112 In colonial contexts hyperlegality ensured that colonies were ‘zones saturated by law’, even if such law offered not protection but ‘suffocating inclusion . . .’ and an ever-​increasing fracturing of subjecthood.113 Enactments such as Regulation III of 1818, ‘A Regulation for the Confinement of State Prisoners’, for example, while including individuals within the law, also gave the executive in colonial India the power to order detention ‘without having recourse to any judicial proceeding’, and ‘petty sovereigns’ the task of administering it.114 Although Hussain posits hyperlegality as the opposite of a withdrawal or suspension of law, I would suggest that it can nonetheless operate within the exception.115 For if laws are a product of the juridical order that 111 The history of colonialism is undoubtedly ‘a history of men who misinformed their superiors and exceeded their instructions’, to the point that some assumed the status of virtual dictators, but this does not mean that they always operated outside of the law, not least because violence can coexist with care, particularly the structural violence enacted by bureaucracies. David Strang, ‘Contested Sovereignty: The Social Construction of Colonial Imperialism’, in Thomas J. Biersteker and Cynthia Weber (eds.), State Sovereignty as Social Construct (Cambridge: Cambridge University Press 1996), 35; and Gerald Barrier, ‘The Punjab Disturbances of 1907: The Response of the British Government in India to Agrarian Unrest’, Modern Asian Studies 1/​4 (1967), 357. 112 Hussain, ‘Hyperlegality’ (n 108)  516, 522. See also Bhavani Raman, ‘Law in Times of Counter-​ insurgency’, in Aparna Balachandran, Rashmi Pant, and Bhavani Raman (eds), Iterations of Law:  Legal Histories from India (New Delhi: Oxford University Press 2018), 120–​46. 113 Reynolds, Empire, Emergency (n 55) 55; and Paul D. Halliday, Habeas Corpus: From England to Empire (Harvard: The Belknap Press of Harvard University Press 2010), 281 (hereafter Halliday, Habeas Corpus). See also Fisch, Cheap Lives (n 8) 64, 79–​80; Julie Evans, ‘Where Lawlessness is Law: The Settler-​Colonial Frontier as a Legal Space of Violence’, Australian Feminist Law Journal 30/​1 (2009), 5, 21; Elizabeth Kolsky, ‘The Colonial Rule of Law and the Legal Regime of Exception: Frontier “Fanaticism” and State Violence in British India’, American Historical Review 120/​4 (2015), 1218–​46; Condos, The Insecurity State (n 40) 17–​18, 141–​80; and Bhattacharya, ‘Violence and the Languages of Law’ (n 9). 114 Halliday, Habeas Corpus (n 113) 290, 313; and Hussain, The Jurisprudence of Emergency (n 78) 88–​9. Although they tended to be couched in misleadingly judicial language, such prerogative powers, which ranged from the suspension of habeas corpus to banishment and the implementation of martial law, were exercised liberally by colonial governors. Michael Powell, ‘The Clanking of Medieval Chains: Extra-​Judicial Banishment in the British Empire’, The Journal of Imperial and Commonwealth History 44/​2 (2016), 352–​ 71; and Lyndall Ryan, ‘Martial Law in the British Empire’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World, (Cham, Switzerland: Palgrave Macmillan 2018), 93–​109. 115 Samera Esmeir suggests that the problem with approaching exceptional measures as a violation of the juridical order and exclusion of the colonized from it is ‘to accept presuppositions about the fixity of the general juridical order, the protectiveness of the rule of law, and the dehumanizing powers of colonialism and institutions of the exception’. Following Lauren Benton’s proposition that colonial sovereignty was constructed through variegated legal zones rather than zones of externality to the rule of law she proposes, instead, that we view the zone of indistinction between the rule and the exception as ‘multiple zones of spectral legality’ in law. There is much to be gleaned from such an approach, not least the ways in which violence operated through the law. What I am suggesting here, however, is that there is a difference between law and governmentalizing practices, and while the latter may operate through law, they can also be external to it. Both were, in addition, central to the construction of colonial sovereignties. To overlook this would be to miss the many ways in which colonial violence operated. Esmeir, Juridical Humanity (n 7) 242–​3; and Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-​1900 (New York: Cambridge University Press 2010), 4, 289.

Violence, the Exception, and Bare Life  65 creates the exception (one reason the exception is permeated by legality), then ‘potentially any action taken in the exception can gain legal force’.116 Such laws can act, in other words, as law-​making violence.117 Hussain’s concept of hyperlegality does not actually refer, in any case, to the creation of new laws, but rather to the replacement of law with governmentalizing practices, one of the means through which exceptionality is generated.118 Franz Kafka’s short story ‘On the Penal Colony’ demonstrates some of the forms of both disciplinary and governmentalizing violence that could be unleashed on the bodies of the colonized in the exceptional space of the colony. But it also reveals the hazy boundaries between the law and its infringement, or the legal and the extra-​ legal, and the ways in which these serve to make the state present as a spectral manifestation at the very point that its absence as a rational, rule-​based entity is most apparent.119 The story concerns the punishment of an indigenous soldier in an unnamed French penal colony.120 Although the man is clearly a victim of the structural violence of the French colonial regime (one of his tasks was to sleep before the door of his captain and get up every time the hour struck to salute the door) he is being executed, upon what Kafka describes as an ‘apparatus’, for dereliction of duty and failing to obey his superiors.121 The soldier is completely unaware of this sentence, however, since the law is completely illegible to him—​he has been sentenced, without trial, by a ‘judge’ who has no knowledge of the law (which he regards as irrelevant since he knows ‘more about the apparatus than anyone’) and whose sole guiding principle is that ‘Guilt is never to be doubted’.122 The only ‘evidence’ of such guilt is, however, the statement made by the captain, and the prisoner has no chance of putting up a defence—​as the ‘judge’ puts it, ‘There would be no point in telling him. He’ll learn it on his body.’123 116 Hussain, ‘Hyperlegality’ (n 108) 516; Brophy, ‘Lawless Sovereignty’ (n 67) 200; and Frost, ‘Agamben’s Sovereign Legalization’ (n 66)  559. Austin Sarat and Thomas Kearns maintain, however, that we need to regard the laws thus produced with caution on the grounds that the violence that is generative of law makes law, or at least the attainment of certain kinds of law, an impossibility, since ‘[i]‌t both provokes the hope of law and defeats the hope that law can be other-​than-​violence’. Austin Sarat and Thomas R. Kearns, ‘Making Peace with Violence’, in Austin Sarat (ed.), Law, Violence, and the Possibility of Justice (Princeton and Oxford: Princeton University Press 2001), 49. 117 Frost, ‘Agamben’s Sovereign Legalization’ (n 66) 561. 118 Hussain uses the concept of hyperlegality elsewhere to argue against the existence of states of exception on the grounds that ‘the internal operations in a supposed space of exception reveal not a suspension of law but an intensification of an administrative and bureaucratic legality, particularly in the use of classifications’. But such an assumption is based on a purported synonymity between law and governmental practices. Although such practices can generate petty states of exception within the law, as I have argued, they can also serve to stand in for the law and mask its absence. Nasser Hussain, ‘Beyond Norm and Exception: Guantanamo’, Critical Inquiry 33/​4 (2007), 744, 749. 119 My analysis borrows, here, from Veena Das, Life and Words (n 29) 168. 120 Although Kafka does not make the race of the soldier clear, he notes that the man did not understand French and describes him, in decidedly unflattering terms, as ‘a stupid-​looking, wide-​mouthed creature with bewildered hair and face . . .’ and compares him to ‘a submissive dog’. Franz Kafka, ‘On the Penal Colony’, in Selected Short Stories of Franz Kafka (Willa Muir and Edwin Muir tr., New York: The Modern Library 1936), 93, 90 (hereafter Kafka, ‘On the Penal Colony’). 121 Kafka, ‘On the Penal Colony’ (n 120) 96. 122 Ibid, 97. I will explore the illegibility of the law in colonial India to those tasked with implementing it in Chapter 3. 123 Ibid.

66  Colonial Terror As the story elaborates, the soldier’s ‘crime’ is made legible to him through being literally written on his body, since the ‘apparatus’ writes the ‘sentence’ (in this case, ‘honor thy superiors!’) upon the bodies of the accused with long, razor-​sharp needles, a process that takes a torturous twelve hours as it writes deeper and deeper into the body.124 It is only at the sixth hour, as the condemned prisoner is completely pierced by the needles and is close to death, that the law becomes legible as ‘the man begins to decipher the inscription’ through his wounds.125 For the judge such a sentence is not a form of torture, since the sufferings of the condemned are alleviated on the ‘apparatus’ through means of a felt gag to prevent them from biting their tongues and cotton wool to lie on (although this is also used to prevent blood from clogging up the machine). It is, instead, a form of enlightenment, of making the law legible—​the only form, as far as the ‘judge’ is clearly concerned, that ignorant and uncivil ‘natives’ could possibly understand.126 It is, therefore, central to what Walter Benjamin terms the ‘law-​preserving’ violence of the state, or what Veena Das and Deborah Poole designate as the ‘refounding of the law’, which takes place in part through the creation of bodies that can be killed with impunity.127 As the ‘explorer’ who reluctantly watches these proceedings remarks, such processes may have seemed barbaric, but ‘He had to remind himself that this was . . . a penal colony where extraordinary measures were needed . . .’.128 That colonial states were war-​like is apparent from even a casual glance at the wars they waged. Nathan Hensley argues that between 1837 and 1901, the period of Queen Victoria’s reign, there were at least 228 armed conflicts across the British Empire, many of which were punitive colonial campaigns designed to quell unrest.129 Such a number, according to Philip Dwyer and Amanda Nettlebeck, vastly underestimates the many hundreds of skirmishes fought on colonial frontiers.130 If to the violence of colonial warfare we add the exceptional nature of colonial governance, in which ‘the bare right of executive power could show itself at any “extreme” moment, breaking through procedural law with force’, then in light of the conquest, plunder, massacres, genocides, slavery, revolts, destruction, pestilence, and famine that thus ensued we should perhaps view colonial violence not as exceptional but as a manifestation of a permanent state of war.131 The connection made by Charles Tilly between war-​making 124 Ibid, 96. 125 Ibid, 104. 126 Ibid, 91. 127 Walter Benjamin, ‘Critique of Violence’, Reflections:  Essays, Aphorisms, Autobiographical Writings (Edmund Jephcott tr., New York: Shocken 1978), 284 (hereafter Benjamin, ‘Critique of Violence’); and Das and Poole, ‘State and its Margins’, 13. Such law-​preserving or refounding violence is particularly evident in the forms of power embodied in state agents like the police, who exist both prior to and outside of the law. 128 Kafka, ‘On the Penal Colony’ (n 120) 99. 129 Nathan K. Hensley, Forms of Empire: The Poetics of Victorian Sovereignty (Oxford: Oxford University Press 2016), 2 (hereafter Hensley, Forms of Empire). See also Richard Gott, Britain’s Empire:  Resistance, Repression and Revolt (New York: Verso Books 2011). 130 Philip Dwyer and Amanda Nettlebeck, ‘ “Savage Wars of Peace”: Violence, Colonialism and Empire in the Modern World’, in Philip Dwyer and Amanda Nettlebeck (eds), Violence, Colonialism and Empire in the Modern World (Cham, Switzerland: Palgrave Macmillan 2018), 5. On the nature of what came to be known as ‘savage warfare’ see Kim Wagner, ‘Savage Warfare: Violence and the Rule of Colonial Difference in Early British Counterinsurgency’, History Workshop Journal 85 (2018), 217–​37. 131 Hensley, Forms of Empire (n 129) 148; Ranabir Samaddar, ‘Colonial State, Terror and Law’, in Imtiaz Ahmed (ed.), Understanding Terrorism in South Asia: Beyond Statist Discourses (Manohar: Regional Centre for Strategic Studies, Colombo 2006), 49; and Zammit, ‘A Postcolonial Reading’ (n 76) 4. See also Mark

Violence, the Exception, and Bare Life  67 and state-​making—​that war, in essence, makes states—​suggests that such a proposition may not be as far-​fetched as it first sounds.132 What perhaps distinguished colonial states was not their resort to law-​preserving violence, such as policing, but rather their ongoing recourse to war-​making, or what Walter Benjamin designates as ‘lawmaking’ [sic], violence.133 Yet whether law-​making or law-​preserving, sovereign violence operated in colonial contexts with, and often through, governmentalizing practices.134 But since ‘within the structures and projects that gave shape to the colonial enterprise as a whole there were discontinuities in which different political rationalities, different configurations of power, took the stage in commanding positions’ understanding the nature of such violence requires paying attention to how the relationship between sovereignty and governmentality changed over time and according to the particular populations that colonial states sought to manage.135 As we shall see in the following chapters, in the case of colonial India, torture initially became systematized and normativized during the second half of the nineteenth century as a means of managing the poorest and Condos, ‘License to Kill: The Murderous Outrages Act and the Rule of Law in Colonial India, 1867-​1925’, Modern Asian Studies 50/​2 (2016), 484. Although such a suggestion broadens our understanding of war, a number of scholars have been pushing our conceptualization of war in new directions. Vincent Brown, for example, has proposed that the transatlantic slave trade should be understood as a war to enslave and expand slavery, as well as a war against and among slaves, while Dinesh Joseph Wadiwel has suggested that humans are waging a war against animals. Vincent Brown, Tacky’s Revolt: The Story of an Atlantic Slave War (Cambridge, MA and London: The Belknap Press 2020); and Dinesh Joseph Wadiwel, ‘The War Against Animals: Domination, Law and Sovereignty’, Griffith Law Review 18/​2 (2009), 283–​97. 132 Charles Tilly, ‘War Making and State Making as Organized Crime’, in Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol (eds), Bringing the State Back In (Cambridge: Cambridge University Press 1985), 170 (hereafter Tilly, ‘War Making’). The war-​like nature of colonial governance was certainly apparent to at least some of those subjected to it. For the Tswana ‘the English mode of warfare’ was one based on law, in which documents were served to reduce ‘human beings to pieces of paper’. Comaroff, ‘Governmentality, Materiality, Legality’ (n 76) 115; and John Comaroff, ‘Symposium Introduction: Colonialism, Culture, and the Law: A Foreword’, Law and Social Inquiry 26/​2 (2001), 306. 133 Tilly, ‘War Making’ (n 132) 170; and Benjamin, ‘Critique of Violence’ (n 127) 283. On the role of the law itself in the perpetuation of both law-​making violence and law-​preserving violence see Saul Newman, ‘Terror, Sovereignty and Law: On the Politics of Violence’, German Law Journal 5/​5 (2004), 569–​84. Bruno Gullí opposes viewing the state of war and state of exception as synonymous on the grounds of the indeterminate and indefinite length of the latter, but the fact that, as Steven DeCaroli maintains, ‘the situation for those who refuse to consent to sovereign power is a condition of war’ suggests that in colonial contexts the exception is, in fact, a state of permanent war. Bruno Gullí, ‘The Ontology and Politics of Exception: Reflections on the Work of Giorgio Agamben’, in Matthew Calarco and Steven DeCaroli (eds), Giorgio Agamben: Sovereignty and Life (Stanford: Stanford University Press 2007), 235–​6; and DeCaroli, ‘Boundary Stones’ (n 75) 64. 134 Dirks, The Scandal of Empire (n 46) 212; and Oksala, ‘The Management of State Violence’ (n 104) 60. Foucaultian-​inspired scholarship tends to envision governmentality as having usurped sovereign power but the two forms of power came to work, instead, to mutually constitute each other. Mitchell Dean, ‘ “Demonic Societies”: Liberalism, Biopolitics, and Sovereignty’, in Thomas Blom and Finn Stepputat (eds), States of Imagination:  Ethnographic Explorations of the Postcolonial State (Durham, NC:  Duke University Press 2001), 4. 135 David Scott, ‘Colonial Governmentality’, Social Text 43 (1995), 204. Although neither deal with violence, John Darwin gives a useful elucidation of some of the various iterations of the late colonial state and Partha Chatterjee offers insights into the changing relationship between sovereignty and governmentality in colonial and post-​colonial India. John Darwin, ‘What Was the Late Colonial State’, Itinerario 23/​ 3-​4 (1999), 73–​82; and Partha Chatterjee, ‘Governmentality in the East’, in Stephen Legg and Deana Heath (eds), South Asian Governmentalities: Michel Foucault and the Question of Postcolonial Orderings (Cambridge: Cambridge University Press 2018), 37–​57.

68  Colonial Terror most marginal members of Indian society through the governmentalizing practices of the police acting as ‘petty sovereigns’. By the early twentieth century, however, such practices began to be applied to new segments of the Indian population deemed a threat to the sovereignty of the colonial state, including members of the educated middle classes, as India was transformed into a state of exception through both the suspension of law and the legalization of exceptional measures.

2

The Facilitators I: Policing On the one hand they manhandle you and on the other hand they nurse you like a baby. All written down in the same book, like debit and credit columns in a ledger. The government is the invisible bookkeeper who makes the entries, and the constable is just a sort of human blotter who dries the ink.1

In his short sketch ‘Due Supervision’ (reproduced below in its entirety) the Urdu writer Sadaat Hasan Manto, renowned for his insightful and sensitive sketches and stories about the intimacies and effects of embodied violence during the partition of India in 1947, offers a chilling vignette of the nature of state violence that, while it documents the violence of the military in colonial India, applies equally well to the police, since both forces of ‘law and order’ were constituted in European colonies as repressive arms of the state: Introducing his friend as one belonging to the same religion, he was able to get both of them a ride with a convoy which was being moved to safety under military escort. During the trip, the friend, whose name had also been changed to accord with his assumed religion, asked the soldiers, ‘Have any incidents taken place in this area of late?’ ‘Nothing much’, the soldiers answered, ‘except that a mongrel was gunned down in a nearby settlement the other day.’ Terrified, he asked, ‘Anything else?’ ‘No, only three dead bitches were found floating in the canal.’ ‘Doesn’t the military do anything?’ the terrified man’s friend asked the soldiers, hoping to reassure his friend about the military’s neutrality. ‘But of course, everything is done under due supervision.’2

The ‘mongrel’ and ‘bitches’ in this sketch refer, of course, to men and women of the ‘other’ religion (although as in many of his stories and sketches Manto does not specify to which religion he is referring). But I am more interested in what this sketch reveals about the soldiers, for it shows that rather than putting an end to the brutality

1 Henry Miller, ‘Via Dieppe-​ Newhaven’, in The Cosmological Eye (Norfolk, CT:  New Directions 1939), 248. 2 Saadat Hasan Manto, ‘Due Supervision’, in Partition:  Sketches and Stories (Khalid Hasan tr., New Delhi: Viking 1991), 29. Colonial Terror. Deana Heath, Oxford University Press (2021). © Deana Heath. DOI: 10.1093/​oso/​9780192893932.003.0003

70  Colonial Terror perpetrated by Hindu, Muslim, and Sikh men on the bodies of others, their role is, instead, to ‘supervise’ it. The original title of Manto’s sketch is ‘Nigrani mein’, which can be translated as ‘due supervision’ (although nigrani can also be translated as ‘care’, ‘monitoring’, or ‘oversight’). What Manto suggests is the ways in which extra-​legal violence can become normativized and systematized—​of the way it can function, in Foucaultian terms, as part of the disciplinary and governmental power of a state in which the exception has become the norm. If we focus solely on ‘traditional’ forms of power, or what Michel Foucault terms sovereign and juridical power, then state violence, which is legitimated through sovereignty and the rule of law, always appears justifiable. This makes invisible forms of state violence that are, however, extra-​legal, namely that are politically sanctioned through management by professionals, expert knowledge, and a repertoire of policies rather than through the rule of law.3 In his now classic study of the development of modern penality and its modes of disciplining recalcitrant subjects, Discipline and Punish, Foucault charted the emergence of disciplinary power in Europe beginning in the eighteenth century. What marked disciplinary as opposed to sovereign power was that the body ceased to be the target of judicial punishment and became instead a target of reform. This does not mean, however, that such ‘reform’ did not involve the infliction of pain. The violence of punishment became, instead, both hidden and denied, as justice ceased to publicly acknowledge responsibility for its own constitutive violence.4 What thus emerged was ‘a certain discretion in the art of inflicting pain, a combination of more subtle, more refined sufferings, deprived of their visible display’, which were inflicted not by the executioner but by an army of ‘experts’ such as warders, doctors, chaplains, and psychiatrists.5 As in the case of doctors who oversee the ‘wellbeing’ of the condemned during the course of their execution, the violence enacted by such agents of discipline was masked, however, as welfare.6 Such ‘welfarist’ measures ensure, for Foucault, that ‘There remains a trace of “torture” in the modern mechanisms of criminal justice.’7 In its focus on both surveillance and material coercion, Discipline and Punish can, therefore, be read as a history of some of the more subtle forms of modern state violence, since ‘What characterizes disciplinary power . . . is that the dividing line between power and violence . . . becomes permeable, at times totally indistinguishable’.8

3 Johanna Oksala, ‘The Management of State Violence:  Foucault’s Rethinking of Political Power as Governmentality’, Graduate Faculty Philosophy Journal 26/​2 (2007), 53 (hereafter Oksala, ‘The Management of State Violence’). 4 Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan tr., New York: Vintage Books 1979), 9 (hereafter Foucault, Discipline and Punish). 5 Ibid, 8. Such forms of suffering included confinement (which in addition to loss of liberty entails food rationing, sexual deprivation, and corporal punishment), and which for Jeremy Bentham was ‘a kind of slow Torture [sic]’, in addition to forced labour and deportation. ‘Of Torture’, Bentham Papers, Box 46/​63–​70, University College London Library, cited in William Twining, ‘Bentham on Torture’, Northern Ireland Legal Quarterly 24/​3 (1973), 319. 6 Foucault, Discipline and Punish (n 4) 11. 7 Ibid, 16. 8 Oksala, ‘The Management of State Violence’ (n 3) 55.

The Facilitators I: Policing  71 Although discipline operates at the level of the individual, to transform individual bodies, it became most important when it was applied to the management of populations.9 As Foucault elaborated in his 1975–​1976 lecture series at the Collège de France, such an application first began with the emergence in Europe of a new form of power that he termed ‘biopower’ which, in contrast to sovereign power, which maintained the right to ‘take life or let live’, sought to ‘ “make” live and “let” die’.10 While biopower came both to permeate sovereign power and embed itself in disciplinary power, it existed on a different level and scale, namely not to ‘man-​as-​body’ but to ‘man-​as-​species’.11 Central to such a form of power is ‘governmentality’, namely the institutions, procedures, and tactics through which political economy is applied, in the name of security, to the management of populations.12 Like discipline and biopower, governmentality did not usurp sovereign power; it instead became ‘one of the functions, attributes, or tasks of sovereignty, and it found its principle of calculation in raison d’État’.13 But in contrast to sovereignty, which is reliant on law, governmentality employs laws merely as tactics, as well as administrative apparatuses and managerial techniques, to achieve particular ends.14 Governmentality thus employs various forms of violence, including disciplinary forms, as tactics to manage populations and protect the security, and, with it, sovereignty, of the state. Such forms of violence are both perpetrated and sanctioned by a range of professionals, such as military and police officers and administrative staff, who ‘lend the process of state violence an aura of rationality, dispassion and justice’.15 Since governmental technologies operate where the rule of law does not reach or is suspended, violence, in such contexts, comes to play a key legitimating role for the state.16 In emergency situations, or states of exception, it is such processes of governmentalization, in which ‘sovereign power emerges as the power of the managerial “official” ’, or ‘petty sovereign’, that enables the state to survive as a site of power.17 Sovereignty, as a result, materialises as a tactic of governmentality,

9 Michel Foucault, Security, Territory, Population:  Lectures at the Collège de France 1977-​78, Michel Snellart (ed.) (Graham Burchell tr., New York: Palgrave Macmillan 2007), 107 (hereafter Foucault, Security, Territory, Population). 10 Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975-​76, Maurio Bertani and Alessandro Fontana (ed.) (David Macey tr., New York: Picador 1997), 241 (hereafter Foucault, ‘Society Must Be Defended’). Foucault defined biopower as ‘the set of mechanisms through which the basic biological features of the human species became the object of a political strategy, of a general strategy of power, or, in other words, how, starting from the eighteenth century, modern western societies took on board the fundamental biological fact that human beings are a species’. Foucault, Security, Territory, Population (n 9) 16. 11 Foucault, ‘Society Must Be Defended’ (n 10) 241, 242. 12 Foucault, Security, Territory, Population (n 9) 108. Foucault’s definition of governmentality is, however, notoriously convoluted, since he also defined it as a series of governmental apparatuses and knowledges as well as the process through which the state becomes governmentalized. Although Agamben has suggested that his death prevented Foucault from further developing his concept of biopolitics, Foucault instead abandoned it in favour of security and governmentality. Tom Frost, ‘Agamben’s Sovereign Legalization of Foucault’, Oxford Journal of Legal Studies 30/​3 (2010), 548. 13 Foucault, Security, Territory, Population (n 9) 312. 14 Ibid, 99; and Oksala, ‘The Management of State Violence’ (n 3) 58. 15 Oksala, ‘The Management of State Violence’ (n 3) 60. 16 Ibid, 61. 17 Judith Butler, Precarious Life: The Powers of Mourning and Violence (London and New York: Verso 2004), 62.

72  Colonial Terror and comes to function, in turn, in the same field as governmentality, namely through the management—​or, as Manto illustrates, supervision—​of populations.18 In light of the way in which biopower, moreover, serves to inscribe racism as an instrument of power, in colonial contexts such as India the sovereign power that thus emerged through such governmentalizing processes came to determine who should be let live and who die, including through forms of indirect murder, such as torture, that served to ‘increas[e]‌the risk of death for some people’.19 This chapter explores the role of ‘atrocity facilitators’ in the governmentalization of torture by revenue and police officials in colonial India, particularly the role they played in systematizing torture as a technology of colonial rule and thus making the Indian police, in the words of the 1902 Indian Police Commission, ‘a terror to the people’.20 Although torture may appear as though it is not a power relationship, since as Foucault made clear power can only be exercised over free subjects (which means that slavery, for example, is not a power relationship), if a person who is tortured ‘can be induced to speak’, or be made to behave in some other particular way, then they have ‘been submitted to government’.21 I am interested, therefore, in the ways in which torture operates as a tactic of colonial governmentality. I will focus, in particular, on the role of atrocity facilitators in developing a system of policing in which torture was endemic. In addition to British officials in colonial India and the British government, such facilitators of atrocity included what Higgins, Haritos-​Fatouros, and Zimbardo refer to as ‘bystander communities’ in India and Britain that were aware that torture was widely used in the collection of revenue and in policing in India but who either denied it or chose to maintain silence about it.22 What distinguishes facilitators is not only their ‘membership in a specialized social control organization’ but their ability to ‘manipulate and control the definition of truth so that any information that threatens their secrets is labelled “illegitimate” and “against the national interest” ’.23 In the case of colonial India, the ‘social control organization’ to which most facilitators belonged was the British colonial bureaucracy. It was, therefore, through such a bureaucracy that facilitators of torture ensured that both they and the colonial state they served benefited politically and economically from torture—​through, for example, their decisions on administrative policy and procedure, or through failing to punish the individuals who carried out torture. It was also their policies that, in Foucault’s words, served to ‘increase[e]‌the risk of death for some people’.

18 Ibid, 98. 19 Foucault, ‘Society Must Be Defended’ (n 10) 256. 20 Martha K. Huggins, Mika Haritos-​Fatouros, and Philip G. Zimbardo, Violence Workers:  Police Torturers and Murderers Reconstruct Brazilian Atrocities (Berkeley: University of California Press 2002), 139 (hereafter Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers); and Report of the Indian Police Commission, 1902-​03 (Simla: Printed at the Government Central Printing Office 1903), 115. 21 Michel Foucault, ‘The Subject and Power’, Critical Inquiry 8 (1982), 790; and Michel Foucault, ‘ “Omnes et Singulatim”: Toward a Critique of Political Reason’, in Power, James D. Faubion (ed.) (Robert Hurley tr., New York: The New Press 1994), 324 (hereafter Foucault, ‘ “Omnes et Singulatim” ’). 22 Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers (n 20) 261. 23 Ibid, 171, 27.

The Facilitators I: Policing  73

Torture and the Elision of the Structural Violence of Colonialism The oppressor’s government can set up commissions of inquiry and of information daily if it wants to; in the eyes of the native, these commissions do not exist.24 The Madras torture commission, established in 1854, is a useful place to begin analysing the role of atrocity facilitators in the governmentalization of torture in colonial India, although not because it represents the first moment in which colonial administrators, and with it their metropolitan counterparts, first became aware, or even first professed to be aware, that torture was routinely used in the execution of colonial policy. Indeed, the ‘problem’ of torture had occupied colonial administrators, as well as their colleagues in London, for almost half a century before the torture commission was appointed. But what is interesting about the commission is not simply that it was the first time that torture in colonial India erupted into scandal, but that the colonial regime was, as a result, forced to take action (or, rather, appear to take action) to eradicate it. The commission also represents the moment in which a new facilitatory discourse evolved in relation to torture, one which shifted the blame for torture from the colonial regime and its policies to Indian officials and Indian society—​and that, in the process, served to enshrine torture as a key tactic of colonial governmentality. Let us start by reflecting on the astounding nature of such a commission. That a colonial regime should set up a commission to investigate its own violence and rapacity is nothing short of astonishing, and is surely unparalleled in the history of modern colonialism. In regard to colonial India there had been nothing comparable to it since the impeachment of Warren Hastings in the late eighteenth century. Indeed, the significance of the commission as a moment of self-​reflection on the nature of British colonial rule in India makes the relative dearth of scholarship on it somewhat surprising. Such scholarship pays little attention, in addition, to the genesis of the commission, although it is arguably there that we need to turn in order to begin to make sense of why it was actually set up in the first place and why, in spite of its awful revelations, little was actually done to put an end to the enactment of torture by subordinate officials in colonial India. As Partha Chatterjee has argued, the principal focus of colonial governmentality in India in the nineteenth century was agriculture. Agriculture, according to Chatterjee, ‘was the first area of government in which the British rulers of India developed a concept of population’, although such a concern with managing population was governed not by a desire to improve the welfare of Indians but ‘by considerations of the security of the colonial state’ (the establishment of a system of large-​scale policing in colonial India to promote law and order was, in turn, spurred by the desire to ensure stable tax revenues).25 Indeed, the development of colonial forms of governmentality 24 Frantz Fanon, Concerning Violence (first published in 1963, Constance Farrington tr., London: Penguin 2008), 64 (hereafter Fanon, Concerning Violence). 25 Partha Chatterjee, ‘Governmentality in the East’, in Stephen Legg and Deana Heath (eds), South Asian Governmentalities:  Michel Foucault and the Question of Postcolonial Orderings (Cambridge:  Cambridge

74  Colonial Terror through the elaboration of an administrative bureaucracy to extract vast amounts of revenue was vital for the colonial state precisely because it lacked popular sovereignty.26 It should perhaps come as little surprise, therefore, that the initial impetus to establish a commission on torture was spurred by concerns not about torture but about land tenure in Madras, the presidency that generated the largest land revenue in India.27 In a speech to the House of Commons on 11 July 1854 that revealed the concerns of India’s rulers with the management of population, John Blackett, the Liberal member for Newcastle and a member of the recently-​founded India Reform Society, proposed the appointment of a commission to investigate the nature of such tenure.28 Blackett began by informing his fellow MPs (only 126 of whom, out of a House of over 650 members, had actually bothered to show up for a debate on India) that of the £26,000,000 annual revenue provided by Britain’s Indian possessions a full £15,000,000 of it was derived from land revenue.29 A considerable portion of this came from Madras, in large parts of which the ryotwari system of revenue operated, in which revenue collection was settled annually with individual cultivators (in contrast to the system in Bengal, for example, in which the land was permanently settled and revenue was collected from landlords). Such a system, Blackett argued, was injurious, both because of the excessive amounts of revenue demanded from cultivators and because such a demand tended ‘to prevent the accumulation of property, to precipitate the decline of the Indian population, and to render it difficult to establish anything like

University Press 2018), 40–​1; and Ranjan Chakrabarti, ‘Pax Britannica and the Nature of Police Control in Bengal c. 1800-​1860’, Bengal Past and Present 105/​1–​2 (1986), 80. The relationship between policing, agriculture, and law and order is emblematic of the belief that agriculture brings law into existence, an aspect of what Peter Fitzpatrick terms ‘the long occidental romance between law and agriculture’, which was notably articulated in ideas about the stages of ‘progress’ to which colonized societies allegedly belonged. Peter Fitzpatrick, ‘Terminal Legality:  Imperialism and the (De)composition of Law’, in Diana Kirkby and Catharine Coleborne (eds), Law, History, Colonialism: The Reach of Empire (first published in 2001, Manchester: Manchester University Press 2010), 16. 26 Nicholas B. Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge and London: Harvard University Press 2006), 212 (hereafter Dirks, The Scandal of Empire). 27 Anandswarup Gupta, Crime and Police in India [Up to 1861] (Agra: Sahitya Bhawan 1974), 310. 28 The dire state of India had been subject to reformist critique since the 1830s. In 1839, for example, the British Indian Society was formed by humanitarian reformers bent on abolishing what they saw as the ‘virtual slavery’ to which the Indian peasant was reduced by fiscal oppression. The India Reform Society, on the other hand, was founded in 1853 to challenge the renewal of the East India Company’s charter. It had twenty-​four initial members, including twenty MPs, and lasted for a little over a decade. Zak Leonard, ‘ “A Blot on English Justice”: India Reformism and the Rhetoric of Virtual Slavery’, Modern Asian Studies (online edn 2020), 1–​46 Modern Asian Studies (2020), 1–​46 [Doi: https://​doi.org.10.1017/​S0026749X18000483] (hereafter Leonard, ‘ “A Blot on English Justice” ’); Derek Llewellyn Elliott, ‘Torture, Taxes and the Colonial State in Madras, c. 1800-​1858’ (PhD Diss., University of Cambridge 2015), 47 (hereafter Elliott, ‘Torture, Taxes’); and Gregory Claeys, Imperial Sceptics: British Critics of Empire 1850-​1920 (Cambridge: Cambridge University Press 2010), 21–​36. See also Zoë Laidlaw, ‘ “Justice to India—​Prosperity to England—​Freedom to the Slave!” Humanitarian and Moral Reform Campaigns on India, Aborigines and American Slavery’, Journal of the Royal Asiatic Society 22/​2 (2012), 299–​324. 29 HC Deb 11 July 1854 vol. 135 c44. The lack of interest in India by MPs was not restricted solely to debates on land tenure. As a contributor to the Modern Review lamented a full half century after Blackett’s proposal, in addition to the fact that debates on India in the House of Commons were generally poorly attended, ‘Few members listen to the speeches made about India and few newspapers report them except in the briefest summaries’. ‘An Englishman’, ‘The Agitation of Indian Grievances in England’, Modern Review VI/​12 (December 1909), 578.

The Facilitators I: Policing  75 a healthy and stable civilisation in British India’.30 In addition, rather than stimulating private enterprise, such a system ‘introduced the agency of the State to an extent that had no parallel in the history of the world’.31 This posed an impossible problem of governance, for Blackett, since it required European collectors, whose districts averaged 7,000 square miles (and in some instances as many as 13,000), aided by no more than a few British assistants, both ascertaining and collecting the amount of tax revenue due from every single field in what were ‘vast dominions’.32 Blackett’s speech was thus clearly part of what was already a long and well-​rehearsed discourse about the virtues of British officials in India and their seemingly impossible (not to mention self-​sacrificial) task of governing an immense and opaque land virtually single-​handedly. Not only was the responsibility of the British in generating such an impossible task rarely mentioned, neither was the role of the vast army of Indian officials in assisting them—​except, that is, pejoratively. Indian officials were, in fact, Blackett’s chief source of concern, since as the operation of the ryotwari system was dependent upon such an army, in Madras ‘the word “Government” ’, according to Blackett, ‘was synonymous with swarms of corrupt Native functionaries’—​not, in other words, with noble and overworked British officials who, as another MP put it, were ‘hoodwinked’ by ‘knavish Natives’ (the ‘real governors’ of India).33 For Blackett the chief problem in Madras was ultimately not, therefore, that the land tax was exorbitant, but that in ‘press[ing] so severely upon [the tenant’s] means of subsistence’ it left them ‘at the mercy of the Government’—​at the mercy, in other words, of those ‘swarms of corrupt Native functionaries’.34 This is not to say that Blackett was not moved by the plight of peasants in Madras. In addition, he declared, to being subjected to ‘a barbarous system of serfdom’, the ‘vast proportion of [them] were trembling on the verge which separated indigence from absolute starvation’.35 But his ultimate concern was that the reins of governance in Madras were not in British hands, and that this was extremely detrimental to British interests.36 The debate that followed Blackett’s motion offers valuable insights into the ways in which the discourse of atrocity facilitation came to operate regarding torture in 30 HC Deb 11 July 1854 vol. 135 c44. 31 Ibid, c45. 32 Ibid, c45. 33 Ibid, c46; and Letter from Mr. Theobald, member of the Calcutta bar, to Henry Danby Seymour, n.d., cited by Arthur Otway, MP, ibid, c89. Such a concern was voiced repeatedly in the debates relating to the torture commission. As the former Governor-​General the Earl of Ellenborough observed in a debate in the House of Lords in the commission’s aftermath, he had ‘always entertained the greatest apprehensions that many of the evils with which India is afflicted were derived from the circumstance of the European officer being much more than he ought to be in the hands of the Native officers by whom he is surrounded’, HL Deb 14 April 1856 vol. 141 c991. 34 HC Deb 11 July 1854 vol. 135 cc45–​46. 35 Ibid. 36 As proof of his concerns, Blackett noted that the revenue in Madras had been declining for a number of years. But as Blackett was doubtless well aware, this was a result of an extremely high land tax as well as the dramatic decline of the ryots’ (peasant’s) capacity to pay during the first half of the nineteenth century as a result of falling grain prices. Such a situation ensured that, according to a survey undertaken in 1850, only 17 per cent of the peasantry could meet their required revenue payments without requiring assistance from moneylenders, ibid 135 c49; Douglas Peers, ‘Torture, the Police, and the Colonial State in the Madras Presidency, 1816-​55’, Criminal Justice History:  An International Annual 12 (1991), 40 (hereafter Peers, ‘Torture, the Police’); and Elliott, ‘Torture, Taxes’ (n 28) 32.

76  Colonial Terror colonial India. The matter of torture was first raised by Henry Danby Seymour, Liberal MP for Poole who, like his fellow Liberal Blackett, was a member of the India Reform Society. He also, in contrast to most of his fellow MPs, had actually visited India, having gone on a tour of Madras in 1853 with Gazulu Lakshminarusu Chetty (a merchant, newspaper owner, and founder of the Madras Native Association) to investigate first-​hand the grievous mis-​governance of Madras as laid out by the Association in an 1852 petition to Parliament, during which he purported to witness torture being carried out for the purpose of revenue extraction.37 Seymour introduced the subject by making an incredible speech, in which he condemned the governance of 150 million people by a ‘bastard Company’.38 There was, he maintained, ‘no farmer in England who did not care more for his stock than the East India Company did for those human beings intrusted to their charge’, since ‘the great object of the Madras Government was to get 10s. a year out of a man who had only 8s’.39 As this was not an easy task, ‘tortures . . . were resorted to for the purpose of extorting the required amount’.40 In addition to making the plight of the Madras peasantry the primary focus of concern, such a speech also broke the silence that surrounded the role of violence in Britain’s governance of India. As a result, it wasroundly discredited. This is not to say that the truth that Indian bodies were being tortured was repudiated. What Stanley Cohen terms literal denial, namely the denial that something is not true or did not take place, is rare when it comes to torture scandals since the evidence that produces them—​the corpses and broken bodies—​is difficult to discredit.41 Although Sir Charles Wood, President of the East India Company’s Board of Control, declared that he did not believe Seymour’s claim, neither he nor any other MP explicitly denied that torture was being used to extract revenue in Madras.42 As one MP observed, this meant that they as good as admitted ‘that excessive rents were exacted’ from the peasantry in Madras, as well as ‘that those rents were extorted by torture’.43 Seymour’s critics instead resorted to other 37 G. Paramaswaran Pillai, Representative Indians (2nd edn, London: W. Thacker & Co. 1902), 199–​200. Seymour also, apparently, acquired a set of torture implements. The Madras Native Association, an off-​ shoot of the Calcutta-​based British India Association (established by, amongst others, Radhakanta Deb and Debendranath Tagore), was founded in 1852. The petition was the first of five submitted by the Association that dealt with torture. Elliott, ‘Torture, Taxes’ (n 28) 42; and Madras Native Association, Petition to the Imperial Parliament from the Members of the Madras Native Association, and Other Native Inhabitants of the Madras Presidency, for Redress of Grievances: In Connection with the Expiration of the East India Company’s Charter (Madras: Hindu Press 1852). 38 HC Deb 11 July 1854 vol. 135 c64. 39 Ibid, c62. 40 Ibid. 41 Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge: Polity Press 2001), 7 (hereafter Cohen, States of Denial). 42 The Board of Control was established after the passage of William Pitt’s India Act in 1784 to supervise the affairs of the East India Company. Since its members included the Secretary of State for India and the Chancellor of the Exchequer it ‘controlled the flow of official information and could hobble investigations’ into official misconduct. Wood offers a case in point, since he had met with Henry Danby Seymour following the latter’s return from Madras in early 1854 and later informed Governor-​General Dalhousie that Seymour had ‘not much to say which is unreasonable’ or was ‘without foundation’ in regard to the use of torture in revenue collection in Madras. C. H. Philips, The East India Company, 1784-​1834 (Manchester: Manchester University Press 1961), 33; Leonard, ‘ “A Blot on English Justice” ’ (n 28) 8; and BIA/​HP/​Halifax/​F78 India Board Letter Book V, Wood to Dalhousie, 9 May 1854, f. 74, cited in Elliott, ‘Torture, Taxes’ (n 28) 70. 43 HC Deb 11 July 1854 vol. 135 cc87, 85.

The Facilitators I: Policing  77 forms of denial, in particular that of discrediting his claims.44 The Conservative MP Sir James Hogg, for example, a director of the East India Company and prior two-​time Chairman (as well as former Registrar of the Supreme Court of Judicature in Calcutta), disparaged Seymour’s claims for lack of proof. According to Hogg, Seymour, like the British colonial officials that Blackett championed, had fallen into the designing hands of ‘natives’, in this case members of the Madras Native Association, at whose request Seymour had gone to Madras.45 Hogg suggested, furthermore, that Seymour’s information was, at the very least, exaggerated, since ‘the House could easily understand the sensation which the presence of his hon. friend would excite in districts where . . . the face of a European was seldom seen’, especially one who was ‘in the practice of taking out a sheet of paper covered with pictures of various kinds of torture, and asking the people . . . “is that the kind of torture to which you were subjected?” ’.46 For Hogg the issue at stake was not, therefore, the charge of torture, but the ‘act of grave indiscretion’ that Seymour had committed in investigating it.47 But although Seymour’s aim was clearly to expose the brutality of the Company’s governance in Madras, in shifting the debate away from land revenue to torture he, like his fellow Liberal Blackett, effectively ignored or refused to consider the structural violence of colonialism, namely that it was the British system of governance in Madras that was responsible for producing and condoning torture—​and, ultimately, for relying on it in order to function.48 He overlooked, in other words, the fact that the system of land revenue in Madras was so excessive that it reduced peasants to what Radical MP and fellow member of the India Reform Society, John Bright, termed ‘a state of physical weakness . . . arising from the want of the common necessaries of life’, and that it was as a result of this that Indian officials were forced to resort to torture in order to collect such an excessive tax (since, as Bright put it, ‘if they did not . . . extort the rent from the wretched ryot they were themselves dismissed as negligent in their duty’).49 His critics likewise ignored such realities. Seymour’s most stringent detractor, Sir Charles Wood, did go so far as to admit that the land revenue assessment in Madras was fixed under a survey that had been carried out over fifty years ago, that such a survey had been poorly conducted, and that it was now too high in light of the considerable fall in the value of produce in Madras as a result of an economic depression in the province; he even admitted that the land tax in Madras was so high that large areas of land were no longer cultivated because the amount of the tax on it was 44 Stanley Cohen, States of Denial (n 41) xi. 45 HC Deb 11 July 1854 vol. 135 c66. 46 Ibid, c68. 47 Ibid. For the East India Company critic Theodore Henry Dickens, since Hogg was ‘too cunning’ to deny the role of torture in revenue collection in India he instead ‘contented himself with abusing Mr. Danby Seymour for asserting its existence’. Theodore Henry Dickens, A Letter to the Rt. Hon. Robert Vernon Smith, M.P., President of the Board of Control, Upon the Proposed Judicial Reforms in India (London: W. G. Benning & Co. 1857), full text reproduced in John Bruce Norton, The Administration of Justice in Southern India (Madras:  Printed at Pharoah & Co., Atheneaum Press 1853), Appendix, 100 (hereafter Norton, The Administration of Justice). 48 Seymour undoubtedly managed to overcome whatever scruples he had in regard to the East India Company, since in the year following the debate on Blackett’s motion he assumed the post of Joint Secretary to the President of the Board of Control (a post he held until the abolition of the Company in 1858). 49 HC Deb 11 July 1854 vol. 135 cc79, 80. John Bright became aware of conditions in India through his appointment, in 1848, as chairman of the Select Committee on the Growth of Cotton in India.

78  Colonial Terror higher than peasants could obtain for whatever crops they might grow on it, and that as a result of such high taxes ‘the native population of India had been reduced almost to a state of beggary’.50 But in a deft sleight of hand, Wood observed that Blackett’s motion was for a commission to inquire into the state of land tenure in Madras, not the over-​assessment of land, and as far as Wood was concerned there was nothing wrong with the system of land tenure in Madras.51 When Conservative MP Joseph Henley declared that the issue that needed to be explored was ‘the alleged application of torture’ in the collection of revenue in Madras, that effectively ended discussion of the wider structural violence of colonial rule.52 The motion was defeated by sixty-​four to fifty-​nine. In his analysis of the impeachment of Warren Hastings, the most significant seemingly welfarist measure prior to the Madras torture commission to expose the brutality of colonial rule, Nicholas Dirks maintains that although the impeachment bared the corruption, deceit, and, I would add, violence of Britain’s actions in India to the world, it also served to purge empire of its unsavoury origins, displace blame for such origins from Britain to officials of the East India Company, and thus sanctify Britain’s ‘right’ to colonize India.53 The scandal over the impeachment enabled empire, furthermore, to be ‘reformed’ (although such reforms, Dirks notes, ‘work[ed] to protect the potential agents of scandal rather than its actual victims’) while serving to erase the scandal of conquest and colonization.54 In the aftermath of the impeachment, scandal was, in addition, displaced from empire onto Indian customs and culture.55 Instead of being a source of shame for Britons, scandal was transformed, therefore, into a justification for empire, the ‘clarion call for the imperial mission, based as it was on the idea of the burden of empire’.56 What made such transformations possible was, in part, the arguments of Edmund Burke during Hastings’s impeachment trial. Although Burke was a stringent critic of Hastings’s governance of Bengal, he was arguably even more concerned about the danger that India, with its ‘irrevocable, and deeply sexualized, alterity’, purportedly posed to Britain by corrupting it and thus undermining British ideals and character.57 Burke framed such fears, significantly, through sensational and salacious revelations about ‘native’ depravity and the varied (and often highly sexualized) forms of torture purportedly inflicted by Indian revenue agents upon peasants who were unable to pay the excessive revenue demands inflicted upon them by the East India Company. These included, according to Burke, scourging ‘Children . . . almost to

50 Ibid, c48. As a result of the economic and trade depression that afflicted Madras in the second quarter of the nineteenth century, which had become quite acute by the 1840s, peasants had to sell a high proportion of their produce in order to pay their kist, or revenue taxes, since the British required such taxes to be paid in cash. Elliott, ‘Torture, Taxes’ (n 28) 124–​32. 51 Ibid, c82. The 1852 and 1853 parliamentary inquiries that preceded the renewal of the East India Company’s charter had already drawn attention to the nature of the land revenue system in Madras. As far as Wood was undoubtedly concerned, therefore, the issues that Blackett raised had already been addressed. 52 Ibid, c87. 53 The Scandal of Empire (n 26) xii, 5, 13. 54 Ibid, 30. See also Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton University Press, Princeton 2005). 55 The Scandal of Empire (n 26) xii. 56 Ibid, 34. 57 Ibid, 80.

The Facilitators I: Policing  79 death in the presence of their parents’, the public rape of ‘virgins, who had never seen the sun’, and the tearing of women’s nipples from their breasts.58 The 1854 Parliamentary debate on revenue, land tenure, and torture in Madras served, I would argue, the same purpose as Hastings’s impeachment trial. On the one hand, it revealed the rapacity and violence of Company rule in Madras, but on the other it also purged colonial rule of its brutality by redirecting the focus away from structural violence to torture, and displacing blame from the colonizers onto their Indian officials. The debate also paved the way for colonial rule to be ‘reformed’ (although, as in the case of the impeachment, through protecting the agents of scandal rather than the victims) while erasing the reality of the violence that made it possible. As in Hastings’s impeachment trial, the scandal of colonial rule was thus transformed into the scandal of Indian brutality.

The Awareness of Torture and Lack of Desire to Punish It Ignorance of the existence of torture among the civil servants of India was impossible.59 This is not to say that either the British or Madras governments were keen to initiate an inquiry on torture. As Arthur Otway, another member of the India Reform Society, asserted during the course of the 1854 debate, a motion for an inquiry into the subject of torture in India had recently been made at the Court of Proprietors, ‘but had been stifled in the way in which inconvenient motions generally were at the India House’.60 Indeed, though Seymour’s revelations about the use of torture in revenue collection in Madras may have taken some people by surprise, that it was routinely employed by the police in India was already well-​known, according to the Calcutta Review, by ‘every person who knew much of India . . . ’, particularly magistrates and judges (for proof all anyone had to do was consult the reports of the criminal court of appeal, the Ṣadr Nizamat ‘Adālat, which contained ‘abundant evidence of the existence of torture’).61 Officials in both India and London had, in fact, long been aware of the role of torture in both the collection of revenue and policing, although as the article by the Calcutta Review suggests, such awareness did not translate into any real attempts to eradicate it.62 This is not to say that no efforts at all were made by the East India Company’s 58 Edmund Burke, The Works, Vol. III, Speeches on the Impeachment of Warren Hastings (London: Bell & Daldy 1868), 189. Burke’s description of the torture of Bengali peasants runs to no less than four pages. 59 ‘Torture in Madras’, The Earl of Albemarle, HL Deb 14 April 1856 vol. 141 c969. 60 HC Deb 11 July 1854 vol. 135 c89. The East India Company’s Court of Proprietors, which consisted of the Company’s stockholders, was the body responsible for electing the twenty-​four directors of the Court of Directors. It was the latter body which, along with the governor, was directly responsible for running the Company. 61 ‘Reports of Cases Determined in the Court of Nizamat Adawlut at Calcutta for 1855. Calcutta, Thacker, Spink and Co.’, The Calcutta Review LVI (June 1857), 477. The Nizamat ‘Adālat, though a court of appeal, did not retry cases; it merely passed judgments on the reports on trials by sessions judges and magistrates and the recommendations of the qazis (Muslim law officers) attached to their courts. 62 The Liberal peer the Earle of Albemarle, in a speech following the publication of the torture commission’s final report, mocked ‘the innocent surprise expressed by the home authorities at the prevalence of torture’ in Madras since documents existed, dating as far back as 1806, ‘which proved the prevalence of such torture’. HL Deb 14 April 1856 vol. 141 c965.

80  Colonial Terror government to curb the enactment of torture by its officials, at least when it came to policing. According to Regulation XI of 1816, section XXX, for example, Any officer of Police or other person maltreating a prisoner or witness for the purpose of obtaining information or confession, shall be subject to punishment by the Magistrate according to the nature of the case; and should the offence be of an aggravated nature, the party offending shall be forwarded to the Criminal Judge, to be punished by him, or committed for trial before the Court of Circuit.63

Between 1806 and 1852 the Ṣadr Faujdari ‘Adālat, the chief criminal court in Madras, also issued no less than ten circular orders to European magistrates about the necessity of suppressing torture.64 The primary concern of the ‘Adālat, however, was less to put a stop to torture than ‘to prevent the recurrence of a practice so decidedly calculated . . . to defeat the end of justice as [well as] to disgrace the established system of judicial procedure’.65 Such a regulation, as well as the ‘Adālat’s orders, applied, moreover, to police offences, not those relating to revenue, since as Acting Sub-​Collector James Minchin noted in 1854, there was ‘no express Regulation for the punishment . . . for offences of this nature’.66 That awareness of the prevalence of torture in Madras and other parts of India also existed in London, from at least 1826, is clear from a Judicial Despatch on torture issued by the Court of Directors that year.67 The Select Committee on the Affairs of the East India Company had, in addition, discussed the use of torture in the collection of revenue in Madras as early as 1831.68 This is not to say that torturers were never punished, either in Madras or in other parts of India. There was, however, little impetus to punish officials who resorted to 63 IOR/​P/​311/​47, 13941, BL. Eight years later, Regulation IX of 1822 gave collectors the power to prosecute subordinates who extorted or embezzled public funds. 64 The dates of the circulars were: 27 May 1806, 27 December 1815, 18 June 1817, 7 September 1820, 24 January 1822, 29 April 1822, 28 October 1823, 29 October 1824, 29 April 1836, and 12 June 1852. 65 ‘Circular Order of the Court of Foudjaree Udalut’, 26 May 1806, IOR/​P/​311/​47, 13945, BL. The means proposed for putting a stop to torture, furthermore, were simply for magistrates to ‘carefully. . . instruct’ their subordinates ‘to abstain from all acts of violence towards persons apprehended by them, or committed to their custody on charges of a criminal nature’. Ibid. 66 Letter to Sir H.  C. Montgomery, Bart, Chief Secretary to Government, Fort St. George, from J.  I. Minchin, Acting Sub Collector, Ramapatam, 18 September 1854, 10598, IOR/​P/​311/​49, BL. Minchin did, however, give a rare conviction for the use of torture in the collection of revenue in Madras. But he gave it, notably, shortly following the announcement of the establishment of a commission on torture, and his punishment consisted merely of fining four curmums (village accountants), who gave the orders to torture, Rs. 10 each, or one month’s imprisonment in default, and dismissing one curmum from employment. 67 Anupama Rao, ‘Problems of Violence, States of Terror: Torture in Colonial India’, in Steven Pierce and Anumpama Rao (eds), Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham and London: Duke University Press 2006), 164 (hereafter Rao, ‘Problems of Violence’). 68 Ibid, 159. But as revealed by the testimony of Peter Gordon, a former revenue farmer in the Ramnad district of Madras who spent over three decades trying to expose the torture and other forms of violence committed by revenue officials in Madras, the Madras government and Company administration had sedulously ignored his evidence (which included seeing no less than 100 villagers being tortured together at one time) while retaliating against him for exposing it—​including, in 1827, imprisoning him on false charges and expelling him from India. Report from the Select Committee on the Affairs of the East India Company, Vol. 1 (London 1831), 30, 44–​5; ‘Torture by the Police at Madura’ and ‘The Uncontested Election’, The Friend of India Magazine 5/​25 (February 1844), 2–​3, 30–​1; and Elliott, ‘Torture, Taxes’ (n 28) 144–​5.

The Facilitators I: Policing  81 torture in the enactment of their duties, and the punishments given—​generally a fine of between three to seven rupees—​were ‘farcical in their leniency’.69 Only rarely were officials who tortured sentenced to hard labour. But whatever the form of punishment, it was generally only given to the subordinate officials who committed torture in the enactment of their policing, not their revenue duties, even though a lack of separation of powers in colonial India meant that such duties were often carried out by the same person (as was the case in Madras). In addition, the officers who gave the orders to torture largely evaded punishment, or at the most were dismissed. In a complex case from 1839, for example, which elicited voluminous correspondence, and which I will examine in more detail in Chapter 4, four police peons were sentenced to five years’ hard labour in irons for torture while their kotwal (chief of police) escaped unscathed.70 Colonial officials were, in fact, more concerned that the kotwal, who was in charge of policing in the cantonment at Ootacamund (Udhagamandalam), had exceeded his authority by pursuing a burglary case outside his jurisdiction than they were that he may have ordered his men to commit torture, and it was ultimately the former concern that led to his eventual dismissal from Company service—​not torture.71 Although colonial officials were, therefore, well aware of the ubiquity of torture by their subordinates, their efforts to eradicate it were minimal. The same was true of their British overseers. When in 1827, for example, the Court of Directors complained to the Madras government about ‘the prevalence among Native Officers of Police of the “most atrocious practices” for obtaining confessions’, including torture so extreme that it led to the deaths of the victims, it failed to pursue the matter when faced with the response of the Madras government that ‘we are strongly impressed with the necessity of imposing every practiced check upon the Native Police Officers’ (even though the Madras government gave no indication as to what such ‘checks’ should be).72 The Court, like the Company’s colonial officials, was likewise more than ready to disregard allegations of torture when they arose. According to former Madras Circuit Judge Matthew Lewin, who submitted a report to the Madras government in 1840 on the ways in which torture, often amounting to mutilation and death, was an ‘ordinary medium of revenue and police administration’, in addition to being tolerated by the Madras government such torture was also, ‘if not positively encouraged by the authorities, in Leadenhall Street’ (the location of East India House, the Company’s headquarters), at least ‘culpably connived at by them’.73

69 Peers, ‘Torture, the Police’ (n 36) 49. 70 IOR/​F/​4/​1930/​82995, BL. The case was brought to light by the fact that one of the victims tried to cut his throat to escape further misery. 71 Extract from the Minutes of Consultation, 29 October 1840, IOR/​F/​4/​1930/​82995, BL. 72 Madras Despatches, 3 May 1826 to 21 March 1827, Fort St. George, Judicial, 21 March 1827, IOR/​E/​4/​ 933, 946, 948 BL. 73 Matthew Lewin, Is the Practice of Torture in Madras with the Sanction of the Authorities of Leadenhall Street? (London: Thomas Brettell 1856), 4 (hereafter Lewin, Is the Practice of Torture). Lewin’s initial report was ignored by the Madras government, although he returned to the attack in the early 1850s as the British representative of the Madras Native Association (he was also a member of the India Reform Society). As with so many of the Company’s critics, however, Lewin’s primary concern was not the violence committed by Company officials, but that such violence, in both provoking resistance and undermining Britain’s moral legitimacy to rule, threatened the very existence of such rule. See, for example, Matthew Lewin, The Way to Lose India: With Illustrations from Leadenhall Street (London: James Ridgway 1857).

82  Colonial Terror This was particularly the case when it came to torture carried out by Europeans. When in 1838, for example, the behaviour of one Captain Dickinson, an official in the recently-​conquered Burmese province of Arracan, was brought to the attention of the Court of Directors, his torture of two Burmese men in order to extract confessions from them was dismissed as little more than a ‘ducking’ (although Dickinson gave the orders for one accused man to be put in a tank and dipped ‘entirely under water at intervals . . . and kept there for four hours with irons on’), and his behaviour was exonerated by the fact that although he may have ‘admit[ed] a tinge of native practice into his administration’ he was, at the time of the offence, ‘quite a novice in civil matters’.74 Dickinson was, however, such an extremely unpleasant and deceitful person—​in addition to lying about his behaviour and persecuting anyone connected with the man who brought the torture accusation against him (including by confining the man’s two sons in prison on trumped-​up charges), he also sent abusive letters to the Bengal government—​that the Indian government was eventually forced to remove him from office on the grounds that he did ‘not possess the qualifications necessary to enable him to command the respect and willing obedience of the functionaries whom it devolved on him to direct and control’.75 The Court of Directors, rather than calling for Dickinson to be tried for committing torture, simply concurred with the Indian government’s decision, noting that since Dickinson had committed ‘acts unbecoming the character of an officer and a gentleman’ he should be completely disbarred from future civil employment (but not, notably, military) in India.76 Neither the Bengal or Indian governments, nor the Court of Directors, had, however, shown an interest in doing anything about Dickinson until his behaviour became so scandalous that they had no choice but to take action.77 The Court of Directors therefore evinced little more passion than the Indian and provincial governments that it oversaw to eradicate the use of torture by its servants in colonial India. The same could be said about Parliament’s attitude towards torture in India, as -​its failure to respond to the torture allegations made to the 1831 Select Committee on the Affairs of the East India Company reveals. Parliament, in fact, ‘discovered’ the truth about torture in India many times before Seymour’s observations in the House of Commons in 1854. But, in contrast to earlier revelations, the scandal

74 India, Judicial, 17 August (no. 3) of 1838, IOR/​E/​4/​756, 668, 670–​1, 679, BL. Dickinson was thus a beneficiary of what Harald Fischer-​Tiné has termed the ‘racial dividend’ of colonial rule, in which greater leniency was shown to Europeans who committed criminal offences than to Indians. Harald Fischer-​Tiné, ‘Hierarchies of Punishment in Colonial India: European Convicts and the Racial Dividend, c.1860-​1890’, in Harald Fischer-​Tiné and Susanne Gehermann (eds), Empires and Boundaries: Rethinking Race, Class, and Gender in Colonial Settings (New York: Routledge 2009), 41–​65. 75 India, Judicial, 17 August (no. 3) of 1838, IOR/​E/​4/​756, 716, BL. 76 Ibid, 720. 77 As Dickinson’s case reveals, Europeans who tortured were not, in contrast to Europeans who murdered, subjected to harsher punishments in the eighteenth and first half of the nineteenth centuries than they were thereafter. This may be because torture was clearly regarded as a less serious crime and, since it was easier to contain public awareness about individual acts of torture than was the case with murder, it was seen as less of a threat to British prestige—​as well as the fact that torture, in serving to terrorize Indians, was ultimately beneficial for the colonial regime. See Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (New Delhi: Cambridge University Press 2010); Military, 5 April 1793, IOR/​E/​ 4/​879, BL; and India, Judicial, 17 August (no. 3) of 1838, IOR/​E/​4/​756, 667–​732, BL.

The Facilitators I: Policing  83 generated by Blackett’s motion and the subsequent debate in Parliament necessitated a response—​although Parliament was not, ultimately, the one to make it.

The Need to ‘Vindicate the Character of Government’ A state of things, not merely disgraceful to the East India Company as the party immediately responsible for good government, but to the character of the British nation.78 It was, in fact, the Madras government that stepped in to attempt to quell the eruption of torture into scandal by setting up a commission to investigate Seymour’s allegations. But why would the Madras government, which had strenuously ignored the ubiquity of torture in its administration for decades, pre-​empt Parliament by undertaking a task that was, ostensibly, so detrimental to its interests? According to H. C. Montgomery, Chief Secretary to the Madras government, the Governor, Lord George Harris, had been ‘forcibly arrested’ by the reports given in the English newspapers regarding the parliamentary debate on Madras, and the fact that charges as to the use of torture as a means of extracting an ‘immoderate’ land tax had ‘received no positive or authoritative contradiction’.79 Deftly dodging the issue as to whether the land tax was, indeed, excessive (since, as Montgomery noted, ‘Whether the rent or tax be immoderate or not is a point which it is here unnecessary to discuss’), Harris clearly saw the establishment of a commission as an opportunity to ‘vindicate the character of Government’ in Madras, rather than to address the problem of torture.80 He sought to do this through re-​directing the focus away from the nature of the British governance of Madras to the character of the men who were responsible for governing it—​a common ploy when it came to deflecting attention from the violence that underpinned colonial rule. Since torture was, according to Harris, ‘a matter so deeply affecting the honour of the British nation and so utterly repugnant to its principles of government’, what he wished to demonstrate was that ‘The idea of such a practice is . . . abhorrent to the principles innate in every Englishman’.81 Such a tactic thus made it possible to admit that torture was being employed by government servants in Madras while denying any culpability for it. To understand why torture was regarded as a threat to British integrity when exploiting colonized peoples through taxation so excessive that it reduced them to a state of semi-​starvation was not, we need to explore changing attitudes to torture beginning 78 Lewin, Is the Practice of Torture (n 73) 19. 79 H. C. Montgomery, Chief Secretary to the President and Members of the Board of Revenue, Extract from the Minutes of Consultation, Public Department, 9 September 1854, IOR/​P/​311/​44, 12462, BL. 80 Ibid, 12463. This was also the desire of the East India Company’s Court of Directors, which requested that Governor Harris carry out an inquiry into whether torture was used in the collection of revenue in Madras, as well as whether this was known by European officials, since the board was concerned that the Company’s moral legitimacy would be undermined if Indians believed that Company officers acquiesced in such violence. Harris instituted the inquiry before, however, the letter from the Board reached Madras. Elliott, ‘Torture, Taxes’ (n 28) 72–​6. 81 H. C. Montgomery, Chief Secretary to the President and Members of the Board of Revenue, Extract from the Minutes of Consultation, Public Department, 9 September 1854, IOR/​P/​311/​44, 12463, BL.

84  Colonial Terror in Europe in the eighteenth century and their relationship to the colonial ‘civilizing’ mission. Although the abolition of torture in Europe is generally regarded as a product of Western enlightenment ideals, Jamal Barnes outlines several key transformations that together rendered torture taboo, including ‘the destabilisation of the religious monopoly of the interpretation of truth, pain and suffering, changing attitudes toward the body and a revolution in the law of proof that made torture unnecessary to convict offenders’.82 Such transformations led to torture becoming reconceptualized as an especially cruel form of pain that was dangerous to both the individual and, through turning them callous, to those who witnessed it.83 This does not mean that all forms of pain, such as corporal punishment, were stigmatized. For philosophes such as Cesare Beccaria, it was the ‘unnecessary or ineffective use of pain that posed a threat to the social order’ (emphasis added).84 Thomas Paine elaborated the nature of such a threat by arguing that governments that enacted cruel forms of punishment governed through terror, corrupted society, and bred retaliatory violence.85 By the nineteenth century, therefore, torture had come to be regarded in evolutionary terms, as a barbaric relic of a past age. With the ‘primitive’ henceforth regarded as the domain of violence, torture became a key boundary marker between societies that were deemed civilized and those that were not.86 This meant that while European societies could contravene ‘civilized’ modes of waging war against what were regarded as uncivilized peoples, the same did not hold true for violating the torture taboo, which for Barnes ‘represented a prohibition, akin to slavery, in what [John Stuart] Mill . . . called “universal rules of morality between man and man” that could not be transgressed’.87 Since ‘natives’, furthermore, were believed to have less sensitivity to pain than ‘civilized’ beings and had not yet come to regard pain as abhorrent, it was deemed the duty of colonial powers to abolish torture as part of their ‘civilizing’ duties—​a task that would, in turn, prove the justness of the colonial civilizing mission.88 82 Jamal Barnes, A Genealogy of the Torture Taboo (London and New York: Routledge 2017), 26 (hereafter Barnes, A Genealogy). See also John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago: University of Chicago Press 1976); Lisa Silverman, Tortured Subjects: Pain, Truth, and the Body in Early Modern France (Chicago and London: The University of Chicago Press 2001); and Lynn Hunt, Inventing Human Rights: A History (New York: W.W. Norton & Company 2008). 83 Barnes, A Genealogy (n 82), 36. 84 Ibid, 39. 85 Thomas Paine, Rights of Man (London:  Penguin Books 1985), 57–​8, cited in Barnes, A Genealogy (82) 39. 86 Christopher Herbert, War of No Pity:  The Indian Mutiny and Victorian Trauma (Princeton and Oxford: Princeton University Press, 2009), 59. Such a shift can be seen in the scandal surrounding the infliction of torture by Thomas Picton, Governor of Trinidad, on a child named Luisa Calderón in 1801, in which a chief concern was that ‘ “British character” had been “stained” by the infliction of the cruelties of torture’. Concerns like these were part of a wider process of what Carter J. Wood terms the ‘invention’ of violence as a socio-​cultural concern. James Epstein, ‘Politics of Colonial Sensation: The Trial of Thomas Picton and the Cause of Louisa Calderon’, American Historical Review 6/​1 (2006), 720; and Carter J. Wood, ‘A Useful Savagery: The Invention of Violence in Nineteenth-​Century England’, Journal of Victorian Culture 9/​1 (2004), 24. 87 John Stuart Mill, ‘A Few Words on Non-​Intervention’, New England Review 27/​3 (first published in 1859, 2006), 259, cited in Barnes, A Genealogy (82) 51. For the ease with which the British could disregard ‘civilized’ modes of waging warfare when it came to peoples whom they regarded as ‘savage’ see Kim Wagner, ‘Savage Warfare: Violence and the Rule of Colonial Difference in Early British Counterinsurgency’, History Workshop Journal 85 (2018), 217–​37. 88 Barnes, A Genealogy (n 82) 51. For colonial regimes torture was a ‘bad’ form of pain that they were ostensibly obliged to abolish, in contrast to what I have discussed in Chapter 1 as ‘good’, ‘civilizing’ forms

The Facilitators I: Policing  85 That the intention of the Madras government was to vindicate its honour and justify its right to govern ‘natives’, rather than to put a stop to the practice of torture, is clear from the rapidity with which the torture commission was carried out, the limited nature of its remit (it excluded native states and torture enacted by zamindars, or large landowners, even though the latter played a key role in the policing system in Madras), and in the appointment of the commissioners.89 As the Sheffield Daily Telegraph commented, in light of ‘how very easily official investigations have been made to defeat the ends of justice and to hush up an undesirable curiosity’, it was no surprise to learn that two of the three commissioners appointed to undertake the inquiry ‘were themselves parties to the crime, and therefore had every motive for suppressing, or lessening, or modifying the facts’.90 Indeed, one of them, Hudleton Stokes, was the former collector of Guntoor district, whose inhabitants had previously submitted a petition to the Madras government that drew attention both to the use of torture in the collection of revenue there and Stokes’s complicity in it.91 In addition to innumerable cases of torture being enacted by Mr. Stokes’s subordinates, according to the Indian News, ‘The petition appears to have been considered of so damnatory a nature, that two years of absence was granted to Mr. Stokes.’92 The other ‘party to the crime’, Edward Frances Elliot, was a former chief magistrate and superintendent of police in Madras.93 For the Sheffield Daily Telegraph, although ‘Set a thief to catch a thief,’ is a maxim sometimes of pain. See Talal Asad, ‘On Torture, or Cruel, Inhuman and Degrading Treatment’, in Arthur Kleinman, Veena Das, and Margaret Lock (eds), Social Suffering (University of California Press 1997), 285–​308 (hereafter Asad, ‘On Torture’); and Nicholas B. Dirks, ‘The Policing of Tradition: Colonialism and Anthropology in Southern India’, Comparative Studies in Society and History 39/​1 (1997), 182–​212. 89 The commission was undertaken in only three months. Considering that, within this period, it had to draw up a notification in six languages and distribute over 30,000 copies throughout the Madras presidency (which was one and a half times the size of the UK and had a population of two and a half million people), and that complainants were expected either to know about and be able travel to the locations visited by the Commission (which could be 300 to 400 miles from their homes, a journey for which they were given no travelling expenses or other form of aid from the Madras government), or to write letters to the commission before the cut-​off date, it is amazing that 519 complainants were able to appear in person and that the commission received 1,440 letters. Had the commission’s time frame been extended, and a ‘searching inquiry, full, impartial and complete . . . ’ carried out—​not least through the investigation of grievances rather than merely reporting on them—​doubtless many more complainants would have come forward. Report of the Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency (Madras: Fort St. George Gazette Press, 1855), 3–​4, 16, 21 (hereafter Report of the Commissioners); n.t., The Bombay Times and Journal of Commerce, 21 May 1856, 325; ‘Employment of Torture in India’, Examiner, 23 February 1856, 114; and Fifth Petition to the Imperial Parliament from the Members of the Madras Native Association (Madras: The Hindu Press, 1856), 2 (hereafter Fifth Petition to the Imperial Parliament). 90 ‘Notes on Passing Events’, Sheffield Daily Telegraph, 27 January 1855, 9 (hereafter ‘Notes on Passing Events’). 91 Ibid; and Elliott, ‘Torture, Taxes’ (n 28) 92–​9. In addition to the fact that Stokes never adequately responded to the charges against him made by Guntur’s benighted inhabitants, the Madras government gave no justification for his selection to the commission. 92 The Indian News, 30 October 1855, cited in ‘Notes on Passing Events’ (n 90) 9. 93 Elliot was also the son of a former governor of Madras. He was chiefly known in England for a divorce scandal in the late 1830s involving Isabella Napier, wife of Colonel Johnstone Napier. The third, non-​official member of the commission was the barrister John Bruce Norton, at the time a Government Pleader in the Ṣadr Dīwānī ʿAdālat, who in contrast to his fellow commissioners was an intrepid judicial reformer and was, as a result, responsible for the more ‘outspoken’ elements of the commission’s report. Fifth Petition to the Imperial Parliament (n 89) 1; and C. S. Srinivasachari, ‘The India Reform Society and its Impact on the Indian Administration in the Decade 1853-​1862’, The Indian Journal of Political Science 8/​1 (1946), 651.

86  Colonial Terror acted upon . . . when the abuse has been under the guise and in the name of justice, and when the culprits are those in place and power, the policy will not work. It is too much to expect that Messrs. Stokes and Elliott will convict themselves, and in order to cover their own guilt they must not reveal that of others who have it in their power to name their accomplices.94 It was definitely too much to hope that a commission thus constituted would rid India, ‘at once the riches and the shame of Britain’, of a system of governance so reliant on torture that, according to Trewman’s Exeter Flying Post, it ‘exceed[ed[the worst evils of slavery and serfdom’.95 The vindicatory function of the commission is evident, secondly, in the very instructions establishing it. Although the parliamentary debate on torture had focused on torture in the collection of revenue, Lord Harris decided to extend the commission to include policing. This was, arguably, another skilful sleight of hand, since it served, once again, to deflect attention away from the brutal system of revenue extraction in Madras onto torture, and to shift blame for torture from the British onto their Indian agents. As the Madras government put it, ‘Strenuous endeavours [had] been used from very early times of . . . British rule to put down a system so utterly opposed to every principle of humanity and subversive of the ends of justice’, but it was nonetheless the case that Madras police officers were still ‘in the habit of resorting to cruelties . . . for extorting confessions from prisoners’.96 What made such an evil so difficult to eradicate was, apparently, its ‘deep-​rooted’ nature, a result of ‘the force of habit arising from the unrestricted license exercised in such acts of cruelty and oppression under the former Rulers of the country’ (although due to the ‘heroic’ efforts of the British, the problem, according to the Madras government, thankfully no longer existed ‘to the same extent as formerly’).97 Before the commissioners had even begun their work, the verdict was thus already clear: Indians were responsible for their own violation, thanks both to the brutal legacies of Britain’s Mughal predecessors and the 94 ‘Notes on Passing Events’ (n 90) 9. 95 Ibid; ‘Torture in India’, Trewman’s Exeter Flying Post, 10 May 1855, 7 (hereafter ‘Torture in India’). 96 ‘Extract from the Minutes of Consultation’, 19 September 1854, Madras, Board of Revenue Proceedings, IOR/​P/​311/​47, 13942. Such a refrain was to be made repeatedly during the torture commission and its aftermath. As one non-​official deponent to the commission remarked, the colonial administration in Madras was run by British men ‘of talent and ability, [and] of high character and unimpeachable integrity’, who in addition to being ‘indefatigable in labour, fully alive to the responsibilities of their high position, and animated by the most ardent zeal for the public welfare’, had ‘done all in their power to redress public grievances and private wrongs, to improve the condition and protect the interests of the ryots’. W. Saalfelt, Esq, Agent to Messrs. Arbuthnot & Co., 2 October 1854, Report of the Commissioners (n 89) 95. 97 Extract from the Minutes of Consultation’, 19 September 1854, Madras, Board of Revenue Proceedings, IOR/​P/​311/​47, 13941. The purported cruelty of Britain’s pre-​colonial predecessors had a strong hold on the British imagination. As Malise Ruthven notes, no pre-​colonial traveller’s tale was complete without ‘accounts of nawabs who made their subjects wear leather trousers filled with live cats or ‘drink buffalo’s milk mixed with salt till they were brought to death’s door by diarrhoea’ and nizams who had their Hindu subjects tied to palm trees and smeared with honey to attract the red ants’. Such beliefs persisted, however, into the colonial era. According to the Collector and Magistrate Charles Pelly, for example, while ‘ “torture was prevalent in the time of the Moguls . . . the presence of British officers and the introduction of criminal courts put a very effectual stop to these enormities” ’. But the list Pelly compiled, of no less than 100 torture cases tried by the magistracy in his own district, Bellary, in just the previous seven years—​in at least some of which he was, furthermore, clearly complicit—​nonetheless belied such a statement. Malise Ruthven, Torture: The Grand Conspiracy (London: Weidenfeld and Nicolson 1978), 187; evidence of Charles Pelly, Collector and Magistrate of Bellary, Report of the Commissioners (n 89) 95; and Elliott, ‘Torture, Taxes, and the Colonial State in Madras’ (n 28) 229–​33.

The Facilitators I: Policing  87 innate tendencies of Indians to commit acts of violence that were ‘opposed to every principle of humanity’.98

The Emergence of a Discourse of Facilitation The upper-​level facilitators who order and promote torture and murder, and sometimes even carry it out themselves, are able to manipulate and control the definition of truth so that any information that threatens their secrets is labelled ‘illegitimate’ and ‘against the national interest’.99 The findings of the commission were thus a foregone conclusion, although the commissioners clearly struggled to defend them. The commission’s report (hereafter referred to as the Report) is, in fact, a confusing mass of contradictions and disavowals, which was doubtless partly due to the tensions between the two official commissioners, Stokes and Elliott, and John Bruce Norton, the non-​official member.100 On the one hand, it did not deny that torture was routinely used by government officials for the purpose of revenue extraction or for securing confessions. The Report admitted, in other words, both that torture was ubiquitous in the revenue/​policing systems in Madras (the two were, as I will discuss more fully in Chapter 3, united under the same set of officials) and that such torture was perpetrated by Company servants. The commission also critiqued the Madras government for ignoring a problem that had been repeatedly brought to its attention over the previous four decades, which it credited to the fact that ‘the ryotwar system [had] rendered justice entirely subordinate to revenue’.101 It therefore firmly denied the charge of some of the commission’s critics that allegations of torture in Madras were ‘a pure fiction’, while acknowledging the urgent need ‘for providing efficient protection to the people against the public officers’.102 98 Extract from the Minutes of Consultation’, 19 September 1854, Madras, Board of Revenue Proceedings, IOR/​P/​311/​47,  13941. 99 Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers (n 20) 27. 100 Although commissions rely on outside experts to demonstrate the state’s proclaimed commitment both to objectivity and the public interest, appointing a man such as Norton—​a Madras barrister, reformer, supporter of the Madras Native Association, and vocal critic of the commission’s final report—​to the torture commission threatened to undermine the justificatory narratives regarding torture that colonial officials sought to construct. There was, he maintained, a ‘curious contradiction’ between the content of the report and the evidence upon which it was based, which was included in its appendices. Such a contradiction, for Norton, ‘would lead one to believe that there is something in employment by the East India Company which destroys the perception of truth’. Norton’s critiques of the East India Company’s system of governance in India were, however, tempered by the ire he directed at ‘native’ customs and habits. Elliott, ‘Torture, Taxes’ (n 28) 78–​9; and Norton, The Administration of Justice (n 47) 109–​10. 101 Minute, 5 January 1818, Revenue Board, para. 276 and Court of Directors, Judicial, 11 April 1826, cited in Report of the Commissioners (n 89) 8, 32. 102 Report of the Commissioners (n 89) 11, 5–​6. One of the individuals to declare the prevalence of torture in Madras a fiction was the Collector and Magistrate M. J. Wallhouse, who in the six years preceding the Commission had, incredibly, tried no less than twenty-​three torture cases, in two of which men had been tortured to death, and in which he had convicted thirteen of the torturers. Speech by the Earle of Albemarle, HL Deb 14 April 1856 vol. 141 c969; and ‘Rent Day Round Madras’, Household Words, 5 April 1856, 278 (hereafter ‘Rent Day Round Madras’).

88  Colonial Terror But, on the other hand, the commission essentially disavowed the Company’s—​ and, by extension, Britain’s—​responsibility for the violence that beset the Company’s revenue and policing operations in Madras by displacing the blame for such violence upon Indian society. The rot had clearly set in, according to the Report, not on the Company’s watch but during that of its predecessor, since it was a ‘historical fact’ that during the Mughal era ‘torture was a recognised method of obtaining both revenue and confessions’.103 ‘Native character’ also bore the brunt of the blame for torture; according to the commissioners, although the inhabitants of Madras were of a ‘timid, and . . . simple a race’, torture was such a ‘time-​honoured’ institution among them that its practice was ‘still widely prevalent among the ignorant uneducated class of native public servants’.104 It was, furthermore, an aspect of ‘native character’ that those in a position to pay their revenue demands or supply information to the police would not do so unless they were forced to, as well as that ‘rapacity, cruelty, and tyranny . . .’ characterized individuals who were elevated to positions of power.105 Yet even though 197 of the 230 Europeans who offered evidence to the commission confessed that they were aware of the use of torture in revenue and policing in Madras, according to the commission’s report such wide-​scale violence took place ‘without the general run of Europeans being aware of it’.106 But despite its attempts to deny the role of the Company state in perpetuating torture in Madras, what is perhaps most astounding about the Report is its revelation of the wide range and pervasiveness of the violence perpetrated by state agents. Although the commissioners contended that the most extreme forms of violence they encountered related to policing rather than revenue collection, they came across the use of many forms of violence to enforce both legal and extra-​legal demands that collectively immiserated peasants.107 The former included enforcing compulsory labour and compelling peasants to provide provisions or cattle for a visiting collector or regiment, and the latter obliging peasants to cultivate land and subjecting them to a wide variety of extortions (such as making them pay as much as double the revenue demand required and inflicting false charges and imprisonment upon them for non-​compliance).108 That peasants so rarely complained about such treatment, according to the Report, was because they believed both that it was meted out at the behest of European officials and that complaining was pointless, since judges were ‘inclined generally to discredit all assertions of ill-​treatment coming from the mouth of parties on their trial’.109 The Report inadvertently revealed, in other words, that torture was merely an aspect of the larger and quotidian structural violence of colonial rule. 103 Report of the Commissioners (n 89) 5. 104 Ibid, 8, 34. 105 Ibid, 36, 40. 106 Ibid, 11; and Report by Mr. Walter Elliott, cited by the Earle of Albemarle, HL Deb 14 April 1856 vol. 141 c968. A key reason for this, according to the Report, was that Indian officials combined to form a ‘league’ to enact torture, bribery, and extortion, and then resorted to intimidation, fraud, and violence to cover up such behaviour from the poor, beset Collector. Report of the Commissioners (n 89) 25. 107 Report of the Commissioners (n 89) 20. 108 Ibid,  20–​4. 109 Ibid, 27. As Fanon observes, ‘When the native is tortured, when his wife is killed or raped, he complains to no one . . . in the colonies the native has always known that he need expect nothing from the other side’. Fanon, Concerning Violence (n 24) 63.

The Facilitators I: Policing  89 The Report nonetheless went to great lengths, despite such revelations, to avoid ‘cast[ing] any unfounded imputation upon either the Government or its European officers’ that, as the Rev. E. Webb put it, they ‘tacitly permitted [torture] as a sort of irremediable evil’.110 It strove to do this through both renaming and justifying the violence that it documented. When it came to renaming, for example, the commissioners insisted that since most of the depredations to which peasants were subject were carried out with a ‘comparative lightness of violence’, whether they should be classified as ‘torture’ was, therefore, questionable.111 Justifying such violence posed more of a problem for the commissioners, however, than their attempts to rename it, since they were woefully lacking in evidence that British officials were not complicit in the perpetration of torture by their subordinates. The declaration of individuals such as Webb, that when it came to torture, government officials simply declared that ‘We have nothing to do with that; that is all sub rosa’ suggested, in fact, the opposite.112 The Report was only able, therefore, to substantiate its denunciation of British complicity in torture, and with it, justify the Company’s right to govern Madras (and, by extension, the rest of India), through the limp statement that the colonial service in Madras was ‘entitled to the fullest credit for its disclaimer of all countenance of the cruel practices which prevail in the revenue as well as the police department’—​not, in other words, for its action to stop such violence (emphasis added)’.113 But that such a service was not responsible for the perpetration of torture in Madras was, according to the Report, ultimately proven by the fact that the ‘whole cry of the people’ was for protection from ‘the cruelties of their fellow natives, not from the effects of unkindness or indifference on the part of the European officers of Government’.114 The fact that such ‘natives’ were in the employ of an exploitative foreign trading company was, therefore, conveniently elided.115 The Report even went so far, despite its denunciations of ‘native character’, as to defend such ‘natives’ through turning the tables and transforming the perpetrators of torture into victims by accusing ryots of ‘intriguing’ to bring false charges against revenue officials.116 The Report ultimately did little, therefore, to undermine a system of governance that was reliant on torture in order to operate. Indeed, in concluding that torture was, ‘at present, an unavoidable evil’, the

110 Report of the Commissioners (n 89) 35; and evidence of Rev. E. Webb, Report of the Commissioners (n 89) 97. 111 Report of the Commissioners (n 89) 31. Most European respondents to the commission refrained, notably, from using the term ‘torture’. 112 Evidence of Rev. E. Webb, Report of the Commissioners (n 89) 97. See also ‘Rent Day Round Madras’ (n 102) 278. 113 Report of the Commissioners (n 89) 35. Such a disclaimer was based, for the commissioners, on the ‘bare assertion’ by their British informants that the existence of torture was ‘as startling to European ears as its reality [was] abhorrent to European morality’. Ibid, 40. 114 Ibid. 115 As the Madras Native Association protested, had the commissioners ‘striven to trace the evil . . . to its source’ they would have found that the primary blame for the regime of torture that existed in Madras was a revenue demand ‘far heavier than the cultivators could afford to pay . . . without subjecting themselves to destitution . . .’. Fifth Petition to the Imperial Parliament (n 89) 3. 116 Report of the Commissioners (n 89) 36. As I will discuss in Chapter 4 the torturers—​at least, the subordinate ranks of colonial officialdom—​should be seen as victims, but of the structural violence of colonial rule, not of the purported machinations of those whom they preyed upon.

90  Colonial Terror Report ultimately served to justify, and perpetuate, the use of torture as a technology of rule in colonial India.117 So, too, did the reaction to the Report in both Britain and in official circles in India. Although no less unlikely a personage than the former Governor-​General and four-​ time Director of the Board of Control, Lord Ellenborough, suggested, in the aftermath of the publication of the Report, that what was needed was a ‘most searching inquiry into the whole of the revenue system of the Madras territory, for somewhere or other there is a great evil’, as in the case of the parliamentary debate that spurred the commission, not to mention the commission’s findings, such advice was blithely ignored.118 So was the Company’s culpability for the torture enacted by its officials. Though a small cohort of critics did acknowledge the role of the Company in facilitating torture, and Punch mocked it with a false advertisement offering ‘Instruments of Torture warranted to defy Competition’ (including ‘patent extra-​excruciating thumb-​screws’ that were sure to ‘extract the truth, or its equivalent, in five minutes, with a degree of pain infinitely exceeding that produced by the complicated proceeding of binding the fingers and toes with twine, and driving pegs between them, at present resorted to by the Company’s servants’, not to mention the delightfully named ‘Scavenger’s Younger Daughter’, which could be worked with ease by a child and thus save its operator ‘an amount of muscular exertion unduly fatiguing in a warm climate’), the overwhelming response to the commission by the Madras and Indian governments, Parliament, and the British and Anglo-​Indian press was to absolve the colonial regime of any such responsibility.119 When, in the aftermath of the publication of the Report, the Liberal peer the Earl of Albemarle presented evidence of fourteen weavers who had recently been tortured in Madras during the collection of a moturpha tax (a tax on trades), and attempted to pass resolutions to force the government to take action to put a stop to the ‘cruelty and fiscal rapacity of a government more barbarous than that of the Mahomedans’, his efforts, therefore, bore little fruit.120 The Duke of Argyll, speaking on behalf of the government, admitted that it was desirable that the moturpha tax be abolished, but there were, he vowed, ‘difficulties in the way of accomplishing that object’.121 The House of Lords eventually resolved to do nothing more than to rely ‘upon the zealous and continued exertions of all persons in authority in this country and in India to extirpate a practice disgraceful to the character of our government and calculated to render it odious to the people of India’.122 As in the case of the parliamentary debate that was the genesis of the commission, the response to it in both Britain and India was thus to ignore that torture in Madras was, in the words of the Madras Native Association, ‘a consequence, not a cause’.123 117 Ibid, 12. To avoid raising alarm bells, however, the Report insisted that torture had ‘of late years been steadily decreasing both in severity and extent’. Ibid, 31. 118 HL Deb 14 April 1856 vol. 141 c992. 119 ‘The Question as Touching India’, advertisement, Punch, 19 May 1855, cited in Peers, ‘Torture, the Police’ (n 36) 35–​6. As one rare critic remarked, the tortures to which Indians had been subjected in Madras had ‘never been practised under the worst native Governments to a tithe of the extent that they are practised in the Country’s possessions in India’. ‘Torture in India’ (n 95) 7. 120 HL Deb 14 April 1856 vol. 141 c972. 121 Ibid, c382. 122 Ibid, c984. 123 Fifth Petition to the Imperial Parliament (n 89) 4.

The Facilitators I: Policing  91 What was disregarded, in other words, was the structural violence that made torture possible, and the role of both the Company and its imperial overseers in the enactment of such violence.124 This was true in other Indian provinces as well as in Madras, since although torture cases from all over India began to come to light in the aftermath of the Report’s publication, and a range of officials confessed that the situation regarding torture was no better in their own provinces than it was in Madras, the Company’s Court of Directors deemed that ‘further enquiry into the existence of the evil would be superfluous’; the British government, likewise, was keen to restrict the ‘discovery’ of torture to Madras alone.125 In the case of Madras, the only immediate response to the publication of the Report (although it came a full year later) was the Madras Board of Revenue’s request to Collectors that they notify the Madras government of all cases of torture that they tried, and (a further six months later) its appeal to the Madras government to enforce the existing penal law against torture ‘with the utmost rigour’.126 But such efforts only served to reveal that, as previously, punishments remained minimal, since they largely consisted of little more than a small fine or dismissal from service (punishments that were, in addition, often later overturned).127 The tahsildar (revenue collector) responsible for torturing the fourteen weavers, for example, was merely fined Rs. 5 for such a violation on the grounds, according to the Collector and Magistrate who fined him, C. J. Shubrick, that ‘he was unwilling by the imposition of a severe punishment on the Tahsildar to weaken his authority’ (a decision with which the Board of Revenue concurred, since it was vital that ‘servants of government should not be convicted on light or insufficient grounds and should not be sacrificed to mere clamour . . . concocted purposely to entrap them’).128 Rather than eradicating torture, 124 As Charles Dickens’s Household Words put it, ‘for every act of cruelty, injustice or rapine; for every anna of the wretched ryot’s substance wrongfully extracted; for every torture or indignity inflicted upon his most miserable carcase, the Honourable East India Company is responsible’. ‘Rent Day Round Madras’ (n 102) 277. 125 India, Legislative Department, 21 November 1855, IOR E/​4/​833, 310, BL. See also Home, Public, Proceedings 4–​22, February 1856, NAI; Home, Judicial, A Proceedings, 5 January 1856, no. 15, NAI; 1854–​ 55 (346) East India (torture), copy of a despatch from the President of the council of India in council, dated 18 April 1855, as to an alleged case of torture in India (in continuation of Parliamentary Paper, no. 183, of session 1855), House of Commons Parliamentary Papers Online; IOR/​E/​4/​829, 1854–​55, BL; IOR E/​4/​ 833, BL; IOR/​E/​4/​837, BL; IOR E/​4/​844, 1233–​9, BL; and Government v. Teetye Ahan and Bancha Ahan, 9 January 1856 and Government v. Prosonocoomar Mookerjea Mohurrir, Mamdoo Khan Burkundaz, Jumiat Sheikh Burkundaz, and Hameedoollah Burkandaz, 25 February 1856, Reports of Cases Determined in the Court of Nizamut Adawlut for 1856, Vol. VI Part I (Calcutta: Thacker, Spink and Co. 1856), 49–​52, 501–​3. 126 Board of Revenue Proceedings, Fort St. George, 20 June 1856, IOR/​P/​312/​73, 11460; and Judicial Department, 16 September 1857, IOR/​E/​4/​847, 981. Other provinces, particularly Bengal and Bombay, issued similar, and equally modest, encomiums about ways to curb the prevalence of torture. See India, Judicial (Bengal), 22 April 1857, IOR/​E/​4/​843, 1012, 1049, BL; and Home, Judicial, A  Proceedings, 5 January 1856, no. 15, NA. 127 See IOR/​P/​312/​74, 12208–​9, BL; IOR/​P/​312/​77, 13057 BL; IOR/​P/​312/​80, 15081–​9, BL; IOR/​P/​313/​2, 10801–​4, BL; IOR/​P/​313/​6, 11254, BL; IOR/​E/​4/​843, 1028–​33, BL; IOR E/​4/​844, 1180–​97, BL; and IOR/​E/​ 4/​847, 314–​15, 340, BL. Some charges made to the commission against individual officials were also investigated but were largely dismissed. See, for example, IOR/​P/​312/​79, 14473–​5, BL. 128 Board of Revenue, Proceedings, Madras, Fort St. George, 28 August 1856, IOR/​P/​312/​81, 15389–​90, 15395, BL. Following Lord Albemarle’s discussion of this case in Parliament the tahsildar, Sreenevasa Row, was dismissed from office. The Board of Revenue, however, felt that Row ‘had acted under circumstances of great difficulty’ (since although the weavers had petitioned Shubrick regarding their inability to pay the tax, Shubrick had threatened Row with a ‘severe order’ being issued against him if he failed to collect it). He was, therefore, re-​employed in a different department. Such a case was by no means unique; in 1857 a police daroga (chief of police) in Bengal was removed from his post for extorting confessions from prisoners

92  Colonial Terror a key concern of British officials in the aftermath of the publication of the Report was instead, therefore, to safeguard the coercive powers of their subordinates.

The Creation of a ‘Colonial’ System of Policing It was through the use of the police that the British held India and exercised their control over it, [and] through the police that they met and countered successive challenges to colonial control.129 Investigatory commissions may pose the possibility of serving as a check on executive power if they engage in a mode of what Jonathan Simon refers to as ‘parrheistic’ truth telling, namely through creating ‘a space for truth tellers with a profound and personal knowledge of the catastrophic events the commission has been created to investigate’.130 But the Madras torture commission—​as well as, arguably, all imperial and colonial commissions, which mushroomed in the second half of the nineteenth century—​was designed not to engage in truth telling, or to redress the disastrous failures in governance that had triggered it, but to give the appearance of doing so in order to deflect both blame for such failures and demands for institutional change.131 This was, perhaps, inevitable in light of the role of scandal in the generation of commissions, because when it comes to scandal what must be erased is the scandal itself, not its underlying causes.132 Indeed, since commissions do not fit clearly into either executive, legislative, or judicial modes of power but belong, instead, to ‘an emergency apparatus of government’ the torture commission served not to erase the scandal of the structural violence of colonialism but to pave the way for a series of reforms that, in addition to reinvigorating and legitimating empire rather than undermining it, would

and subsequently appointed treasurer of the Chittagong Collectorate on the grounds that ‘To declare such a man, and one too of independent means, and of good family, incapable again of serving Government, would be to inflict an unmerited disgrace and punishment upon the man, and to lose the services of one who promises to do a good service as he has already done.’ Board of Revenue, Proceedings, Madras, Fort St. George, 28 August 1856, IOR/​P/​312/​81, 15390, BL; Fifth Petition to the Imperial Parliament (n 89) 6; Board of Revenue, Madras, Proceedings, Fort St. George, 8 September 1856, IOR/​P/​313/​1, 16375, 16377, 16379, BL; ‘Extract from the Board of Revenue, 8 September 1856’, IOR/​P/​313/​4, 17769, BL; and ‘India, Judicial Department, 28 October 1857, IOR/​E/​848, 387–​8, BL. 129 David Arnold, Police Power and Colonial Rule: Madras, 1859-​1947 (Delhi: Oxford University Press 1986), 4 (hereafter Arnold, Police Power). 130 Jonathan Simon, ‘Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror,’ Yale Law Journal 114/​6 (2005), 1435. Simon is drawing, here, on Michel Foucault’s conception of ‘fearless’ or ‘dangerous’ speech (since it exposes the speaker to the risk of retaliation). Michel Foucault, in Joseph Pearson (ed.), Fearless Speech (Cambridge, MA: The MIT Press 2001), 19–​20, cited in Yale Law Journal 114/​6 (2005), 1422. 131 Ann Laura Stoler, Along the Archival Grain:  Epistemic Anxieties and Colonial Common Sense (Princeton, N.J.: Princeton University Press 2009), 31. Although their ‘solutions’ are largely predetermined, commissions, according to Stoler, are designed to demonstrate ‘the state’s right to power through its will to the production of truth’ (emphasis added). Ibid, 141, 31. 132 Dirks, The Scandal of Empire (n 26) 25.

The Facilitators I: Policing  93 also give virtually free reign to the colonial regime’s violence workers to commit torture.133 Such reforms focused notably, however, on the police, not on revenue assessment or collection. A new settlement survey was commenced in Madras in 1861, and the revenue demand was set at a limit of half the net produce in 1864, but in addition to the fact that this was still an extremely high rate, particularly in comparison to the 30 per cent norm of previous regimes, according to Romesh Chunder Dutt such a limit was not conformed to.134 Between 1876 and 1898, when the area under cultivation in Madras increased by 14 per cent (following a devastating famine in which the amount of land under cultivation had considerably dropped), the gross tax demand in the province rose by over 70 per cent, and cultivators still had no independent tribunal to appeal to.135 Revenue and policing duties were, however, separated between different sets of officials, as they were in other provinces in which they were united (apart, that is, from the district magistrate, who remained ‘undisputed lord of his district fief ’) since, as the Report noted, expecting a tahsildar acting as magistrate to afford redress to a victim of torture when the tahsildar had ordered the torturing was ‘to hand over the spoiled to the spoiler, and to ask the party most deeply interested in hushing the matter up, to display the impartiality of a judge’.136 That little more was done to address the grievous abuses revealed by the torture commission relating to revenue administration and collection was doubtless because the British regarded collecting 100 per cent of assessed revenues as a key indicator of the efficiency of their administration, and as one British official bluntly informed the torture commission, ‘without resort to torture . . . not a tithe of the amount assessed could be collected’.137 But although the police remained the main focus of reform, concerns about torture were not, however, their driving impetus and, since such reforms did little more than create some new posts, change the names of various ranks, and increase the supervisory control of the executive over the police, they were not remotely revolutionary.138 The ‘new’ system of policing developed in the 1860s bore, in other words, more than a

133 Anthony Platt, ‘The Politics of Riot Commissions, 1917-​1970:  An Overview’, in Anthony Platt (ed.), The Politics of Riot Commissions, 1917-​1970:  A Collection of Official Reports and Critical Essays (New York: Collier Books 1971), 4–​5, cited in Simon, ‘Parrhesiastic Accountability’, 1431. Like all colonial commissions, the torture commission served, furthermore, to construct what it purported to describe, namely the ‘violent native’ for whom torture was inherent. 134 Romesh Chunder Dutt, The Economic History of India in the Victorian Age: From the Accession of Queen Victoria in 1837 to the Commencement of the Twentieth Century, Book II (6th edn, London: Kegan Paul, Trench, Trubner & Co. Ltd. 1903), 320; and Peers, ‘Torture, the Police’ (n 36) 40. 135 Peers, ‘Torture, the Police’ (n 36) 40; and Dutt, An Economic History of India, Book II, 496. 136 Arnold, Police Power (n 129) 21–​2; and Report of the Commissioners (n 89) 42. The separation of revenue administration from that of policing had been effected in Bengal by Lord Cornwallis, and in 1802 the same was done in Madras. In the latter case, however, they were reunited again in 1816. 137 Bernard Cohn, Colonialism and its Forms of Knowledge: The British in India (Princeton: Princeton University Press 1996) 61; and Letter from W.  Sloan, Principal Sudder Ameen, Vizagapatam, n.d., Report of the Commissioners (n 89) 70. The rampant crime rate in Madras—​there were no less than 1,724 gang robberies in the presidency in 1854—​helped to further crystallize such a focus on the police. Sir Percival Griffiths, To Guard My People: The History of the Indian Police (London: Ernest Benn Limited; Bombay: Allied Publishers Private Limited 1971), 81 (hereafter Griffiths, To Guard My People). 138 Ranjan Chakrabarti, Terror, Crime and Punishment:  Order and Disorder in Early Colonial Bengal 1800-​1860 (Kolkata: Reader’s Service 2009), 77, 95 (hereafter Chakrabarti, Terror, Crime and Punishment).

94  Colonial Terror passing resemblance to the one it replaced.139 That such reforms did not actually take place until after the Revolt of 1857–​1858 and the transfer of India’s governance from the Company to the Crown, and that they focused on the whole of British India, not just Madras, offers some indication, moreover, of their main intent, which was to ensure the maintenance of Britain’s ‘occupation of the country’, as the report of the 1860 Police Commission bluntly stated.140 The goal, in other words, was to create a system of policing that both diminished the danger of relying on armed ‘natives’ and reduced the exorbitant expenditure on the police incurred during the Revolt by the creation of new bodies of military police (civil police were, in short, cheaper than military police, and since they did not, for the most part, possess arms, they also posed less of a threat to British rule).141 Little wonder, therefore, that the Madras Police Act of 1859 made no reference to torture or other forms of force or extortion, or that the primary remit of the first India-​wide police commission, set up in 1860, was not to curb the brutality of the Indian police, or even to reduce crime, but to ‘ascertain the numbers and the cost of all Police and quasi-​Police of every description at present serving in each province throughout the British Territories in India’ and to suggest means of reducing police expenditure.142 The provisions of the Police Act of 1861 (which was applied to all Indian provinces apart from Madras and Bombay) reveal the nature of the police reforms thus enacted. Its priorities are clear, to begin with, in the preamble of the Act, since it declares the first duty of every police officer to be that of obeying and following orders

139 The 1859 Madras Police Act, for example, did little more than increase the supervisory authority in the police by appointing a Commissioner and Deputy Commissioners and to separate revenue from police duties, which effectively made the new police little more than ‘the old police under new management’. In addition to many of the old staff being employed in the new system, as former district magistrate Robert Carstairs reflected, ‘much of its old spirit, and many of its methods, forbidden though they might be, remained’. Arnold, Police Power (n 129) 39; letter from W. Robinson, Inspector General of Madras Police, to T. Pycroft, Chief Secretary to the Government, Fort St. George, 8 March, 1861, Home, Legislative, July, A, 4–​6, 1861, NAI; and Robert Carstairs, The Little World of an Indian District Officer (London: Macmillan and Co. 1912), 30. 140 First Report of the Police Commission (Government of India 1860), 9. David Arnold attributes two additional causes for the reform of the police in Madras, namely the murder of the District Magistrate of Malabar in 1855, H. V. Conolly, by four escaped Mappila convicts in retaliation for his deportation of Syed Fazl, a Mappila religious leader, and the inability of the existing police system to ensure an adequate flow of revenue. That the police in rebel-​held Delhi continued to carry out their duties during the 1857–​1858 Revolt suggests, in addition, that the revolt itself was not a major transformative moment for the Indian police. Arnold, Police Power (n 129) 24; and Mahmood Farooqui, ‘The Police in Delhi in 1857’, in Crispin Bates (ed.), Mutiny at the Margins: New Perspectives on the Indian Uprising of 1857, Vol. 1: Anticipations and Experiences in the Locality (New Delhi: Sage Publications 2013), 98–​119. 141 Report of the Indian Police Commission, 1902-​03 (n 85) 4; see also Lord Elgin, letter to Madras government, 17 March 1859, cited in ‘Extract from Report No. 5 of the military Finance Commissioners, dated Calcutta, the 30th April 1860’, Home, Judicial, A, Oct, 34–​38, 1860, NAI; Lord Elgin, Minute, 6 June 1863, Home, Police, 1 August, 1–​14, 1861, NAI; and ‘Selections from the Records of Government Papers relating to the Reforms of the Police of India, 1861, The Calcutta Review, June 1861, 203. 142 P. Hari Rao, The Indian Police Act (Act V of 1861)  and the Indian Police Act (III of 1888)  and the Police (Incitement to Disaffection) Act (XXII of 1922) with Commentaries and Notes of Case-​Law thereon (Triplicane: Madras 1927), 114, cited in Griffiths, To Guard My People (n 137) 88. Derek Elliott suggests that their exposure to images of the depths of ‘native savagery’ against British bodies during the Revolt also made the British notably less sympathetic in regard to the torture of Indian bodies. Elliott, ‘Torture, Taxes’ (n 28) 265.

The Facilitators I: Policing  95 and the second that of gathering and communicating intelligence.143 Serving the people through preventing and detecting crime comes a low third on the list.144 In conjunction with the two new legal codes that came into force in 1862, namely the Indian Penal Code (IPC), in which eleven of its twenty-​three chapters were devoted to the maintenance of order and the protection of the colonial state and only two to offences against either the body or property, and the Criminal Procedure Code (CPC), in which chapters on the maintenance of public order, including through the use of force, were foregrounded over the investigation and prosecution of criminal offences, the Act thus made the Indian police a powerful force for ensuring the maintenance of British rule.145 As in the case of the IPC and CPC, the focus of the Act, in sharp contrast to the police reforms undertaken in England three decades before, or to the police systems being established in colonies such as Australia and Canada, was thus to ensure the sovereignty of the state, not the welfare of the people. Like the Madras Act, therefore, it made no reference to torture (although torture was, however, made an offence punishable by up to seven years’ imprisonment in the IPC).146 Indeed, the only mention of police violence is in section 29 of the Act, which states that any police officer who offers ‘unwarrantable personal violence’—​a phrase that was doubtless left purposely undefined—​to individuals in their custody will be liable to a penalty of no more than three months’ pay or imprisonment (with or without hard labour) for a maximum of three months.147 Furthermore, though a prime motivator of the Act was to de-​militarize the police in India, both to reduce costs and to lessen the danger of another cataclysmic revolt, since the perception of colonial officials was that ‘The line which separates the protective and repressive functions of a Civil Police from functions purely Military, may not always, in India, be very clear’, the Indian police continued, in actuality, to be heavily militarized.148 The high numbers of army officers in 143 Shailendra Misra, Police Brutality:  An Analysis of Police Behaviour (New Delhi:  Vikas Publishing House Pvt. Ltd. 1986), 7. 144 Such expectations stand in stark contrast to those placed on the New Police of London following their creation in 1829, which focused on the duty of the police to the public and the importance of maintaining public good-​will and cooperation. K. S. Dhillon, Defenders of the Establishment: Ruler-​Supportive Police Forces of South Asia (Shimla: Indian Institute of Advanced Study 1998), 110. 145 T. K. Vinod Kumar and Arvind Verma, ‘Hegemony, Discipline and Control in the Administration of Police in Colonial India’, Asian Criminology 4 (2009), 67.. Arvind Verma goes so far as to regard the Act as an important ‘mechanism to subjugate the people’, Arvind Verma, ‘Consolidation of the Raj: Notes from a Police Station in British India, 1865-​1928’, Criminal Justice History 17 (2002), 112 (hereafter Verma, ‘Consolidation of the Raj’). 146 The most important section of the Code in relation to torture is 330, which states that ‘Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer or any person interested in the sufferer any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to a fine’. Ratanlal Ranchhoddas and Dhirajlal Thakore, The Law of Crimes (The Bombay Law Reporter Office 1921), 712. 147 ‘A bill for the regulation of the Police within any parts of the British Territories in India, to which it may please the Governor-​General in Council to extend its provisions’, Home, Legislative, April, B, 6, 1861, NAI; and Act V of 1860. 148 Memorandum, n.s., n.d., Home, Legislative, April, B, 6, 1861, NAI. Military reserves were first formed in Indian provinces in 1789 for use in riots and other disturbances, although in some provinces, such as

96  Colonial Terror its supervisory ranks, and the colonial regime’s focus on public order, helped to ensure, in addition, that the Indian police remained ‘destitute of the detective element’.149 Such provisions revealed ‘the true intentions of the Police Act of 1861, namely to make the police into an occupational army’ (transforming India, according to some critics, into a police state), while also rendering the police virtually ineffective against criminals ‘except by torture and [other] malpractices’.150 Such reforms thus produced what Anuj Bhuwania describes as ‘the institutionalisation of a specifically colonial model in the restructuring of the Indian police’.151 Since blame for the violence of the system of colonial policing was displaced from the British onto Indians, this led to the creation of a system of policing in which Indians were completely erased from positions of administrative responsibility and an increase in the supervisory role and powers of Europeans.152 Yet as the Governor of Bombay, Lord Elphinstone, remarked in response to the report of the torture commission, in addition to being ‘by no means clear that the larger employment of European . . . agency in the other presidencies has had the effect of suppressing these practices’ (namely torture), as revealed by the case of William Spiers, the Foujdar of Poona (Pune), who had been in the habit of extorting confessions, Indians were not alone in the perpetration of torture.153 The Spiers case was, in fact, not the only one that came to light during the deliberation upon and enactment of police reforms in the late 1850s and early 1860s that revealed the role of Europeans not just as facilitators but as perpetrators of torture in colonial India. Additional cases included a European Inspector found guilty of assaulting a group of prisoners in order to extort confessions from them and a Revenue Commissioner found to be complicit in the torture carried out by his tehsildar (collector of revenue).154 Removing Indians from supervisory positions Bombay and the North-​Western Provinces, the police were instead divided into armed and unarmed branches. 149 T. C. Arthur, Reminiscences of an Indian Police Official (London: Sampson, Low, Marston & Company 1894), iv; Georgina Sinclair, At the End of the Line: Colonial Policing and the Imperial Endgame 1945-​80 (Manchester and New York: Manchester University Press 2006), 25; and Rajnarayan Chandavarkar, Imperial Power and Popular Politics:  Class, Resistance and the State in India, 1850-​1950 (Cambridge:  Cambridge University Press 1998), 226. It was the hope that they would bring a semi-​military discipline to the Indian police that made British army officers the choice candidates for recruitment into the superior ranks of the Indian police. Out of the 389 members of the superior police in 1867, for example, no less than 215 were army officers. Although military recruitment gradually died out due to the drying up of suitable candidates, in Madras, in which the recruitment of army officers formally ceased in 1869, such officers continued to dominate the superior ranks of the police until the 1890s. J. C. Madan, Indian Police: Its Development up to 1905 an Historical Analysis (New Delhi: Uppal Publishing House 1980), 92; Arnold, Police Power (n 129) 72–​3; and Home, Police, A, September, 29–​55, 1882, NAI. 150 Verma, ‘Consolidation of the Raj’ (n 145) 114; Peers, ‘Torture, the Police’ (n 36) 24; and Anandswarup Gupta, The Police in British India 1861-​1947 (New Delhi: Concept Publishing Company 1979), 74 (hereafter Gupta, The Police in British India 1861-​1947). 151 Anuj Bhuwania, ‘ “Very Wicked Children”: “Indian Torture” and the Madras Torture Commission Report of 1855’, SUR: International Journal on Human Rights 10 (2009), 8, 22. 152 That the superior ranks of the police were maintained as a European preserve until well into the twentieth century was part of the colonial regime’s effort to ‘police the police’. Arnold, Police Power (n 129) 9. 153 Arnold, Police Power (n 129)  22; and Lord Elphinstone, Minute, 20 July 1855, Home, Judicial, A Proceedings, 5 January 1856, no. 15, NAI. As was generally the case with Europeans, Spiers was simply removed from his post for such offences. 154 India Revenue, 7 January 1857, 475–​6, and India Judicial (Bengal), 14 January 1857, IOR/​E/​4/​841, 927–​8, BL. See also Elliott, ‘Torture, Taxes’ (n 28) 108.

The Facilitators I: Policing  97 in the Indian police did nothing, therefore, to alter its brutality, in spite of some optimistic assessments in the decades following such reforms that the increase in the number of European officers had led to ‘the abandonment of torture and violence’ by the subordinate ranks of the police.155 It simply ensured, instead, that Europeans came to play a wider and more direct role in ‘supervizing’, as Manto puts it, the use of torture as a technology of colonial rule.

The Systematization of Torture The use of torture by liberal-​democratic states relates to their attempt to control populations of those who are not citizens.156 They did so primarily through systematizing torture as a practice of colonial policing. In case after case throughout the second half of the nineteenth and early twentieth centuries, police who tortured essentially got away with it, even when torture devolved into farce (such as when the police tortured suspects accused of murder, only to have the supposed corpse turn up alive and well at the trials of their purported killers).157 Such protection from punishment extended even to cases in which victims were tortured to death.158 There were three main means through which torture became systematized: the impunity the purportedly ‘new’ and ‘reformed’ Indian police were given to commit acts of atrocity, even if they resulted in death, along with the lengths the colonial regime went to protect its violence workers; the dismissal of torture charges as false; and the protection of indigenous allies who tortured or who facilitated torture. To begin with the issue of impunity, a particularly gruesome torture case from 1914 demonstrates some of the ways in which the colonial administrative and judicial 155 Letter by Mr. Montresor, Commissioner of the Burdwan Division, 8 January 1868, quoted by H. L. Dampier, Officiating Secretary to the Government of Bengal, to A. P. Howell, Officiating Secretary to the Government of India, 14 November 1868, Home, Police, A, 27–​29 January 1869, NAI. 156 Asad, ‘On Torture’ (n 88) 296. 157 For examples of such cases see Queen v. Behary Sing and others, Rulings of the High Court in Criminal Cases, 4 January 1867, in D. Sutherland, The Weekly Reporter, Appellate High Court, Vol. VI (Calcutta: D. E. Cranenburgh, 1891) (hereafter Sutherland, The Weekly Reporter); Home, Police, A, March, 50–​1, 1876, NAI; IOR/​L/​PJ/​6/​947, File 2385: 5 July 1909, NAI; Home, Police, B, August, 15–​18, 1915, NAI; Norman Chevers, Medical Jurisprudence for India, with Illustrative Cases (revised and brought up-​to-​date by L. A. Waddell, 3rd edn, Calcutta: Thacker, Spink & Co. 1904), 18; and Sir Edmund Cox, Police and Crime in India (first published in 1910, New Delhi: Manu Publications 1976), 265–​6. 158 For some particularly notorious cases in which the victims were tortured to death see, for example, Queen v. Bheem Manjee and another, Rulings of the High Court in Criminal Cases, 11 August 1866, in Sutherland, The Weekly Reporter (n 157); ‘The Satara Police Torture Case: The Accused Acquitted’, The Times of India (Bombay, 2 February 1898); L/​PJ/​6/​943, File 2227–​8: 22 June 1909–​25 May 1910, BL; Home, Police, B Proceedings, May 1911, no. 114–​22, NAI; Home, Police, A Proceedings, May 1911, no. 213–​29, NAI; Home, Police, B Proceedings, June 1911, no. 43–​8, NAI; Home, Police, B Proceedings, June 1911, no. 85–​9, NAI; IOR/​L/​PJ/​6/​3554, July 1916–​August 1916, BL; Home, Police, B, April, 47–​8, 1917; and Deana Heath, ‘Bureaucracy, Power and Violence in Colonial India’, in Peter Crooks and Tim Parsons (eds), Empires and Bureaucracy from Late Antiquity to the Modern World (Cambridge: Cambridge University Press 2016), 364–​ 90 (hereafter Heath, ‘Bureaucracy, Power and Violence’). The preponderance of cases listed between 1909 and 1911 is a result of the greater reportage of such cases to the provincial, Indian, and imperial governments during this period, which I discuss further in the Conclusion.

98  Colonial Terror systems combined to protect police officers who tortured from being punished for such acts. In the case, which took place in Sukena in the Bombay Presidency, a theft suspect named Shankargir Gosavi was tortured to death by the police, who then dumped his body on a railway embankment. The twenty-​seven injuries Shankargir suffered included five broken ribs and a head that was ‘practically smashed to pieces’.159 Although J. H. Garret, the district magistrate of Nasik, conjectured that Shankargir had died during the course of being tortured by the police, who then deposited his body on the embankment ‘with the . . . object of giving colour to a theory of accidental death’, for F. K. Boyd, Sessions Judge of Nasik, the sheer brutality of such injuries meant that it was inconceivable that the police had committed them to extort a confession from Shankargir.160 Since Shankargir’s body had been found on a railway embankment, Boyd insisted that it was ‘likely that [the] deceased was knocked down and killed by a train’, even though both the circumstantial and medical evidence proved otherwise.161 Regardless, furthermore, that there was clear evidence that the police had tried to delay and then cover up the investigation, Boyd saw ‘no object in taking the case to trial’, and accordingly dismissed it.162 Since there was, however, incontrovertible evidence that both a sub-​inspector of police and a constable had, in fact, ‘maltreated’ Shankargir, the Bombay Inspector General of Police felt obliged to dismiss them both from police service—​only for them to be reinstated by the Governor of Bombay on the grounds that ‘the facts from which inferences detrimental to the Sub-​Inspector and his subordinates were drawn were all susceptible of easy explanation’.163 This is not to say that police officers were never punished for committing torture. As in the first half of the nineteenth century, they were occasionally given considerable sentences, including rigorous imprisonment and transportation (in one notable case, for a length of fourteen years).164 Such convictions were, however, relatively rare, and as had previously been the case, it was largely the subordinate police (namely those 159 Imperator v. Dattatrya Hari Salunke, Rama Govinda, Raoji Bala, Pandu Nana, Ramchandar Sadashiv and Kondaji alia Hari Amrita, Sessions case no. 11, Court of Session of the Sessions Division of Nasik, IOR/​ L/​PJ/​6/​1394, File 3236,  BL. 160 J. H. Garret, District Magistrate, Nasik, to Secretary to Government, Judicial Department, Bombay, 27 May 1914, NAI; Imperator v.  Dattatrya Hari Salunke, IOR/​L/​PJ/​6/​1394, File 3236, BL (hereafter Imperator v. Dhattatrya Hari Salunke); and C. M. Baker, Esq., District Magistrate, Nasik, to the Secretary to Government, Judicial Department, Bombay, 19 March 1915, IOR/​L/​PJ/​6/​1394, File 3236, BL. 161 Imperator v. Dattatrya Hari Salunke (n 160). 162 Ibid; and R. P. Lambert, Esq., District Superintendent of Police, Nasik, to the Distract Magistrate, Nasik, 3 March 1915, IOR/​L/​PJ/​6/​1394, File 3236, BL. Boyd likewise felt that it was ‘a waste of time’ to let the case of another theft suspect, Govind Bhaskar Agaste, who claimed that he had also been tortured by the Pimpalgaon police, to go to trial due to the lack of sufficient evidence, despite the fact that Agaste’s torture had left him bedridden. 163 The following citations are all in IOR/​L/​PJ/​6/​1394, File 3236, BL: C. M. Baker, Esq., District Magistrate, Nasik, to the Secretary to Government, Judicial Department, Bombay, 19 March 1915; R.  P. Lambert, District Superintendent of Police, Nasik, to the Distract Magistrate, Nasik, 3 March 1915; and J. E. C. Jukes, Deputy Secretary to the Government of Bombay to H. Wheeler, Secretary to the Government of India, 10 November, 1915. It was not uncommon for police who tortured not only to be reinstated but promoted—​in some cases, even while a torture investigation was ongoing. See, for example, Home, Political, B, 24–​28 October 1910, NAI. 164 See, for example, Queen v. Tarinee Churn Chattopadhya and others, Rulings of the High Court in Criminal Cases, 3 January 1867, in Sutherland, The Weekly Reporter (n 157); Home, Police, B Proceedings, 24–​25 June 1871, NAI; Home, Police, B, October, 52–​6, 1911, NAI; Home, Police, B Proceedings, June, 138–​ 67, 1912, NAI; and IOR/​L/​PJ/​6/​1452, File 3484, BL.

The Facilitators I: Policing  99 at the rank of Head Constable or below) who paid the price for carrying out torture, not their superior officers for aiding and abetting it.165 When the latter were put on trial, whether or not they were convicted depended, in part, both on their own social standing and that of their victims. A Brahman sub-​inspector of police in Bengal, for example, was convicted in 1911 for abetting the ‘ill-​treatment’ of an Indian tea garden doctor, but not for similar treatment of a member of the ‘criminal classes’ (even though the victim had been so severely beaten that he vomited blood).166 Europeans, of course, continued to get away scot-​free, their behaviour simply excused as ‘an excess of zeal’ (particularly if they were regarded as being ‘well connected and of good character’).167 Although they were, occasionally, brought to trial for either committing or abetting ‘ill-​treatment’, they were virtually never convicted (as one colonial official reasoned, the ‘expense and anxiety’ to which a trial put them was regarded as ‘sufficient punishment’ for whatever transgressions they may have committed).168 In addition to the failure to convict police officers who tortured when torture cases actually made it to trial, a second means through which torture became systematized as an apparatus of Indian policing was the wide-​scale dismissal of torture charges. Assertions that ‘The number of false charges brought against the police are probably more numerous than against any other class of people’ ensured, in short, that torture claims were generally not taken seriously.169 Declaring torture claims as false served both to mask the nature and prevalence of police torture and to guarantee that blame for torture was displaced squarely onto its victims, who were accused not only of making false torture charges but of inflicting injuries on themselves that were so severe they could even result in death.170 As the Under-​Secretary of State for India, 165 Convictions for torture were generally the result of a particularly persistent complainant or a police superintendent or judge who was willing to risk the ire of their superiors (not to mention, in some cases, their careers), as well as, from the early twentieth century, political pressure. For cases in which subordinate police were convicted but their superior officers evaded any punishment see, for example, Queen v. Behary Sing and others, Rulings of the High Court in Criminal Cases, 4 January 1867, in Sutherland, The Weekly Reporter (n 157); IOR/​L/​PJ/​6/​1111, File 3558, BL; IOR/​L/​PJ/​6/​1093, File 2239, BL; IOR/​L/​PJ/​6/​1111, File 3558, BL; Home, Police, B Proceedings, April, 1911, NAI; IOR/​L/​PJ/​6/​1105, File 3026, BL: Home, Police, B, May, 1–​1911, NAI; Home, Police, B, May, 18–​24, 1911, NAI; Home, Police, B, June, 63–​9, 1911, NAI; IOR/​L/​ PJ/​6/​1128, File 4687, BL; and Home, Police, B, November, 46–​56, 1914, NAI. 166 IOR/​L/​PJ/​6/​1105, File 3025, 1912, BL. The sub-​inspector was sentenced to one year’s rigorous imprisonment. Abetment cases were, however, rare, including in the case of the subordinate police. For an example of the latter see Queen-​Empress v. Latifkhan, The Indian Decisions (New Series), Bombay, Vol. IX, I.L.R. 17 Bombay, 1895. 167 Sir Harold Stuart, Acting Chief Secretary to the Government of Madras, to Secretary to the Government of India, 13 September 1911, Home, Police, B, September, 100, 1911, NAI. See also ‘Poona Police Torture Case’, The Times of India, 8 June 1900, 5; and ‘The Police Torture Case’, The Times of India, 18 July 1900, 5. 168 Sir Harold Stuart, Acting Chief Secretary to the Government of Madras, to the Secretary to the Government of India, Home, 15 September 1911, Home, Police, B, September, 96–​97A, 1911, NAI. 169 Note by Sir Richard Craddock, 6 May 1913, Home, Police, A, July, 85–​95, 1913, NAI. 170 Colonial statistics recorded what officials claimed were thousands of ‘false’ cases—​claims that historians have tended to take at face value. In Madras in 1898 to 1899, for example, almost 28 per cent of the almost 60,000 cases recorded by the police were deemed false, with large numbers characterized as ‘maliciously false’. But in addition to the fact that the police often registered cases as ‘false’—​because they did not receive the requisite bribe in order to initiative an investigation, to evade the investigation of difficult cases, or to avoid the statistical liability of a failed case—​as Radha Kumar argues, ‘[t]‌he registration or dismissal of complaints was not only an integral part of local politics; it was simultaneously an everyday performance of power by policemen, who displayed their discretionary authority in deciding the veracity of cases lodged

100  Colonial Terror Edwin Montagu, pronounced in 1910, ‘it was . . . indisputable that prisoners had been known to torture themselves, with the courage and indifference to physical pain characteristic of the East, in order . . . to escape conviction’.171 Torture, according to such logic, was actually a form of self-​harm, a product both of Indian duplicity and of the Indian body’s purported insensitivity to pain.172 In a case that occurred in 1866, for example, a Santhal named Bheem was tortured so severely by a sub-​inspector of police, along with several constables and chaukidars (village police), that when finally brought to the hospital five days after his arrest he was unable to walk.173 Although the medical evidence supported Bheem’s statement that he had been tortured, and there was considerable proof of a police cover-​up, for the magistrate who tried the case the sub-​inspector was ‘a good, sensible, quiet young man’ who was ‘well connected, and held in esteem by his neighbours’, while Bheem was a person of ‘no character’.174 In addition to dismissing the torture charge, the magistrate also, therefore, committed both Bheem and his witnesses to trial for perjury, following which the Sessions Judge of Bancoorah—​based on the evidence of the police who had tortured Bheem—​ committed them to four years’ rigorous imprisonment. The Calcutta High Court later overturned such a blatantly unjust verdict, but the police who tortured Bheem still escaped unscathed.175 A third means through which torture was systematized by the colonial regime was through the protection of indigenous allies who tortured or who facilitated torture. In a case from 1863, for example, one Rajah Jugpal Singh, a prominent landowner and Honorary Assistant Commissioner of Police, was at the very least cognizant of and at the worst ordered the fourteen-​day torture ordeal undergone by over a dozen with them’. Radha Kumar, ‘Policing Everyday Life: The FIR in the Tamil Countryside, c. 1900-​50’, The Indian Economic and Social History Review 54/​3 (2017), 365–​6, 382. See also Arnold, Police Power (n 129) 133. 171 ‘The Indian Government and Police Torture. Mr. Montagu’s Attack on Mr. Mackarness’, The Manchester Guardian (Manchester, 13 August 1910), 8. 172 Punitive self-​harm, which involved hurting oneself or a close relative, was, as Mitra Sharafi demonstrates, a noncolonial mode of dispute resolution. As such its use differed from the purported aim of self-​torture. Although self-​torture may have been used as a means to escape imprisonment, I have come across no convincing cases that demonstrate this. Mitra Sharafi, ‘The Imperial Serologist and Punitive Self-​Harm: Bloodstains and Legal Pluralism in British India’, in Ian Burney and Christopher Hamlin (eds), Global Forensic Cultures: Making Fact and Justice in the Modern Era (Baltimore, Maryland: Johns Hopkins University Press 2019), 61. 173 Queen v. Bheem Manjee and another, Rulings of the High Court in Criminal Cases, 11 August 1866, in Sutherland, The Weekly Reporter (n 157). 174 Ibid, 53. 175 In addition to finding themselves behind bars for making ‘false’ torture claims, torture victims could also find themselves having to re-​experience their torture. In a case that took place in 1909 in Rawalpindi, for example, Civil Surgeon Colonel W. R. Clark discredited the claims of one Ghulam Mohammad that he had been tortured by forcing Mohammad to re-​enact his torture (which included being tied up and hung by his ankles), during the course of which, according to Clark, the ropes slipped in a fashion that was inconsistent with Mohammad’s injuries. Such ‘evidence’ was then used to deflect the attention the case received in Parliament. M. W. Fenton, Officiating Chief Secretary to Government, Punjab, to Sir Harold Stuart, Secretary to the Government of India, Home, 20 October 1909, Home, Police, B, November, 40–​8, 1909, NAI; and Home, Police, B, December, 67–​9, 1909, NAI. For additional torture cases that were declared false in spite of considerable evidence to the contrary see IOR/​L/​PJ/​6/​1123, File 4486, BL; IOR/​L/​PJ/​6/​1132, File 4846, BL; IOR/​L/​PJ/​6/​1135, File 73, BL; IOR/​L/​PJ/​6/​1087, File 1608, BL; IOR//​L/​PJ/​6/​1309, File 1707, BL; IOR/​L/​PJ/​6/​1340, File 5221, BL; IOR/​L/​PJ/​6/​1343, File 5645, BL; and Home, Police, B, November 1914, 57, NAI.

The Facilitators I: Policing  101 victims accused of a robbery that took place near his residence.176 Although the rajah was tried for such an offence (despite the concerns of the Chief Commissioner about bringing ‘the head of an ancient family . . . to shame’, especially one who had received large rewards for his loyalty during the 1857–​1858 Revolt), he was punished simply with a fine and a six-​month suspension as Honorary Assistant Commissioner.177 In most cases, however, indigenous elites who tortured either on behalf of the state, as in this case (although personal motives were clearly at work) or, more commonly, in contravention of the state, were never prosecuted. Colonial officials, in fact, often went to extreme lengths to protect indigenous allies. In a bizarre case from 1876, for example, in which a woman was forced, by a village elite, to confess to killing her new-​born baby in order to protect a member of the elite’s family, only to give birth in jail a few days after she was sentenced to death, the Sessions Judge, Colonel Cumberlege, insisted that the woman had a condition known as superfoetation and had simply given birth to a second child ten weeks after the first.178 David Arnold has argued that ‘the British found a certain pragmatic utility in police zulum’, or oppression, since ‘it kept alive the idea of the police as an agency of dubious methods and unpleasant means’ and prevented what could have been dangerous collusion between the police and the public.179 But terms such as ‘dubious’ and ‘unpleasant’ underestimate the nature and extent of police violence, and the fact that it was such violence that made the police, as Parthasaradhi Naid remarked at the 1888 session of the Indian National Congress, ‘a terror to young and old, all alike’.180 The system of policing that was created in colonial India was developed alongside a brutal and oppressive agrarian system in the context of the tremendous poverty, starvation, and endemic famine that characterized the countryside in colonial India.181 Its purpose was therefore not only to quell rural unrest but to cultivate a pervasive sense of fear.182 Torture was eminently suited to such a purpose, since it serves to cultivate fear while also, as Michael Taussig suggests, ‘act[ing] in concert with large-​scale economic strategies elaborated by the masters and exigencies of production’.183 It was the ability of torture to cultivate fear while facilitating a violent and extractive economic system 176 Foreign Department, Judicial, A Proceedings, October 1863, no. 15, NAI. 177 Secretary to the Chief Commissioner, Oude, to the Secretary to the Government of India, Foreign, Lucknow, 19 September 1863, Foreign Department, Judicial, A, October, 15, 1863, NAI; and Secretary to the Chief Commissioner, Oude, to the Secretary to the Government of India, Home Department, Lucknow, 27 January 1864, Home, Judicial, A, March, 30–​31, 1861, NAI. For cases involving indigenous elites who were accused of torture but never prosecuted for it see, for example, IOR/​R/​2/​486/​68, item 1, BL; and L/​ PJ/​6/​943, File 2227–​8, BL. For an analysis of the latter case see Heath, ‘Bureaucracy, Power and Violence’ (n 158). 178 Home, Police, A, March, 50–​1, 1876. Superfoetation, an extremely rare event in humans, occurs when a woman conceives a child while already pregnant, generally in the first few weeks of the pregnancy. 179 Arnold, Police Power (n 129) 68. 180 Report of the Proceedings of the Fourth Session of Indian National Congress, 1888 (Vintage Books 1993), 52. 181 Chakrabarti, Terror, Crime and Punishment (n 138) 60. 182 Gupta, The Police in British India 1861-​1947 (n 150) 7. Arvind Verma claims that as long as the Indian police served British interests and remained cost-​effective, the British were ‘unconcerned about their failings, ill reputation, and depredations upon the people’. ‘Consolidation of the Raj’ (n 145) 121. 183 Michael Taussig, ‘Culture of Terror—​Space of Death: Roger Casement’s Putumayo Report and the Explanation of Torture’, in Nicholas B. Dirks (ed.), Colonialism and Culture (Ann Arbor: The University of Michigan Press 1992), 138.

102  Colonial Terror that made it such a potent source of terror in colonial India. Torture may be perpetrated without terror, but torture augments terror’s impact.184 It was thus torture that made the Indian police, according to the Calcutta Review, ‘an engine of oppression of the most exquisite and pernicious kind’, and made India what one critic referred to as ‘the policeman’s kingdom’.185 Yet since the ways in which torture furthered its own interests could never be acknowledged by the colonial state, the practice of torture had to be repeatedly disavowed, particularly when torture erupted into scandal. But though such scandals ostensibly invigorated the colonial regime to put an end to police torture they instead became a means through which it could displace blame upon its Indian subordinates.186 Conveniently positioned both inside the colonial system, as state agents and legal functionaries, and outside it, as native subjects, while such subordinates were required to follow orders, their actions were blamed upon their purportedly incomplete humanity, not upon the colonial regime.187 This enabled the British to ignore the fact that Indian police officers were simply, as the Ananda Bazar Patrika asserted, ‘guided by the will of their superiors in the service, who are mostly Englishmen’.188 Scandal also operated in the interests of the colonizers by demonstrating the value of violence as a form of disciplining recalcitrant subjects, as well as some of the ways in which pain could operate as a form of subjectification.189 Repressive violence may be a contradictory aspect of liberal governance, but it is by no means an aberrant one in colonial contexts thanks to the nature of colonial sovereignty, which is constructed and maintained through ‘the power to abandon the colonized from legal protection and render them vulnerable to a potentially limitless violence’.190 This is not to say that Indians were not legally protected from torture, particularly following the enactment of the IPC. But they were, in effect, denied legal protection through the ‘supervisory’ power accorded to state agents acting as sovereign and the immunity they were given by colonial administrative and judicial systems. Such systems ensured, as the inhabitants of the Talook of Honnaver, in the zillah of Canara were well aware, in the petition they presented to the Madras torture commission, that in coming to operate through the field of sovereign power, colonial governmentality, instead of promoting the ‘welfare and interests of the people in general’ had come to subject them to ‘all sorts of oppressions’.191 As the petitioners put it, ‘God has endowed the person whom we call “king” with a sort of divine power, in 184 Marina Lazreg, Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton: Princeton University Press 2008), 7. 185 The Calcutta Review, no. 157, 1884, 23–​33; Gupta, The Police in British India 1861-​1947 (n 150) 157; and S. K. Ratcliffe, letter, Daily News (London, 5 January 1909), cited in ‘The Character of the Police’, The Modern Review 5/​2 (Calcutta, February, 1909), 183. 186 Rao, ‘Problems of Violence’ (n 67) 156. 187 Jinee Lokaneeta, Transnational Torture: Law, Violence, and State Power in the United States and India (New York and London: New York University Press 2011), 191; and Rao, ‘Problems of Violence’ (n 67) 156. 188 IOR/​L/​PJ/​6/​1237, File no. 1499, 461,  BL. 189 Rao, ‘Problems of Violence’ (n 67) 167. 190 Alex Tickell, Terrorism, Insurgency and Indian-​ English Literature, 1830-​ 1947 (New  York and London: Routledge 2012), 6 (hereafter Tickell, Terrorism, Insurgency). 191 The humble Petition of Cholappa, Jocka Naik, and others of the Talook of Honnaver, in the Zillah of Canara, Report of the Commissioners (n 89) 210. A zillah is an administrative district within a province.

The Facilitators I: Policing  103 order that he may be the guardian angel of the rights and privileges, as well as of the prosperity and happiness of subjects, and not to serve his self-​support and self-​interest and command self-​respect.’192 Since the aim of pastoral power, which Foucault described as ‘a beneficent power’ or ‘a power of care’, is to safeguard, sustain, and enhance the life chances of individuals, it is central to both disciplinary and governmental power.193 Such a form of power, which can be wielded by a range of individuals, apparatuses (such as the state), and public institutions, including the police, was notably absent in colonial India since, as the petitioners asserted, the British ‘invented rules, and formed regulations, and directed their collectors and civil judges to put them into execution’ in order to exploit Indians.194 As prominent Congress member Maulana Mazhrul Haque was to later observe, it was clearly ‘the system’ which was therefore at fault, not its Indian employees.195 That torture has gone under the radar of scholars studying the nature of colonial rule in India, even of those working on colonial violence, is because it was not targeted at any particular or marginalized group such as ‘thugs’ or ‘criminal tribes’ but operated at the level of the individual (although the lower castes and untouchables largely bore the brunt of it in the period examined in this book). Its perpetuation was not, in addition, a clearly elaborated aspect of colonial policy, as in the case of the desired eradiation of ‘thugs’, or the conquest or ‘settlement’ of new territory, but was a beneficial side-​effect, since torture is ‘the violence of the state secreted out of sight which it claims not to authorise in order to exercise its power over the bodies of its subjects and the space of its occupied territory’.196 Furthermore, as a form of violence it was not overtly spectacular or performative, although it served to stage both the power and legitimacy of the torturers and of the colonial state, as well as to make violence a quotidian experience without anybody having to actually experience such a form of hurt on a daily basis.197 Since torture, as Fanon argued, ‘is inherent in the whole colonialist configuration’, what it thus reveals is not the antithetical but rather the dialectical relationship between the conduct of the individual and that of the state.198 Torture may have been enacted and facilitated, in other words, by individuals, but it was both a product of and benefit to the colonial state in constructing and maintaining its sovereignty. 192 Ibid, 209. 193 Foucault, Security, Territory, Population (n 9) 126, 127, and ‘Omnes et Singulatim’ (n 21) 307. 194 The humble Petition of Cholappa, Jocka Naik, and others of the Talook of Honnaver, in the Zillah of Canara, Report of the Commissioners (n 89) 210. See also Foucault, The History of Sexuality, Vol. I, An Introduction (first published in 1978, Richard Hurley tr., Vintage Books 1990), 250; and Michel Foucault, ‘The Subject and Power’, Critical Inquiry 8 (1982), 784. 195 Excerpt, Legislative Council debates, 28 February 1912, 281, IOR/​L/​PJ/​6/​1368, File 1823, BL. 196 Robert Young, ‘The Violent State’ (Naked Punch, 16 October 2009, updated 21 September 2010)  accessed 8 May 2018 (hereafter Young, ‘The Violent State’). 197 Ingo W. Schröder and Bettina E. Schmidt, ‘Introduction’, in Ingo W. Schröder and Bettina E. Schmidt (eds), Anthropology of Violence and Conflict (London: Routledge 2001), 6; and Young, ‘The Violent State’ (n 196). Violence as performance, Schröder and Schmidt note, ‘extends its efficacy over space and time and gets its message across clearly to the large majority of people who are not physically affected by it’. Schröder and Schmidt, ‘Introduction’, 6. 198 Frantz Fanon, ‘L’Algérie face aux tortionnaires français’ (‘Algeria Face to Face with the French Torturers’), El Moudjahid, September 1957, cited in Young, ‘The Violent State’ (n 196).

104  Colonial Terror That the colonial regime was well aware of this is suggested by a unique torture case from 1870 which contradicts the assertion of the staunchest critic of the Indian police in Parliament, Frederic Mackarness, that there was never ‘a single case in which a policeman has been put in jeopardy for his neck, much less hanged’, for committing torture in colonial India, even when it amounted to murder.199 The case is, in fact, only one of two that I have come across in which the perpetrators (in this case, two constables and two head constables) were convicted of murder and sentenced to death (although one perpetrator in the case was sentenced to transportation for life).200 The tragic irony of the case is, however, that although the victim, Fukeerah, was tortured to death through the ‘forcing [of] iron pegs into his fundament’ and burning of his testicles, the perpetrators were not actually guilty of premeditated murder (as the Inspector-​General of Police, Colonel H. D. Taylor admitted, what they had done was ‘not exactly murder’, although he hastened to add that they had committed ‘something exceedingly like it’).201 What led this case to be prosecuted with such vigour, even to the point of convicting three men for a murder they had not intentionally committed, was not the horrifying sexual violence it entailed, since as I will explore in Chapter 4 this was far from uncommon in the torture enacted by the police in colonial India.202 It was arguably, instead, that the case revealed that the ‘horrors’ disclosed by the Madras torture commission were not things of the past, and raised the question that if a man can be killed in broad daylight in the presence, and almost before the eyes, of an assembly of people of his own village, and within hearing of his own wife and brothers, and the crime can be hushed up and nearly escape detection . . . and all this within a few miles of the seat of the Provincial Government, what facility for such crimes must there not be in the far off jungles where the face of a European officer is seldom or never seen.203 The case thus exposed, for the British, the horror of the unknowability of Indian society and its hidden depths of violence. Indeed, the evocative terms that British officials used to describe this case (‘horrible’, ‘terrible’, ‘ghastly’), not to mention the ‘unearthly sight’, according to Taylor, made by the victim’s tortured body (which was found ‘floating upright with half of the head out of water, and one arm extended above the head, the fingers pointing towards the sky’), are evocative of the gothic, in which terrorism is a 199 Frederic Mackarness to the Secretary of State, Lord Crew, 20 December 1910, Home, Police, Deposit, August, 30, 1911, NAI. This file is marked ‘strictly confidential’. 200 For the 1820 case see ‘Circular Order of the Court of Foudjaree Udalut’, October 29, 1824, IOR/​P/​311/​ 47, 13948, BL. As in many colonial Indian torture cases it was only brought to trial due to the tenacity of a relative, in this case Fukeerah’s brother Govinda, who persisted in seeking justice in the face both of the intransigence of European officials (who insisted that Fukeerah had committed suicide) and the violence he faced at the hands of both local elites and the Indian police. 201 Notes by B. H. E and ‘M’ and Report by Colonel H. D. Taylor, Inspector General of Police, Central Provinces, Nagpore, 6 March 1871, Home, Police, B, June 24 & 25, 1871, NAI. Fukeerah’s death was not actually murder according to Indian law, in contrast to the law in England, in which a homicide was presumed to be murder unless otherwise proven—​which as Martin Wiener notes served to ‘diminish culpability for a great deal of lethal violence’, particularly when committed by state agents. Martin Wiener, An Empire on Trial: Race, Murder, and Justice Under British Rule, 1870-​1935 (New York: Cambridge 2009), 157. 202 See also Deana Heath, ‘Torture, the State and Sexual Violence Against Men in Colonial India’, Radical History Review 126 (2017), 122–​33. 203 Report by Colonel H. D. Taylor, Inspector General of Police, Central Provinces, Nagpore, 6 March 1871, Home, Police, B, June 24 & 25, 1871, NAI.

The Facilitators I: Policing  105 product of the extreme fear wrought by horror.204 It was the horrors invoked by Indian brutality—​in this case a ‘dark deed’ that had threatened to remain ‘in the regions of mystery’—​that, in other words, both produced and justified colonial terror.205 But the case arguably also revealed, more significantly, that the British themselves, and the ‘institution’ that they constructed to contain such violence, was ultimately responsible for perpetuating it—​realizations that, for Taylor, made ‘the blood run cold’.206

204 Ibid; and Tickell, Terrorism, Insurgency (n 190) 11. 205 Report by Colonel H. D. Taylor, Inspector General of Police, Central Provinces, Nagpore, 6 March 1871, Home, Police, B, June 24 & 25, 1871, NAI. 206 Ibid. The fact that this case occurred less than a decade after the formation of the Central Provinces (in 1861), and a year after a major famine in the region, doubtless added to the sense of a civilizing mission gone horribly wrong.

3

The Facilitators II: Law and ‘Justice’ ‘Tortured to death—​pooh! What nonsense you do talk. I do believe you think every official in India a wild beast that delights in torturing his fellow-​creatures.’ ‘I don’t think you delight in torturing your fellow-​creatures, but I think you are just as guilty as if you did, for you allow others to do so. You would, perhaps, be less to blame if you did delight in it, for then Nature would be at fault for having given you a moral organisation with blunted perceptions of right and wrong and no feeling. As it is, you deliberately blind yourself to what goes on, partly from deep-​rooted prejudice and partly from indolence.’1

Iltudus Prichard’s satire on Anglo-​Indian life, The Chronicles of Budgepore (first published in 1870), offers important insights into the ways in which the criminal justice system created a virtual culture of impunity for police who tortured in colonial India. When Lieutenant Stuart, a young military officer, is out riding one morning he hears shrieks and moans coming from the courtyard of a police station.2 Upon entering the courtyard he finds a man suspended by his thumbs from a wooden beam (a species of ‘cruxifixion’ [sic], according to Prichard) dressed in nothing but a loin cloth and with an ‘expression of agony in his features [that] was most painful to witness’.3 Outraged, Stuart orders the two low-​ranking police officers present to stop such an ‘atrocious outrage’ and cut the tortured man loose.4 Stuart then discovers that the prisoner, Beharee, had been accused of rape and murder and was being subjected to ‘the usual process to induce him to confess, according to the custom of the law in like cases’ (emphasis added), upon the order of one Shekh Futtoo.5 As the sherishtadar (a recorder or record-​keeper) of Police Commissioner Wasilbakee, Futtoo had trampled upon thousands ‘in his career to greatness’ (namely as the right-​hand man of the sahib); anyone who dared to expose him was handed over to the police, tortured to confess to crimes 1 Iltudus Prichard, The Chronicles of Budgepore: Or, Sketches of Life in Upper India (first published in 1870, London: Richard Edward King Limited 1893), 36 (hereafter Prichard, The Chronicles of Budgepore). The conversation cited takes place between two British characters, Police Commissioner Wasilbakee and Old Mortalityife. Prichard (1826–​1874) had a varied career in India, first in the Bengal Army, in which he served during the 1857 Revolt, and later as a barrister and editor of the Delhi Gazette. 2 The ‘station’, however, consists of nothing more than a small courtyard surrounded by low mud walls and bordered on one side by a row of huts. Prichard, The Chronicles of Budgepore (n 1) 166. 3 Ibid,  166–​7. 4 Ibid, 167. 5 Ibid. Colonial Terror. Deana Heath, Oxford University Press (2021). © Deana Heath. DOI: 10.1093/​oso/​9780192893932.003.0004

The Facilitators II: Law and ‘Justice’  107 that they had never committed, and then ‘consigned to jail, from which the head jailor had been well fee’d never to let [them] pass out alive’.6 Although Stuart questions the infamy of a system of governance that sanctions torture, and wonders at the ‘tremendous guilt . . . incurred by those European officers who tacitly permit the enactment of such atrocities’, he nonetheless informs the district magistrate, Mr. Dakhil Duftar, about what he has witnessed.7 Duftar goes straight to Commissioner Wasilbakee, who insists that, since ‘whenever you get a really good man to serve you faithfully and honestly, you may be sure there will be intrigues and plots against him’, complaints about torture were ‘a deal of bosh’.8 When Duftar expresses a fear that if the tortured man dies the government might ‘get hold of it’, Wasilbakee insists that it is their duty to refrain from interfering with ‘established custom[s]‌’, and that all the government would do, in any case, is call for a report.9 The pair resolve, therefore, to let Shekh Futtoo deal with the matter, which he does by effectively silencing Beharee and his family, and though Beharee eventually dies, his death is attributed by the Civil Surgeon to ‘inflammation of the bowels, brought on by natural causes’.10 Futtoo thus emerges triumphant, the torture and murder of a man remain unpunished, and Stuart and his wife find themselves being ‘cut’ by British officials and their spouses for Stuart’s attempts to break rank and expose the nature of British colonial governance in India.11 Prichard’s satire thus suggests that the much-​vaunted ‘rule of law’ by which the British professed to govern India in the face of an absence of consent from its populace and which had, since Warren Hastings’s impeachment trial in the late eighteenth century, provided the moral legitimacy for their exploitation of the South Asian subcontinent, was little more than a charade.12 Although India was a regime of conquest in which the discretionary authority of the executive repeatedly compromised the operation of the colonial legal system, by the time Prichard published his satire in the 1870s the role of the ‘rule of law’ in legitimating British rule in India had become well-​entrenched.13 Mithi Mukherjee has offered an insightful account of how the violence of British colonial conquest and rule came to be masked through the notion of justice.14 While from the late eighteenth century colonial justice, according to Mukherjee, was conceived of in terms of equity, namely on moral principles such as 6 Ibid, 161, 159. 7 Ibid, 168. The Magistrate’s name implies that he pigeon-​holes the cases that come before him. 8 Ibid, 169. 9 Ibid, 170. 10 Ibid, 177. 11 Stuart is ultimately ruined by Shekh Futtoo, who engineers a corruption charge against him. 12 Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: The University of Michigan Press 2003), 3 (hereafter Hussain, The Jurisprudence of Emergency). 13 Ibid, 5. 14 Mithi Mukherjee, India in the Shadows of Empire:  A Legal and Political History (1774-​1950) (New Delhi: Oxford University Press 2010) (hereafter Mukherjee, India in the Shadows of Empire). Mukherjee attributes such a process to the evolution of, and dialectic between, two competing sets of discourses and strategies of rule. The first set was marked by an opposition between what she terms the ‘colonial’ and the ‘imperial’. The former was grounded in India, in the Governor-​General’s council (supported by the colonial bureaucracy, the army, and the police), and operated in the interests of Britain, whereas the latter, a ‘censorial discourse’, had its institutional home in Parliament (supported by the House of Lords and the Supreme Court of India). Ibid, 7, 47.

108  Colonial Terror trust, conscience, and duty (in contrast to the notion of justice in England, which was based on the notion of a universal and rational impersonal law), following the transfer of India’s governance from the Company to the Crown a tension emerged between the conception of justice as equity and a new concept, justice as liberty, which held out the promise of self-​government.15 Together they turned the exteriority of the colonial state into a source of strength rather than weakness by reconfiguring Indian society as a set of warring communities that necessitated an outside force to mediate between them, as well as by positing India as a construct and an identity that could only come into being through empire.16 But however it was conceived, Prichard’s satire intimates that colonial justice cared little for the welfare of the colonized. Indeed, since justice in colonial India was constructed through and ultimately served British interests, when it came to torture, such conceptions made possible the perpetuation of injustice through the failure of colonial officials to investigate and prosecute torture cases. Prichard’s satire also lays bare a major concern of this book, namely the ways in which governmentalizing processes override or supersede law, and with it any notion of morality or justice, through the operation of extra-​legal ‘custom[s]‌of law’ which the entire criminal justice and administrative system is complicit in. Since the redress for police torture operated in colonial India within what Radha Kumar refers to as ‘a logic of documentary power’, or ‘paperreality’, namely the lodging of complaints and filing of reports, it was such processes that ensured that torture cases rarely reached a court of law.17 As the pseudonymous ‘Panchkouree Khan’ observed in his parody of the British colonial regime several decades before the publication of Prichard’s satire, district magistrates were so bowed under by the ‘official drudgery’ of their days that they were ‘obliged frequently to let their decisions pass under the force of circumstances they [could not] overcome, in order to shew a good nuksha [report]’ to their superiors.18 For Wasilbakee it thus mattered little whether the provincial government called for a report on Beharee’s death since if he and Daftar did not ‘know how to write a report by this time’ they ‘ought to’.19 15 Ibid, xx–​xxiii. 16 Ibid, xxi–​xxii. 17 Radha Kumar, ‘The Many Lives of Custodial Violence Madras Presidency, c. 1860-​1960’, talk given at the Penn Program on Democracy, Citizenship and Human Rights, University of Pennsylvania, 6 November 2013, 21 < https://​amc.sas.upenn.edu/​sites/​www.sas.upenn.edu.andrea-​mitchell-​center/​files/​ uploads/​Kumar-​CustodialViolence.pdf> accessed 11 December 2017 (hereafter Kumar, ‘The Many Lives of Custodial Violence’); and Radha Kumar, ‘Policing Everyday Life:  The FIR in the Tamil Countryside, c. 1900-​50’, The Indian Economic and Social History Review 54/​3 (2017), 362. See also Richard Saumarez Smith, ‘Rule-​by-​records and Rule-​by-​reports: Complementary Aspects of the British Imperial Rule of Law’, Contributions to Indian Sociology 19/​1 (1985), 153–​76; and Bhavani Raman, Document Raj: Writing and Scribes in Early Colonial South India (Chicago: University of Chicago Press 2012). Former police official S. T. Hollins, who joined the Indian police in 1902, offers insights into the origins of such documentary erasure when he asks the local kotwal, who offers to use his ‘own methods’ to obtain information from witnesses to a murder who are reluctant to give it to him, what he should write about the investigation in his police diary. The kotwal suggests that he should merely ‘draw an elaborate plan of the scene of the murder, describe the condition of the body, and give an account of how you sent it off for medical examination’. Hollins does so, while also refraining from questioning how ‘freely’ the witnesses later gave him the statements he was seeking. S. T. Hollins, No Ten Commandments: Life in the Indian Police (Hutchinson: London 1954), 19–​20. 18 Panchkouree Khan, The Revelations of an Orderly, Being an Attempt to Expose the Abuses of Administration by the Relation of Every-​day Occurrences in the Mofussil Courts (first published in 1846, Calcutta: Englishmen Press 1857), 55 (hereafter Khan, The Revelations of an Orderly). 19 Prichard, The Chronicles of Budgepore (n 1) 170.

The Facilitators II: Law and ‘Justice’  109 Prichard’s satire also hints, lastly, at the centrality of governmentality to the operation of what Darius Rejali terms the ‘juridical’ model of torture, in which juridical systems create a facilitatory legal environment for torture by favouring confessions over other forms of evidence.20 Beharee had incurred Shekh Futtoo’s enmity because he threatened to expose Futtoo’s corruption. But although Futtoo could, conceivably, have chosen a variety of ways through which to silence Beharee, he chooses to have him arrested on a false charge since he knows that Beharee will then be remanded to police custody, at which point, in view of the privileged status of confessions as forms of judicial evidence in colonial India, he could have Beharee subjected to the ‘usual process to induce him to confess’ to the trumped-​up charges and then consign him, ‘legally’, to jail.21 Such a process reveals the extent to which ‘the constable’s exercise of power was entwined with the judicial system’, in addition to raising numerous questions about the nature of colonial ‘justice’.22 This chapter focuses on the ways in which the judicial system, particularly the magistracy and superior courts, facilitated police torture in colonial India. If, as Terry Nardin suggests, ‘[t]‌he rule of law exists only where law both limits official discretion and respects the personality, freedom or moral rights of legal subjects’ (emphasis added), then British claims to governing India through a rule of law are unquestionably problematic.23 This is not to say that colonial India lacked a legal system. But since it was governed as a regime of exception in which the state alternated between going ‘beyond law to combat or inflict terror’ and then shrinking back ‘to the confines of law to take stock and legislate in order to forge an appropriate tool of terror and counter-​ terror’, law could, and frequently was, suspended.24 It was such emergency conditions that constituted managerial officials such as Wasilbakee, Duftar, and Futtoo as ‘petty sovereigns’, and generated a power dynamic that has profound implications for the operation of legal systems—​and with it the welfare of the populations that fall under their purview—​since, as Judith Butler argues, when ‘sovereignty returns to the executive . . . the separation of powers is eclipsed’.25 In colonial India such a problem was compounded by an important but neglected aspect of the operation of the legal system, namely that both the legislature and the judicial system were, instead of being separate, part of the executive.26 It was the lack of separation of powers that ultimately 20 Darius Rejali, Torture and Democracy (Princeton and Oxford: Princeton University Press 2007), 54. 21 Prichard, The Chronicles of Budgepore (n 1) 167. As F. J. Halliday observed, when he served as a member of the 1838 Police Committee, since magistrates were not ‘always so successful in obtaining the testimony they desire’ they had a tendency to remand prisoners to police custody ‘not once only, but twice, thrice, and oftener’. F. J. Halliday, Minute, in Prithwis Chandra Ray (ed.), The Separation of Judicial and Executive Functions in British India (Calcutta:  The City Book Society 1901), 13 (hereafter Ray, The Separation of Judicial and Executive Functions). 22 Kumar, ‘The Many Lives of Custodial Violence’ (n 17) 13. 23 Terry Nardin, ‘Emergency Logic: Prudence, Morality and the Rule of Law’, in Victor V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge: Cambridge University Press 2008), 101. 24 Ranabir Samaddar, ‘Law and Terror in the Age of Colonial Constitution Making’, Diogenes 212 (2006), 19 (hereafter Samaddar, ‘Law and Terror’). 25 Judith Butler, Precarious Life: The Powers of Mourning and Violence (London and New York: Verso 2004), 62. 26 Hussain, The Jurisprudence of Emergency (n 12) 5. According to the English constitutional theorist Albert Dicey, an independent judiciary was vital to the operation of the rule of law. There were attempts to create an independent judiciary in colonial India, at least at the higher, appellate level, most notably through the creation of the Supreme Court in 1773, which was designed to act as a check on the excesses of the executive. Since, however, it resulted in the formation of an activist judiciary that offered a competing vision

110  Colonial Terror made the colonial Indian legal system so pernicious, and so heedless of the welfare of Indians—​including those, like Beharee, who were subject to the ultra-​legal but ‘customary’ violence of torture.

Colonialism, Law, and Violence The British penal law was not only a hodge-​podge of confusion and inconsistency it was a savage and harsh institution.27 The past several decades have witnessed the burgeoning of scholarship on South Asian legal history.28 Such scholarship has focused, however, primarily on law-​making, in particular on campaigns to pressure the colonial state to implement various kinds of legislation, rather than on judicial practice in relation to such legislation or on judicial legislation based on case law.29 The nature of what Vinay Lal refers to as ‘the legal infrastructure of the colonial state’, the ways in which the colonial legal and wider criminal justice system operated—​not least in defining what could or could not be recognized as violence (including in regard to state violence) —​and the relationship between the judicial and the executive have also received little scholarly attention.30 In addition, although there is a notable body of scholarship on the coercive nature of particular forms of legislation in colonial India, particularly in relation to ‘thugs’ and ‘criminal tribes’, the same is not true for the ways in which the legal system operated as an ‘instrument of coercion’, or what John L. Comaroff terms ‘lawfare’.31 It is for this of sovereignty, one based on natural rights versus that of ‘state necessity’, the power of the judiciary was eclipsed with the enactment of the Charter Act of 1833, which collapsed such a separation of executive and legislative powers by converting the Governor-​General’s counsel into a legislative body. With the creation, furthermore, of the Viceroy’s Council in the aftermath of the 1857 Revolt the executive served to effectively silence the independent voice of the judiciary and reduce the legislature to ‘a tool of the executive’. A. V. Dicey, Introduction to the Study of the Laws of the Constitution (first published in 1885, London: Macmillan & Co. 1889), 176–​84; and Mukherjee, India in the Shadows of Empire (n 14) 58, 98. 27 Kartik Kalyan Raman, ‘Utilitarianism and the Criminal Law in Colonial India: A Study in the Practical Limits of Utilitarian Jurisprudence’, Modern Asian Studies 28/​4 (1994), 751. 28 For a valuable overview of such literature see Mitra Sharafi, ‘South Asian Legal History’, Annual Review of Law and Social Science 11 (2015), 309–​36. 29 Janaki Nair, Women and Law in Colonial India: A Social History (New Delhi: Kali for Women 1996), 17, cited in Mitra Sharafi, ‘The Semi-​autonomous Judge in Colonial India: Chivalric Imperialism Meets Anglo-​ Islamic Dower and Divorce Law’, The Indian Economic and Social History Review 46/​1 (2009), 59 (hereafter Sharafi, ‘The Semi-​autonomous Judge). For notable exceptions see, for example, Radhika Singha, ‘Making the Domestic More Domestic:  Criminal Law and the “head of the household”, 1772-​1843’, The Indian Economic and Social History Review 33/​3 (1996), 309–​43; Vinay Lal, ‘Everyday Crime, Native Mendacity and the Cultural Psychology of Justice in Colonial India’, Studies in History 15/​1–​2 (1999), 145–​66 (hereafter Lal, ‘Everyday Crime’); Mytheli Sreenivas, ‘Conjugality and Capital: Gender, Families and Property under Colonial Law in India’, The Journal of Asian Studies 63/​4 (2004), 937–​60; Sharafi, ‘The Semi-​autonomous Judge’ (above); Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (New Delhi:  Cambridge University Press 2010) (hereafter Kolsky, Colonial Justice); and Jonathan Saha, Law, Disorder and the Colonial State: Corruption in Burma c. 1900 (Basingstoke: Palgrave Macmillan 2013). 30 Lal, ‘Everyday Crime, Native Mendacity’ (n 29)  145; and Harry Schwirck, ‘Law’s Violence and the Boundary Between Corporal Discipline and Physical Abuse in German South West Africa’, Akron Law Review 36/​81 (2003), 81–​132. 31 Sudhir Chandra, ‘Whose Laws? Notes on a Legitimising Myth of the Colonial State’, Studies in History, ns 8/​2 (1992), 187 (hereafter Chandra, ‘Whose Laws?’); and John L. Comaroff, ‘Colonialism, Culture and

The Facilitators II: Law and ‘Justice’  111 reason that, when it comes to colonial India, the ‘juristic mythology’ that the British operated through a rule of law ‘shows few signs of wilting’.32 But in addition to being ‘languages of practice, symbolic and ritual systems [and] . . . abstract principles for the production of social order, citizenship and subjection’, colonial legal cultures were also material in their purpose, the ways in which they worked, and their effects.33 This is true, however, not only of colonial legal systems, since law cannot exist without enforceability or enforceability without force, whether direct or indirect, physical or symbolic, or coercive or regulatory.34 Judges, according to Robert Cover, thus ‘sit atop a pyramid of violence’; to ignore this, for Cover, is analogous to ignoring the screams of the tortured or the implements that torturers employ.35 There were, nevertheless, certain features particular to the violence of law in colonial India. To begin with, law was used both to impose and justify the sovereignty of an alien state that lacked popular legitimacy and to neutralize competing claims to the legitimate use of force (one reason that, for the British, as James Fitzjames Stephen put it, law was a ‘gospel which admits of no dissent and no disobedience’).36 The means through which the latter was done included a greater recourse to capital punishment than had been the case in pre-​colonial India, as well as a resort to laws, as noted above, that excluded particular groups and individuals from legal protection.37 The focus on collective punishment was, in fact, a key feature of the legal system in colonial India, even though justice was, in theory, individuated—​a sign, for Ranabir Samaddar, that ‘colonial rule, law, justice, order and magistracy, by the acts of hanging, lynching, Law: A Foreword’, Law and Social Inquiry 26 (2001), 306 (hereafter Comaroff, ‘Colonialism, Culture and Law’). See also Sanjay Nigam, ‘Disciplining and Policing the “Criminals by Birth”, Part I: The Making of a Colonial Stereotype—​The Criminal Tribes and Castes of North India’, Indian Economic and Social History Review 27/​2 (1990), 131–​64; and ‘Disciplining and Policing the “Criminals by Birth”, Part 2: The Development of a Disciplinary System, 1871-​1900’, Indian Economic and Social History Review 27/​3 (1990), 257–​88; Radhika Singha ‘ “Providential” Circumstances:  The Thuggee Campaign of the 1830s and Legal Innovation’, Modern Asian Studies 27/​1 (1993), 83–​146; Meena Radhakrishna, Dishonoured by History: ‘Criminal Tribes’ and British Colonial Policy (Hyderabad: Orient Longman 2001); and Mark Brown, Penal Power and Colonial Rule (Routledge: Abingdon 2014). 32 Chandra, ‘Whose Laws?’ (n 31) 187. Debunking faith in the justice of any legal system is, notably, a challenge because of what Michel de Montaigne referred to as ‘the mystical foundation’ of the authority of such systems, which makes people obey them not because they are just but because they are laws. Michel de Montaigne, Essais, Bk 3, Ch. 13, cited in Jacques Derrida, ‘Force of Law: The “Mystical Foundations of Authority” ’, in Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson (eds), Deconstruction and the Possibility of Justice (New York: Routledge 1992), 12 (hereafter Derrida, ‘Force of Law’). 33 Comaroff, ‘Colonialism, Culture and Law’ (n 31) 310, 309. 34 Derrida, ‘Force of Law’ (n 32) 6. 35 Robert M. Cover, ‘Violence and the Word’, in Bruce B. Lawrence and Aisha Karim (eds), On Violence: A Reader (Durham and London: Duke University Press 2007), 298, 297. 36 J. F. Stephen, ‘Legislation under Lord Mayo’, in W. W. Hunter, A Life of the Earl of Mayo, Fourth Viceroy of India, Vol. 2 (London:  Smith, Elder, & Co. 1875), 168–​9, cited in Tom Lloyd, ‘States of Exception? Sovereignty and Counter-​insurgency in British India, Ireland and Kenya circa 1810-​1960’ (PhD Diss., The University of Edinburgh 2009), 12. Noteworthy in colonial India was the role of law as what Michael R. Anderson refers to as ‘a proto-​sociology that could guide policy’. Michael R. Anderson, ‘Islamic Law and the Colonial Encounter in British India’, in David Arnold and Peter Robb (eds), Institutions and Ideologies: A SOAS South Asia Reader (Richmond, Surrey: Curzon Press 1992), 172 (hereafter Anderson, ‘Islamic Law’). 37 Thomas Blom Hansen, ‘Sovereigns Beyond the State: On Legality and Authority in Urban India’, in Thomas Blom Hansen and Finn Stepputat (eds), Sovereign Bodies:  Citizens, Migrants, and States in the Postcolonial World (Princeton and Oxford: Princeton University Press 2005), 175.

112  Colonial Terror caning, exiling, interning, torching, confiscating and impounding, were addressing not the one who was subject to the law, but the collective society’.38 The effects of the legal transformations wrought by colonialism in India were, moreover, often harsh for those subjected to them, of which even Thomas Macaulay, former legal member of the Governor-​General’s council and compiler of the first draft of the Indian Penal Code (IPC), was well aware. According to Macaulay, the creation of the Supreme Court in India in 1774, rather than being a boon for Indians, led to the beginning of a ‘reign of terror’ for them, since it not only ‘consisted of judges, not one of whom was familiar with the usage of the millions over whom they claimed boundless authority’, but kept its records in an alien language.39 If, as Jacques Derrida suggests, judging ‘a person or group of persons . . . in an idiom they do not understand very well or at all’ is a form of violence, then such a court, ‘with its wigs and gowns, its distance and dilatoriness, its countless forms and minute details, money-​spinning attorneys, and ever-​increasing court-​fees’, not to mention language differences and the imposition of an evidentiary system that privileged documentary over oral evidence in what was a predominantly illiterate society, was productive of various forms of structural and symbolic violence.40 The same could be said, of course, for the lower courts in the colonial Indian legal system.41 For the Madras lawyer John Bruce Norton (of Madras torture commission fame), such a system, with its confusing lack of clarity on the constitution of the law (particularly before the imposition of the IPC and Criminal Procedure Code (CPC) in 1862), its untrained judges (which I will discuss more fully below) who implemented law in an often arbitrary fashion, not to mention the monumentally slow pace at which it operated, was nothing less than a form of ‘slow torture’ for those who came within its remit.42

38 Samaddar, ‘Law and Terror’ (n 24) 21. 39 Thomas Macaulay, ‘Warren Hastings’, Edinburgh Review, October 1841, cited in Basudev Chattopadhyay, ‘The Initial Impact of the Introduction of the English Law in Bengal, 1773-​1792’, The Calcutta Historical Journal V/​2 (1981), 33 (hereafter Chattopadhyay, ‘The Initial Impact’). This is not to deny the role of Indians in the development of colonial law. See, for example, Bernard Cohn, ‘Some Notes on Law and Change in North India’ and ‘Anthropological Notes on Disputes and Law in India’, in An Anthropologist among the Historians and Other Essays (Delhi: Oxford University Press 1987), 554–​631 (hereafter Cohn, An Anthropologist); Bernard Cohn, Colonialism and its Forms of Knowledge: The British in India (Princeton: Princeton University Press 1996), 57–​75; and Vinay Lal, ‘Everyday Crime’ (n 29). 40 Chattopadhyay, ‘The Initial Impact’ (n 39) 33; and Anderson, ‘Islamic Law’ (n 36) 178–​9. Colonial officials were aware of the violence generated by at least some aspects of this system. For Charles Elphinstone Gouldsbury, who joined the Indian police in 1902, amongst the papers he was expected to deal with ‘were many involving decisions of terrifying importance which I was called upon to give in writing, duly signed.’. But although the documentary power at his command filled him with apprehension, he soon found himself ‘callously giving orders in matters which in England would probably require a Quarter-​Session power, if not the consent of the Home Secretary himself!’ C. E. Gouldsbury, Life in the Indian Police (first published in 1912, New Delhi: Manu Publications 1977), 41 (hereafter Gouldsbury, Life in the Indian Police). 41 This is not to say that the impact of the colonial legal infrastructure was the same on all segments of the Indian population, since groups rapidly emerged with sizeable stakes in the colonial legal system. Peasants were also often surprisingly adept at negotiating such a system. See, for example, Chattopadhyay, ‘The Initial Impact’ (n 39) 32; Shahid Amin, ‘Approver’s Testimony, Judicial Discourse: The Case of Chauri Chaura’, in Subaltern Studies V (Delhi: Oxford University Press India 1987), 166–​202 (hereafter Amin, ‘Approver’s Testimony’); and Saurabh Dube, Untouchable Pasts: Religion, Identity, and Power among a Central Indian Community, 1780-​1950 (Albany, NY: State University of New York Press 1998). 42 John Bruce Norton, The Administration of Justice in Southern India (Madras: Printed at Pharoah & Co., Athenaeum Press 1853), 57 (hereafter Norton, The Administration of Justice).

The Facilitators II: Law and ‘Justice’  113 The colonial legal system in India was, furthermore, armed with what the first chief justice of the Supreme Court, Elijah Impey, referred to as ‘additional terror’, or as Taylor Sherman puts it, ‘alternative penal tactics’.43 These ranged from detention without trial to various forms of police violence, which included firing on crowds, and torture. Such tactics, though not inscribed in law, were implicitly legally sanctioned.44 This is not to say that colonial India was unique in employing such tactics, since modern systems of policing combine, ‘in a kind of spectral mixture’, both law-​ preserving and law-​making violence.45 But while this means that the ends of police violence may be legal, such violence can vary tremendously in its nature and intensity since the police has the authority to decide these ends for themselves.46 In colonial India, therefore, the expansion of the claims of the state through the sphere of criminal justice may have served to fashion the Indian police as a new tool of physical coercion, but what made police violence particularly pernicious was the inability of a regime of conquest to secure its ends through legal means.47

The Confession, Law, and Official Discretion . . . it will be infinitely for the advantage of the police, and consequently of the people at large, to make it illegal for any one, police or magistrate, to record the confession of any accused person before he is actually put upon his trial . . . If the police cannot obtain sufficient evidence against an accused person to send him up for trial apart from a confession, he ought not to be sent up for trial at all.48 An analysis of the law relating to confessions in colonial India reveals the degree of official discretion accorded to the police to engage in extra-​legal violence. The historical power of the confession lies in its ability to provide ‘proof ’ when other evidence is wanting, as well as to virtually absolve the prosecution from the difficult task of seeking such evidence.49 It is for this reason that torture has historically played such a key role in obtaining confessions. In the Roman-​canon law of evidence that governed judicial procedure in Europe from the Middle Ages, torture was resorted to in order to extract a confession in cases of ‘half proof ’, namely the testimony of only one eyewitness (since the testimony of two was sufficient to secure conviction without needing 43 Sir Elijah Impey to Edward Thurlow, 18 January 1780, cited in Chattopadhyay, ‘The Initial Impact’ (n 39) 33; and Taylor C. Sherman, State Violence and Punishment in India (London and New York: Routledge 2010), 5 (hereafter Sherman, State Violence). 44 Sherman, State Violence (n 43) 5. 45 Walter Benjamin, ‘Critique of Violence’, Reflections:  Essays, Aphorisms, Autobiographical Writings (Edmund Jephcott tr., New York: Shocken 1978), 286. Police violence is lawmaking, Benjamin argues, since ‘its characteristic function is not the promulgation of laws but the assertion of legal claims for any decree’, and is law-​preserving ‘because it is at the disposal of these ends’. Ibid, 286–​7. 46 Ibid, 287. 47 Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press 1998), 70 (hereafter Singha, A Despotism of Law). 48 Sir Edmund Cox, Police and Crime in India (first published in 1910, New Delhi: Manu Publications 1976), 173 (hereafter Cox, Police and Crime). 49 Michel Foucault, Discipline and Punish (n 4) 37.

114  Colonial Terror to resort to torture) or insufficient circumstantial evidence, although the purpose was to gather details of the crime that no innocent person could purportedly know rather than to elicit a guilty plea.50 Confessions obtained through torture had to appear, however, to be voluntary, and innumerable rules were created to ensure their reliability.51 Such practices were by no means unique to Europe. In the case of India the ancient Indian treatise on statecraft, the Arthaśātra, contains a whole chapter on the rules regarding the use of torture to elicit confessions, which has transpired later in Europe was to be applied if the defendant’s evidence could not be attested by reliable witnesses.52 As in Europe, such confessions had to be substantiated through supporting evidence, and there were other provisions to protect innocent persons from being convicted of crimes they had not committed.53 But although judicial torture may have been hedged with safeguards designed to prevent the condemnation of innocent people, such safeguards were always, as John Langbein concludes, ‘imperfect’.54 In Europe, confessions obtained through torture were only deemed valid, for example, if the accused publicly repeated their confession in a courtroom within the next twenty-​four hours; if the accused, as was often the case, recanted their confession when asked to repeat it this generally led to a further ‘examination’ in the torture chamber until the desired result was obtained.55 The requirement that confessions procured through torture be verified through other forms of evidence was also not enforced in all jurisdictions, or was enforced only ‘indifferently’.56 That safeguards designed to protect the innocent from being convicted under judicial torture were doomed to failure, for Langbein, is because ‘the law of proof was absolutely dependent upon coerced confessions’.57 But it is not only in systems of judicial torture that torture has been resorted to as a means of eliciting ‘truth’, or that the confession has acquired the status of the supreme form of evidence.58 In early modern England, for example, although the use of torture was not systematized as part of criminal procedure, torture was nonetheless resorted to, generally in regard to crimes against the state.59 When it comes to modern democracies, on the other hand, although there are 50 John H. Langbein, Torture and the Law of Proof:  Europe and England in the Ancien Régime (Chicago: University of Chicago Press 1976), 4 (hereafter Langbein, Torture and the Law of Proof). Certain groups of people were, however, immune from torture, including pregnant women, children, the aged and infirm, and various elites. Ibid, 13. 51 Foucault, Discipline and Punish (n 4) 41. 52 Kautilya’s Arthaśātra (3rd edn, R. Shamasastry tr., Mysore: The Wesleyan Mission Press 1929), 247; and Vincent A. Smith, The Oxford History of India: From the Earliest Times to the End of 1911 (2nd edn, revised by S. M. Edwardes, Oxford: The Clarendon Press 1921), 85–​6 (hereafter Kautilya’s Arthaśātra). The Arthaśātra, believed to be a work by several authors over a number of centuries, is generally credited to Kautilya (also known as Chanakya) in the second to third centuries BCE. 53 A. J. Monahan, The Early History of Bengal (Oxford: Oxford University Press Humphrey Milford 1925), 120, 122; and Kautilya’s Arthaśātra (n 52) 248. 54 Langbein, Torture and the Law of Proof (n 50) 9. 55 Ibid, 16. 56 Ibid, 9. 57 Ibid. 58 Ibid, 38. 59 Ibid, 73. In England the jury system, rather than judicial torture, came to replace the system of trial by ordeals. It was because, additionally, English juries could convict on the basis of strong circumstantial evidence that there was less reason than on the Continent (where a two-​witness rule made convictions difficult to secure) to resort to torture to get confessions—​although as Edmond Smith demonstrates, in his analysis of the East India Company’s justification of the use of torture to extract confessions in Asia in

The Facilitators II: Law and ‘Justice’  115 formal protections against the use of torture to extract confessions, these generally serve, instead, to foster a politics of denial about such practices.60 But since confessions are deemed too valuable to discard, we have simply learned to live, according to Peter Brooks, ‘with the ambiguities of confession’ as a tool of judicial investigation.61 In India the British encountered a judicial system in which torture was a commonplace investigative method, and a defendant’s confession constituted sufficient evidence to secure their conviction.62 Although there were various views on the legality of torturing suspects to obtain confessions in Muslim juristic discourses, it was largely deemed forbidden for qazi judges in Islamic courts of law to sanction such an act, but it was regarded as permissible for rulers and those to whom executive powers were delegated to do so.63 In light of the British disdain for Muslim criminal law (particularly punishment for hadd crimes, or crimes against god, which included maiming and stoning to death), as well as for the operation of indigenous systems of policing, both were subject to considerable transformation through the implementation of the 1793 Cornwallis Code, a body of legislation governing policing, judicial, and civil administration.64 Though in the Mughal era policing functions were carried out primarily by faujdars (military commanders of a district), whose tasks included the suppression of violent crime, the apprehension of suspected criminals, and the guarding of roads, the British established new procedures for the investigation of crimes and judicial trials.65 These included empowering police officers to record the statements of the early seventeenth century, beyond English shores ‘the defining features of . . . English legal custom regarding torture may have been less strictly adhered to’. But despite the reluctance in English jurisprudence, particularly by the late eighteenth century, to rely on tortured confessions, this was not just because of concerns about their reliability, as John Langbein contends. George Thomas and Richard Leo argue that it was, instead, a result of transformations in the political, social, and legal realms, although what they term the ‘Hawkins-​Leach’ dictum, which led to the suppressing of confessions if generated by exhortations to tell the truth, ‘began to lose force in the latter half of the nineteenth century . . . as courts moved toward a more rationalist, utilitarian approach to confessions’. Ibid, 137–​8; Edmond J. Smith, ‘Reporting and Interpreting Legal Violence in Asia: The East India Company’s Printed Accounts of Torture, 1603-​24’, The Journal of Imperial and Commonwealth History 46/​4 (2018), 603–​26; and George C. Thomas III and Richard A. Leo, Confessions of Guilt: Torture to Miranda and Beyond (New York: Oxford University Press 2012), 50–​2, 8. 60 Jinee Lokaneeta, Transnational Torture: Law, Violence, and State Power in the United States and India (New York and London: New York University Press 2011), 40 (hereafter Lokaneeta, Transnational Torture). 61 Peter Brooks, Troubling Confessions:  Speaking Guilt and Law in Literature (Chicago:  University of Chicago Press 2000), 87, cited in Lokaneeta, Transnational Torture (n 60) 58. 62 Abraham Eraly, The Mughal World: Life in India’s Last Golden Age (New Delhi: Penguin 2007), 264; Anandswarup Gupta, Crime and Police in India [Up to 1861] (Agra: Sahitya Bhawan 1974), 9 (hereafter Gupta, Crime and Police in India [Up to 1861]); and Sumit Guha, ‘An Indian Penal Regime: Maharashtra in the Eighteenth Century’, Past and Present 147 (1994), 111, 121–​2. In Islamic law confessions carried tremendous weight because of the demanding standards regarding eyewitness evidence. It is for this reason that they were often extracted through torture, although such torture assumed the form, according to Radhika Singha, of trial by ordeal, since suspects who did not confess under torture were released. Offenders who confessed could also expect more lenient treatment. Singha, A Despotism of Law (n 47) 67–​8. 63 Sadiq Reza, ‘Torture and Islamic Law’, Chicago Journal of International Law 8/​1 (2007), 24–​5. In the Hanafi school of jurisprudence favoured in Mughal India maulvis (religious scholars) sanctioned capital sentences to be enacted ‘at the ruler’s discretion, “for the general good” ’, but only in cases of homicide that involved a weapon used to shed blood. Darius Rejali notes that in Qajar Iran the Sh’i ‘ulema were more than happy to leave the act of punishment to the shah and his officials because spilling human blood tainted their purity. Singha, A Despotism of Law (n 47) 12; and Darius Rejali, Torture and Modernity: Self, Society, and State in Modern Iran (Boulder, CO: Westview Press 1994), 31. 64 Gupta, Crime and Police in India [Up to 1861] (n 62) 9. 65 Ibid, 7, xxi.

116  Colonial Terror both suspects and witnesses, as well as the confessions of the former, and making such statements admissible as evidence in criminal trials.66 Such powers helped to ensure that, ‘From a very early period after the introduction of the Cornwallis Code, the new Police Officers [sic] started extorting confessions and fabricating evidence.’67 The various circular orders, regulations, and acts relating to confessions issued and enacted in the following century give the impression that this was not a development that either the Company state or that of its successor were pleased with. Although the first concerns about confessions appear to have been raised by the Company’s high court of civil and revenue jurisdiction, the Ṣadr Dīwānī ʿAdālat, which in 1800 issued a circular order requiring magistrates to have all confessions attested by a minimum of three (and preferably four) ‘respectable’ witnesses who could read and write, there were no clear legal repercussions for police officers who used torture to extract confessions until the enactment of Regulation XI of 1816 and Regulation XX of 1817 (the former of which required the police to forward suspects they had detained to a magistrate within forty-​eight hours, and the latter of which prohibited police officers from ‘inducing’ confessions).68 But it was not until the enactment of the IPC and CPC in 1862 that police officers were penalized both for causing ‘hurt for the purpose of extorting . . . any confession’ and prohibited from recording confessions, and it was only with the enactment of the 1872 Evidence Act that confessions made by an accused person were to be deemed ‘irrelevant’ if they appeared to have been induced.69 That so many legal attempts were made, over the course of half a century, to put a stop to the use of torture to extract confessions reveals the inability of the law to contain police violence. Why, then, was this the case? A key problem was that the judicial system in colonial India did not fulfil one of the two criteria outlined above for the establishment of a rule of law, namely limiting official discretion, or what Prichard refers to as ‘customs of law’. To take the example of Regulation XX of 1817, in order to ensure that a suspect made a ‘free and voluntary confession’ it was to be attested by three or more ‘credible witnesses’ who were not connected with the thana, but there was no indication as to how the ‘free and voluntary’ nature of a confession was to be measured, nor how the credibility of witnesses, or their relationship to the thana, was to be determined—​or even whether witnesses were required to be present during the suspect’s confession itself or merely during the signing of the confession (as the Madras Ṣadr Faujdari ʿAdālat observed, just five years following the enactment of the regulation, witnesses were, it appeared, ‘largely absent during the writing of confessions’).70 The difficulties surrounding the nature and role of witnesses were exacerbated two 66 Only magistrates could record confessions until 1809, when police officers were accorded the right to do so on occasions when the presiding magistrate was particularly pressed for time. Such a practice, however, thereafter became general. Although the Court of Directors requested, in 1836, that it be put a stop to, in addition to continuing it the police still tortured suspects to secure confessions regardless as to who actually recorded them. Court’s Judicial Despatch No. 1 of 1836, cited in ibid, 243. 67 Ibid, xxi. 68 Ibid, 50, 154. Punishment was, however, minor, since it consisted simply in dismissal. 69 Sec. 330, Act XLV of 1860; Secs. 147 and 148, Act XXV of 1861; and Sec. 24, Act I of 1872. 70 Regulation XX of 1817, cited in Gupta, Crime and Police in India [Up to 1861] (n 62) 154; and Ṣadr Faujdari ʿAdālat, Circular Order, 29 April, 1822, Report, Appendix B, 62. The punishment enshrined in the regulation for the use of ‘[m]‌altreatment . . . to extort a confession’ was also vague, namely ‘exemplary punishment’ by a magistrate or court of circuit. Gupta, Crime and Police in India [Up to 1861] (n 62) 154.

The Facilitators II: Law and ‘Justice’  117 years later with the enactment of Regulation V of 1819, which gave government servants, even the lowliest police peon, the authority to attest confessions.71 As a result, the police started to put alleged confessions, attested by members of the lowest levels of the subordinate police (who had not actually witnessed them), before the criminal courts.72 Since the role of the magistrate in this whole process was simply to receive the confession it was also, therefore, conducted without any judicial oversight. That the law repeatedly failed to limit official discretion is clear in the case of the CPC, which essentially overrode its own prohibition on the recording of confessions by the police by allowing such confessions to be legally admissible provided a magistrate was present—​which did nothing to ensure that such confessions were not induced.73 Such legal loopholes were aggravated by an amendment to the code in 1869, which made it legal for any ‘fact’ discovered through information given by an accused, ‘whether it amounts to a confession of admission of guilt or not’, to be used as evidence.74 Such an inducement to torture was furthered by section 29 of the 1872 Evidence Act, which sanctioned the use of confessions as evidence even when they were obtained through deception or given in answer to questions that the accused was not required to answer, or when the accused was drunk.75 Since the admissibility of confessions as evidence relied, furthermore, on whether they ‘appeared’ to have been induced (as enshrined in the Indian Evidence Act), and confessions could be admitted as evidence if the ‘impression’ that they had been induced was ‘removed’ (which, following an amendment to the CPC in 1898, was to be achieved through magistrates making a written statement that they believed such a confession to have been voluntarily made), the law essentially left the recording and use of confessions to official discretion.76 As the prominent Indian jurist Syed Ameer Ali observed, the legal 71 Gupta, Crime and Police in India [Up to 1861] (n 62) 180. Shortly after the enactment of the regulation the Faujdari ʿAdālat, in an attempt to rectify this problem, issued an order requiring confessions to be attested by individuals unconnected with the police, although this was later modified to exclude only police peons from attesting confessions. Report of the Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency (Madras: Fort St. George Gazette Press 1855), 8 (hereafter Report of the Commissioners). 72 Fort St. George, Judicial, 21 March 1827, IOR/​E/​4/​933, 943–​5, BL. 73 Sec. 150, Act VIII of 1869. Until it was prohibited in 1854 it was, apparently, also the custom of magistrates to read out the original depositions made by witnesses to the police in the latter’s presence. The CPC did little to improve matters, since as Mr. Hartington, a member of the Legislative Council, remarked shortly before its enactment, the code was ‘wholly silent’ on ‘the mode in which the police should exercise their functions, that is, as to the power of examining prisoners . . . questioning witnesses, and so on’. It enabled such powers to be exercised without, in other words, ‘defining the mode in which they were to be exercised’. India, Judicial Department, 29 October 1856 (No. 46), IOR/​E/​4/​839, 1856, 1296–​1305, BL; and speech by Mr. Hartington, Legislative Council of India, 6 October 1860, in Ray, The Separation of Judicial and Executive Functions (n 21) 51. 74 Sec. 150, Act VIII of 1869. 75 Sec. 29, Act I of 1872. Section 29 of the Evidence Act also sanctioned the use of confessions that were obtained without the accused being warned that they were not obliged to make a confession or that whatever evidence they gave could be used against them. 76 Secs. 24 and 28, Act I of 1872; and Sec. 164, Act V of 1898. Bengal police officers, for example, were advised that confessions made under ‘any inducement . . . threat, or promise’ were proscribed under the Code, but that the Code also enjoined them not to let ‘the person arrested, by any caution or otherwise, from making any disclosure which he may be disposed to make of his own free will’. F. T. Platts, The Police Officer’s Guide:  Containing Such Portions of all Regulations, Acts, Circulars, &C, in Force, Excepting the Indian Penal Code, as Relate to the Duties of the Police in the Lower Provinces of Bengal (Calcutta: G. C. Hay & Co. 1866), 10.

118  Colonial Terror safeguards to protect the accused from police torture were therefore ‘more or less illusory’, not least because in colonial jurisprudence the onus of proving that a confession was not made voluntarily rested on the accused.77 The colonial regime was unable to limit official discretion when it came to confession thanks, in part, to British beliefs about Indian ‘character’. Although, as Radhika Singha suggests, beginning in the late eighteenth century ‘Legal shifts revolving around the themes of criminal intention, premeditation, and mitigating circumstances . . . began to change the presumptions on which the accused framed a defence, or made a confession’, the British persisted in believing that Indians’ responses to colonial courts were based on innate characteristics, such as a propensity to spontaneously confess their crimes. Such perceptions undermined the voluminous evidence that confessions were, in fact, largely extorted. What Malise Ruthven refers to as the ‘spontaneous confession’ argument gained particular currency in the early twentieth century in the face of the colonial government’s campaign against what it viewed as revolutionary terrorist conspiracies and its attempts to defend the use of torture to convict the conspirators (with the Lieutenant-​Governor of Bengal going so far as to elevate Indians’ purported desire to spontaneously confess to a ‘mental condition’ prevalent among ‘unbalanced’ people).78 But the colonial regime was ultimately unable to strengthen the legal safeguards that limited official discretion regarding confessions because it was trapped in its own logic of documentary power.79 As the judges of the Madras Ṣadr Faujdari ʿAdālat remarked in 1820, the root of the problem was the ‘marked preference given . . . to confessions over every other species of proof ’ both by the police and, considering the large number of convictions made solely on the basis of confessions—​as high, according to one estimate, as 70 per cent—​by convicting magistrates and judges (despite repeated reminders that ‘a confession . . . uncorroborated by other evidence, is altogether insufficient for the conviction of the accused’).80 The reliance on confessions was, in fact, so great that attempts to ‘illegalise’ them, would, according to one Circuit Judge, have rendered Indian courts of criminal justice ‘useless’.81 Yet even though it was widely 77 Syed Ameer Ali, Enclosure No. 3, ‘Confessions’, 7, IOR/​L/​PJ/​6/​1368, File 1823, BL; and Amin, ‘Approver’s Testimony’ (n 41) 170. 78 Malise Ruthven, Torture: The Grand Conspiracy (London: Weidenfeld and Nicolson 1978), 198 (hereafter Ruthven, Torture); and East India (Police): Correspondence Relating to Confessions of Persons Accused of Criminal Offences (London, H. M. Stationery Office 1914), 32 (hereafter East India (Police): Correspondence). See also ‘The Indian Police and the Drama of Confession’, The Tribune (Lahore, 17 December 1909, reprinted from the Spectator), 2. 79 That it was trapped in such a logic is, at least in part, because of the role of writing in constructing the state. Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India (Duke University Press: Durham and London 2012), 36, 138–​227. 80 Ṣadr Faujdari ʿAdālat, Circular Order, 7 September 1820, Report of the Commissioners (n 71) Appendix B, 61; Douglas Peers, ‘Torture, the Police, and the Colonial State in the Madras Presidency, 1816-​55’, Criminal Justice History:  An International Annual 12 (1991), 47–​8; and Ṣadr Faujdari ʿAdālat, Circular Order, 12 June 1852, Report of the Commissioners, Appendix B, 64. In a wonderful turn of phrase that hinted at the (largely neglected) pastoral responsibilities of magistrates, the Faujdari ʿAdālat advised magistrates, in 1817, that ‘Bare, uncorroborated confessions . . . are always to be admitted with tenderness and circumspection’. Circular Order, 18 June 1817, Report of the Commissioners, Appendix B, 61. 81 Report of the Commissioners (n 71) Appendix B, 62. The primacy of written confessions in India stood in marked contrast to the state of affairs in England where, according to Secretary to the Government of India, Sir Archdale Earle, ‘If a prisoner makes a confession to a police officer or to any other person, oral

The Facilitators II: Law and ‘Justice’  119 known that confessions made before magistrates were ‘as little to be trusted as those made before the police, being generally made through their agency’, such confessions, in contrast to those made to police officers, were never proscribed.82 The possibility of outlawing magisterial confessions was considered by the Indian government in 1913, but this was dropped on the dubious grounds that dispensing with them would ‘do little in itself to diminish the risk of the ill-​treatment of the accused’.83 But perhaps of greater importance when it comes to understanding the primacy of confessions in colonial Indian jurisprudence is the nature of colonial governmentality, particularly its reliance on statistics.84 The performance of police officers was judged according to what was known as the statistical test, which measured their success in, for example, securing convictions and recovering stolen property.85 Such a system made the use of violence to secure confessions virtually inevitable, since it led Indian police officers ‘to think that their merit will be judged by the percentage of convictions they obtain, no matter what their methods’.86 Yet despite the fact that confessions evidence as to that confession is given in Court by the person who heard it made’. Memorandum, A. Earle to Viceroy, 6 April 1911, Home, Police, Deposit, 30 August 1911, NAI. 82 ‘Reports of Cases Determined in the Court of Nizamat Adawlut at Calcutta for 1855. Calcutta, Thacker, Spink and Co.’, The Calcutta Review, LVI (June 1857), 479 (hereafter ‘Reports of Cases Determined in the Court of Nizamat Adawlut’); and Norton, The Administration of Justice (n 42) 90. The accused were well aware, as the Calcutta Review declared, about their fate at the hands of the police should they ‘disobey their directions’ when confessing before magistrates. ‘Reports of Cases’ (above) 480 83 Note by V.  Dawson, 11 January 1913, Home, Police, A, July, 96–​ 119, 1913, NAI; East India (Police): Correspondence (n 78) 3; and Home, Police, Deposit, 3 March 1914, NAI. See also IOR/​L/​PJ/​6/​ 1368, File 1823, BL. In 1911 pressure from a group known as the Indian Civil Rights Committee did, however, lead to the limitation of magisterial confessions to magistrates who had jurisdiction in a case, first class magistrates, or ‘specially empowered’ magistrates of the second class. Some provinces also developed stricter rules regarding the recording of confessions, although these relied largely on magisterial discretion. A. Earle, Secretary to the Government of India, Home Department, to the Chief Secretaries of the various provinces, 12 July 1911, Home, A, July, 240, 1911, NAI. 84 For analyses of the colonial state’s reliance on statistics see Arjun Appadurai, ‘Number in the Colonial Imagination’, in Carol A. Breckenridge and Peter van der Veer (eds), Orientalism and the Postcolonial Predicament:  Perspectives on South Asia (Philadelphia:  University of Pennsylvania Press 1993), 314–​39 (hereafter Appadurai, ‘Number in the Colonial Imagination’); Uma Kalpagam, ‘The Colonial State and Statistical Knowledge’, History of the Human Sciences 13/​2 (2000), 37–​55; and Uma Kalpagam, Rule by Numbers: Governmentality in Colonial India (Lanham, MD: Lexington Books 2013). 85 There was, in fact, no single ‘statistical test’, but rather a series of what the North-​Western Provinces Police Committee referred to as ‘recognised tests of police work’. By the late nineteenth century there were five of these, as follows: the number of reports of cognizable crime (namely offences for which the police could arrest without a warrant) per 10,000 of the population; the percentage of cases inquired into versus the number reported; the percentage of cases sent up for trial versus the number inquired into; the percentage of cases convicted compared to the number set up for trial; and the percentage of property recovered compared to that reported to have been stolen. Such statistics were reproduced in tabular form in annual provincial police reports, along with, in some cases, what was referred to as the ‘figure of merit’, which was a combination of the above percentages. Report of the Committee Appointed by Government under Resolution (Police Dept). No. 373/​VIII-​186A-​2, 22, dated 6th June, 1890, to Enquire into Certain Questions Connected with the Police Administration of the North-​ Western Provinces & Oudh (Allahabad:  North-​Western Provinces and Oudh Government Press 1891 (hereafter Report of the Committee Appointed by Government under Resolution); and Report of the Indian Police Commission, 1902-​03 (Simla: Printed at the Government Central Printing Office 1903), 130 (hereafter Report of the Indian Police Commission, 1902-​03). 86 Frederic Mackarness to Lord Crew, 20 December 1910, Home, Police, Deposit Proceedings, August 1911, no. 30, NAI. Such beliefs led, as The Manchester Guardian put it, to ‘a race for the best statistical results’ among members of the Indian police. But as ‘Panchkouree Khan’ reflected, the ‘great evil’ of statistics was that, while they revealed what work had been done, they did not show ‘how that work was done’.

120  Colonial Terror obtained through torture often led to the collapse of cases brought by the police, that constables allowed crimes to occur rather than preventing them in the hope of securing credit for convictions, and that, as the Inspector-​General of Police remarked in 1905, ‘Failure to show convictions stamped a man as an incompetent officer, and from this resulted the manipulation of reports, the bolstering up of weak cases, the tutoring of witnesses, the selection of easy cases, inaccuracies in diaries, and the like followed by a host of departmental punishments and criminal prosecutions’, the colonial regime was loathe to abandon statistics as a means of measuring police performance.87 Reformist pressure did lead the Indian government, in 1911, to ask local governments to develop rules regarding the measurement of police performance that undermined the emphasis on statistics, but the effectiveness of these was mitigated by the fact that police statistics were regarded as ‘indispensable’—​superior officers were simply advised not to ‘attach too much value to them’.88 This is not to say that the law did not attempt to limit official discretion when it came to confessions. Since the police sought, for example, to detain accused persons for as long as possible before forwarding them to a magistrate in order to ‘put pressure on them by illegal methods and for unlawful ends’ (as well as to hide the effects of such ‘pressure’), the prohibition against holding accused persons for more than forty-​eight hours without a warrant was further reduced to twenty-​four hours in an 1872 amendment to the CPC.89 But such attempts were always undermined by contrary provisions. In the case of the twenty-​four-​hour rule, this could be contravened by section 167 of the code, which made it legally possible for a suspect to be remanded into police custody for up to fifteen days if ordered by a magistrate, a mode of detention that offered ‘facilities for torture’ which were ‘freely used’.90 So, too, did an ‘The Methods of Indian Policemen: “Torture and Concoction” ’, The Manchester Guardian (Manchester, 27 January 1898), 10; and Khan, The Revelations of an Orderly (n 18) 95. 87 Note, M.C. Seton, Assistant Secretary, Judicial and Public Department, 29 December 1910, and J. L. Jenkins to Lord Hardinge, 25 January 1911, Home, Police, Deposit, 30, August, 1911, NAI. Such reluctance can be explained by the role of statistics in disciplining the police. Appadurai, ‘Number in the Colonial Imagination’ (n 84) 324–​25. 88 Note, M.C. Seton, Assistant Secretary, Judicial and Public Department, 29 December 1910, Home, Police, Deposit, 30, August, 1911, NAI. The rule devised by the Bengal government and included in its police manual, for example, was simply that ‘an officer will be judged not merely by his percentage of successes in the investigation and prosecution of offences’ (emphasis added). That statistics continued to play a prominent role in assessing police performance throughout the period of British rule is suggested by the lament of Eric Stracey, who joined the Indian police in the 1940s, about their impact on the detection of crime, since the police resorted to measures such as not registering crimes that were more difficult to detect or reducing the gravity of an offence by describing it as a lesser one in order to bolster their statistical results. C. J. Stevenson-​Moore, Chief Secretary to the Government of Bengal, to the Government of India, 11 October 1912, Home, Police, A, 116–​26, May, 1912; and Eric Stracey, Odd Man In: My Years in the Indian Police (New Delhi: Vikas Publishing House Pvt. Ltd. 1981), 21. 89 Regulation of XI 1816; and Report of the Committee Appointed by Government under Resolution (n 85) 26. As a witness to the North-​Western Provinces police committee pronounced, ‘If an accused person does not voluntarily make a statement to the Police or give a clue as to a case in 24 hours, he certainly will not do so in as many days without illegal pressure.’ Evidence Recorded by The Committee Appointed by Government under Resolution (Police Department) no. 373/​VIII-​186A-​2, dated 6th June, 1890, to Enquire into Certain Questions Connected with the Police Administration of the North-​Western Provinces & Oudh (Allahabad: Printed at the Pioneer Press 1891), 34. 90 Act XXV of 1861; and Frederic Mackarness to Lord Crew, 20 December 1910, Home, Police, Deposit, August, 30, 1911, NAI. However contradictory, that there were any provisions at all in regard to police

The Facilitators II: Law and ‘Justice’  121 amendment to the CPC in 1882 that laid down that when examined by a police officer an accused person was obliged to answer ‘truly’, which meant that anyone who made a false statement to a police officer was liable to be convicted for perjury.91 Although the intent of such an amendment was to undermine what colonial officials regarded as the Indian penchant for bringing false charges (including in regard to police torture), as the North-​Western Provinces police commission reported, ‘the threat of instituting or procuring the institution of a prosecution for perjury has not unfrequently been used to compel witnesses to adhere before the courts to statements put into their mouths by investigating officers’.92 Provisions like these did little, furthermore, to stop the police from detaining suspects in custody for weeks or even months before transmitting them to a criminal court and carrying out ‘atrocious abuses of authority’.93 Had the colonial regime really sought to put a stop to the use of torture to extract confessions it would, of course, simply have made confessions illegal as forms of evidence. It was unable to do this, however, because confessions enabled the police to secure ends required by the state that could not be obtained through legal methods.94 With the institution of an ‘approvers-​system’ in the 1830s, part of the colonial regime’s attempts to categorize and criminalize particular groups such as ‘thugs’, confessions in fact became an important means of separating what was regarded as political life from bare life.95 It is for this reason that the ‘problem’ of confessional torture was addressed custody in colonial India stands in marked contrast to England in light of the lacuna in English common law in regard to the time between which a suspect was arrested and charged. David Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford:  Clarendon Press 1997), Ch. 4, cited in Radha Kumar, ‘Police Matters: Law and Everyday Life in Rural Madras, c. 1900-​1960’ (PhD dissertation, Princeton University 2015),  142–​3. 91 Report of the Committee Appointed by Government under Resolution (n 85) 27. Such provisions demonstrate that the concern of the British, as Jörg Fisch summarizes, was to eradicate weak points, or potential loopholes, in the law, ‘while not one thought seems to have been given to safeguards for the accused’ Jörg Fisch, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law 1769-​1817 (Wiesbaden: Steiner 1983), 83. On the British obsession with perjury in colonial India see Kolsky, Colonial Justice in British India (n 29) 108–​19; Raman, Document Raj (n 17) 137–​60; and Wendie Ellen Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom (New Haven and London: Yale University Press 2015), 103–​42. 92 Report of the Committee Appointed by Government under Resolution (n 85) 27; see also Saha, ‘A Mockery of Justice?’, 207. According to section 195 of the CPC, the sanction of the court before which the purportedly false statement had been made was required before the initiation of a prosecution for perjury, but such a restriction did not apply to statements made to the police—​which, of course, simply enhanced the power of the police to extort confessions. Magistrates were, additionally, not averse to instituting charges against individuals, particularly witnesses, for perjury. The Nizamat ʿAdālat remarked, in 1855, on a case in which a judge had convicted eight witnesses of perjury, even though he admitted that their offence had ‘originated in ill-​treatment and threats of further violence on the part of the police’ and that the prisoners were all women or old men ‘selected . . . [for] being the more likely to be acted on by ill usage’ [sic] (emphasis in original), and sentenced them to a year’s hard labour (although this was overturned on appeal). ‘Reports of Cases determined in the Court of Nizamat Adawlut’ (n 82) 479. 93 Report of the Commissioners (n 71) 6. 94 David Arnold, Police Power and Colonial Rule: Madras, 1859-​1947 (Delhi: Oxford University Press 1986), 3. 95 Tom Lloyd, ‘Thuggee, Marginality and the State Effect in Colonial India, Circa 1770-​1840’, The Indian Economic and Social History Review 45/​2 (2008), 221, 225. The confessions of suspects turned approvers, which were used to implicate their co-​accused, were carefully orchestrated by both the approver (in order to ensure they escaped the death penalty) and the police (to secure the conviction of the approver’s co-​ accused), and were used to secure convictions—​often as the only source of evidence—​even when it was clear that such ‘confessions’ were extracted through torture. Amin, ‘Approver’s Testimony’ (n 41) f. 17, 175.

122  Colonial Terror through such measures as requiring police officers to ‘subscribe [to] a declaration that they will abstain from all attempts at extorting confessions’ rather than through effective legal measures, since it kept open the possibility of using torture as a form of punishment in cases that, in the words of Indian Home Member Reginald Craddock, ‘did not call for or require evidence’.96 Confessions were thus part of the ‘tactics’ employed by the police that, while not extra-​legal, were widely obtained through extra-​legal means—​means the colonial state was reliant on in order to maintain its sovereignty.

The Failings of the Judiciary I could not even be sure when I punished that I was not hitting the oppressed instead of the oppressor . . . I was here to-​day, and away tomorrow, and might never come back. Everybody knew that Government officers were often transferred; and when that happened, the past was too often wiped from the official slate.97 That for colonial officials the ‘whole question of confessions bristle[d]‌with difficulties’ is apparent in the voluminous official correspondence, judicial orders, trial verdicts and reports in the Indian colonial archive.98 But whatever the reasons given for this, and the solutions proposed, one issue that repeatedly arose was the failure of magistrates and judges ‘to enforce the rules’, as the judges of the Madras Faujdari ʿAdālat put it—​and, indeed, the law—​to protect suspects and witnesses from being tortured by the police.99 Such concerns reveal that the root of the problem in regard to official discretion lay not with the police but with those responsible for administering criminal law. These included district magistrates, as they were known in ‘Regulation Provinces’ (or as deputy commissioners in ‘Non-​Regulation Provinces’), and judges.100 While the 96 India, Judicial (N. W.  P.), 3 June (No. 34)  1857, IOR E/​4/​844, 1857, 1171, BL; and Upendranath Bandopadhyay, Nirbashiter Atmakatha (first published in 1921, Calcutta: National Publishers 1999), 102–​3, cited in Sammadar, ‘Law and Terror’ (n 24) 5. Craddock was clearly fond of what he later referred to as ‘executive instructions’ which, he claimed, fill[ed] the gap where the law leaves discretion’. Note by R. H. Craddock, 9 December 1915, Home, Police, A, January, 127–​9, 1916, NAI. 97 Robert Carstairs, The Little World of an Indian District Officer (London: Macmillan and Co. 1912), 162 (hereafter Carstairs, The Little World). 98 Sir Percival Griffiths, To Guard My People: The History of the Indian Police (London: Ernest Benn Limited; Bombay: Allied Publishers Private Limited 1971), 152 (hereafter Griffiths, To Guard My People). 99 Ṣadr Faujdari ʿAdālat, Circular Order, 24 January 1822, Report of the Commissioners (n 71) Appendix B, 62. 100 B. B. Misra, The Bureaucracy in India:  An Historical Analysis of its Development up to 1947 (Delhi:  Oxford University Press 1977), 49 (hereafter Misra, The Bureaucracy in India). The administrative framework of the Company and later Crown, in which the district was made the basis of administration, was laid out in the late eighteenth century. At its head was the ICS, which became known as the covenanted service because, beginning in 1765, writers (clerks) were required to sign a covenant attesting to their good conduct and loyalty. From 1793 all civil posts in the Company’s government in India were required to be filled by covenanted servants, although by the late nineteenth century only the most senior posts were reserved for ICS officers. ‘Non-​Regulation’ provinces, which came to include Sind, Punjab, Oudh, Nagpur, and Lower Burma, were either more recently ‘acquired’ or were regarded as ‘more primitive’. Bradford Spangenberg, British Bureaucracy in India: Status, Policy and the I.C.S. in the Late 19th Century (Delhi: Manohar 1976), xxi (hereafter Spangenberg, British Bureaucracy in India); Gupta, Crime and Police in India [Up to 1861] (n 62) f46; and K. L. Panjabi, ‘The Saga of Indian Civil Service’, in Raj K. Nigam (ed.), Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India

The Facilitators II: Law and ‘Justice’  123 former ‘men on the spot’ were regarded as the bastion of the Indian Civil Service (ICS), the professedly ‘heroic English administrator[s] burdened with the formidable task of ensuring, in the presence of native cupidity and duplicity, the triumph of justice’, the latter were responsible both for trying cases referred to them by district magistrates (i.e. sessions judges) and for appealing the decisions of the lower courts (namely the Madras and Bombay Ṣadr ‘Adālats, Supreme Courts, and, post-​1862, High Courts).101 Neither were, however, able to ensure the ‘triumph of justice’. In the case of district magistrates, this was due to the conflict of interests in their relationship with the police, since in addition to being required to act as a judicial restraint upon the police such officials also had to supervise them (making the relationship between the magistracy and the police, as the 1902–​1903 Indian Police Commission put it, ‘of an intimate and reciprocal character’).102 Although magistrates in England were not given such a responsibility in the new system of policing that emerged from 1829, in India placing the police in the hands of the chief executive authority in each district—​of giving the latter, in other words, wide official discretion both to uphold the law and, if need be, supersede it—​was regarded as necessary for the maintenance of a regime of conquest. It was the tensions between such roles, as well as the tremendously broad tasks and powers given to district magistrates, that made it impossible for them to act as an effective check upon the police. For both district magistrates and judges, moreover, their often low educational attainments and lack of training, combined with the many other pressures placed upon them (including, in the latter case, the low esteem in which they were held and their subservience to the whims of provincial governments), ensured that they failed to serve as an effective check on police officers who tortured. According to the myth of the ICS that arose in the late nineteenth century, ‘civilians’, as the Viceroy Lord Dufferin (1884–​1888) eulogized, were ‘superior to any other class of Englishmen’.103 In actuality, however, the unremarkable intellectual attainments and social backgrounds of many ICS recruits, particularly following the establishment of a system of recruitment through competitive examinations in 1853, undermined the image of ICS officials.104 Service in the ICS thus became increasingly regarded as a

(New Delhi:  Documentation Centre for Corporate and Business Policy Research 1985), 266 (hereafter Panjabi, ‘The Saga of Indian Civil Service’). 101 Lal, ‘Everyday Crime’ (n 29) 150. I am referring, here, specifically to the Indian judicial system as it developed from the period of Lord Bentinck’s Governor-​Generalship (1829–​1835). The ICS was, however, an extremely small service, comprising little more than a thousand men at its height, which meant they constituted a mere 0.001 per cent of all individuals employed by the colonial state in India. David C. Potter, India’s Political Administrators: From ICS to IAS (Delhi: Oxford University Press 1996), 21 (hereafter Potter, India’s Political Administrators). 102 Report of the Indian Police Commission, 1902–03 (n 85) 84. 103 Spangenberg, British Bureaucracy in India (n 100) xi. 104 Ibid, 10. Most had attended public schools, but by the late 1870s almost 80 per cent of recruits lacked a university degree (though the numbers with degrees began to rise in the 1890s) and 90 per cent were middle class or, in some cases, lower. Although Indians were never technically excluded from the examination system the obstacles to them succeeding in it were so great that only twelve had done so by 1888, and there were only seventy-eight by 1919. Ibid, 17–21, 28; E. M. Collingham, Imperial Bodies: The Physical Experience of the Raj, c. 1800-1947 (Cambridge: Polity Press 2001), 119 (hereafter Collingham, Imperial Bodies); Potter, India’s Political Administrators (n 101) 70; and K. L. Panjabi, ‘The Saga of Indian Civil Service’ (n 100) 267.

124  Colonial Terror job for ‘second-​rate minds’ (even Dufferin privately found himself ‘aghast’ at the ‘great dearth of talent’ in the colonial bureaucracy).105 Concerns about the quality of ICS recruits led to considerable fretting among both the Indian and provincial governments, as well as the India Office in London. These were, however, coupled with worries about the difficulty of retaining such purportedly talentless recruits, particularly by the late nineteenth century, when a fall in the value of the rupee and stagnation in promotions added to the reluctance many ICS recruits felt about remaining in a distant land that had such a trying climate and was inhabited by what many disparagingly referred to as ‘niggers’.106 As one civilian pronounced in 1886, ‘the best thing to do in India is to save money and clear out as quickly as possible’.107 So many civilians, in fact, abandoned the service before the thirty-​five-​year mandatory retirement period that in 1895 the Indian government prohibited them from resigning their positions without its sanction.108 But despite both their lack of qualifications and their disaffection, civilians were nonetheless given tremendous powers. District magistrates, for example, combined what the Calcutta Review referred to as ‘the powers of a whole Bench of Magistracy, and many other of the functions which in a constitutional country like England are diffused among executive bodies from the Home Secretary to the Parish Vestry’.109 Not only was there no appeal from many classes of cases decided by such officials, but an amendment to the CPC in 1874 gave them the ability to deal with what were regarded as petty cases in a summary manner, namely to sentence accused persons for up to three months in jail without being required to record cases in accordance with standard legal procedure.110 It was such powers that made district magistrates what B.  B. Misra refers to as ‘local sovereigns’, or what Indian critics termed ‘despots’, or ‘engine[s]‌of oppression’.111 But their ‘despotic demeanour’ was arguably also, 105 Dufferin to Lord Kimberley, Simla, 26 April 1886, Dufferin Papers, BL, cited in Spangenberg, British Bureaucracy in India (n 100) 37. 106 John Beames, Memoirs of a Bengal Civilian (London: Chatto and Windus 1961), cited in Spangenberg, British Bureaucracy in India (n 100) 56. 107 C. H. T. Crosthwaite to Denizel Ilbert, Edinburgh, May 1886, Papers of C. P. Ilbert, Eur MSS. D594, BL, cited in Spangenberg, British Bureaucracy in India (n 100) 51. 108 Spangenberg, British Bureaucracy in India (n 100) 50. Such concerns led to the retention of men who failed to perform even the most rudimentary of tasks expected of them, such as one Mr. MacDowell, who visited his office for only one hour a day, devolved his paperwork to his peshkar (reader), and dedicated the bulk of his time to cabinet-​making. B. N. Lahiri, Before and After (Allahabad:  Chugh Publications 1974),  103–​4. 109 ‘The Madras Constabulary’, The Calcutta Review, Vol. LXX (Calcutta, December 1860), 357. Those who used the ‘violent and unorthodox methods’ at their command gained reputations, in addition, as being ‘very efficient and strong officer[s]‌’. B. N. Lahiri, Leaves from A  Policeman’s Diary (Meerut:  Meenakshi Prakashan 1967), 128. 110 The Affray Bill and the Criminal Administration of Bengal by A Member of the British Indian Association (Calcutta: Mudhoo Soodun Roy, Hindoo Patriot Press 1854), (hereafter The Affray Bill); and Uma Dasgupta, ‘Crime, Law and the Police in India, 1870-​80’, The Indian Economic & Social History Review 10/​4 (1973), 336. The amendment act also gave the High Court the power to set aside the verdict in a jury trial and order a new trial, and accorded judges the power to weigh in on the decisions of juries in order to secure a majority decision as well as to enhance, rather than simply reduce, punishments on appeal. 111 Misra, The Bureaucracy in India (n 100) 51; and Sadharani (Calcutta, 1 March 1876), and Bengalee (Calcutta, 5 August 1876), cited in Dasgupta, ‘Crime, Law and the Police’ (n 110) 357, 368. One District Magistrate, for example, sentenced a youth to prison for three weeks’ hard labour for accidentally killing one of his dogs. Dasgupta, ‘Crime, Law and the Police’ (n 110) 361.

The Facilitators II: Law and ‘Justice’  125 according to the barrister Theodore Henry Dickens, a result of their ignorance and vulnerability in undertaking such a challenging and, often, overwhelming job, and the degree of official discretion they were given.112 The ignorance of district magistrates is clear, to begin with, in what one ICS recruit described as their ‘very sketchy’ training.113 It was generally assumed, particularly following the closure of Haileybury College in 1858 (which had been established in 1807 to train ICS recruits), that such recruits would simply ‘learn by doing’.114 Training was so inadequate, in part, because ICS ethics enshrined the virtue of gentlemanly general knowledge over technical expertise.115 What was required of ICS men was ‘courage, self-​confidence, and self-​discipline’, which was to be cultivated through what E. M. Collingham refers to as ‘a self-​disciplined bureaucratic body’.116 The role of district magistrates, according to David Potter, was therefore the ‘apotheosis of the generalist’, since it required not ‘questioning the ‘rightness’ of being put in charge of the thing, whatever it was’.117 As a result the training of such officials largely consisted of giving them a variety of information on subjects such as regulations, rules, and acts relating to the province and district to which they had been posted (as well as information on ‘who should be offered a chair to sit down when he came to meet you and who should not’), which they were examined on at the end of their first year, as well as attaching them to various departments in their district in order to observe how they worked.118 Seeking advice from superiors was actively discouraged and their language training was, unsurprisingly, poor.119 Although in 1848 the 112 Theodore Henry Dickens, A Letter to the Rt. Hon. Robert Vernon Smith, M.P., President of the Board of Control, Upon the Proposed Judicial Reforms in India (London: W. G. Benning & Co. 1857), 82 (hereafter Dickens, A Letter to the Rt. Hon.). District magistrates were also clearly not averse to exploiting their situations. This is clear from their attitudes towards touring, which they were required to spend almost two-​ thirds of the year doing, since as late as 1920 they still expected villagers to provide for all of their wants and needs without offering compensation. R. N. Banerjee, ‘Three Decades in the Indian Civil Service’, in Raj K. Nigam (ed.), Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India (New Delhi: Documentation Centre for Corporate and Business Policy Research 1985), 2; S. D. Nargolwala, ‘Civil Servants Had to Be Generalists and Specialists’, in Nigam, Memoirs of Old Mandarins of India, 239; and Saroj Kumar Bhowmik, Rural Police, Local Justice in Bengal (1772-​1870) (Calcutta: Nalanda Publications 1991), 186. 113 S. Bhoothalingam, ‘Some Aspects of Civil Service’, in Raj K. Nigam (ed.), Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India (New Delhi: Documentation Centre for Corporate and Business Policy Research 1985), 30. 114 Ibid. 115 Ibid, 35. As one colonial official remarked, the ICS recruit may have lacked ‘practice in the laws that he is to administer’, but this was simply ‘a mechanical affair compared with the general knowledge of men and things that he acquire[d]‌’. R. B. Chapman, Esq., Officiating Commissioner of the Presidency Division, to the Secretary to the Government of Bengal, Judicial Department 14 February 1867, in Ray, The Separation of Judicial and Executive Functions (n 21) 80. 116 Potter, India’s Political Administrators (n 101) 77; and Collingham, Imperial Bodies (n 104) 117. 117 Potter, India’s Political Administrators (n 101) 78. 118 Ibid, 111; and L. M. Nadkarni, ‘Pre and Post Independence Administration in India’, in Raj. K. Nigam (ed.), Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India (New Delhi: Documentation Centre for Corporate and Business Policy Research 1985), 212. 119 R. A. Gopalswami, ‘Initiatives and Implementation in ICS’, in Raj. K. Nigam, Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India (New Delhi: Documentation Centre for Corporate and Business Policy Research 1985), 77. Anupama Rao proposes that magistrates’ poor command of Indian languages (as well as of customary or religious codes) was one reason they were forced to rely so much on confessions rather than carrying out their own inquiries. Having to learn new dialects in each region to which they were posted, as former magistrate Robert Carstairs bemoaned, undoubtedly exacerbated such a problem. That a strong knowledge of Indian languages and dialects was rare among

126  Colonial Terror Calcutta Review derided the ludicrousness of a system in which young men, ‘fresh from college, ignorant of the native languages and customs, and, what is worse, half read in the laws and usages of civilized nations, without experience, and with but an unfinished general education,—​should suddenly be . . . empowered to fine, imprison, and inflict corporal punishment’, such laments went unheeded.120 By the early twentieth century, therefore, district magistrates were still poorly trained, including, crucially, in ‘the requirements of law’.121 Many recruits thus learned the basics of their jobs from subordinate staff. But the reliance of district magistrates on such staff was also a result of the fact that there were so few district magistrates relative to the population and size of India, that there was a ludicrous rapidity of transfers in administrative appointments (particularly after the introduction of extremely liberal furlough rules in 1868, which meant that districts could change hands several times a year or more), that they were given charge of districts at often inordinately young ages, and that they had a ‘general dislike to having anything to do with Police matters’.122 The ‘real or supposed influence of the police officer with his immediate superior’ was, for the Madras Faujdari ʿAdālat, a key reason that there was no effective check on the violence perpetrated by police officers.123 But that district magistrates took no interest in cases before encountering them in court, and were ‘unduly ready to accept the police view of a case without giving the accused a fair hearing and endeavouring to sift the case to the bottom’, was also due to the sheer variety of tasks they were expected to carry out.124 By the late nineteenth century a district magistrate combined in himself, as Romesh Chunder Dutt, then the district magistrate of Midnapur, detailed, the functions of the head of the Police, the head Magistrate, the head Superintendent of Prisons, the head Revenue Officer, the head Tax Collector, the head of the Government Treasury, the head Manager of Government Estates, the head

district magistrates, and that this undermined their ability to do their jobs, is suggested by former Indian police official T. C. Arthur, who was friends with a magistrate who had ‘an unusual practical knowledge’ of both Marathi and Guajarati—​his fluency in which gave him the rare ability to be ‘quite independent of his sheristedar [secretary] and karkoons [clerks]’, to open and ‘read his own post’, and to ‘write his own orders before handing his correspondence to his office’. Rao, ‘Problems of Violence’ (n 67) 160; Carstairs, The Little World (n 97) 19. 120 ‘Administration of Justice in Bengal’, Calcutta Review, VI (Calcutta, July-​December 1846), 155. 121 G. O. 1221–​22 Press (NP), Judicial, 31 July 1912, Tamil Nadu Archives, cited in Kumar, ‘The Many Lives of Custodial Violence’ (n 17) f11. 122 Spangenberg, British Bureaucracy in India (n 100) 74; and Parliamentary Paper 162 of 1853, 2–​24, cited in Gupta, Crime and Police in India [Up to 1861] (n 62) 252. Since it was considered ‘dangerous’ for district magistrates to remain in a district for very long it was rare for such officials to hold their posts for more than two years. Such a rapid transfer of people meant that district magistrates were required to keep ever more elaborate records for the benefit of the next incumbent of their post. Potter, India’s Political Administrators (n 101) 28, 35; and Gupta, Red Tape (n 79) 147. 123 Proceedings of the Faujdari ʿAdālat, 30 July 1820, Letter from Court to Madras, 12 October, 1831, cited in Gupta, Crime and Police in India [Up to 1861] (n 62) 197. As alluded to by Prichard in his depiction of the complicity between Dakhil Duftar and Wasilbakee, the collusion between district magistrates and Police Superintendents, following the creation of the latter post in the 1860s, exacerbated such a problem. 124 Report of the Indian Police Commission, 1902-​03 (n 85) 83.

The Facilitators II: Law and ‘Justice’  127 Manager of Minors’ States, the head Engineer, the head Sanitary Officer, the head Superintendent of Primary Schools, and various other functions.125

The sheer burden of report-​writing that accompanied such varied duties had also grown so immense that District Magistrates were largely confined to their offices and so were unable, even had they been willing, to either investigate cases or effectively monitor the police.126 The tasks required of District Magistrates, combined with the desire to retain ICS recruits at virtually whatever cost, ensured that the ‘blindness, slowness, dullness, and inaction’, or what the Court of Directors referred to as the ‘lamentable degree of indifference’ of such officials regarding the torture perpetrated by their subordinates, continued virtually unchecked, particularly since the primary concern of colonial governments when it came to the legal duties of their magistracy was that verdicts be given upon as many cases as possible within the shortest amount of time.127 This meant that the tremendous official discretion, or what one critic referred to as the ‘irresponsible and undefined power’ of District Magistrates, endured.128 Such officials could be certain, furthermore, that their faults would be looked upon with ‘indulgence’, and that they would secure promotions regardless of how well they performed the job assigned to them.129 According to John Bruce Norton, there was, in fact, no way of prosecuting District Magistrates for their failings, since although there were provisions in the IPC for the punishment of public servants these were, when taken in conjunction with the 1850 ‘Impunity Act’, so worded that it would be impossible to secure a conviction under them.130 The punishment for district magistrates who failed in their duties was, in any case, simply to transfer them to another district.131 Thus, although such officials were endlessly advised regarding ‘the necessity of the greatest vigilance on the part of superior officers as to the conduct of Police investigations’ (emphasis in original), there was no effort to transform them into what the Chief Justice of

125 Romesh Chunder Dutt, n.t., India (August 1893), in Ray (ed.), The Separation of Judicial and Executive Functions (n 21) 151. 126 Spangenberg, British Bureaucracy in India (n 100) 109–​10. The burden of report writing for district magistrates was so great, according to B. B. Misra, that it transformed India into a ‘bureaucratic despotism’. Misra, The Bureaucracy in India (n 100) 40. See also M. K. Kripalani, ‘Civil Servants Held the Country Together’, in Raj K. Nigam (ed.), Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India (New Delhi: Documentation Centre for Corporate and Business Policy Research 1985), 176. 127 G. P. Grant, Minute, 9 April 1857, cited in Gupta, Crime and Police in India [Up to 1861] (n 62) 363; India, Judicial (N. W. P.), 3 June (No. 34) 1857, IOR/​E/​4/​844, 1191, BL; and Dickens, A Letter to the Rt. Hon. (n 112) 44. Disposing of cases rapidly, according to the lawyer Theodore Henry Dickens, ‘generally brings the magistrate into favour with his superiors, and gains him credit for vigour and diligence’; magistrates who, instead, endeavoured to undertake their judicial duties conscientiously fell into disgrace, and were ‘ordered not to be troublesome and meddling, but to do as others do’. Dickens, A Letter to the Rt. Hon. (n 112) 44. 128 The Affray Bill (n 110) 3, 13–​14. 129 Ibid, 13. Whether ‘capable or incapable, whether idle or industrious’, the civilian could be ‘sure of his promotion’. Dickens, A Letter to the Rt. Hon. (n 112) 44. 130 Norton, The Administration of Justice (n 42) 83. 131 Dickens, A Letter to the Rt. Hon. (n 112) 81. The same held true for their police subordinates, since there was, according to Vinay Lal, a ‘lamentable practice’ of transferring police officers assigned to a case if someone was unhappy with the results of their inquiry. Lal, ‘Everyday Crime’ (n 29) 152.

128  Colonial Terror Burma referred to as ‘trained lawyer(s) accustomed to weigh evidence dispassionately and carefully’.132 The situation was no better when it came to judges, since they were products of the same career path as district magistrates. For Norton, India was ‘probably the only civilized country in the world . . . presided over by civilized men, where it is thought no special training is necessary to qualify a man for a due discharge of judicial duties’.133 Though during the first half of the nineteenth century Haileybury provided a small amount of legal training to ICS recruits (seventy to eighty hours over the two-​to-​ three-​year course), the law was ‘generally neglected’, the belief being that ‘common sense’ was all that was needed to administer law in India.134 Judges therefore learned, as Norton put it, ‘by trying their “prentice hand” upon the cases which come before them when they first take their seat upon the Bench’.135 This led to ludicrous situations in which, as Sir Richard Garth, Chief Justice of the Calcutta High Court, complained in 1880, ‘a young civilian may be . . . transformed into a District Judge, and has to sit in judgment upon Native Judges of twenty years standing, without any knowledge of civil law, or experience in conducting a civil suit, or having even opened the Code of Civil Procedure’.136 As was also the case with district magistrates, the constant changes in judges, sometimes as many as seven times a year on one bench, severely affected the judicial process.137 That no legal training was regarded as being necessary for ICS judges is clear in the way in which ICS officers were shuttled back and forth between service in the executive 132 ‘Police Administration Report’, Judicial Department, Government of Madras, 24 November 1879, 3, Home, Judicial, B Proceedings, August 1880, No. 38–​39, NAI; and Speech by Mr. Bhupendranath Basu, Excerpt, Legislative Council debates, 28 February 1912, IOR/​L/​PJ/​6/​1368, File 1823, 269, BL. It was in large measure as a result of their failings that the police were, as Fitzjames Stephen put it, ‘far more powerful in India than they [were] in England’. James Fitzjames Stephen, A History of the Criminal Law of England, Vol. 3 (London: Macmillan and Co. 1883), 331. 133 Norton, The Administration of Justice (n 42) 109. 134 Bernard S. Cohn, ‘From Indian Status to British Contract’, An Anthropologist Among the Historians (n 39) 474; and Norton, The Administration of Justice (n 42) 111, 113. Norton dismissed such arguments with the wonderful observation that ‘in the ordinary business of life we do not permit “common sense” to cut off our leg, or even pull a tooth; nor do we expect a shoemaker to make a decent slipper without serving an apprenticeship—​but for the purpose of adjudicating on points of life and death, and settling nice questions of title, and so forth, upon which depends the safe enjoyment of property—​give a man a copy of the Regulations, and leave the rest to “common sense”!’ Such a belief in ‘common sense’ became particularly ludicrous by the second half of the nineteenth century, when Indian law had become ‘bound down . . . by theories and technicalities’, for which the IPC and CPC sought to compensate through the inclusion of voluminous illustrations (although this did not prevent Percival Griffiths, as a young magistrate, from being ‘constantly perplexed’ by the these). Norton, The Administration of Justice (n 42) 113; note by Sir William Markby, in Ray, The Separation of Judicial and Executive Functions (n 21) 129; and Griffiths, To Guard My People (n 98) 144. 135 Norton, The Administration of Justice (n 42) 8. Bombay tried to rectify this problem by starting a year-​ long legal training program for covenanted civilian judges in 1862, although when Madras tried to do the same shortly thereafter it was denied approval on the grounds, according to the Viceroy, John Lawrence, that deficiencies in the judicial branch resulted not from insufficient training but ‘from the personal incompetency of judges’. Ibid, 115, 118; Spangenberg, British Bureaucracy in India (n 100) 151; and Minute by John Lawrence, Viceroy, 5 March 1864, Government of India, Home, Judicial, A, 47–​70, NAI, cited in Spangenberg, British Bureaucracy in India (n 100) 134. 136 Garth to Ripon, Calcutta, 31 August 1880, Rippon Papers, BL, cited in Spangenberg, British Bureaucracy in India (n 100) 135. Norton firmly believed that Indian judges were far superior to their British counterparts. Norton, The Administration of Justice (n 42) 142. 137 Norton, The Administration of Justice (n 42) 77.

The Facilitators II: Law and ‘Justice’  129 and judicial branches, which meant that a revenue officer, for example, might find himself at any moment of his career moved to a judicial post.138 As a district magistrate was regarded as being more important than a judge (since ‘the assessment and collection of revenue [was] paramount to the administration of justice’), it was not uncommon to find, according to Norton, that ‘a Collector or other Revenue Officer found incompetent for his office has been forthwith pitchforked on to the Judicial Bench’.139 The same was purportedly true of district magistrates who mismanaged their districts, as well as members of the ICS who were regarded as mavericks or eccentrics.140 The individuals who occupied the judicial bench were therefore, Norton claimed, ‘totally incompetent to the decent fulfilment of their duties’ (emphasis in original).141 The indifference with which judicial posts were regarded by the Indian and provincial governments made the judiciary, as a consequence, ‘the despised branch of the service’.142 Efforts, beginning in 1873, to force ICS officers to choose between service in the executive or judicial branches (or, if insufficient numbers chose the judiciary, to force them into it), precipitated the decline in prestige for those holding judicial posts and made it even more difficult to attract capable civilians to the judiciary, or to enlist English barristers to serve in it, as did the brilliance of Indian members of the bar.143 138 Ibid, 6. ‘Panchkouree Khan’ testified to the practice of promoting men unfit for the duties of Collector to judgeships, which was done despite the fact that the Court of Directors itself had lamented ‘the unfitness so frequently displayed by Revenue Officers in dealing with evidence, or conducting any inquiry, in the nature of a judicial proceeding’ (emphasis in original). Khan, The Revelations of an Orderly (n 18); and Norton, The Administration of Justice (n 42) 110. 139 ‘Employment of Torture in India’, Examiner, 23 February 1856, 114 (hereafter ‘Employment of Torture in India’); and Norton, The Administration of Justice (n 42) 6. The fluidity of the boundaries between the judiciary and executive in colonial India generated additional problems, such as the tendency of district magistrates to engage, according to F. J. Halliday, Lieutenant-​Governor of Bengal, in too much ‘close and incessant intercourse’ with District Judges (a problem that was also a product of living with each other in a ‘confined society’), which another critic argued -​endangered the ‘independence of mind’ of the latter. ‘Indigo Planters’ Association, Minute by the Hon’ble the Lieutenant-​Governor of Bengal’, in Norton, The Administration of Justice (n 42) Appendix, 25; and A. J. Arbuthnot, Acting Register to the Court of Foujdary Adawlut, to T. Pycroft, Secretary to Government in the Judicial Department, 22 November 1854, IOR Mss. Eur. F161/​12, BL. 140 Norton, The Administration of Justice (n 42)  7; and Spangenberg, British Bureaucracy in India (n 100) 118. According to Theodore Henry Dickens, when it came to judges, no matter what fault was proven against them ‘no notice is taken of it, or if any is taken, it is generally in the nature of a kick up-​stairs’ [sic]. He cites one case in which a judge, found guilty of fraud in the performance of his judicial duties, was deprived of a post worth £2,300 a year and installed in another worth £6,000. Dickens, A Letter to the Rt. Hon. (n 112) 41. 141 Ibid, 4, 5. As W. H. Macnaughten, author of the standard work on Hindu law and Registrar of the Ṣadr Diwani ʿAdālat, the highest appeal court in the Bengal presidency, complained of the judicial opinions he examined between 1811 and 1828, ‘at least nine-​tenths . . . were ascertained on examination to be erroneous, doubtful, unsupported by proof or otherwise unfit for publication’. W. H. Mcnaughten, Principles of Hindu Law, XXIII, cited in Cohn, An Anthropologist Among the Historians (n 39) 475. 142 Dickens, A Letter to the Rt. Hon. (n 112) 40. 143 Ashley Eden, Secretary to the Government of Bengal, Judicial Department, to the Secretary to the Government of India, Home Department, 1 December 1869, in Ray, The Separation of Judicial and Executive Functions (n 21) 95; and Spangenberg, British Bureaucracy in India (n 100) 112. The aim of such efforts, according to Spangenberg, was to appease Indian demands to open more civil service posts to Indian recruits while maintaining the British monopoly on executive posts. Bengal was the first province to require ICS members (after ten years of service) to choose between the executive and judicial branches. The ongoing decline in the status of the judiciary (judges were henceforth listed in an inferior position on the Civil List) led to the belief, popular among British civilians, that Indians were more suited for judicial service than the executive. Indians were rarely, however, entrusted with high judicial responsibility, even in the High Courts, where they were always paired with a British judge, who delivered the decision and left the Indian judge

130  Colonial Terror High Court judges, a third of whom were covenanted civilians and who had already reached the highest positions possible in their branch of service, were particularly prone to give vent to what they saw as the pretensions of their colleagues in the executive branch.144 Conflicts between the two arms of administration were, as a result, rife, particularly in Calcutta, where in the late nineteenth century tensions between the High Court and Lieutenant-​Governor ran so high that the executive abandoned all attempts to reform the judiciary for fear that it might destabilize British rule.145 But although they were often in conflict, there was also a subservient relationship between the judiciary and the executive. Since all judges were dependent upon provincial governments for promotion, they stood, Norton maintained, ‘in most holy dread of the censure of Government’, which served to compromise the independence of the judiciary.146 So did the fact that provincial governments intervened in judicial decision-​making in regard to cases that affected their own interests.147 Such interference included removing judges whose decisions did not meet with their favour and appealing against judicial verdicts (while judges who met with the approval of the executive were guaranteed promotion no matter what they did).148 ‘What wonder then’, Norton queried, if such courts adopt ‘the already expressed views and wishes of their masters’?149 Since as far as the ‘masters’ were concerned ‘the subjects [were] only merely to affirm it. The judiciary was, nonetheless, favoured by some Indian recruits since it gave them ‘greater freedom of action and conscience’ than was possible as an Indian member of the executive branch. Spangenberg, British Bureaucracy in India (n 100) 113–​5, 127; Sharafi, ‘The Semi-​autonomous Judge (n 29) 75; and B. B. Paymaster, ‘Service in India and Pakistan’, in Raj. K. Nigam (ed.), Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India (New Delhi: Documentation Centre for Corporate and Business Policy Research 1985), 276. 144 Spangenberg, British Bureaucracy in India (n 100) 113. The requirement that a third of High Court judges be drawn from the ICS, with a further third from the legal profession and the final third from either, was enshrined in law in 1861. Martin Wiener, An Empire on Trial: Race, Murder, and Justice Under British Rule, 1870-​1935 (New York: Cambridge 2009), f. 69, 151 (hereafter Wiener, An Empire on Trial). 145 Spangenberg, British Bureaucracy in India (n 100) 113, 345. 146 Norton, The Administration of Justice (n 42) 74. The control of the executive over judicial officers was, according to Naresh Chandra Roy, ‘immediate and direct’. District magistrates could likewise find their promotions stopped in the event they gave verdicts that went against the interests of local governments. Naresh Chandra Roy, The Separation of Executive and Judicial Powers in British India (Calcutta: M. C. Sarkar & Sons 1931), 4 (hereafter Roy, The Separation of Executive and Judicial Powers); and Interview with Manmohan Ghose, India, December, 1895, in Ray, The Separation of Judicial and Executive Functions (n 21) 169. 147 Dickens, A Letter to the Rt. Hon. (n 112) 42. 148 Dickens, A Letter to the Rt. Hon. (n 112)  93; Ruthven, Torture (n 78)  197; and Norton, The Administration of Justice (n 42) 25. See also Wiener, An Empire on Trial (n 144) 151. The provincial governments’ right of appeal against judicial verdicts was enshrined in the CPC. Such appeals were far from uncommon. As Sir J. P. Hewett revealed, during his time as Lieutenant-​Governor, the government appealed in ‘only’ seventy-​eight cases, and was successful in ‘just’ fifty seven (73 per cent) of these. Such appeals were often farcical in nature. In one such retrial, for example, in the non-​regulation province of Oudh, the accused were not present and the judges examined no witnesses—​they simply ‘read the record’, concluded that the accused were guilty, and sentenced them to death. Some courts may, however, have resisted such pressures more than others. Appendix V, ‘Extracts from House of Commons Proceedings’, 24 June 1913 and 7 August 1913, IOR/​L/​PJ/​6/​1368, File 1823, BL; and Abhinav Chandrachud, An Independent Colonial Judiciary: A History of the Bombay High Court During the British Raj, 1862-​1947 (Oxford: Oxford University Press 2015), 261 (hereafter Chandrachud, An Independent Colonial Judiciary). 149 Norton, The Administration of Justice (n 42) 75. Since there were, however, contradictory strands of legal reasoning within the judiciary, as well as what Shahid Amin refers to as ‘different orders of judicial discourse’, it was, at times, possible for judges in colonial India to act as semi-​autonomous agents. Amin, ‘Approver’s Testimony’ (n 41) 191; and Sharafi, ‘The Semi-​autonomous Judge’ (n 29) 57–​8, 61.

The Facilitators II: Law and ‘Justice’  131 “niggers” ’, as Norton put it, ‘provided a certain number of cases be decided monthly’ it did ‘not much matter how they [were] decided’.150

The Injustice of Indian Justice The union of Magistrate with Collector has been stigmatised as incompatible, but the junction of thief-​catcher with judge is surely more anomalous in theory and more mischievous in practice . . . the danger to justice, under such circumstances, is not in a few cases but in every case. In all the magistrate is constable, prosecutor and judge.151 The poor training given to both district magistrates and judges, their lack of legal knowledge, their inability to speak and read the languages in which their court proceedings were recorded (let alone the dialects of witnesses), their reliance on their subordinates, their often extreme youthfulness, not to mention the various other pressures to which they were subject, meant that it was impossible to make English law in India conform to what was perceived as ‘the dignity and integrity of its English prototype’.152 There were additional reasons that it was impossible to attain such an ideal, including colonial evidentiary norms, the elevation of medical testimony as the ultimate source of truth, the ways in which infractions of the law by the individuals responsible for upholding it (particularly the police) were largely managed extra-​judicially, through commissions of inquiry, and the lack of separation of powers between the executive and judiciary. Collectively they served to ensure that, as Radha Kumar argues, Indian courts ‘simply could not “see” ’ torture or other forms of police violence.153 To begin with the problem of evidentiary norms, according to Norton a judge in India started ‘from a diametrically opposite point to that from which he does in England’, namely the probability that ‘the witness is the witness, not of truth, but of falsehood’.154 Colonial judges had little faith, in short, in the veracity of witnesses.155 For the pioneer of Indian medical jurisprudence, William Chevers, such a propensity 150 Norton, The Administration of Justice (n 42) 8. This also explains both why the colonial regime strove to make the poor justice that it did provide a ‘paying concern’ (through, for example, stamp duty and other fees) and the lack of interest in addressing the problem of corruption, which was rife in the judicial system. According to ‘Panchkouree Khan’, the entire system only worked if it was ‘sufficiently greased by the “oil of palms” ’ (emphasis in original). Norton, The Administration of Justice (n 42) 87; and Khan, The Revelations of an Orderly (n 18) 92. See also D. A. Washbrook, ‘Law, State and Agrarian Society in Colonial India’, Modern Asian Studies 15/​3 (1981), 659. 151 Frederick Halliday, Minute, Bengal Police (Bird) Committee 1837-​38: Report, Appendices and Evidence (Calcutta 1838), Appendix, xxx, cited in Roy, The Separation of Executive and Judicial Powers (n 146) 21–​2. 152 Spangenberg, British Bureaucracy in India (n 100) 128. 153 Kumar, ‘The Many Lives of Custodial Violence’ (n 17) 1. 154 Norton, The Administration of Justice (n 42) 96. Colonial judges saw their jobs not as adjudicating truth from falsehood, but rather eliminating the false evidence on both sides and then finding what Robert Carstairs termed a ‘ “residuum” of fact . . . in the heaps of chaff ’ placed before them. Carstairs, The Little World (n 97) 14; and Mitra Sharafi, ‘The Imperial Serologist and Punitive Self-​Harm: Bloodstains and Legal Pluralism in British India’, in Ian Burney and Christopher Hamlin (eds), Global Forensic Cultures: Making Fact and Justice in the Modern Era (Baltimore, Maryland: Johns Hopkins University Press 2019), 69 (hereafter Sharafi, ‘The Imperial Serologist’). See also Cox, Police and Crime in India (n 48) 163–​9. 155 Lal, ‘Everyday Crime’ (n 29) 155.

132  Colonial Terror was pathological, since deceit was ‘inherent in the character of the lower class of natives’.156 British officials thus automatically assumed that Indians were habitual liars (with marginal members of society the worst offenders) while rarely stopping to consider, as former police official T. C. Arthur found himself doing, whether they understood the questions put to them or were misinterpreted or made to say what they did not actually mean.157 In addition, while ‘The imperturbable Briton’, Arthur reflected, ‘can be and often is shown up to public scorn when in the witness-​box, [and] can be made to contradict himself and appear bent upon prevarication’ even though ‘he is being examined by his own countryman, in his own language’, such allowances were not made for Indians (emphasis in original).158 Nor did the British consider whether their value systems or understandings of the nature of the judicial process, particularly methods of inquiry and bureaucratic procedures, differed from those of pre-​colonial India, despite considerable evidence that they did.159 Thus when in 1837 a man deposed as a witness in a case of highway robbery on behalf of the man who actually witnessed the crime (who was ill), this was a sign, for former police official Sir Edward Cox, of ‘Eastern crookedness and disregard of the truth’, not of the survival of pre-​ colonial juristic practices in which evidence by proxy was permissible.160 But whether or not Indians took colonial courtrooms, as Vinay Lal suggests, as arenas ‘akin to the banyan tree, under which men would gather and tell tales’, a mode of truth-​telling that was not amenable to legal discourse, they also became adept at mobilizing the punitive powers of colonial criminal law to their own ends, particularly in dispute resolution.161 156 Norman Chevers, A Manual of Medical Jurisprudence for Bengal and the North-​Western Provinces (Calcutta: F. Carbery, Bengal Military Orphan Press 1856), 26 (hereafter Chevers, A Manual of Medical Jurisprudence). 157 T. C. Arthur, Reminiscences of an Indian Police Official (London: Sampson, Low, Marston & Company 1894), 102 (hereafter Arthur, Reminiscences). 158 Ibid. Such musings were a product, Arthur confessed, of the wisdom of age, of having left India for good, and of seeing more of the behaviour of his own countrymen and women, all of which led him to find, when it was too late, that he and his ilk ‘must often have judged very harshly and uncharitably in India’. They were, however, rare. For Arthur’s former compatriot in the police, Edward Cox, since India was the ‘land of false accusations’ it was Europeans who were at a disadvantage in colonial courtrooms, not Indians, especially those who were poor, lived great distances from other Europeans, and knew little of the local languages and even less of the law. Arthur, Reminiscences (n 157) 102; and Cox, Police and Crime (n 48) 101. 159 Ibid; Anderson, ‘Islamic Law’ (n 36) 178; and Cohn, An Anthropologist Among the Historians (n 39) 569. When it came to value systems, while British law enshrined the notion of the equality of the individual before the law, for Indian peasants this was ‘an impossible situation to understand’. Cohn, An Anthropologist Among the Historians (n 39) 570. 160 Cox, Police and Crime (n 48) 163–​5. Cox does acknowledge that the case reveals that the ‘tradition’ of older evidentiary practices had survived in colonial India but views such a practice as a sign of the depraved ‘moral atmosphere’ that produced it. Ibid, 164, 169. 161 Lal, ‘Everyday Crime’ (n 29) 155; Radhika Singha, ‘The Privilege of Taking Life: Some “Anomalies” in the Law of Homicide in the Bengal Presidency’, The Indian Economic and Social History Review 30/​2 (1993); Kumar, ‘Policing Everyday Life’ (n 17); Carstairs, The Little World (n 97) 26–​7; and Sharafi, ‘The Imperial Serologist’ (n 154). Since evidence was a ‘marketable commodity’, such mobilization could include the help of professional witnesses, who Shrilal Shukla, in his brilliant satire of village politics in post-​independence India, Raag Darbari, suggests could ‘turn the wheels [of justice] whichever way [they] pleased’. That pre-​ colonial evidentiary norms differed considerably from those in the colonial era is demonstrated by the al-​ Hidaya, a twelfth-​century compendium of Hanafi jurisprudence that remained a key source of authority in pre-​colonial legal practice, according to which the probity of witness testimony (which could include hearsay evidence) was to be accepted by qazis except in cases that involved punishment or retaliation, which necessitated a thorough investigation of the character of witnesses; the value of witness testimony varied,

The Facilitators II: Law and ‘Justice’  133 When it came to trials relating to torture or other forms of violence, such a lack of faith in witness testimony led to medical jurisprudence, or ‘silent witnessing’, in which the body is the bearer of truth, becoming regarded as ‘the only trustworthy evidence’ in colonial courtrooms, particularly following the passage of the Coroner’s and Indian Evidence Acts in the early 1870s.162 After an aborted start in the 1830s, medical jurisprudence came into its own in colonial India, part of the ethnological turn in colonial epistemology and governance in the aftermath of the 1857 Revolt.163 Although Chevers maintained that ‘the medical jurist,—​guided here by a scratch or a blood spirt [sic], there by a dingy stain, or an almost invisible speck of powder, or a metallic film weighing the twentieth part of a grain,—​tracks out and lays bare the evidences of . . . crime, almost with the certainty of irresistible fate’, there was actually often little that was scientific about the judgment of medical experts in colonial India.164 The frequently inadequate medical knowledge of such experts, their difficulties in obtaining reliable, quantifiable evidence (thanks to the poor investigating skills of Indian police officers, their desire to avoid contact with corpses, or the climate, in which bodies decomposed rapidly), their at times questionable methods (such as trying to disprove a victim’s claim that he had been tortured by forcing him to re-​enact the torture), their frequent inability to converse in the language of torture victims, and the fact that they were often in league with the police meant that their evidence was often more moral in nature than scientific, and served more to provide legal alibis for police violence furthermore, according to the gender and religion of the witness (with that of women valued less than that of men and that of non-​Muslims than of Muslims). The punishment for perjury was stigmatization and scourging. Traditions of courtroom behaviour doubtless also differed; the Arthaśātra, for example, enjoins that when evidence against the accused was weak, and ‘when the accused is wailing much’, they should be regarded as innocent. The culture of confession also underwent a number of transformations in colonial India. Gouldsbury, Life in the Indian Police (n 40) 280; Srilal Shukla, Raag Darbari: A Novel (first published in 1968, Gillian Wright tr., New Delhi, 1992), 67; B. S. Jain, Administration of Justice in Seventeenth Century India: A Study of Salient Concepts of Mughal Justice (Delhi: Metropolitan Book Co. 1970), 17–​21; Kautilya’s Arthaśātra, 248; and Singha, A Despotism of Law (n 47) 37. 162 Christopher Hamlin, ‘Introduction:  Forensic Facts, the Guts of Rights’, in Ian Burney and Christopher Hamlin (eds), Global Forensic Cultures: Making Fact and Justice in the Modern Era (Baltimore, Maryland: Johns Hopkins University Press 2019), 15 (hereafter Hamlin, ‘Introduction’); Norman Chevers, Medical Jurisprudence for India, with Illustrative Cases (3rd edn, revised and brought up-​to-​date by L. A. Waddell, Calcutta: Thacker, Spink & Co. 1904), 1; and Jeffrey Jentzen, ‘Death and Empire: Medicolegal Investigations and Practice across the British Empire’, in Burney and Hamlin, Global Forensic Cultures, 159 (hereafter Jentzen, ‘Death and Empire’). The Coroner’s Act was passed in 1871 and the Indian Evidence Act in 1872. Expert testimony had been used in Indian courtrooms prior to the passage of these acts but had no special legal standing. 163 David Arnold, Toxic Histories:  Poison and Pollution in Modern India (Cambridge:  Cambridge University Press 2016), 100 (hereafter Arnold, Toxic Histories). 164 Chevers, A Manual of Medical Jurisprudence (n 156) 4. This was a problem that was not, however, unique to colonial India in light of the anomalies between forensic and other sciences, not least the former’s reliance on ‘practices of reasoning and concerns common to the premodern era that were jettisoned from science in the Enlightenment’, including those relating to moral accountability and intent. What was unique to India and other colonial contexts, however, was that science was regarded as being unequivocal, and that the importance of expert disagreement disregarded; colonial law also did not allow for the questioning of the reports of medical witnesses or cross-​examination of their evidence. Hamlin, ‘Introduction’ (n 162) 7; Projit Bihari Mukharji, ‘Handwriting Analysis as a Dynamic Artisanal Science: The Hardless Detective Dynasty and the Forensic Cultures of the British Raj’, in Ian Burney and Christopher Hamlin (eds), Global Forensic Cultures: Making Fact and Justice in the Modern Era (Baltimore, Maryland: Johns Hopkins University Press 2019), 88 (hereafter Mukherji, ‘Handwriting Analysis’); and Jentzen, ‘Death and Empire’ (n 162) 151.

134  Colonial Terror than to expose it.165 Although by the 1920s medical experts in India were less sanguine about the value of medical testimony, the problem remained that even though in India ‘medical legal work [was] not well done’, judges were ‘in most cases disposed to accept the statements of medical witnesses as infallible’.166 Colonial evidentiary norms and the over-​reliance on medical evidence in criminal trials help to explain why torture cases tended to fail in colonial courtrooms, but it is the colonial regime’s reliance on commissions of inquiry to deal with such cases outside the judicial system that offers important insights as to why police torturers were rarely judicially punished. District magistrates were first given power, from the early nineteenth century (through Regulation IX of 1822), to adjudicate on and punish the conduct of their subordinates. Act XXXVII of 1850, The Public Servants (Inquiries) Act (or what Norton termed the ‘impunity act’), authorized the police to carry out internal inquiries into the conduct of their officers, while section 435 of the CPC empowered sessions courts to order magistrates to undertake enquiries against the police and other public servants that had been dismissed without investigation, as well as to order the commitment of public servants who had been discharged by magistrates.167 The latter part of the section was, however, later dropped, which meant that the onus remained on magistrates to conduct inquiries into the conduct of their police subordinates.168 Though for Norton the problem with such ‘secret tribunals’ was that they were conducted without ‘strict regard to the rules of evidence and law’, and that the accused were denied the benefit of counsel, for reformer Frederic Mackarness of far greater concern was that ‘the decision as to whether a prosecution shall take place depend[ed] on the same men who conduct[ed] inquiries in the first instance’.169 Local 165 Arnold, Toxic Histories (n 163) 101; Home, Police, B, November, 40–​8, 1909, NAI; IOR/​L/​PJ/​6/​1087, File 1608, BL; Judicial Department, 16 September (no. 52), 1857, IOR/​E/​4/​847; and Jentzen, ‘Death and Empire’ (n 162) 150. Beginning in the 1870s, medical jurisprudence literature started to become more refined in its management of social categories, more experienced in its examination of forensic evidence, and more disposed to accepting contributions from Indians, but this was less apparent in the testimony of medical experts in criminal trials, as Jordanna Bailkin’s analysis of the conceptions of British doctors as to the fallibility of the Indian spleen reveals. Medical expertise was also used to counter Indian cultural, gender, and religious practices. Arnold, Toxic Histories, 105; Jordanna Bailkin, ‘The Boot and the Spleen: When Was Murder Possible in British India?’, Comparative Studies in Society and History 48/​2 (2006), 463; and Ishita Pande, ‘Phulmoni’s Body: The Autopsy, the Inquest and the Humanitarian Narrative on Child Rape in India’, South Asian History and Culture 4/​1 (2013), 9–​30. 166 Major H. W. V. Cox, I.S.O. Medico-​Legal Court Companion: A Complete Vade Mecum for Magistrates, Police Officers, Students and Members of the Legal and Medical Profession (2nd edn, Calcutta: R. L. De 1928), vii. This was true of other aspects of forensics, such as handwriting analysis, or ‘forensic graphology’, which was enthusiastically adopted by the colonial state in India at the turn of the twentieth century, the same time that it was being phased out in Britain. Judges were more sceptical, however, of indigenous forms of forensics such as tracking. Mukharji, ‘Handwriting Analysis as a Dynamic Artisanal Science’ (n 164) 87; and Gagan Preet Singh, ‘The Strange Science: Tracking and Detection in the Late Nineteenth-​Century Punjab’, in Ian Burney and Christopher Hamlin, Global Forensic Cultures: Making Fact and Justice in the Modern Era (Baltimore, Maryland: Johns Hopkins University Press 2019), 279–​301. 167 W. Theobald, The Code of Criminal Procedure, with Abstracts Prefixed to Each Chapter (Calcutta: Thacker, Spink and Co. 1861), 135. District magistrates were also given such powers in relation to subordinate magistrates. 168 The Code of Criminal Procedure, 1898 (Act V of 1898), as modified up to 1st September 1923 (Calcutta: Government of India 1925), 195. The relevant section of the code was also modified, under the 1898 revision of the act, to section 436. 169 Norton, The Administration of Justice (n 42) 60, 68; and Extract, Parliamentary debate, 4 November 1909, Home, Police, B Progs., Nos. 51–​3, Dec 1909, NAI. The Government of India did issue new rules on the subject of inquiries in July 1911, but they did little to address Mackarness’s critique since magistrates

The Facilitators II: Law and ‘Justice’  135 governments could and did carry out further inquiries when the behaviour of individual police officers attracted particular attention, but this generally involved nothing more than ‘carefully examin[ing]’ the records in a case, or issuing a Resolution on it.170 The outcome was, therefore, normally just the exoneration of the particular policemen concerned so that they could, according to Mackarness, be ‘retained as instruments of the Executive in the administration of justice’.171 A sample torture case from Bengal reveals the ways in which commissions of inquiry facilitated acts of torture by Indian police officers. In May 1909, a complaint was made before the sub-​divisional magistrate of Kishenganj, A.  W. Burnicott, by one Ekin Ali, accusing two sub-​inspectors of police in the Purnea district of Bengal of torturing his father Ranu to death.172 Burnicott, described by the Chief Secretary to the Government of Bengal as ‘an officer who though not without ability, is not possessed of the qualities which would be likely to render him successful in ascertaining the truth in an investigation of this kind’, handed the inquiry over to the police instead of investigating it himself, namely to Assistant Superintendent of Police Mr. Brett (a procedure that, according to the Chief Secretary to the Government of Bengal, was ‘in strict accordance’ with the Bengal rules regarding magisterial inquiries).173 Brett quickly declared it a false case ‘engineered against the police’ by an honorary magistrate named Kalimuddin.174 That would, normally, have been the end of the matter, but shortly thereafter Burnicott was transferred to another district, and his replacement,

and superior police officers were still empowered to carry out inquiries in regard to their own subordinates (barring ‘serious cases’ in which inquiries were recommended by more senior courts). Home, Police, Proceedings 241–​3 July 1911, NAI, cited in Anandswarup Gupta, The Police in British India 1861-​1947 (New Delhi: Concept Publishing Company 1979), 305 (hereafter Gupta, The Police in British India 1861-​1947). 170 Excerpt, Speech by the Master of Elibank, Parliamentary Debate, 23 November 1909, Home, Police, B, December, 67–​9, 1909, NAI. 171 Frederic Mackarness, The Methods of the Indian Police in the 20th Century (London: National Press Agency 1910), 12. See also Frederick Mackarness, ‘Indian Justice’, The Daily News (London, 30 July 1910), IOR/​L/​PJ/​6/​1020, File 2634, BL; and Home, Political, A, August, 159–​70, 1910, NAI. 172 A. Earle, Officiating Secretary to the Government of India, to the Chief Secretary to the Government of Bengal, 27 March 1911, and Court of Sessions Order by W. H. Vincent, Sessions Judge, Muzaffarpur, 27 June 1911, IOR/​L/​PJ/​6/​1087, File 1608, BL. Ekin Ali’s father, Ranu, was one of three suspects arrested on suspicion of committing a dacoity. The suspects were kept tied up by the police for four days and subjected to various forms of torture, following which they were bound with rope and sent to the police thana fourteen miles away. Although Ranu was in a critical condition because of his torture he was not sent to the hospital until the following day, and he died shortly after arrival. His cause of death was given as blood poisoning. I have analysed this case in more depth in ‘The Tortured Body: The Irrevocable Tension Between Sovereign and Biopower in Colonial Indian Technologies of Rule’, in Stephen Legg and Deana Heath (eds), South Asian Governmentalities: Michel Foucault and the Question of Postcolonial Orderings (Cambridge: Cambridge University Press 2018), 222–​44. 173 C.  J. Stevenson-​Moore, Chief Secretary to the Government of Bengal, to the Secretary to the Government of India, Home, 16 May 1911, IOR/​L/​PJ/​6/​1087, File 1608, BL. 174 Ibid. Honorary magistrates, who were Indian elites co-​opted by the colonial regime as a means of gaining access to local knowledge and power structures, had a reputation for intrigue. For the Indian satirist and strong critic of British rule, Wilayat Ali (who wrote under the nom de plume ‘Bambooque’), the honorary magistrate was ‘a triumph of blatant but unconvincing loyalty, a justification of weekly salams to the Bara Sahib . . . the apotheosis of intellectual inanity, and an official recognition of native imbecility’. Wilayat Ali Bambooque, ‘The Revenue Agent’, Comrade (Calcutta, 18 May 1911), in Mushirul Hasan, The Awadh Punch: Wit and Humour in Colonial North India (New Delhi: Nyogi Books 2007), 125. See also Carstairs, The Little World (n 97) 109–​11.

136  Colonial Terror G. S. Dutt, ordered a further inquiry.175 Upon the case finally being sent up for trial it was thereafter moved to two different jurisdictions following complaints by Ali that it would not receive a fair trial in either of them (in the second jurisdiction, Purnea, the Commissioner of the Division gave the district magistrate his opinion on the case, as the latter was preparing to send it to trial, and the magistrate of Purnea then wrote to the district magistrate of Darbhanga, where the case was proceeding, to the effect that the case was false) before finally being tried the following year.176 Since such interferences and delays ensured that it was ‘almost impossible to get at the real facts of [the] case’ the accused were discharged.177 In the face of a public outcry in the Indian press and questions in Parliament, the Government of Bengal then ordered yet another inquiry. The individual who carried it out, however, Sessions Judge W. H. Vincent, who although he as good as admitted that Ranu had been tortured by the police, declared that the case had become too protracted and that it was of ‘such a character that it would be impossible for any court to convict on it’.178 Three police officers were later given minor, departmental punishments, but for failing to follow the correct procedures in restraining Ranu, not for torturing him to death.179 Apart from the ways in which commissions of inquiry served to facilitate rather than punish police torture, Ranu’s case also reveals the ways in which the lack of separation of powers between the executive and judiciary contributed to such a process. Considering the long and torturous history of the separation and unification of powers in colonial India, as well as of how important the issue became to the anti-​colonial nationalist movement from the time of the second session of the Indian National Congress in 1866, it is surprising that little scholarly attention has been devoted to it.180 The duties of collector, magistrate, and judge were first united under Governor-​ General Warren Hastings (1772–​1885), although the role of collector was separated from that of judge under the Cornwallis Code in 1793.181 While there were innumerable shifts in the powers accorded to collectors and judges in the various provinces in 175 Ibid. It is not clear why Dutt did this, particularly since he risked the ire of Brett. Under section 437 of the CPC a re-​inquiry could only be ordered by the high court, the sessions judge, or the district magistrate. Such a ‘technical irregularity’ was, however, ignored. But while undertaking the inquiry Dutt became ill and was replaced by Deputy Magistrate K. B. Goassin, who took another four months to send the case for trial. 176 A. Earle, Officiating Secretary to the Government of India, to the Chief Secretary to the Government of Bengal, 27 March 1911, IOR/​L/​PJ/​6/​1087, File 1608, BL. 177 The case was dismissed by Judge I. L. R. Lucas on the grounds both that the witnesses were part of a plot to conspire against the police and that Ranu had caused his own death through rubbing his arms against his bindings, which led to blood poisoning. ‘The Emperor v. Fazilat Hussain and Abdul Ghani’, 28 February 1911, IOR/​L/​PJ/​6/​1087 File 1608, BL. 178 Court of Sessions Order by W. H. Vincent, Sessions Judge, Muzaffarpur, 27 June 1911, IOR/​L/​PJ/​6/​ 1087, File 1608, BL. 179 T. M., Minute, 25 May 1911, IOR/​L/​PJ/​6/​1087, File 1608, BL. 180 For a recent exception see Chandrachud, An Independent Colonial Judiciary (n 148), although he contends that the Bombay judiciary had considerably more autonomy than I am arguing was the case for India as a whole during the colonial period. For the first resolution of the Indian National Congress calling for a separation of powers between the executive and judiciary (one of many), see The Indian National Congress, Part II (2nd edn, Calcutta: G.A. Natesan & Co. 1917), 7; and Sir Arthur Hobhouse et al. to Lord George Francis Hamilton, Secretary of State for India, 1 July 1899, in Ray, The Separation of Judicial and Executive Functions (n 21) 252. 181 The role of magistrate was, in this period, transferred to judges (although they were divested of this in 1810), as was the responsibility for police administration. Ray, The Separation of Judicial and Executive Functions (n 21) 11–​12; and Gupta, Crime and Police in India [Up to 1861] (n 62) 69.

The Facilitators II: Law and ‘Justice’  137 the next several decades, by the 1830s collectors had all been transformed, once again, into district magistrates with responsibility for revenue, policing, and the judgment of minor criminal cases, with sessions judges responsible for appeals from the decisions of magistrates as well as for civil and more important criminal cases.182 As J. C. Madan remarks in regard to this period in colonial Indian history, ‘the responsibilities of the criminal judge and the police magistrate were flung about from one class of public functionaries to another, as though it mattered not by whom they were assumed as an appendage to other graver duties’, a sign that for the Company ‘the question of protection of life and property was . . . of minor importance’.183 Such an incongruous union of police responsibilities and criminal justice, not to mention revenue duties, continued despite the fact that it created a workload that was far too great for any single individual to manage and that revenue collection assumed priority over justice or policing.184 Although the collection of revenue was separated from magisterial duties in Bengal following the recommendations of the 1838 Police Committee, what were termed joint magistrates retained responsibility for both judicial and policing duties, and both offices were again reunited in 1859.185 Such a move contravened, as we have seen, the recommendations of the Madras torture commission, although in the case of Madras revenue, magisterial, and judicial duties were separated the same year that they were reunited in Bengal. As for the rest of India, the 1860 Police Commission recommended that ‘the rule should always be kept in sight that the official who collects and traces out the links in the chain of evidence . . . should never be the same as the Judicial Officer [sic] . . . who is to sit in judgment on the case’.186 The commission insisted, however, that police and judicial functions should remain united in the heads of districts, a proposal that it urged was not objectionable since the police would be kept departmentally distinct under the command of their own officers.187 It was for this reason that the post of superintendent of police, to whom the task of administering the police was given, was enshrined in the 1861 Police Act. But Superintendents were required to work, as the Government of Bengal put it, ‘under the general control and direction’ of district magistrates in the

182 Raghunath Jha, District Administration in British India (1793-​ 1833):  A Case Study of Bihar (Muzaffarpur: Books International 1984), 98. In Madras the roles of magisterial and policing duties, as well as of revenue, were reunited in collectors as early as 1816 (which meant, for Gupta, that ‘police officers became practically free of supervision altogether’’). Gupta, Crime and Police in India [Up to 1861] (n 62) xviii. 183 J. C. Madan, Indian Police:  Its Development up to 1905 an Historical Analysis (New Delhi:  Uppal Publishing House 1980), 27. 184 Roy, The Separation of Executive and Judicial Powers (n 146) 11. 185 Gupta, Crime and Police in India [Up to 1861] (n 62) 274; and Roy, The Separation of Executive and Judicial Powers (n 146) 13–​14. In Non-​Regulation provinces, according to one colonial official, the situation was even worse, since there was a ‘total obliteration of almost all distinction whatever between the executive and the judicial. The same individual is, from the first, Civil Judge, Magistrate, Revenue Officer and everything else, and so he continues with gradually increasing powers throughout his service.’ R. B. Chapman, Esq., Officiating Commissioner of the Presidency Division, to the Secretary to the Government of Bengal, Judicial Department, 14 February 1867, in Ray, The Separation of Judicial and Executive Functions (n 21) 81. 186 First Report of the Police Commission (Government of India, 1860), 13. 187 Ibid. According to Mr. Hartington, a member of the newly created Imperial Legislative Council, the Police Commission had no real intention to ‘propose to give effect to the principle of practically separating the duties of the Executive Police from those of Magistrates’. Speech by Hartington, Legislative Council of India, 6 October 1860, in Ray, The Separation of Judicial and Executive Functions (n 21) 51.

138  Colonial Terror detection and prevention of crime.188 This meant that the Indian and other provincial police acts had merely served to effect a ‘quasi-​separation’ of powers, since district magistrates still directed the ‘modes of the action of the Police’, and took ‘as much interest in pursuing and bringing to trial criminals’ as police superintendents (emphasis added).189 The 1902–​1903 Police Commission added to the by then voluminous recommendations regarding the importance of severing executive from judicial power (so that ‘the Official who collects and traces out the links of evidence . . . should never be the same as the Officer . . . who is to sit in judgment on the case’) but it, too, was unable to bring itself to extend such an injunction to district magistrates, since according to the commissioners, in addition to serving as an important link between the executive and judicial arms of the state, such officers also exercised important pastoral power through their ‘beneficial influence of personal supervision, advice and encouragement’. 190 The Government of India concurred, determining that it was necessary that the police be completely under the control of the district magistrate so that he had ‘unquestioned power’ to employ them as he sought fit.191 The 1908 Royal Commission upon Decentralisation effectively closed off any further efforts to separate police from magisterial duties at the district level through its urging that district magistrates assume ‘more intimate’ control over the police.192 The struggle over whether executive and judicial responsibilities, not to mention revenue duties, should be united in the same set of officials lasted, therefore, for more than a century. Though critics argued, on the one hand, that the union of magistrate and collector, or thief catcher and judge, was a ‘monstrous combination of incompatible authorities’ that led to grave abuses and injustice (since magistrates were ‘bound to uphold the action of [their] subordinates be they right or wrong’), their adversaries side-​stepped issues of justice by arguing that a division of powers was ‘foreign and unintelligible to Asiatic notions’.193 Opponents of the union of powers were for the most 188 Extract from Resolution of the Government of Bengal on Act V of 1861, 22 September 1862, Home, Police, A, April, 27–​32, 1864, NAI. Police superintendents already existed, however, in presidency towns—​ as early, in Calcutta, as 1808 (although the post was abolished in 1829). Madras likewise adopted the post of superintendent in its 1859 Police Act, but the Act placed superintendents firmly under the orders of the district magistrate, as was the case in Bombay through Bombay Act IV of 1890. In Bengal superintendents were made subordinate to district magistrates in 1867 due to the concerns of the Lieutenant-​Governor, Sir George Campbell, that the divided authority between magistrates and superintendents had undermined the authority of the former. Such a shift happened slightly later in the North-​Western Provinces, in 1876, when according to the North-​Western Provinces Police Commission superintendents were ‘constituted as the Magistrate’s Police Assistant, nothing more’. Report of the Indian Police Commission, 1902-​1903 (n 85) 8, 10, 77; Gupta, The Police in British India 1861-​1947 (n 169) viii, 31; and Report of the Committee Appointed by Government under Resolution (n 85) 6. 189 J.  Mouro, Esq., Officiating Collector and Magistrate of Jessore, to the Under-​Secretary to the Government of Bengal, 27 May 1868, and C. F. Montressor, Esq., Commissioner of the Burdwan Division, to the Secretary to the Government of Bengal, Judicial Department, 19 January 1867, in Ray, The Separation of Judicial and Executive Functions (n 21) 99, 77–​8. 190 Report of the Indian Police Commission, 1902-​1903 (n 85) 13, 81. 191 Resolution on the Report of the Indian Police Commission, Government of India, Home Department, Police, 248–​59, 21 March 1905, IOR/​L/​PJ/​6/​716, File 998, BL. 192 Roy, The Separation of Executive and Judicial Powers (n 146) 18. 193 ‘Employment of Torture in India’ (n 139)  114; F.  J. Halliday, Minute, 1838, and Minute, 30 April 1856, in Ray, The Separation of Judicial and Executive Functions (n 21) 14, 18; and Report of the Committee Appointed by Government under Resolution (n 85) 74.

The Facilitators II: Law and ‘Justice’  139 part, however, able to make little headway because of the tension that existed among colonial officials between two different models of policing and governance. One of these, namely ‘to prevent crime and disorder’, required a severance between the police and judicial authorities, but the other, which was for the police to be ‘protective and repressive’, did not.194 Although the colonial state idealized the former as compatible with norms of liberal governance, the needs of a regime of conquest made attaining it impossible.195 It was not until the 1860s, however, that anyone was willing or able to articulate this. Sir James Fitzjames Stephen, then Law Member of the Governor-​General’s Council, put the matter baldly by arguing that punishment was central to the operation of sovereign power. ‘All the world over the man who can punish is the ruler’, Stephen averred; to deprive district magistrates, who had ‘no relations at all to the people’, of such power threatened, therefore, the very maintenance of British rule.196 Law could only be maintained, for Stephen, through one of two ways, either ‘the strong personal influence of Magistrates . . . or by an enormously increased military force’.197 This meant that law was only able to come into existence through official discretion—​through, in other words, the undivided and autocratic power of district magistrates—​who, as Stephen bluntly stated, ‘are the Government’ (emphasis added).198 It was for such reasons that what Sir Richard Garth, former Chief Justice of Bengal, referred to as a ‘scandalous system’ was ultimately approved of by the colonial regime.199 When it came to torture, therefore, the tremendous powers of official discretion accorded to what one critic described as the ‘autocratic chiefs’ tasked with upholding the law, not to mention the failings in the law and the various ways in which, as I have shown, legislative power was eclipsed, ensured that the criminal justice system in colonial India created a virtual culture of impunity for its enactment.200

194 Memorandum, n.d, Home, Legislative, April, B, 6, 1861, NAI. 195 It was standard practice, for example, to refer the verdicts of criminal trials to the Court of Directors for confirmation up to the end of Company rule, despite objections of the Court that this was ‘neither suitable to the functions of an executive Government, nor satisfactory as the means of administering the law’. India, Judicial Department, 29 October 1856, IOR/​E/​4/​839, 1339, 1856. 196 Sir Fitzjames Stephen, Minute on the Administration of Justice in India, No. XXXI of the Selections from the Records of the Government of India, Home Department, 1872, in Ray, The Separation of Judicial and Executive Functions (n 146) 138. 197 Herbert J. Reynolds, article in India (November 1896), in Ray, The Separation of Judicial and Executive Functions (n 21) 207. Such a statement reveals that the British understood that ‘the best laws in the world, administered by unlearned and unpractised Judges, can never be successful’. Rivers Thompson, Officiating Superintendent and Remembrancer of Legal Affairs to the Secretary to the Government of Bengal, 25 July 1868, in Roy, The Separation of Executive and Judicial Powers (n 146) 115. 198 Sir Fitzjames Stephen, Minute on the Administration of Justice in India, No. XXXI of the Selections from the Records of the Government of India, Home Department, 1872, in Ray, The Separation of Judicial and Executive Functions (n 21) 139. As Roy observed, the lack of separation of powers served, therefore, to ‘cloak the executive in tyranny’. Roy, The Separation of Executive and Judicial Powers (n 146) 4. 199 Sir Richard Garth, Letter to the Editor, India, 8 December 1895, in Ray, The Separation of Judicial and Executive Functions (n 21) 162. For Garth ‘if the Government had its will, the independence of the judges would be still further controlled, and the High Courts themselves made subservient to the will of the Executive’. Ibid. 200 Herbert J. Reynolds, n.t., India (November, 1896), in Ray, The Separation of Judicial and Executive Functions (n 21) 207.

4

The Perpetrators Strive not to make unlawful gains, Nor send the guiltless bound in chains. If one reports his wrongs to thee, Without the gift of a rupee, Words abusive do not use, Nor do his just request refuse . . .  To gain a fourth of plunderer’s spoil, Let not thieves rob the sons of toil . . .  From truth the bard will not refrain, All threats to do him harm are vain.1

The undoubtedly sanitized ‘Ode to the Police Darogah’, compiled originally in Urdu by a company of actors and found circulating in 1890 in Agra, contained nineteen refrains that detailed the depredations wrought by what were by then officially referred to as inspectors, who were officers in charge of thanas.2 These included extortion, false conviction, filing false complaints, conniving in robberies, entrapment, verbal abuse, extracting sexual and other favours, the mistreatment of subordinates, and a general lack of morals (although the ode does not, intriguingly, refer to torture).3 Such behaviour was possible, the last line implies, because of the immense power inspectors accrued by virtue of their position. I have already examined some of the ways in which extra-​legal violence by the police was facilitated by the colonial regime. But as Chapter 1 suggests, although violence is normativized in exceptional spaces, the mere creation of such a space does not explain the particular forms that violence takes, 1 ‘Ode to the Police Darogah’, cited in Report of the Committee Appointed by Government under Resolution (Police Dept). No. 373/​VIII-​186A-​2, dated 6th June 1890 to Enquire into Certain Questions Connected with the Police Administration of the North-​Western Provinces and Oudh (Allahabad: North-​Western Provinces and Oudh Government Press 1891), 18 (hereafter Report of the Committee Appointed by Government under Resolution). See also John Beames, Memoirs of a Bengal Civilian (London: Chatto and Windus 1961), 150. Such a portrait of the men who, in the view of Robert Carstairs, were the government officials ‘best known to the people of the land’, was on a par with British perceptions of them. For the Lieutenant-​Governor of Bengal, Ashley Eden, darogahs were ‘harpies . . . who swooped down on a village as a vulture on a carcass’. Robert Carstairs, The Little World of an Indian District Officer (London: Macmillan and Co. 1912), 27, 29 (hereafter Carstairs, The Little World); see also Basudev Chatterji ‘The Darogah and the Countryside: The Imposition of Police Control in Bengal and its Impact (1793-​1837)’, The Indian Economic and Social History Review 18/​1 (1981), 19–​42. 2 Report of the Committee Appointed by Government under Resolution (n 1). 3 Ibid. That the ode does not refer to torture may be because torture was largely regarded by the Indian public as something the police did to individuals who were presumed guilty of an offence, in contrast to the other exactions wrought by darogas on the Indian public at large. Colonial Terror. Deana Heath, Oxford University Press (2021). © Deana Heath. DOI: 10.1093/​oso/​9780192893932.003.0005

The Perpetrators  141 or how it is differentiated based on the race, gender, class, caste, or age of the individuals subjected to it. Colonial governmentality may, in other words, have imbued the Indian police with sovereign power, but this does not explain how the police used such power—​particularly since torture rests on what Foucault refers to as ‘a whole quantitative art of pain’, one which ‘correlates the type of corporal effect, the quality, intensity, [and] duration of pain’ with a host of other factors including the status of the victims and, when it comes to torture perpetrated by officials, the nature of such victims’ purported offences.4 My aim in this chapter is, therefore, twofold. It is, firstly, to elucidate the specific factors that transformed Indian police officers into perpetrators of torture. But it is also, secondly, to understand exactly who they tortured, and—​since ‘[e]‌xplaining how torture happens is a fairly reliable check on misleading and mistaken stories of why torture happens’ in view of the ways in which torture methods vary according to the goals and ambitions of the torturers—​how they did so.5 My goal is to explicate, in other words, the agency of the torturers, and why they chose to do what they did. In order to tease out such issues I will return to a torture case from 1839 that I briefly examined in Chapter 2, in which four police peons were sentenced to considerable prison terms while their kotwal, shielded by his superiors, escaped unscathed.6 On 22 February 1839, a former bullock maistry (a subcontractor or foreman), Mutusamy, a member of the Vellāla caste who had been attached to a detachment of sappers based at the cantonment in Ootacamund, in the Madras Presidency, reported a theft of Rs. 400 and some jewellery to the cantonment’s kotwal, a Rajput named Koopasing. Although the theft was considerably outside his jurisdiction, Koopasing assumed the investigation on the grounds that the tahsildar of the talook (revenue district) in which Kulhutty was situated had sent word that he should investigate the case—​a decision he made, according to Mutusamy’s brother Pallanee Andee (one of the five later convicted of torture), after determining exactly who had been robbed and what amount had been stolen—​and that Captain Baddam, his previous Superintendent of Police, had taken charge of several cases at Kulhutty.7 But according to Joint Magistrate T. W. Goodwyn, Koopasing had held his post as cantonment kotwal for several years and

4 Giorgio Agamben, Homo Sacer:  Sovereign Power and Bare Life (Daniel Heller-​ Roazen tr., Stanford: Stanford University Press 1998), 174; and Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan tr., New York: Vintage Books 1979), 34. 5 Darius Rejali, Torture and Democracy (Princeton and Oxford:  Princeton University Press 2007), 21 (hereafter Rejali, Torture and Democracy). As Patrick Lenta contends, it is vital to understand the type of torture in question before it is possible to determine how to regard it. Patrick Lenta, ‘Symposium: Torture and the Stoic Warrior: The Purposes of Torture’, South African Journal of Philosophy 25/​1 (2006), 49 (hereafter Lenta, ‘Symposium’). 6 IOR/​F/​4/​1930/​82995,  BL. 7 T. W. Goodwyn, Joint Magistrate to the Acting Magistrate of Malabar, 2 October 1840, Extract from the Proceedings of the Foujdaree Udalaut, 26 January 1841, and Statement of Pallanee Andee taken before the Acting Magistrate of Malabar, H. V. Conolly, 26 December 1840, IOR/​F/​4/​1930/​82995, BL. The new superintendent of police, Captain Gunning, who had only been in his post a few days when the case arose, sanctioned Koopasing’s assumption of it because he was insufficiently familiar with his duties and was essentially reliant on the knowledge and experience of the kotwal to carry them out. Captain Gunning, Superintendent of Police, Ootacamund, to T. W. Goodwyn, Esq., Joint Magistrate, 14 March 1840, IOR/​F/​4/​ 1930/​82995,  BL.

142  Colonial Terror so would have been well aware that he had no jurisdiction whatsoever at Kulhutty.8 What drove Koopasing to exceed his authority and risk punishment (it eventually cost him his job) was, Goodwyn claimed, that ‘he wished to hook the case within his cognizance’; the maistry had formerly worked for the same employers as Koopasing, was wealthy, and ‘wished that . . . his late fellow servant should examine into the case, as the complainant had money to bribe’.9 Koopasing was not, however, the only recipient of the maistry’s largesse, since there were, according to Goodwin, ‘numerous individuals in the Cutwal’s [sic] choultry ready to commit acts of such barbarity as can be only accounted for on the supposition that the Bullock Maistry had offered them a high reward in case they recovered the stolen property’.10 Such individuals included two peons who went to Kulhutty and, with the aid of Mutusamy’s son and two other local elites (all Vellālas), rounded up potential suspects. These included Chinoo Aucharry, a twenty-​year-​old Karumān blacksmith and carpenter, who had recently made a lock for Mutusamy’s money box (which had been broken into using a duplicate key), and the twenty -​year-​old woman he cohabited with, Govindoo, a Reddy by caste and coolie by profession.11 A third suspect, Maroodayee, was rounded up on the grounds that two rings, which she had recently pawned to Mutusamy, were part of the stolen loot, and that her son, a boy named Shunmoogam, was used by Chinoo to act as a look-​out during the robbery.12 In his statement to Govinda Rai, an officer at the Nilgiri talook, Chinoo claimed that the five men came to his house, accused him of theft, and took Rs. 1.5 in cash from him, along with two items of silver jewellery worth Rs. 5, which he had in pawn, a brass key, and a black roomal (handkerchief).13 The men then began to torture Chinoo, torture that lasted for three days and only ended when their victim tried to commit suicide. Chinoo was, to begin with, partially stripped, tied up (with his hands behind his back), suspended from the roof of the house of one of his torturers with heavy stones placed upon his back, and then beaten.14 After several hours of this treatment he was handcuffed and taken to 8 T. W. Goodwyn, Joint Magistrate to the Acting Magistrate of Malabar, 2 October 1840, Extract from the Proceedings of the Foujdaree Udalaut, 26 January 1841, IOR/​F/​4/​1930/​82995, BL. 9 Ibid. 10 Ibid. A choultry is a police station/​office. 11 Although Govindoo referred to herself and was referred to as Chinoo’s wife, she informed police officer Govinda Rai that Chinoo was ‘not of my caste but . . . I have lived with him for 2 years’. Karumāns were a sub-​group of the Kammālan caste, an artisanal caste that claimed Brāhman status. Reddys were historically land-​owning members of the ruling castes of southern India, although their varna designation (place in the caste system) is both complex and contested, since although they held a status in society analogous to that of kshatriyas in north India they were considered Sat-​shudras, or clean/​high-​ caste Shudras in the caste system as it operated in south India. Statement by Govindoo to Govinda Rai, Neilgherry Talook, n.d., IOR/​F/​4/​1930/​82995; Edgar Thurston, Castes and Tribes of Southern India, Vol. III (Madras: Government Press 1909), 108 (hereafter Thurston, Castes and Tribes); Rammanohar Lohia, The Caste System (Hyderabad: Navahind 1964), 93–​4, 103, 126; Paula Richman, Questioning Rāmāyanas: A South Asian Tradition (Berkeley: University of California Press 2001), 176; and Ghanshyam Shah, Caste and Democratic Politics in India (London: Anthem Press 2004), 83. 12 Foujdaree Adalut, Southern Division, 1840, 1st Sessions, Trial No. 10, Auxiliary Court in the Zillah of Salem, Present W. Harrington Esq., 3rd Judge, and Syed Mahomed Maoof Mufty, 20 May 1840, IOR/​ F/​4/​1930/​82995, BL (hereafter Foujdaree Adalut, Southern Division, 1840, 1st Sessions, Trial No. 10). Maroodayee denied that her son had ever acted as a look-​out in the robbery. Statement by Maroodayee to Govinda Rai, Neilgherry Talook, n.d., OR/​F/​4/​1930/​82995, BL. 13 Statement by Chinnaroosam to Govinda Rai, 6 April 1840, IOR/​F/​4/​1930/​82995, BL. 14 Ibid.

The Perpetrators  143 Ootacamund, where he spent a night locked up in the kotwal’s choultry. The next day he was returned to Kulhutty and was subjected to the same treatment. When, during a brief break from his torture ordeal, he was still unable to show his torturers where, in the village or its environs, he had supposedly hidden the stolen money, his torturers ‘defiled [his] caste by striking the brammanical thread’ that he was wearing.15 He was returned to the choultry again that night, but on the third day his torturers tried a new and, in Goodwyn’s words, more ‘cruel and barbarous’ tactic.16 Chinoo was again suspended, but this time so were his wife and Maroodayee, despite the protests of one of the peons as to the impropriety of treating women in such a manner; the three were then beaten with nettles and a fire was lit under them.17 They were then stripped naked, had ground chillies smeared on their genitals and other body parts, and Govindoo was ‘ordered to suck the penis of [her] husband and he to lick [her] pudenda’ (at which point one witness, a middle-​aged Muslim named Shaik Madar, was overcome by shame and withdrew from the proceedings).18 When such treatment still failed to elicit a confession, the torturers ‘wrapped some cloth round a wooden peg of the length of a span, daubed chilly on it’ and threatened to sexually assault Govindoo with it, while Pallanee Andee swore to ‘deprive [her] of [her] reputation’ (i.e., rape her).19 Such a threat elicited the desired response, since Chinoo thereupon informed his torturers that he had given the stolen property to a local arrack vender.20 When the arrack vender was confronted, however, he denied all knowledge of the theft, which led to renewed threats by the torturers that they would drive a wooden peg into Govindoo’s vagina and ‘light fire to a piece of oily cloth wound over the penis’ of Chinoo.21 Chinoo, by this point ‘sick from fear’, asked to go out to relieve himself, but instead cut his throat with a broken bottle.22 Although Shaik Madar put charcoal powder on the wound and bound it up with Chinoo’s roomal, Chinoo was in such a serious state that he needed to be carried in a dhooly (sling) by four coolies—​not to be taken to hospital, however, but to the kotwal’s choultry some distance away in Ootacammund.23 Chinoo was, eventually, taken to hospital, although Govindoo and Maroodayee were detained for three more days before being released. Yet despite such efforts to solve the crime no one was, ultimately, prosecuted for it. According to Peter Suedfeld, there are five rationales for the use of torture: to force victims to provide information; to force them to incriminate themselves or others; to 15 Ibid. 16 T. W. Goodwyn, Joint Magistrate, Tellicherry, to the Officer Commanding Neilgherries, 30 June 1840, IOR/​F/​4/​1930/​82995,  BL. 17 Statement by Chinnaroosam to Govinda Rai, 6 April 1840, IOR/​F/​4/​1930/​82995, BL. Maroodayee’s son Shunmoogan was also tied up, although not suspended. 18 Foujdaree Adalut, Southern Division, 1840, 1st Sessions, Trial No. 10 (n 12). A  rupee found on Govindoo while stripping her was also taken by the torturers. 19 Statement by Govindoo to Govinda Rai, Neilgherry Talook, n.d., IOR/​F/​4/​1930/​82995, BL. 20 Ibid; and Statement by Chinnaroosam to Govinda Rai, 6 April 1840, IOR/​F/​4/​1930/​82995, BL. Arrack is a distilled alcoholic drink. 21 Foujdaree Adalut, Southern Division, 1840, 1st Sessions, Trial No. 10 (n 12). 22 Statement by Chinnaroosam to Govinda Rai, 6 April 1840, IOR/​F/​4/​1930/​82995, BL. 23 Ibid. The exact distance between Kulhutty and the choultry is unclear, since it is variably referred to in the documents on this case as several miles, six miles, and nine miles. It was at the choultry that Govindoo was subject, again, to theft, since she had a ring taken from her.

144  Colonial Terror indoctrinate them; to intimidate and subjugate them and, often, others as well (which is why torturers often ensure that the treatment meted out to their victims is made publicly known); and to isolate both the torturer(s) and their victims (in order ‘to convince both the captor and the captive that they have nothing in common with the other, not even a common humanity’).24 But whatever the rationale, there are also a number of what Suedfeld refers to as ‘major components’ of torture, namely the attempt to: debilitate victims (through, for example, hunger, fatigue, denying them medical attention, subjecting them to the elements, or beating them); cut victims off from potential sources of support (including through stripping them of their dignity and status); keep victims in a constant state of anxiety and fear (through the use not only of physical pain but threatening them or forcing them to witness the maltreatment of others); and disorient victims to generate a state of confusion and uncertainty.25 The torture itself can take many forms, including both the active and passive infliction of pain (the latter of which involves, for example, tying victims up, confining them, forcing them to remain in uncomfortable positions, exposing them to extreme heat or cold, or suspending them by the hands or feet), the inducement of fear (through such means as near drowning or suffocation), mental torture (such as threats of death, rape, or captivity, forcing victims to watch others being tortured, or humiliating them through violating their religious beliefs or forcing them to engage in acts such as eating excrement or public nudity), or a combination of physical and mental torture (such as, for example, through various forms of sexual torture).26 Although, as Douglas Peers argues, torture was employed in colonial India primarily for three reasons, namely to force peasants to pay their revenue demands, to secure confessions, and for private gain or revenge, as the above case demonstrates it was driven by virtually all of the rationales that Suedfeld outlines and consisted of all of the components; the torture inflicted, moreover, included active, or physical forms, as well as passive ones, including the inducement of fear and mental torture.27 The case also raises, complicated questions about the motives of the police torturers, as well as their accomplices. Although the behaviour of police torturers makes the police appear, as police recruit Trilok Nath later regarded them, as ‘a lot of sadists’, this is far too simplistic an explanation as to what, exactly, they were doing and why—​ of why, in other words, they resorted to torture to attempt to extract confessions from their suspects, why they chose the particular targets they did, and why they resorted to particular forms of torture.28 Who, furthermore, were the police enacting such violence on behalf of? Were they acting in an official capacity, as state agents, or as autonomous—​or semi-​autonomous—​agents? How, in addition, do we understand the 24 Peter Suedfeld, ‘Torture:  A Brief Overview’, in Peter Suedfeld (ed)., Psychology and Torture (New York: Hemisphere Publishing Co. 1990), 2–​3. 25 Ibid, 3. 26 Ibid, 9. What defines an act as torture, for Patrick Lenta, is that it involves the intentional infliction of physical pain or psychological distress on victims who are at the complete mercy of their torturers and who do not share in the purposes for which it is inflicted. Lenta, ‘Symposium’ (n 5) 49. 27 Douglas Peers, ‘Torture, the Police, and the Colonial State in the Madras Presidency, 1816-​55’, Criminal Justice History: An International Annual 12 (1991), 35 (hereafter Peers, ‘Torture, the Police’). 28 Trilok Nath, Forty Years of Indian Police (New Delhi: Concept Publishing Company 1981), 11 (hereafter Nath, Forty Years of Indian Police). Nath formed such an impression of the police as a young man during the agitation over the 1928 Simon Commission and its aftermath.

The Perpetrators  145 motivations and rationales of the violence workers themselves? Answering such questions requires investigating what Ervin Straub refers to as the ‘three levels’ of torture.29 The first level involves the individual torturers themselves, which necessitates ascertaining the psychological factors and motivations that can turn an individual into a torturer.30 The second level pertains to the group, which entails analysing the particular group dynamics and institutional structures that lead to the generation of what we might term cultures of torture among particular groups.31 The third and final level relates to culture and history, which requires examining ‘the characteristics of culture and historical processes within a society that give rise to psychological processes and motivations that are likely to lead to extreme harm doing’.32 I will evaluate the role of all three of these levels in transforming Indian policemen into torturers, but in light of the difficulty of recovering the psychology of individual perpetrators from the colonial archive I will concentrate on the second two, and will start with the historical and cultural characteristics that provided the motivation for, or psychological processes that enabled, ‘extreme harm doing’ by the police in colonial India.

Historical and Cultural Characteristics that Enabled the Indian Police to Engage in Extreme Forms of Harm Doing The confrontation between the torturer and the tortured is feudal—​that is authoritarian and despotic—​because . . . there is no room here for the liberal manner of argument:  ‘on the one hand’/​‘yet on the other’. The freedom of choice that the persecutor can allow his victim must be strictly limited, and the terms of his message are simply: ‘either’/​‘or’—​either the torturer’s point of view or pain.33 Prior to the colonial era the responsibility for policing in India was vested, in rural areas, not only in faujdars but also in large landowners (such as zamindars, poligars, and munewars), the latter of whom, with the aid of their often large bands of militarized servants, were expected to put a stop to disturbances of the public peace and restore stolen property or compensate victims for its loss.34 Villagers also shared 29 Ervin Straub, ‘The Psychology and Culture of Torture and Torturers’, Psychology and Torture, Peter Suedfeld (ed.,) (New York: Hemisphere Publishing Co. 1990) (hereafter ‘The Psychology and Culture of Torture and Torturers’). 30 Ibid, 51. 31 Ibid. 32 Ibid. 33 Ranajit Guha, ‘On Torture’, in The Small Voice of History: Collected Essays (Delhi: Permanent Black 2002), 569. 34 Report of the Indian Police Commission, 1902-​03 (Simla: Printed at the Government Central Printing Office 1903), 4 (hereafter Report of the Indian Police Commission, 1902-​03); N. Majumdar, Justice and Police in Bengal 1765-​1793: A Study of the Nizamat in Decline (Calcutta: Firma K. L. Mukhopadhyay 1960), 52 (hereafter Majumdar, Justice and Police in Bengal); and Anandswarup Gupta, Crime and Police in India [Up to 1861] (Agra: Sahitya Bhawan 1974), 12 (hereafter Gupta, Crime and Police in India [Up to 1861]). On the complex and reciprocal social, economic, and military obligations between zamindars, their subordinates and their superordinates during the Mughal era see Irfan Habib, The Agrarian System of Mughal India,

146  Colonial Terror responsibility for policing (including for making up the value of stolen property, a means of preventing their collusion with thieves), which was embodied in the headman assisted by village watchmen who, according to the 1902–​1903 Indian Police Commission, were ‘the real executive police of the country’.35 In addition, villagers made payments to plundering groups to prevent depredations from their members.36 In the towns police administration was entrusted to kotwals, who maintained large establishments of peons and who, like their rural counterparts, were responsible for making good the value of stolen property if they were unable to restore it.37 The stakes for zamindars, the police, and villagers should they fail to locate stolen property meant that torture was part of the repertoire of policing, although since the duties of pre-​ colonial police were far more limited than they became in the colonial era (in which police duties were far broader than was the case in Britain) their power to inflict torture was considerably more restricted.38 But with the disintegration of the existing feudal order in the eighteenth century such a system broke down, which meant that the violence that underpinned Mughal sovereignty became dissipated throughout the social order.39 The British response to such a situation was largely to retain the Mughal system of policing while replacing, beginning in the late eighteenth century, its ultimate source of authority, the zamindars (who according to the British had come to so abuse their authority that they were nothing more than a horde of ‘rebels and robbers’) with British officials—​who, as we have seen, in addition to being ignorant about Indian society were burdened with innumerable other duties in addition to that of policing.40 The administration of the 1556-​1707 (New York: Asia Publishing House 1963), 136–​89; and John R. McLane, Land and Local Kingship in Eighteenth-​Century Bengal (Cambridge: Cambridge University Press 2002), 8–​15. 35 Report of the Indian Police Commission, 1902-​03 (n 34) 4. 36 Anastasia Piliavsky, ‘The Moghia Menace, or the Watch Over Watchmen in British India’, Modern Asian Studies 47/​3 (2013), 754 (hereafter Piliavsky, ‘The Moghia Menace’). 37 Report of the Indian Police Commission, 1902-​03 (n 34) 4. Kotwals were actually legally vested with the power to inflict torture in pre-​colonial India. Such a practice could help explain why, during the colonial era, Indians were readier to complain about the torture to which they had been subject when they suspected Indian officials of acting in their own interests rather than those of the state. As kotwals combined policing with magisterial duties the post was also a particularly lucrative one. According to the 1902–​1903 Indian Police Commission, the kotwal and his agents, whose pay was meagre, supplemented their incomes with ‘unauthorised exactions from the inhabitants’. J. C. Madan, Indian Police: Its Development up to 1905: An Historical Analysis (New Delhi: Uppal Publishing House 1980), 8 (hereafter Madan, Indian Police); Malise Ruthven, Torture: The Grand Conspiracy (London: Weidenfeld and Nicolson 1978), 189 (hereafter Ruthven, Torture); K. S. Dhillon, Defenders of the Establishment: Ruler-​Supportive Police Forces of South Asia (Shimla: Indian Institute of Advanced Study 1998), 54 (hereafter Dhillon, Defenders of the Establishment); and Report of the Indian Police Commission, 1902-​03 (n 34) 4. 38 Peers, ‘Torture, the Police’ (n 27) 37; and J. C. Curry, The Indian Police (London: Faber and Faber 1932), 43. In rural areas the police, according to Curry, were concerned with most facets of village life, including ‘The state of crops, the irrigation of fields, the condition of roads and paths, private feuds, jealousies and quarrels, feasts, fairs, rejoicings and all the thousand and one important, trifling, pathetic or humorous details which make up the existence of an Indian rural community.’ Ibid. 39 Ruthven, Torture (n 37) 187. The imposition of Company rule led to a further disintegration of the Mughal policing system, such as the responsibility of zamindars for robberies committed in their zamindaris. Saroj Kumar Bhowmik, Rural Police, Local Justice in Bengal (1772-​1870) (Calcutta:  Nalanda Publications 1991), 35 (hereafter Bhowmik, Rural Police). 40 East India Judicial Selections, Vol. I, 154, cited in Report of the Indian Police Commission, 1902-​03 (n 34) 6.

The Perpetrators  147 police continued to be undertaken, however, by individuals who, until the police reforms of the mid-​nineteenth century, were known largely as darogas. But their duties were augmented by their being given responsibility for policing areas of up to 400 square miles, and delegated authority over twenty to fifty armed burkundazes (subordinate police) as well as village watchmen; their zeal for torture was, moreover, enhanced by their being given rewards of Rs. 10 for every dacoit apprehended and 10 per cent of the value of stolen property recovered provided the thief was convicted.41 The results of such reforms were, inevitably, less than satisfactory, and rather than diminishing, crime continued to escalate, not least because the new system had no support from the individuals and groups, from zamindars to villagers, who had formerly sustained it.42 The problem, as the Court of Directors realized as early as 1814, was that the preservation of social order and tranquillity [could] never be effected by the feeble operations of a few darogas and peons stationed through an extensive country, wanting in local influence and connection with the people, insufficiently remunerated to induce respectable men to accept the office, placed beyond the sight and control of the Magistrate and surrounded with various temptations to betray their trust.43

The colonial police were, ultimately, never able to overcome such difficulties. Although the policing powers of zamindars ‘of approved respectability and willingness to co-​ operate in promoting the views of Government’ were restored in 1807, little was ever really done to address the other concerns. Village policing, for example, was completely neglected until the late nineteenth century.44 But although the colonial regime facilitated—​and, indeed, systematized—​the torture enacted by its subordinates, this does not explain the particular motivations and psychological processes that were, as Ervin Straub puts it, ‘likely’ to make the police engage in practices of extreme harm doing. Since, for Straub, such motivations and psychological processes are a result, in part, of particular historical and cultural developments, I will begin by exploring three factors relating to police working conditions and training that made it more likely for members of the police to find the use of extreme forms of interpersonal violence either necessary or desirable: the insufficiency 41 Report of the Indian Police Commission, 1902-​03 (n 34) 6; and Bhowmik, Rural Police (n 39) 79. Kotwals were also retained to carry out policing duties in towns and cities. 42 Report of the Indian Police Commission, 1902-​03 (n 34) 6. Although their policing powers were taken away zamindars were still, until the passage of the IPC and CPC, responsible for giving information relating to crimes to the police and for assisting both magistrates and the police in the execution of their duties. An additional problem was that, while the village police were placed under the authority of magistrates, zamindars were, until 1902, still responsible for nominating and paying them (in regions in which they had traditionally done so, and in Bengal until the enactment of Act VI of 1870), which they were, understandably, reluctant to do—​and which also created the problem of divided authority (although for former district magistrate Robert Carstairs that of the zamindar was undoubtedly stronger). Madan, Indian Police (n 37) 191; F. T. Platts, The Police Officer’s Guide: Containing Such Portions of all Regulations, Acts, Circulars, &C, in Force, Excepting the Indian Penal Code, as Relate to the Duties of the Police in the Lower Provinces of Bengal (Calcutta: G. C. Hay & Co. 1866), Ch. 12 sec. 140, 38 (hereafter Platts, The Police Officer’s Guide); Bhowmik, Rural Police (n 39) 76, 278; and Carstairs, The Little World (n 1) 26. 43 Report of the Indian Police Commission, 1902-​03 (n 34) 7. 44 Ibid; and Bhowmik, Rural Police (n 39) 80.

148  Colonial Terror of their training; their chronic under-​funding, dire pay, and poor working conditions; and the punitive powers they were given. Since such motivations and processes are also a product of cultural factors, I will then go on to consider caste, a particular aspect of Indian society and culture that helps to explain why torture—​and, indeed, particular forms of torture, such as sexual violence—​became a key component of Indian policing.

Training (or the Lack Thereof) There was little instruction in police principles as such. Comparative police systems, police in history and in society, the place of the police under the rule of law, the balance between police powers and citizens’ rights, the fundamental relationships between the police, the courts and government, all these were left largely to us to discover.45 Although there was a constant lament, from the early nineteenth century, about the lack of police training—​as Sir Auckland Colvin, the Lieutenant-​Governor of the United Provinces, bemoaned in 1888, ‘the police were, as a rule, a comparatively ill-​ educated and untrained body of men’—​as with so many other critiques of the Indian police, little was actually done about it.46 There was no training whatsoever, to begin with, for the village police, not to mention, for much of the nineteenth century, any clarity as to the ‘authority to which (they) [were] to be subject, the duties they [were] to perform, the scale of remuneration to be received, [or] the source from which it was to be derived’.47 Although some training was given to the constabulary, which included teaching them to read and write, it was, for the most part, poor, a defect that was not remedied in the provincial training schools that were established beginning in the late nineteenth century.48 Recruits received as little as a month’s training prior to their first posting and were given no training in many of the duties they were expected to perform. Their duties were also so heavy that they had no time for being instructed in them, or for instructing others, once on the job.49 What they were actually meant to do 45 Eric Stracey, Odd Man In: My Years in the Indian Police (New Delhi: Vikas Publishing House Pvt Ltd. 1981), 7 (hereafter Stracey, Odd Man In). 46 Cited in Report of the Committee Appointed by Government under Resolution (n 1) 1. 47 Report of the 1837-​38 Bengal Police Committee, Parliamentary Paper, 198-​Sess. 2 of 1857, 47–​8, cited in Anandswarup Gupta, Crime and Police in India [Up to 1861] (34) 256. 48 Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (Lahore:  Punjab Government Press 1900), 4 (hereafter Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab); and Madan, Indian Police (n 37) 298. The first provincial police training schools were established in Madras in 1859, followed by the Central Provinces in 1863. Punjab (1891) and Bengal (1895) followed some time later, although it was not until after 1905 that such a school was established in each province. Men recruited as constables were not always, however, sent to such schools, as was the case in Punjab, where constables were given training by reserve inspectors in the district police lines. Krishna Mohan Mathur, Administration of Police Training in India (Delhi: Gian Publishing House 1987), 46–​7; and Sir Percival Griffiths, To Guard My People: The History of the Indian Police (London: Ernest Benn Limited; Bombay: Allied Publishers Private Limited 1971), 316 (hereafter Griffiths, To Guard My People). 49 Evidence Recorded by The Committee Appointed by Government under Resolution (Police Department) no.  373/​VIII-​186A-​2, dated 6th June, 1890, to Enquire into Certain Questions Connected with the Police

The Perpetrators  149 on the job was often, in addition, less than clear, particularly prior to the publication of the first general manual of police laws and procedures in the mid nineteenth century.50 The lack of training in the Indian police was particularly acute when it came to detection, since training in the prevention and detection of crime was largely left, until the early twentieth century, to ‘the school of experience’ (as one Lieutenant-​Colonel Ewart observed, the ‘Asiatic’ was ‘cunning, clever and intriguing’ and so was ‘innately possessed, in a marked degree, of all the special faculties which make the true detective’).51 This is partly because detection was regarded as an innate rather than a learned skill—​it simply needed ‘to be brought to the surface’.52 The 1890 North-​Western Provinces police committee demonstrates such thinking in its proposal for the issuance of good conduct allowances for constables who displayed special detective abilities, rather than for giving constables training in detection (although such a plan was unworkable since, as the display of such abilities led to constables being burdened with extra work, ‘any detective ability they may possess [was] sedulously concealed’).53 Yet despite their lack of training in detection, head constables, and in some cases, even constables, could be given responsibilities as investigating officers, and were expected to carry out tasks that required both skill and knowledge, such as keeping a diary of their investigation of a case (which accounted for the apparent ‘general unintelligibility’ of case diaries) or reporting on probable causes of death.54 According to the 1861 Administration of the North-​Western Provinces & Oudh (Allahabad: Printed at the Pioneer Press 1891), 6 (hereafter Evidence Recorded by The Committee). 50 India, Judicial (N. W. P.), 3 June (No. 34) 1857, 1176–​7, E/​4/​844, 1857, BL. What made this situation so problematic, the Calcutta Review protested in 1846, was that the law was subject to such frequent amendment that it was ‘scarcely possible to recollect whether any particular law is in force or has been repealed’. The sheer volume and plurality of laws in colonial India (which by 1860 filled nine quarto volumes) and the lack, until 1875, of a formalized system of law reporting added to the confusion. So, too, did the penchant of British officials to alter the rules of practice in their respective districts the moment they acquired a new post. ‘Administration of Criminal Justice in Bengal’, Calcutta Review, VI (July–​December 1846), 142; Prithwis Chandra Ray, The Separation of Judicial and Executive Functions in British India (Calcutta: The City Book Society 1901), 235; Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference: Criminal Procedure in British India’, Law & History Review 23 (2005), 639; Dhillon, Defenders of the Establishment (n 37) 118–​19; and Panchkouree Khan, The Revelations of an Orderly, Being an Attempt to Expose the Abuses of Administration by the Relation of Every-​day Occurrences in the Mofussil Courts (first published in 1846, Calcutta: Englishmen Press 1857), 42. 51 History of the Police Training College, (Northern Zone), Phillaur, n.a., n.d., 1, IOR Mss. Eur. F.161/​184, BL; and Lieutenant-​Colonel Ewart, Deputy Inspector General of Police of the Umballa Circle, Punjab, to the Inspector General of Police, Punjab, 5 January 1884, Home, Police, B, August, 40–​4, 1886, NAI. A scheme for the establishment of a separate detective force was first flouted, and rejected, in 1884. Such a scheme was opposed in Punjab, for example, on the grounds not only of expense but that policing in India was dependent upon local knowledge, and a detective force that lacked knowledge of specific local conditions would therefore be ineffective. Memorandum, Government of Punjab, 17 April 1886, Home, Police, B, August, 40–​4, 1886, NAI; and Report of the Committee Appointed by Resolution (n 1) 24. 52 Memorandum, Government of Punjab, 17 April 1886, Home, Police, B, August, 40–​4, 1886, NAI. 53 Report of the Committee Appointed by Resolution (n 1) 24–​5. The Committee also proposed the maintenance of a record of the investigative skills of each member of the investigating staff in the province so that their skills could be called upon as needed. 54 Act XXV. 1861, Sec. 154, cited in Platts, The Police Officer’s Guide (n 42) Ch IX, Sec. 24; and Report of the Committee Appointed by Resolution (n 1) 27. Police officers as low as constables could be required to carry out investigations in the absence of other available staff, a problem that persisted even after the police reforms made in the aftermath of the 1902–​1903 Police Commission since the ratio devised by the Commission was that of one sub-​inspector for every hundred cognizable crimes. This meant that, if a station’s inspector(s) were occupied investigating crimes, a head constable or even constable would have to

150  Colonial Terror Police Act, for example, upon receiving notice of an unnatural death, the officer in charge of a police station (who might be no higher in rank than a head constable) was expected to proceed to the spot and report on the apparent cause of death, ‘describing any mark of violence which may be found on the body, and stating in what manner, or by what weapon, or instrument, such mark appear[ed] to have been inflicted’.55 By the early twentieth century investigating officers were also required to take photographs of the corpse and note details such as the ‘number, size, position, direction and nature’ of wounds and bruises; the ‘colour and liquidity of blood’; whether the edges of wounds were ‘joined or retracted’; symptoms of poisoning, drowning, hanging, and other potential causes of death; the ‘condition of private parts’; and to take foot-​prints and finger impressions (although in the event of the skin being too shrunken to allow for the latter, the officer was expected to request that the finger tips be removed by the Civil Surgeon and sent, in separate marked envelopes, to the Finger Print Bureau).56 The training situation was little better for superior officers, who before the establishment of provincial training schools were simply attached to a police station as probationers and expected to learn on the job.57 Their lack of training illustrated, for former Punjab police officer J. A. Scott, that ‘not much [knowledge] in the way of law and procedure’ was expected of them.58 Since such officers could also be recruited as young as eighteen and, as W. H. L. Impey, Secretary to the Government of the North-​Western Provinces and Oudh put it, were ‘boys of little education, and sometimes deficient in industry and energy’, in addition to being in considerable need of take up the investigation of a case, no matter how serious. The situation was particularly acute in Madras, where head constables were in charge of police stations. Although such a practice was increasingly frowned upon from 1905, inspectors tended to ‘shunt investigations on to the shoulders of their subordinates unless the case is one in which they hope to get kudos’. In Punjab, for example, 55,000 cognizable cases were investigated by the police in 1898, and since there were less than 700 inspectors and deputy-​inspectors this meant that the bulk of police investigations were actually carried out by their subordinates—​a product of ‘the failure to appreciate the importance of the work of investigation and the gravity of the evils which may result from entrusting it to an utterly unsuitable agency’. Head constables also conducted prosecutions in taluka courts in some provinces. Home, Police, A, May, 64–​5, 1908, NAI; Home, Police, A, January, 114–​17, 1909, NAI; Madras (India : Presidency). Police Department, The History of the Madras Police: Centenary, 1859-​1959 (Madras: BKN Press 1959), 330; Evidence Recorded by The Committee (n 49) 18, 123. 55 Act XXV. 1861, Sec. 161, cited in Platts, The Police Officer’s Guide (n 42) Ch. IX, Sec. 107. In rural India inquests were also performed by the police. Such duties thus entailed handling bodies, which higher caste members of the police were notoriously loath to do, particularly when it came to lower caste or untouchable bodies. For a trial that involved just such a situation, see ‘Queen v. Maclean, Police Inspector and Others, Calcutta High Court: Appellate Jurisdiction, 6 December 1865’, The Times of India, 27 December 1865, 3. See also S. T. Hollins, No Ten Commandments: Life in the Indian Police (Hutchinson: London 1954),191 (hereafter Hollins, No Ten Commandments). 56 Rao Bahadur B. Sardar Singh, A Manual of Medical Jurisprudence for Police Officers, Lawyers and Courts (4th edn, Moradabad: Lakshmi Narayan Press 1924), 130–​1. Civil surgeons were the ‘backbone of colonial legal medicine’, since they conducted medicolegal dissections and toxicology analyses in addition to carrying out jail inspections and other miscellaneous duties. Jeffrey Jentzen, ‘Death and Empire: Medicolegal Investigations and Practice Across the British Empire’, in Ian Burney and Christopher Hamlin (eds), Global Forensic Cultures: Making Fact and Justice in the Modern Era (Baltimore, Maryland: Johns Hopkins University Press 2019), 151. 57 Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 44. 58 J.  A. Scott, ‘Police Training (Punjab)’, n.d., IOR Mss. Eur. F.161/​184, BL (hereafter Scott, ‘Police Training’).

The Perpetrators  151 training they also often lacked the ability, time, or desire to educate their subordinates.59 Such a dire lack of training, in everything from criminal law and the law of evidence to police procedure, meant that few superior officers understood ‘what facts must be proved to establish any particular offence’.60 Yet even after officer training started to become more formalized beginning in the 1890s, for Trilok Nath, who attended the Police Training Institution at Hazaribagh in the 1930s, it remained inadequate. Training in etiquette and other social mores, such as dressing appropriately for dinner and British sporting traditions, were not only more rigorously imparted than the training future police officers would need to actually do their jobs, but recruits were given no training at all in criminology, criminal investigation, or administrative procedure since all that was required of them ‘was to create a feeling of superiority’ over the subordinate staff who were required to do the bulk of the work (a task they were aided in by being ‘sirred’ on the parade ground by the subordinate police who trained them).61 There are several ways in which the lack of police training made the Indian police ‘likely’ to engage in practices of extreme harm doing. It ensured, to begin with, that the police were forced to use violence in the enactment of their duties since they lacked the ability to conduct themselves according to the professional norms required of a modern civil police. It also made clear to police recruits that the colonial regime cared only about outcomes—​about, in other words, keeping the population quiescent or meeting particular statistical targets—​not about how such tasks were achieved. As the 1899 Punjab Police committee remarked, police training exhibited a ‘general absence of any attention to the necessity for keeping the temper, being civil and respectful to the public, avoiding brutality or unnecessary harshness, and seeking by all legitimate means to make their performance of duty as little distasteful to the people

59 W. H. L. Impey, Secretary to the Government of the North-​Western Provinces and Oudh, 26 September 1893, Home, Police, January, 49–​53, 1894, NAI. Following the drying up of a ready supply of ex-​military officers to man the Indian police, from 1893 British police officers began to be recruited directly in London. The entrance requirements for such recruits were, however, notable for their irrelevancy to the tasks expected of them. These included, for example, knowledge of Euclid, English history, French, German, Latin, or Greek, as well as optional subjects in freehand and geometrical drawing. Such requirements had changed little by the early twentieth century. Griffiths, To Guard My People (n 48) 95; ‘Regulations for Admission to the Indian Police Force through a Competitive Examination in London in June 1893’, Home, Police, January, 45–​8, 1894, NAI; and IOR/​L/​PJ/​6/​747, File 511, BL. 60 Evidence Recorded by The Committee (n 49) 22. 61 Nath, Forty Years of Indian Police (n 28) 23, 22; Michael Silvestri, ‘ “The Dirty Work of Empire”: Policing, Political Violence and Public Order in Colonial Bengal, 1905-​1947’ (PhD Diss., Columbia University 1998), 78. Recruits in Bengal were, however, instructed in colonial anthropology and ethnography, as well as in British Indian history; one recruit who received such training, S. T. Hollins, went on to author a number of works on ‘criminal tribes’. Whether police training in other provinces was any more useful is open to doubt, although J. A. Scott paints a better picture of that offered in Punjab, where from the 1890s recruits were sent first to a district, to ‘get a general idea of the broad outlines of the administration’, then to a training school for the duration of the cold weather. This was followed by a posting to a hill station to enable them to continue their studies during the hot season, and then a final round of study at the training school in the next cold season. Beginning in 1902 recruits were also given practical training in police work, through such means as demonstrations, mock investigations, and illustrations of how the criminal codes and departmental rules were to be applied to the day-​to-​day work of the police, as well as training in medical jurisprudence and fingerprinting. Silvestri, ‘The Dirty Work of Empire’ (n 61) 67–​8; and Scott, ‘Police Training’ (n 58).

152  Colonial Terror as possible’.62 Such training was never given, however, because it would have undermined the role of the police of serving as a ‘terror to the people’.63

Underfunding, Pay, and Working Conditions ‘This job is exploitation in the name of discipline.’64 The chronic underfunding and dire pay of the Indian police arguably played a greater role than their lack of training in giving them the motivation to engage in various forms of extreme harm doing. That the Indian police were subject to persistent underfunding, as well as periodic waves of cut-​backs was, according to Arvind Verma, due to the fact that ‘they did not generate revenue and were confined to the limited role of maintaining British hegemony’.65 As the 1890 North-​Western Provinces Police Commission complained, the police had ‘suffered more from reductions in strength, and retrenchments in expenditure, than any other Department’, since whenever economy was called for the police budget was always the first to be cut.66 Such acute underfunding ensured that the police compared unfavourably with other departments when it came to the educational attainments and the ‘respectability’ of its staff.67 62 Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 15. 63 Report of the Indian Police Commission, 1902-​03 (n 34) 115. 64 Indian police officer, cited in Beatrice Jauregui, Provisional Authority: Police, Order, and Security in India (Ranikhet: Permanent Black 2016), 111 (hereafter Jauregui, Provisional Authority). 65 Arvind Verma, ‘Consolidation of the Raj:  Notes from a Police Station in British India, 1865-​1928’, Criminal Justice History 17 (2002), 120 (hereafter Verma, ‘Consolidation of the Raj’). Even during the First World War, a particularly trying time for the Indian police, the entire expenditure on the civil police was only £4.4 million by 1916, which works out to approximately 4 d. per head of population. This meant that, in terms of numbers, India had considerably fewer police per population than England and Wales. In the Bombay Presidency, for example, in the first decade of the twentieth century there was one policeman for every 1,360 members of the population, as opposed to 772 in England and Wales. Gupta, The Police in British India 1861-​1947 (New Delhi: Concept Publishing Company 1979), 341 (hereafter Gupta, The Police in British India 1861-​1947); and Rajnarayan Chandarvarkar, Imperial Power and Popular Politics: Class, Resistance and the State in India, c. 1850-​1950 (Cambridge: Cambridge University press 1998), 184 (hereafter Chandarvarkar, Imperial Power). 66 Report of the Committee Appointed by Resolution (n 1) 122. 67 Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 18. Literacy rates, for example, were low (a stark contrast to pre-​ colonial India, in which even subordinate members of the police were literate), although they varied considerably from province to province. By the end of the nineteenth century, the literacy rate was only 16.7 per cent in the North-​Western Provinces, 28.1 per cent in Bengal, and 41.1 per cent in the Bombay Presidency. In Madras, on the other hand, it was as high as 84.5 per cent. Illiteracy in most provincial police forces did gradually decline over time, but not in all. In Bombay, for example, the illiteracy rate actually rose, by 1910, to 48 per cent (a sign of the difficulties the province had in finding suitable recruits), and 80 per cent of the Lahore police was purportedly still illiterate as late as 1930. Although these statistics relate primarily to the constabulary, some officers were also illiterate. C. A. Bayly, ‘Knowing the Country: Empire and Information in India’, Modern Asian Studies, 27/​1 (1993), 13; Report of the Committee Appointed by Resolution (n 1) 60; David Arnold, Police Power and Colonial Rule: Madras, 1859-​1947 (Delhi: Oxford University Press 1986), 45 (hereafter Arnold, Police Power); Frederic Mackarness, The Methods of the Indian Police in the 20th Century (London: National Press Agency 1910) (hereafter Mackarness, The Methods of the Indian Police); Scott, ‘Police Training’ (n 58); and Excerpt, debate in the House of Lords on ‘Indian Police Methods’, 16 March 1911, IOR/​L/​PJ/​6/​1070, File 831,  BL.

The Perpetrators  153 It also led to situations in which the police were forced to resort to violence simply because there were not enough of them to carry out the tasks expected of them, particularly in light, as noted above, of the vast areas they were often required to police. But such underfunding also made it impossible not only to sufficiently remunerate the police but to employ sufficient numbers of supervisory staff, a problem exacerbated by the colonial state’s insistence on retaining the higher echelons of the police as the preserve of Europeans, who garnered much higher salaries than Indian members of the force.68 The police were so underfunded, in fact, that police officers in charge of thanas (often makeshift buildings such as a half derelict, doorless, and windowless former railway station building, or even a collection of straw huts) were rarely given money to run their stations; such funds instead came from the police themselves, or rather from their extortions of the local population.69 The colonial regime’s ongoing underfunding of its police meant that pay was, consequently, insufficient for the higher ranks, and for the lowest ranks was literally inadequate for their survival. To start with the village police, in addition to being extremely poor, their pay was also often non-​existent, which meant that, as the Lieutenant-​ Governor of Bengal, Frederick Halliday, remarked in 1856, they were ‘kept in a permanent state of starvation’.70 Although provisions such as Regulation XIII of 1813 provided chaukidars with a pay of Rs. 3 per month, this was to be paid by the inhabitants of their localities and there was no law to enforce its collection.71 As a result their pay, when they got it, was as low as 4 annas per annum.72 Village watchmen thus often had to turn to crime to survive, or to what Anastasia Piliavsky refers to as

68 See, for example, Report of the Committee Appointed by Resolution (n 1) 3; and Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 4. By the early 1920s, of the 700 officers in what had become known as the Imperial Indian Police Service 500 were still British. Supervision was carried out largely through a system of inspections, which acted as a form of surveillance over the subordinate police. Since inspections served largely, however, to assess whether ‘the subordinate has observed the proper procedure’, rather than to achieve particular results, in colonial India they were, as Mithu Miyan Khan suggests, easily subverted. Unrest in India and the Indian Police (1922), n.a., IOR Mss. Eur. F161/​163, BL (hereafter Unrest in India); T. K. Vinod Kumar and Arvind Verma, ‘Hegemony, Discipline and Control in the Administration of Police in Colonial India’, Asian Criminology 4 (2009), 71 (hereafter Kumar and Verma, ‘Hegemony, Discipline and Control’); Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India (Duke University Press: Durham and London 2012), 160; and Miyan Mithu Khan, Confessions of a Constable (Benares: E. J. Lazarus and Co., Medical Hall Press 1875), 159 (hereafter Khan, Confessions of a Constable). 69 Verma, ‘Consolidation of the Raj’ (n 65) 120; Nath, Forty Years of Indian Police (n 28) 89; and Radha Kumar, ‘Police Matters:  Law and Everyday Life in Rural Madras, c.  1900-​1960’ (PhD Diss., Princeton University 2015), 77–​9. Prisoners were detained, in such flimsy buildings, through being chained to tables and benches, or to rings driven into the walls. Nath, Forty Years of Indian Police (n 28) 31, 89. 70 Minute by the Hon’ble the Lieutenant-​Governor of Bengal, 20 April 1856, Appendix, Indigo Planters’ Association, in John Bruce Norton, The Administration of Justice in Southern India (Madras: Athenaeum Press 1853), 8. 71 Bhowmik, Rural Police (n 39) 88, 184. The term chaukidar is generally used to connote the village police in north India. However, there were a variety of names for the village watch in India. In Bengal, for example, village watchmen were known, in addition to chaukidars, as pasbans, kotals, goraits, barahils, paiks, nigahbans, barahils, and dusauds. With the enactment of Regulation VIII of 1793 the lands set aside in each village for the maintenance of chaukidars were made over to zamindars, who in turn threw the burden of maintaining them upon village communities, which led the village watch to become ‘degraded and inefficient’. Majumdar, Justice and Police in Bengal (n 34) 51, 294; and Bhowmik, Rural Police (n 39) 158. 72 Bhowmik, Rural Police (n 39) 161.

154  Colonial Terror ‘plunder-​policing’, in which the village police protected those who patronized them and plundered those who did not.73 The situation was little better for police constables. By the end of the nineteenth century, constables were still paid as little as Rs. 6 per month, which was less than the market rate for unskilled labour, and they were expected to pay for their own uniforms out of such paltry earnings.74 Although some provinces, such as Punjab, gave constables good conduct allowances of Rs. 1 to 2 per month for ‘meritorious services rendered or the display of conspicuous detective ability’ these, like other cash rewards, were rarely granted.75 Such pay was particularly inadequate in view of the long hours constables were forced to work (as many as seventeen hours a day, and night as well as day duty), and the fact that they could find themselves being sent considerable distances from their homes.76 Since the pay of a constable was barely sufficient to enable him to live and sustain his family at home (particularly as no housing was provided for married members of the subordinate police), it was impossible for them to take their families with them if they were transferred some distance away.77 Nor could they afford to set up a separate establishment unless they supplemented the ‘pittance’ they earned with ‘illegal methods’.78 Such problems were exacerbated by the lack of travel allowance for members of the police force below the rank of inspector, especially since, due to the size of most police jurisdictions, they were required to travel frequently.79 The lack of pensions added to the plight of constables, for as one critic put it, ‘The pensionary benefits are small, and hedged about with such difficulty that the services of good men cannot be rewarded while men who from age, sickness or other 73 Piliavsky, ‘The Moghia Menace’ (n 36) 754. 74 Report of the Committee Appointed by Resolution (n 1) 70. Rates of pay for constables varied considerably, however, from province to province, with Bombay and Punjab offering the highest rates. But pay never kept pace with the cost of living, and pay raises were generally only given when morale levels among the police were perceived to have dropped dangerously low (although these were invariably paid for by reductions in police numbers). Pay did start to rise at the turn of the twentieth century, but by 1909 the pay of Indian constables had risen to no more than Rs. 7 to 20 per month. Madan, Indian Police (n 37) 117; Gupta, The Police in British India 1861-​1947 (n 65) xiii; and Mackarness, ‘The Methods of the Indian Police’ (n 67) 8. 75 Report of the Committee Appointed by Resolution (n 1) 71; and Madan, Indian Police (n 37) 137. In 1898 the Punjab government was prevented, for example, from granting allowances to policemen employed on plague duties despite the high levels of desertion (not to mention police deaths) that such duties engendered. While rewards could also be given for information leading to the arrest and conviction of criminals, for good service in criminal cases, and for service of benefit to the Excise, Customs, Judicial, or Jail Departments, they tended to be given only in exceptional circumstances, such as when the police participated in suppressing insurrections or riots. Home, Sanitary, Plague, A, August, 190–​1, 1898, NAI; Report of the Committee Appointed by Resolution (n 1) 96, 79; and Evidence Recorded by The Committee (n 49) 49. For an example of how far beyond the call of duty the police had to go to receive rewards see Finance and Commerce, Accounts and Finance, Salaries & C., Police, A, May, 756–​60, 1883, NAI. 76 S. R. Kapse, Police Administration in Bombay, 1600-​1865 (Bombay: Himalaya Publishing House 1987), 87; and Chandarvarkar, Imperial Power (n 65) 185. 77 Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 62. European staff were, in contrast, granted either accommodation or an accommodation allowance. Madan, Indian Police (n 37) 124. 78 Report of the Committee Appointed by Resolution (n 1) 61. This problem was such a serious one for lower-​ranking members of the police that they often resigned upon receiving transfer orders. That the subordinate police feared transfers was so well-​known that transfers were often used as a means of getting rid of lax or unmanageable men. In 1905 the Indian Government decided, however, that the police should be posted close to their homes as an incentive to good work. Ibid; and Madan, Indian Police (n 37) 261. 79 Madan, Indian Police (n 37) 119. From 1905 a daily grant of 2 annas (one-​eighth of a rupee) was, however, given to constables deputed beyond their jurisdiction. Ibid, 273.

The Perpetrators  155 reason become inefficient cannot be dispensed with except under terms so harsh and discreditable that no officer likes to enforce them.’80 The inability of both the village and subordinate police to live on the paltry pay they were given (not to mention, in the case of the latter, the various expenses to which their employment subjected them) was greatly exacerbated by the harsh system of punishments meted out to them for even minor offences—​a product, for David Arnold, of the British belief ‘that Indians could only be made to behave as the British wanted them to through fear and coercion’.81 Until 1834 village police were subject to corporal punishment for neglect of duty, and thereafter could still be imprisoned or fined for failing to provide evidence regarding burglaries committed within their beat.82 From the second half of the nineteenth century, following the enactment of the 1861 Police Act, subordinate police could find themselves on the receiving end of four different types of punishment for committing slight infractions (a fine of up to one month’s pay; confinement to quarters for up to fifteen days, which could be supplemented with extra guard, drill, or other duties; deprivation of good-​ conduct pay; or the removal of special emoluments), although fines were the most common until 1905.83 Vast numbers of police were, moreover, subjected to them. While, according to Arnold, punishments were particularly high following the post-​ 1857 police reforms, the situation had improved little by the early twentieth century (in Bengal, for example, no less than 41 per cent of the chaukidari force was fined for misconduct in 1899, and 43 per cent of the Madras Police was subject to disciplinary proceedings a decade later).84 Such exactions were so severe for men whose pay was already wretched that they could find themselves being forced to subsist on just one 80 Major R.  Parry Nisbet, Commissioner and Superintendent, Delhi Division, to Lieutenant-​Colonel Ewart, Deputy Inspector General of Police of the Umballa Circle, Punjab, cited in Memorandum, Punjab Government, 17 April 1886, Home, Police, B, August, 40–​4, 1886, NAI. Under the Police Act of 1861 and the Madras Police Act of 1859, all police officers who earned more than Rs. 20 a month were eligible for pensions; those who earned less had to subscribe part of their paltry salaries to the Police Superannuation Fund. Until 1871 the pension rights of the subordinate police varied, however, from province to province. Thereafter the subordinate police were entitled to a ‘Compassionate Allowance’, of no more than Rs. 4 per month, after thirty-​five years of service if they were certified unfit to continue working (for which they were no longer required to contribute). The Indian Government was also forced, beginning in the 1890s, to give pensions to the widows and children of policemen who died as a result of undertaking unsavoury plague, famine, or sanitary duties in order to prevent wide-​scale desertion. Madan, Indian Police (n 37) 132–​4; and Home, Sanitary, Plague, A, April, 34–​9, 1897, NAI. 81 Arnold, Police Power (n 67) 51. As Upendra Baxi observes, police punishments for offences such as overstaying leave by several days were regarded in the 1861 Indian Police Act as a more serious offence than committing torture, as evidenced by the large numbers of prosecutions for the former as opposed to the latter. Upendra Baxi, The Crisis of the Indian Legal System (New Delhi: Vikas Publishing House Pvt. Ltd. 1982), 102 (hereafter Baxi, The Crisis). 82 Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press 1998), 44. The corporal punishment of village police was prohibited by Sec. 2 of Regulation II of 1834. 83 Report of the Indian Police Commission, 1902-​03 (n 34) 59; and Madan, Indian Police (n 37) 270. Other punishments began to be introduced in some provinces towards the end of the nineteenth century, such as, in Madras, a system of black marks. The abolition of fining as a form of punishment in 1905 did not lead, however, to a diminution of police punishments. In 1911, for example, 26,905 members of the Indian police were punished departmentally. Gupta, The Police in British India 1861-​1947 (n 65) 306; and Arnold, Police Power (n 67) 52. 84 Arnold, Police Power (n 67) 52; Gupta, The Police in British India 1861-​1947 (n 65) 174; and T. K. Vinod Kumar and Arvind Verma, ‘Hegemony, Discipline and Control’ (n 68) 71.

156  Colonial Terror meal a day.85 As a result, in some years as many as half the constables in a province resigned, and desertion rates were high.86 The lack of job security for members of the subordinate police exacerbated their plight.87 They were frequently dismissed on a variety of pretexts, from poor performance to downsizing, and men who had served less than ten years had no right of appeal from their dismissals.88 Their prospects for promotion were equally bleak. Since a constable might have to wait thirty years to be promoted to head constable, and promotions were made based on seniority no matter how brutish, incompetent, or venal the individual due for promotion, such a system essentially ‘kill[ed] all the desire for doing good work out of any poor man with brains who had to enter the lower ranks of the Police’ (especially as promotion from chief constable to the inspectorate was increasingly cut off as the nineteenth century progressed, and effectively severed by the Indian government in 1905).89 Posts above the rank of inspector remained, in addition, a European preserve.90 85 Gupta, The Police in British India 1861-​1947 (n 65) 370. That the lower ranks of the police were often under-​fed was reflected in concerns about their poor height and chest measurements (since the physical standards for police recruits were modelled on those in the army raising these was regarded as ‘most essential’) and their ability to perform the tasks expected of them. Report of the Committee Appointed by Resolution (n 1) 59; and Arnold, Police Power (n 67) 40. 86 In Madras, for example, 50 per cent of the constables resigned in 1863. Extremely high resignation rates, which were more pronounced in areas in which the cost of living was high or more lucrative employment could be sought elsewhere, increased in times of strife or when the police were required to undertake unsavoury duties, as in the case of the plague. Resignation rates were so high that, by the early twentieth century, as many as 50 per cent of the police had less than three years of service. Arnold, Police Power (n 67) 50; Gupta, The Police in British India 1861-​1947 (n 65) 295; and Silvestri, ‘The Dirty Work of Empire’ (n 61) 109–​10. 87 The many transformations effected in the Indian police over the course of the nineteenth century, as well as their perpetual downsizing, led to the dismissal of often large numbers of men employed on policing-​related duties. In 1807, for example, the introduction of new police regulations in Bengal led to the disbandment of the entire class of zamindari paiks (armed retainers), 19,000 of whom, although they assisted in rural policing in addition to protecting their zamindars, suddenly found themselves unemployed. The disbanded paiks, in turn, added to the unrest of the countryside by taking to thieving to secure a livelihood. Bhowmik, Rural Police (n 39) 76, 78. 88 Madan, Indian Police (n 37) 32; and Report of the Committee Appointed by Resolution (n 1) 78. A policeman could be degraded, according to Judge Blennerhasset of Agra, ‘merely on a review of his monthly statements’. Dismissal rates were therefore high even in periods of tension, when the police needed as many men as they could get. Evidence Recorded by The Committee (n 49) 51; and Gupta, The Police in British India, 275. See also Vinay Lal, ‘Everyday Crime, Native Mendacity and the Cultural Psychology of Justice in Colonial India’, Studies in History 15/​1-​2 (1999), 153. 89 Evidence Recorded by The Committee (n 49) 1, 6; and Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 13, 19–​20; Report of the Indian Police Commission, 1902-​03 (n 34) 61. Such severing of the root to promotion from the lower ranks was the result of a desire to appoint men of ‘good family’ to such positions. As the Punjab Police Committee noted, while in 1862 ‘An uneducated Constable, if otherwise efficient, had good chances of promotion’, by the century’s end promotion was ‘almost necessarily to be confined to the educated man’. Report of the Committee Appointed by Government to Consider Certain Questions with the Police Administration of the Punjab (n 48) 26, 18. 90 In some cities with large European populations, such as Calcutta, Bombay, and Madras, the inspectorate also remained heavily Europeanized. There were also European and Anglo-​Indian head-​constables in such cities (although these were given the new rank of sergeant in 1904), who were used to police European sailors and soldiers and who were given much higher rates of pay than their Indian peers. Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 69; and Madan, Indian Police (n 37) 118. See also David Arnold, ‘European Orphans and Vagrants in India in the Nineteenth Century’, The Journal of Imperial and Commonwealth History 7/​2 (1979), 104–​27.

The Perpetrators  157 But concerns about pay and promotion were not restricted to the subordinate police. Superintendents (who were in charge of districts that averaged 3,000 square miles and had a population of three-​quarters of a million) and deputy inspectors-​general (who were in charge of half-​a-​dozen districts), all of whom were largely European during the period of this study, were paid half the salary of their counterparts in the ICS. They were required, however, to keep up the same ‘prescribed standard of life in India up to which all Gazetted Officers must live’, which meant that many, particularly married officers, lived in a state of perpetual debt.91 The prospects of upward mobility for superior officers were, furthermore, as poor as they were for their subordinates. Although a British recruit could be appointed an Assistant District Superintendent at the tender age of nineteen, once promoted to the post of district superintendent his career was stuck in what one inspector-​general of police regarded as ‘a regular slough of despond’, with virtually the only prospect of advancement that of a series of small pay rises.92 The situation was even worse for Indian officers.93 Although police inspectors, for example, were expected to be both constantly touring their districts and to maintain themselves as ‘respectable’ members of society, their pay was not remotely sufficient to meet their basic expenses, or to enable them to maintain the status required of them.94 As the North-​Western Provinces police commission concluded, When the powers, duties, and position of an investigating officer are considered; the almost unlimited power he possesses of inflicting at least temporary imprisonment; 91 Unrest in India (n 68). Such officers were entitled, furthermore, to only half the pensions of their ICS counterparts, which they could only receive after undertaking more years of service, and no provision was made for their wives and children unless they died ‘in the performance of a duty attended by extraordinary bodily risk’. The differentials in pay scale between the officer class and subordinate police could nonetheless still be as great as 1 to 100. Ibid, 10; and Dhillon, Defenders of the Establishment (n 37) 19. 92 Appendix No. VI, ‘Extract from a Note by the Inspector-​General of Police, dated 14th October 1899’, Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) xiv. Only the handful who made it to the top, Rs. 1,000-​level pay bracket for district superintendents (who had an average of twenty-​eight years’ service) were, in addition, entitled to a full pension of Rs. 5,000. The poor pay and prospects of Europeans in the Indian police, on top of their alienation, isolation, boredom, and loneliness, led to disenchantment, resentment, and depression, for which many sought solace through a bottle. Others took to petitioning—​Indian police officers filed 823 petitions in 1920 alone. Ibid, xiii; David A. Campion, ‘Authority, Accountability and Representation:  the United Provinces Police and the Dilemmas of the Colonial Policeman in British India, 1902-​39’, Historical Research 76/​192 (2003), 221; David A. Campion, ‘Watchmen of the Raj: The United Provinces Police, 1870-​1931 and the Dilemmas of Colonial Policing in British India’ (PhD Diss., University of Virginia 2002), 207 (hereafter Campion, ‘Watchmen of the Raj’); and Didier Fassin, ‘Boredom: Accounting for the Ordinary in the Work of Policing (France)’, in Didier Fassin (ed.), Writing the World of Policing: The Difference Ethnography Makes (Chicago: University of Chicago Press 2017), 284. See also Ranajit Guha, ‘Not at Home in Empire’, Critical Inquiry 23/​3 (1997), 483–​93; and Jeffrey Auerback, Imperial Boredom: Monotony and the British Empire (Oxford: Oxford University Press 2018). 93 While members of the Indian middle classes began to be recruited directly into the lower levels of the officer class in the 1880s (a process driven less by pressures to Indianize the public services than to improve supervision over the constabulary), their path to advancement was largely blocked. For the shrinking numbers of Indians appointed from the ranks, the inspectorate remained the highest position they could hope to attain. Arnold, Police Power (n 67) 69. 94 Madan, Indian Police (n 37) 32; and Stracey, Odd Man In (n 45) 9. On touring as a modality of power see Jacques Pouchepadass, ‘Itinerant Kings and Touring Officials: Circulation as a Modality of Power in India, 1700-​1947’, in Claude Markovits, Jacques Pouchepadass, and Sanjay Subrahmanyam (eds), Society and Circulation: Mobile People and Itinerant Cultures in South Asia, 1750-​1950 (Delhi: Permanent Black 2003), 240–​74.

158  Colonial Terror the vast importance of his report in determining the acquittal or conviction of an accused person; the necessity he is under of keeping a pony, of providing for his family residing often in a distant district, of keeping up an appearance suitable to such a position of authority as places him upon an equality with the wealthiest zemindar [sic] of his circle, it will seem incredible that such a man can live upon a salary of Rs. 10 to Rs. 15, or will forgo the easy means at his command of improving it.95

The pay rates for the Indian police for most of the period of this study, not to mention the range of exactions to which they were subject, therefore gave the police, from the inspectorate level downwards, plenty of motivations to engage in various forms of harm doing—​and their superior officers few incentives to put a stop to such violence. When it comes to the subordinate police, the particular psychological processes that resulted from what can only be described as the brutal treatment meted out to them and that helped to feed such a process are not, furthermore, difficult to fathom. Dehumanized by a system that so undervalued their labour and that forced them to choose between starvation and predation, and that failed to effectively penalize them for the latter, the subordinate police chose to do whatever it took to survive.96

Punitive Powers Let the inhabitants of the villages which are to bear the cost . . . pass their days half-​famished or wholly in a state of starvation . . . they must by whatever means meet the charges for the punitive police . . . Better if the villagers abandoned the villages troubled by the policeman’s baton and sought shelter in the forests haunted by beasts of prey.97 The violence that the Indian police were able to enact was aggravated by the extensive punitive powers that they were given. To begin with, each province had armed reserves, generally commanded by a British former military officer, in order to ensure that, as the 1902 Police Commission put it, the police could ‘deal both promptly and effectually with tumults and local disturbances without the aid of the military’.98 Most provinces also had armed or military police which, as the nineteenth century progressed, came to replace the army in maintaining the colonial state’s internal security.99 Such police units were vital to the maintenance of the unstable and oppressive 95 Report of the Committee Appointed by Resolution (n 1) 68. 96 Even at the tail end of this study there were cases of constables in hospital suffering from starvation-​ related illnesses—​and doubtless many others who were not so fortunate as to find any alleviation of their sufferings. Algernon Rumbold, Watershed in India 1914-​1922 (London: Athlone Press 1979), 15, cited in Richard J. Popplewell, Intelligence and Imperial Defence: British Intelligence and the Defence of the Indian Empire 1904-​1924 (London: Frank Cass 1995), 101. 97 Daily Hitavadi (Calcutta, 6 January 1908), Bengal Newspaper Reports January-​June 1908, IOR/​L/​R/​5/​ 34, BL. 98 Report of the Indian Police Commission, 1902-​03 (n 34) 54. There were also units of military police in many provinces. 99 Arnold, Police Power (n 67) 148. According to the 1902 Police Commission, the term ‘armed police’ could, however, be misleading, since the statistics on armed police for each province often represented

The Perpetrators  159 agrarian system wrought in rural India by colonial rule.100 As a result of the ways in which Indian law transformed even innocuous acts, such as a gathering of five or more people into a potential threat to the ‘public peace’, as well as gave the police power to deal with such threats by force, the civil police were also considerably militarized.101 The police were, in addition, given substantial surveillance powers. For example, sections 109 and 110 of the CPC authorized magistrates to demand security for good behaviour from habitual offenders, vagrants, and ‘suspected persons’, and section 565 of the same code (added in 1898) empowered courts to order individuals convicted a second time of serious offences relating to coin or property to be subjected to police supervision for up to five years. The 1871 Criminal Tribes Act, in addition, provided for the surveillance of individuals belonging to particular tribes, gangs, or ‘class of persons’ who were ‘addicted to the systematic commission of non-​bailable offences’.102 Such laws were supplemented by the creation of specialized intelligence agencies in the various provinces beginning in the 1880s and the establishment of a Central Intelligence Agency in 1904.103 The punitive function of the police is also clear in the growing use of what were known as punitive police forces from the late nineteenth century, in which additional police were quartered in ‘disturbed’ areas (with the inhabitants forced to bear the cost of such policing) as a form of both retribution and summary justice.104 In addition to the fact that such forces were often sizeable, expensive, and could cover considerable areas, they had a reputation for preying upon those who had the misfortune to be burdened with their presence through acts of robbery, rape, and general turmoil.105 The punitive powers of the police multiplied in other ways, however, from the late nineteenth century onwards thanks to a surfeit of new exceptional legislation.106 The Frontier Crimes Regulation, for example, made possible the trial of suspects outside the jurisdiction of criminal courts, and without the need, moreover, for rules of evidence or procedure.107 Since ‘[t]‌he coercive disposition of the colonial state was so nothing more than ‘the number of carbines at police-​stations available for use by the station police’. Report of the Indian Police Commission, 1902-​03 (n 34) 55. 100 Arnold, Police Power (n 67) 148. 101 Shailendra Mishra, Police Brutality: An Analysis of Police Behaviour (New Delhi: Vikas Publishing House Pvt. Ltd. 1986), 11 (hereafter Misra, Police Brutality). This is clear, for example, in its staffing. To take the case of the North-​Western Provinces, no less than thirty-​three of the first thirty-​eight permanent district superintendents of police were former military officers. Report of the Committee Appointed by Resolution (n 1) 2. 102 Report of the Indian Police Commission, 1902-​03 (n 34) 87. 103 Arnold, Police Power (n 67) 186–​7. 104 Ibid, 129. The power to impose punitive police was part of the new armoury of powers accorded to the Indian police through the Indian Police Act of 1861 and, in Madras, through Act III of 1882. Gupta, The Police in British India 1861-​1947 (n 65) 95. 105 Peter Heehs, The Bomb in Bengal: The Rise of Revolutionary Terrorism in India 1900-​1910 (2nd edn, Oxford: Oxford University Press 2004), 83. The British resorted to punitive policing extensively from the late nineteenth century, despite extensive critique of the practice by the Indian press. See, for example, Home, Police, A, March, 1–​8, 1900, NAI. 106 Such legislation included, for example, the 1899 Official Secrets Act, the 1901 Frontier Crimes Regulation, the 1901 Frontier Murderous Outrages Regulation, and the 1901 Frontier Law and Justice Regulation. 107 Gupta, The Police in British India 1861-​1947 (n 65) 191–​2, 278.

160  Colonial Terror fundamental to its existence and to its attitudes towards any manifestation of opposition and unrest’ police powers were, as a consequence, rarely reined in.108 But although issues such as lack of training, appalling pay and working conditions, and the punitive powers given to the Indian police help to explain their propensity for violence, they do not necessarily explain the rationale for torture. To begin to understand such a rationale we need to consider the connections between structural and personal violence, in particular the role of the former in facilitating the latter, since police violence may be personal in nature but it is in part generated, as John Galtung argues, ‘by expectations deeply rooted in the structure’.109 Structure shapes police behaviour through, for example, what Darius Rejali terms the career advancement model of torture, in which the police resort to torture in order to improve their career prospects (namely to secure the confessions they need to boost their statistical returns).110 But structure alone does not explain police behaviour since the police also internalize the structure that oppresses them, which as a result ‘change[s]‌the intensity and brutality with which [a policeman] tortures’.111 Police who are dehumanized, in other words, are also demoralized; their low self-​esteem and self-​respect, in turn, foster a lack of respect for others.112 Brutal behaviour inevitably follows, since a policeman ‘cannot be expected to highly esteem values whose existence in his own life is feeble’.113

Caste The native is an oppressed person whose permanent dream is to become the persecutor.114 It is also vital to consider the role of cultural factors in generating the particular psychological processes and motivations that drove Indian police officers to commit torture, particularly that of caste. Chinoo was, in many ways, a unique torture victim in colonial India in view of his caste status, since as most torture victims in the period of this study were untouchable or low-​caste, torture functioned as a means of reinforcing 108 Arnold, Police Power (n 67)  148. Certain classes of cognizable offences were, for example, made bailable in order to diminish police extortion. To take the case of Bengal, attempts were made as early as 1811 to curtail the ‘powers for evil’ of police darogas by removing complaints of both petty and bailable offences from their cognizance. Report of the Indian Police Commission, 1902-​03 (n 34) 8; and Report of the Committee Appointed by Resolution (n 1) 31. 109 John Galtung, ‘Violence, Peace, and Peace Research’, Journal of Peace Research 6/​3 (1969), 179–​80 (hereafter Galtung, ‘Violence, Peace, and Peace Research’). 110 Darius Rejali, ‘The Career Advancement Model of Torture’ (unpublished paper, University of Sydney 2013), 3. My thanks to Darius Rejali for sharing this paper with me. 111 Ibid; and Galtung, ‘Violence, Peace, and Peace Research’ (n 109) 180. The police are also, of course, a product and reflection of the violence that exists in the societies in which they operate. Jinee Lokaneeta, Transnational Torture:  Law, Violence, and State Power in the United States and India (New  York and London: New York University Press 2011), 136 (hereafter Lokaneeta, Transnational Torture). 112 Misra, Police Brutality (n 101) 53. 113 Ibid, 107. 114 Frantz Fanon, Concerning Violence (Constance Farrington tr., first published in 1963, London: Penguin 2008), 21.

The Perpetrators  161 power relations.115 But what Chinoo had in common with his fellow torture victims was his marginality. Although this was a product of his status as a high-​caste man living out of wedlock with a woman lower in the caste hierarchy, marginality could also be wrought by poverty, religion, (particularly in the case of Muslims), and gender (notably in regard to women).116 In colonial India it was not, however, only the torture victims who were marginalized—​so, too, in many cases, were the torturers. Although from the second half of the nineteenth century there were growing concerns about the need to curb police recruitment from the lower and untouchable castes, both Hindu and Muslim, as well as the so-​called ‘menial and quasi-​criminal classes’, in favour of ‘martial’ castes, this was difficult to attain in light of the paucity of pay given to the lower ranks of the police.117 Such concerns about the effects that its predominant recruitment base had on the police were not entirely unfounded, particularly when it came to attempts to recruit members of the higher castes and the ability of the police to carry out their duties.118 The reliance on marginal men to staff the lower ranks of 115 See Radha Kumar, ‘The Many Lives of Custodial Violence:  Madras Presidency, c.  1860-​1960’, talk given at the Penn Program on Democracy, Citizenship and Human Rights, University of Pennsylvania, 6 November 2013, 15  accessed 11 December 2017; Peers, ‘Torture, the Police’ (n 27) 40–​ 1; and Surinder S. Jodhka, Oxford India Short Introductions: Caste (New Delhi: Oxford University Press 2012), 40, 97–​129. This is not to suggest that caste and status were synonymous, since ritual status, material prosperity, and political power combined to construct power relations. See, for example, Jodhka, Oxford India Short Introductions, 41–​4; M. N. Srinivas (ed.), India’s Village (London: Asia Publishing House 1955); M. N. Srinivas, ‘The Dominant Caste in Rampura’, American Anthropologist 61 (1959), 1–​16; André Béteille, Caste, Class and Power: Changing Patterns of Stratification in Tanjore Village (first published in 1971, New Delhi: Oxford 1996); and Joan P. Mencher, ‘The Caste System Upside Down or the Not-​So-​Mysterious East’, Current Anthropology 15/​4 (1974), 469–​93. 116 When it comes to the targets of police torture, marginality also shapes victimhood in the many contemporary contexts in which it occurs, including India, in which torture victims are often young, poor migrants who live in slums and resettlement colonies. Marina Lazreg, Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton: Princeton University Press 2008), 265 (hereafter Lazreg, Torture and the Twilight of Empire); and Lokaneeta, Transnational Torture (n 111) 147. 117 Report of the Committee Appointed by Resolution (n 1) 60, 99; and Arnold, Police Power (n 67) 40. Such ‘martial’ castes included, in reality, a hodgepodge of caste, religious, and community groups including Rájputs, Játs, Ahírs, Nayars, Sikhs, and Gurkhas as well as Sheikhs, Syeds, Pathans, Afghans, and Punjabi Muslims. Reality rarely, however, matched colonial desire. In the North-​Western provinces, for example, a large percentage of the police force consisted of lower-​caste Muslims (who, along with other low-​caste and untouchable groups, were regarded as unsuitable for policing caste Hindus), with Brahmans constituting almost 20 per cent—​a fact not regarded as a boon in light of the latter’s purported tendency, as one respondent to the North-​Western Provinces Police Committee scoffed, to go ‘about begging from village to village in [their] beat’. The Indian police thus offered a stark contrast to the army, in which the so-​called ‘martial races’ had come to make up as much as three-​quarters of the infantry by the early twentieth century. Evidence Recorded by The Committee (n 49) 20; and Gavin Rand, ‘ “Martial Races” and “Imperial Subjects”: Violence and Governance in Colonial India, 1857-​1914’, European Review of History 13/​1 (2006), 10. 118 A higher caste man was reluctant to join the subordinate police, according to the North-​Western Provinces police committee, because he would be ‘likely to find himself placed under the command of an officer whom he considers utterly beneath him’. Higher-​caste officers, on the other hand, could use their caste status to their advantage, such as the Kulin Brahman who threatened to strip and abstain from eating or drinking again until a low-​caste (Dusadh) man confessed to a crime he had committed (which the man shortly did). Low-​caste officers, however, lacked influence with their men and were subject to ‘passive opposition’ from higher caste members of the public. Examples of the difficulties experienced by low-​caste officers, according to the committee, included that of a low-​caste (Gudaraya) sub-​inspector ‘standing in supplication before a “Brahman” constable who was lolling on his cot’, and a Chamar sub-​inspector assaulted by a Rajput constable whom he had dared to reprimand. Report of the Committee Appointed by Resolution (n 1) 53; and Hollins, No Ten Commandments (n 55) 252–​5.

162  Colonial Terror the Indian police also helps to explain why Chinoo’s torturers were predominantly Vellālas, who were classified according to the 1871 census (much to their chagrin), as Sudras.119 That such caste dynamics could serve as a spur to torture is suggested by Veena Das’s interview with a police officer of the Chamar caste (an untouchable, or dalit caste), who kicked a member of the higher castes (a Jat) to death rather than hand him over to the law in order to demonstrate that while a Jat could ‘buy up the upper castes in the police and the courts’ he could not ‘buy me, this low-​caste Chamar’.120 Caste differences alone, however, do not explain the police propensity to torture in colonial India, since the poor and marginal also prey upon each other. Emma Tarlo offers a shrewd analysis of how this process works in her study of the operation of the forced sterilization of the poor during Indira Gandhi’s Emergency (1975–​1977), which generated a system of co-​victimhood as the poor sought out migrants, the homeless, or simply poorer relatives to undergo sterilization in their stead in order to enable them to keep their jobs and homes.121 Her study thus portrays the poor as actively participating in acts of state repression, instead of being simply the passive victims of such acts. We can see the same processes at work in the case of the police. Douglas Peers gives the example of the Marava caste, traditionally a Kshatriya (warrior) caste and the dominant community in the district of Tirunelveli in Madras, who, in the face of the challenge to their position by an upstart community of Shanars (previously a low-​status, low-​wealth caste) sought to re-​assert their status—​through, presumably, preying upon Shanars—​by increasing their employment in the police.122 In addition, therefore, to providing various rationales for torture, caste also informed the shape that such torture took.123 According to David Canter, not only do ‘different ways of assaulting the body carry implications for different ways of relating to the person whose body it is’, but the choice of weapon used ‘derive[s]‌as much from the offender’s lifestyle and ways of seeing the world and his victim as they do from ready availability or the overt demands of the task at hand’.124 It is for this reason that the torture of members 119 Thurston, Castes and Tribes of Southern (n 11) 366. Sudras occupy the lowest rung on the caste hierarchy (although untouchables, who are outside the caste system, have a lower social and ritual status). Chinoo’s case is still, however, far from the norm due to the differing nature of the caste system in southern versus northern India, which does not contain the four-​fold varna division predominant in the north. Vellālas were, in fact, an important and powerful agricultural caste in southern India and were, hence, arguably less marginalized, in this case, than their torture victim (although since Chinoo belonged to a higher caste his behaviour in consorting with a woman lower on the caste hierarchy would have considerably compromised him). In acknowledgment of the unique nature of the caste system in southern India and their social position Vellālas were re-​classified, in the 1901 census, as ‘sat-​sudra’ or ‘clean sudra’. 120 Veena Das, Life and Words: Violence and the Descent into the Ordinary (foreword by Stanley Cavell, Berkeley, Los Angeles and London: University of California Press 2006), 171. See also Santana Khanikar, State, Violence and Legitimacy in India (New Delhi: Oxford University Press 2018), 93 (hereafter Khanikar, State, Violence). 121 Emma Tarlo, Unsettling Memories:  Narratives of the Emergency in Delhi (Berkeley:  University of California Press 2003). 122 Peers, ‘Torture, the Police’ (n 27) 42. See also Grace Pelly, Jai Singh, Independent People’s Tribunal on Torture, Extra-​Judicial Killings and Forced Disappearances, and Human Rights Law Network, State Terrorism: Torture, Extra-​Judicial Killings and Forced Disappearances in India: Report of the Independent People’s Tribunal 9-​10 February 2008 (New Delhi: Human Rights Law Network 2009), 62 (hereafter Pelly, State Terrorism). 123 Ibid. 124 David Canter, ‘The Violated Body’, in Sean T. Sweeney and Ian Hodder (eds), The Body (Cambridge: Cambridge University Press 2002), 59, 58.

The Perpetrators  163 of the higher castes tended to take the form of a combination of humiliation and caste violation, such as forcing Brahmans to carry a sweeper on their backs, confining them with low caste individuals, or forcing them to clean out privies, rather than the more physically painful forms that marginal members of Indian society were subjected to.125 But the different ways in which pain was inflicted on such marginal members was also a product of the perpetrators’ experiences and worldview. Although all torture involves psychological destruction through both the breaking of cultural taboos and inversion, which entails transgressing the boundaries of the body by putting substances in the body that are normally extraneous to it and forcing internal bodily substances outside the body, Françoise Sironi and Raphaël Branche suggest that ‘context is all-​important’ in understanding what specific procedures are selected by the torturers to accomplish such goals since the chosen procedures tend to have ‘specific cultural significance for the torture victim’.126 We need to reflect, therefore, on why Chinoo’s torture left him with ‘a private part . . . full of sores’, why Govindoo had scratches on her chest (caused by nails), blisters on her thighs (caused by fire), and swollen genitals (the cause of which is not detailed in the documents on this case), and why all three torture victims, in Anaroody’s words, were given water at the cessation of their physical torture with which they had to ‘[wash] our bodies at their [the torturers’] desire’—​why the torture victims were all subjected, in other words, to various forms of sexual violence, including enforced nudity.127 Sexual violence is, to begin with, a potent means of both humiliating and 125 Norman Chevers, A Manual of Medical Jurisprudence for Bengal and the North-​Western Provinces (Calcutta: F. Carbery, Bengal Military Orphan Press 1856), 234–​5 (hereafter Chevers, A Manual of Medical Jurisprudence). 126 Françoise Sironi and Raphaël Branche, ‘Torture and the Borders of Humanity’, International Social Science Journal 54/​174 (2002), 541, 542 (hereafter Sironi and Branche, ‘Torture and the Borders of Humanity’). 127 Statement by Chinnaroosam to Govinda Rai, 6 April 1840, Charge of Anaroody, and Foujdaree Adalut, Southern Division, 1840, 1st Sessions, Trial No. 10 (n 12) IOR/​F/​4/​1930/​82995, BL. Govindoo’s swollen genitals are a sign that at least one of the threats made by the torturers as to what they would do to her was carried out. She was, in other words, probably raped, and possibly more than once, although by what or whom is unclear. I have come across a number of cases in which women were clearly raped during the course of their torture ordeal, but such rapes were not referred to either by the women or by the many other commentators on their cases. That women who were tortured rarely admitted to being raped is doubtless because this would add to the disgrace torture brought upon both themselves and their families (not to mention retaliatory danger), and that survivors of extreme violence tend to be treated more harshly than their abusers. The many (male) commentators on such cases did not refer to rape, on the other hand, in part because they viewed sexual violence merely as an aspect of torture, in part because of prevailing attitudes about the veracity of Indian women, and in part because of what Elizabeth Kolsky refers to as the ‘rule of colonial indifference’ in regard to the rape of Indian women. An additional reason may have been that victims were generally lower-​caste or otherwise marginal, and since such women were, as Charu Gupta argues, ‘perceived in binary opposition to upper-​caste women’ as amoral, shameless, aggressive, and overtly sexual, ‘they place[d]‌a question mark on the simple dualities of male versus female’. Attempts to investigate or institute charges for rape were, in addition, widely sabotaged by both British and Indian officials. Judith Herman, ‘From Trauma and Recovery:  The Aftermath of Violence—​From Domestic Abuse to Political Terror’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 368 (hereafter Herman, ‘From Trauma and Recovery’); Elizabeth Kolsky, ‘The Rule of Colonial Indifference: Rape on Trial in Early Colonial India, 1805-​57’, The Journal of Asian Studies 69/​4 (2010), 1095, 1101; Charu Gupta, ‘Embodying Resistance: Representing Dalits in Colonial India’, South Asia: Journal of South Asian Studies 38/​1 (2015), 104; and Jonathan Saha, Law, Disorder and the Colonial State: Corruption in Burma c. 1900 (Basingstoke: Palgrave Macmillan 2013), 14, 61–​2, 66 (hereafter Saha, Law, Disorder and the Colonial State). See also Deana Heath, ‘Torture, the State and Sexual Violence Against Men in Colonial India’, Radical History Review 126 (2017), 122–​33. For more on enforced nudity as

164  Colonial Terror destroying torture victims—​so much so that Marnia Lazreg suggests that the essence of torture is, in fact, sexual.128 It is particularly effective when employed against men, since in addition to emasculating them it shames them for failing to protect their families from such violation (one reason why, as in Chinoo’s case, such violation often takes place in front of family or community members and that women are sexually violated in order to force their men to confess).129 This makes it a formidable tool for asserting power over victims who are from a different caste, ethnic, religious, or racial group in order to humiliate them and, with it, annihilate the victim group’s identity, culture, and unity.130 In Chinoo’s case Mutusamy, the bullock maistry who was robbed, notably ‘avowed himself that he would cut the genealogical root’ of the caste—​not, significantly, the individual—​responsible for the robbery.131 In situations in which male power is unstable or under threat, from poverty or other factors, as is the case in colonial contexts, sexual violence also gives its male perpetrators a sense of regaining control of their masculinity.132 That caste would come to provide a key motivation for torture in a situation in which the perpetrators were both dehumanized and armed with tremendous power, and the governmentalizing practices of the colonial regime ‘imposed sharper boundaries of marginality for some groups, whittling away the legitimacy of their claims to social surplus’, was virtually inevitable since the ultimate aim of torture is to target the group to which the victim belongs through destroying that group’s cultural identity.133 Torture is a means, in other words, of annihilating the affinity of the victim with his a form of sexual violence see Sarah Solangon and Preeti Patel, ‘Sexual Violence Against Men in Countries Affected by Armed Conflict’, Conflict, Security & Development 12/​4 (2012), 418 (hereafter Solangon and Patel, ‘Sexual Violence Against Men’). 128 Lazreg, Torture and the Twilight of Empire (n 116) 143, 120. 129 Solangon and Patel, ‘Sexual Violence Against Men’ (n 127) 427; Peers, ‘Torture, the Police’ (n 27) 42; K. Balagopal, ‘Deaths in Police Custody: Whom and Why Do the Police Kill?’, Economic and Political Weekly (22 November 1986), 2028 (hereafter Balagopal, ‘Deaths in Police Custody’); and Pelly, State Terrorism (n 122) 53–​4. See also Norman Chevers, A Manual of Medical Jurisprudence (n 125) 206, 209, 212, 218–​20, 226. In colonial India caste played a significant role in conceptions of shame (in north India referred to as lajja). Since the lower castes were regarded as having little lajja to lose, this provided a justification for subjecting them to sexual violence, one of the most brutal and effective means of shaming. So did the threat that marginal men, such as members of the lower castes and Muslims, were perceived to pose to the sexual purity of upper-​caste women. William Gould, Bureaucracy, Community and Influence in India: Society and the State,1930s-​1960s (Abingdon, Oxon: Routledge 2011), 98 (hereafter Gould, Bureaucracy, Community); Charu Gupta, ‘Feminine, Criminal or Manly? Imaging Dalit Masculinities in Colonial North India’, The Indian Economic and Social History Review 47/​3 (2010), 321; and Prachi Patil, ‘Understanding Sexual Violence as a Form of Caste Violence’, Journal of Social Inclusion 7/​1 (2016), 59–​71. 130 Solangon and Patel, ‘Sexual Violence Against Men’ (n 127) 428; and Valorie K. Vojdik, ‘Sexual Violence Against Men and Women in War: A Masculinities Approach’, Nevada Law Journal 14/​3 (2014), 948. 131 Deposition given to Govinda Rai, Neilgherry talook, n.d., IOR/​F/​4/​1930/​82995, BL. That such attitudes undoubtedly existed among the colonial police is suggested by the experience of a lower-​caste woman in post-​colonial India, Ramshree, who when she begged the Uttar Pradesh police not to beat her when they came to arrest her husband, because she was pregnant, deliberately kicked her hard in the belly in order, as one policeman told her, to ‘kill this Chamariya’s . . . baby before it is born and creates trouble’. As a result of such violence Ramshree lost her baby. Pelly, State Terrorism (n 122) 81. 132 Solangon and Patel, ‘Sexual Violence Against Men’ (n 127) 426. 133 Singha, A Despotism of Law (n 82) 79; and Sironi and Branche, ‘Torture and the Borders of Humanity’ (n 126) 539. Sironi and Branche suggest that the ‘mindset resulting from colonialism was fertile ground for the development of certain forms of violence used on people seen as not belonging entirely within a common humanity’. Sironi and Branche, ‘Torture and the Borders of Humanity’ (n 126) 542.

The Perpetrators  165 or her group and generating terror amongst group members.134 While groups that are subjected to torture have already undergone processes of what psychologists refer to as devaluation, in which they become ‘excluded from the universe of moral concerns, and moral values become inapplicable to them’, in the case of colonial India such processes had not only evolved over a long period of time but were exacerbated by colonialism.135

Policing and the Dynamics of Group Torture Socialization processes, rather than dysfunctional individuals, are responsible for torture.136 I will turn, now, to consider the group dynamics and institutional structures that led to the generation of what we might term a culture of torture in the colonial Indian police. There were a series of factors that contributed to such a culture, including a lack of supervision, the fact that the police essentially served two interests (that of the British and of local elites), the contempt with which the police were regarded by both the colonial state and the public, and the clannish dynamics that pervaded the police. Such factors functioned, collectively, to facilitate the creation of an in-​group dynamic in which extreme forms of harm doing, particularly torture, were normativized.

Lack of Supervision How impossible it is for the European police officer in India to know what his subordinates are doing, even when under his own eye, and how much less control the doings of those employed in the interior, many miles away!137 To begin with the issue of supervision, I have already alluded to the supervisory problems posed by the chronic underfunding of the Indian police, as well as to how the maintenance of the higher ranks as a European preserve exacerbated such problems. Such underfunding and racial exclusivity generated a situation in which each province had a small cohort of British police officials supervising a considerable number of

134 Sironi and Branche, ‘Torture and the Borders of Humanity’ (n 126) 540. 135 Straub, ‘The Psychology and Culture of Torture and Torturers’ (n 29) 53. Psychological studies have demonstrated the ways in which devaluation can generate the desire to harm. In one experiment, for example, participants gave greater shocks to people about whom they had heard demeaning comments and less severe ones to those about whom they had heard affirmative ones. Ibid, 52. See also M. J. Lerner and C. H. Simmons, ‘Observer’s Reaction to the “innocent victim”:  Compassion or Rejection?’, Journal of Personality and Social Psychology 4 (1966), 203–​10; and Melvin J. Lerner, The Belief in a Just World: A Fundamental Delusion (New York: Plenum-​Press 1980). 136 Rachel Wahl, ‘Justice, Context, and Violence: Law Enforcement Officers on Why They Torture’, Law and Society Review 48/​4 (2014), 813. 137 Hollins, No Ten Commandments (n 55) 50.

166  Colonial Terror Indian subordinates.138 Geographical challenges added to the lack of supervision over the police rank and file. To take the example of the North-​Western provinces, by the late nineteenth century it had 861 police stations and 135 outposts.139 The former were divided into first-​class stations (which had four officers and twelve men), second-​class stations (three officers and nine men), and third-​class stations (two officers and six men), while the latter had only one officer and four men.140 Since first class stations only existed in principal towns, the bulk of the police in the province worked in rural and, often, isolated conditions.141 The combination of an insufficient number of supervisors and the geographically dispersed nature of the police meant that a district superintendent of police could be responsible for supervising as many as 949 policemen at twenty-​six police stations and twenty-​one outposts spread throughout a district of 5,186 square miles.142 In addition to such stations and outposts often being ‘very difficult of access’, communication between them was often poor and during the monsoon could completely collapse.143 Insufficient numbers of supervisory staff and geography were not the only reasons, however, that supervision over the Indian police was poor. An additional reason was that, as the 1902 Indian Police Commission put it, in a refrain that echoed critiques of other branches of the colonial bureaucracy, the higher ranks of the Indian police were ‘filled by men deficient in education, intelligence and social status’.144 District superintendents of police were subject to particular criticism for being neither ‘well educated [n]‌or intelligent men’.145 They were also charged with having narrow views, a poor sense of responsibility (which included ‘support[ing] their subordinates in an unreasonable manner’), and a lack of character.146 They also had poor knowledge of the vernacular and were overbearing in their attitude towards the Indian public, while 138 In 1887, for example, the North-​Western Provinces and Oudh had fifty-​eight British police officials, who were responsible for supervising 22,000 Indian subordinates. Although district magistrates also played a supervisory role over the Indian police, since they had to juggle reading the daily reports of crime from all over their districts, keep watch on the progress of investigations, maintain a registry of ‘vital statistics’, and inspect police buildings among their multifarious other duties they offered little in the way of additional police supervision. Campion, ‘Watchmen of the Raj’ (n 92) 42–​4; and Carstairs, The Little World (n 1) 281. 139 Report of the Committee Appointed by Resolution (n 1) 11. 140 Ibid. 141 Ibid. 142 Mackarness, ‘The Methods of the Indian Police’ (n 67) 15. During the first half of the nineteenth century darogas could exercise control over as much as 770 square miles. This was considerably reduced in the late nineteenth century, but a police inspector could still exercise control over a territory as large as 250 square miles. Gupta, Crime and Police in India [Up to 1861], 262; Griffiths, To Guard My People (n 48) 180; and Majumdar, Justice and Police in Bengal (n 34) 294. 143 Mackarness, ‘Methods of the Indian Police’ (n 67) 16; and Ranjan Chakrabarti, Terror, Crime and Punishment: Order and Disorder in Early Colonial Bengal 1800-​1860 (Kolkata: Reader’s Service 2009), 87. Although the communication situation that predominated in the first half of the nineteenth century, in which the absence of roads meant that police stations in the interior were completely cut off from both each other as well as district headquarters during the monsoon, improved as the century progressed, the lack of sufficient communication among the police remained a perennial problem. 144 Report of the Indian Police Commission, 1902-​03 (n 34) 205. Indian critics shared such an assessment. One nationalist pamphlet, for example, which was found circulating among the police in Bengal in 1921, referred to British police officers as ‘dregs from England’. GOB IB No. 264 of 1921, West Bengal State Archives, cited in Silvestri, ‘The Dirty Work of Empire’ (n 61) 314. 145 Report of the Indian Police Commission, 1902-​03 (n 34) 19. 146 Ibid; and Report of the Committee Appointed by Government to Consider Certain Questions Connected with the Police Administration of the Punjab (n 48) 68.

The Perpetrators  167 also remaining aloof from both the Indian public and their Indian subordinates.147 Furthermore, they knew little about the investigations carried out under their remit and evidenced no desire to know more; their dictum, according to Triok Nath, was simply ‘Wait and see, and act when you must’.148 They were, in short, unable either to comprehend the nature of the duties expected of them or grasp their importance.149 The effects of such lax supervision are evident in the ways in which the police set about investigating cases. Complainants had to give a bribe, to begin with, to get their complaints recorded.150 Investigating officers then had to be given a ‘present’ to secure their prompt and judicious handling of a case, and more money was extorted as the investigation proceeded.151 Such extortion extended beyond the victims, since the police also had the habit of establishing themselves in the village in which a crime took place and forcing the villagers to meet their needs.152 Their mode of investigation, once they had been sufficiently remunerated to begin undertaking it, was to round up ‘bad characters’, and sometimes even entire villages, and keep them in what in north India was known as nazar khaid, or informal custody, ‘until they determined amongst themselves who the murderers were’.153 Suspects, witnesses, and anyone else believed to be of any use were also forced to accompany the police from place to place and threatened as to the horrible consequences that would befall either them or their families if they failed to give the required evidence. Such consequences included physical violence, the detention of family members in police custody, and the invasion of the

147 Report of the Indian Police Commission, 1902-​03 (n 34) 19. Their attitudes were reflected in what Sir Percival Griffiths, a former member of the Indian police, referred to as ‘the passion of the average young British officer for shooting’, which was voluminously recorded in police memoirs. For Griffiths, however, such a passion, rather than hindering British police officers from understanding and performing their duties, instead helped them to ‘lay the foundations of an intimate knowledge of the country and its people’. It was also regarded as inculcating leadership skills like presence of mind, initiative, and resourcefulness, in addition to qualities such as boldness and courage (not to mention alleviating the tedium and loneliness of expatriate life). Griffiths, To Guard My People (n 48) 314; Dhillon, Defenders of the Establishment (n 37) 121; and Hollins, No Ten Commandments (n 55) 18, 21. 148 Nath, Forty Years of Indian Police (n 28) 33. Such aloofness was a means for colonial officials to maintain racial prestige (since according to B. N. Lahiri, who joined the Indian police in 1922, ‘every Tom Dick and Harry having the remotest connection with the ruling race by blood, looked upon himself as a superior being entitled to homage by an Indian, whatever the latter’s status might be’), present themselves as incorruptible, and deny responsibility for the many problems that beset the colonial administration. It also abetted the maintenance of the proverbial British ‘stiff upper lip’, as demonstrated by the excitement of S. T. Hollins, then a young assistant superintendent of police, at being relieved of an isolated and monotonous post to take up an even more isolated one involving famine administration because it was ‘something new to do’—​and then making no mention at all of how he dealt with such a horrific situation. Saha, Law, Disorder and the Colonial State (n 127) 77–​81; B. N. Lahiri, Before and After (Allahabad: Chugh Publications 1974), 11; and Hollins, No Ten Commandments (n 55) 21. 149 Report of the Indian Police Commission, 1902-​03 (n 34) 20. Part of the reason for the failures of police superintendents, according to the North-​Western Provinces police committee, was that they were all ‘either boys or old men’. Report of the Committee Appointed by Resolution (n 1) 48. 150 Report of the Indian Police Commission, 1902-​03 (n 34) 203. 151 Ibid. 152 Evidence of Mr. Finlay, District Magistrate of Agra, Evidence Recorded by The Committee (n 49) 29. 153 Report of the Committee Appointed by Resolution (n 1) 19; and Report of the Committee Appointed by Government to Consider Certain Questions with the Police Administration of the Punjab, 113. One District Magistrate reported a case in which an investigating officer rounded up between 500 to 600 people and kept them for forty-​eight hours while he sat and waited for them to name a culprit. Evidence Recorded by The Committee (n 49) 55.

168  Colonial Terror houses of high-​caste individuals by low-​caste members of the police (on the grounds of, for example, searching for stolen property).154 Although T. K. Vinod Kumar and Arvind Verma argue that the subordinate police were ‘controlled by a maze of rules and procedures that created a veritable panopticon’, which included the maintenance of a web of documents that recorded the daily activities of each police officer, I would question how pervasive, not to mention effective, such surveillance was, particularly in regard to the large numbers of police posted to small stations or remote outposts.155 In the North-​Western Provinces, for example, there were no officers at no less than a third of its police stations and outposts, which were manned by head constables on salaries as low as Rs. 10 a month (and of these, 2,082 head constables out of a total of 2,695 were deemed unfit to perform their duties by their superior officers).156 Officers such as circle inspectors, furthermore, who in the North-​Western Provinces were in charge of six or more police stations and who were responsible for ensuring the good conduct of their subordinates, spent more time carrying out investigations than they did undertaking their supervisory responsibilities.157 The situation was no better in regard to district superintendents of police, who in addition to spending a large portion of their time inspecting thanas rather than carrying out more effective forms of supervision were also, like district magistrates, moved about so frequently from district to district (often once a year or more) that they knew nothing about the men under their charge.158 Moreover, ‘careful watching’ by the superior ranks of the Indian police over their subordinates was not only difficult but regarded as undesirable, since in addition to needing to protect their subordinates from the ‘prejudices’ of the public, press, and judiciary the career prospects of such officers depended, in part, upon the maintenance of strong statistical returns (which, as I have suggested, were dependent on torture).159 The many torture cases that I have examined (few of which, notably, took place in cities, where the supervision and surveillance of the police were greatest) certainly offer evidence of a system of policing in

154 ‘Administration of Criminal Justice in Bengal’, Calcutta Review, VI, July–​December (1846), 182; India, Judicial Department, 29 October 1856, 1317, IOR/​E/​4/​839; and Report of the Indian Police Commission, 1902-​03 (n 34) 203–​4. 155 Kumar and Verma, ‘Hegemony, Discipline and Control’ (n 68) 70. In an earlier article Arvind Verma makes a somewhat different argument, namely that the control the superior police exercised over their subordinates was ineffectual, and that the records they kept served to depict an ideal image of the police rather than the real state of affairs. Surveillance did, however, undoubtedly increase over time, and was definitely more pervasive from the early twentieth century. Verma, ‘Consolidation of the Raj’ (n 65) 116. 156 Report of the Committee Appointed by Resolution (n 1) 46, 41. 157 Ibid, 10, 39. 158 Evidence Recorded by The Committee (n 49) 60. Despite the emphasis on inspections (which district superintendents could spend almost two-​thirds of the year carrying out) they were, however, notably sporadic. In the Madras presidency, for example, the ‘malarious influences of the climate’ ensured that as many as a quarter of the police stations in a district remained unvisited each year due to the superintendent’s purported ill-​health (although some superintendents may have simply sought a far easier way of doing inspections, as documented by Eric Stracey, namely that of having the relevant books brought to them to inspect while comfortably ensconced at home). Inspections also focused more on the appearance of the station and its staff than on issues of real concern. Varma, ‘Consolidation of the Raj’ (n 65) 117; Administration Report of the Madras Police for the Year 1868 (Madras: Scottish Press 1869), 27; and Stracey, Odd Man In (n 45) 45. 159 Martin Wiener, An Empire on Trial:  Race, Murder, and Justice Under British Rule, 1870-​1935 (New York: Cambridge 2009), 168.

The Perpetrators  169 which there were few checks on the behaviour of the subordinate police—​or, for that matter, on that of their officers.160

Divided Loyalties It is always a difficult question how long to keep a head-​constable or constable at any particular post. It takes him some time to know the people and the circumstances of the locality. On the other hand, if he is left too long he is apt to take sides in local disputes and interests as to which he should be strictly impartial.161 Another factor that facilitated the generation of an in-​group dynamic in the Indian police and made the enactment of extreme forms of harm doing possible was, as Chinoo’s case demonstrates, that the police never served British interests alone. The strong social and cultural ties between the police and the rest of Indian society meant that the loyalties of the Indian police, as I have already noted, were divided, not only between the colonial state and Indian society but between the colonial state and a range of competing interest groups. In his classic study of the South Indian district of Guntur (now in Andhra Pradesh), Robert Frykenberg explores the ways in which, during the late eighteenth and early nineteenth centuries, the nascent colonial state lost control over its Indian subordinates at the local level due to their formation of familial and wider networks that were intricately connected to the state’s bureaucratic structures.162 Such relationships between subordinate officials and local authorities were often extremely enduring, and played a key role in bolstering the organizational weaknesses of the colonial state.163 They were also, as William Gould argues, ‘played out through locally-​recruited cadres of the civil service itself: from the Deputy Collector, to the tahsildar and naib tahsildar in the 160 As in the case of the subordinate police, how the behaviour of European officers was judged depended, in part, on where they were located, since the further away they were from the Indian government the less their behaviour appeared to matter, as well as how recently the province in which they resided had been ‘incorporated’ into British India. Hence it was possible, for example, for Mr. Chisholm, a superintendent of police in Burma in the late 1880s, to employ a constable to procure women for him and to have the words ‘bazaar prostitute’ tattooed in Burmese on the forehead of one such woman, and for another superintendent of police in Burma, Mr. Doveton, to extort a considerable sum of money from a suspected murderer in 1914 in exchange for arresting an innocent man for the crime. Chisholm was simply transferred to another district, and although Doveton was put up for trial, he was acquitted by a European jury. Home, Police, B, October, 137–​40, 1889, NAI; and Home, Police, A, May, 117–​22, 1916, NAI. 161 Sir Edmund Cox, Police and Crime in India (first published in 1910, New Delhi: Manu Publications 1976), 197 (hereafter Cox, Police and Crime). 162 Robert Eric Frykenberg, Guntur District, 1788-​1848:  A History of Local Influence and Central Authority in South India (Oxford: Clarendon Press 1965). Bhavani Raman, however, contends that although East India Company administrators ‘secured the loyalty of their subordinates by greatly intensifying hierarchical ties while simultaneously buttressing the power of their subordinates over inhabitants’, such changes also generated a crisis of trust between Company administrators and their subordinates that shaped colonial perceptions of such subordinates (namely as nepotistic, venal, and corrupt). Bhavani Raman, ‘The Familial World of the Company’s Kacceri in Early Colonial Madras’, Journal of Colonialism and Colonial History 9/​2 (2008) [DOI: 10.1343/​cch.0.0011], para. 2. 163 Gould, Bureaucracy, Community (n 129) 6, 42.

170  Colonial Terror revenue administration, or the Sub-​Inspector in the police’.164 Recruitment to government service was, therefore, an important path to local influence, as well as a means through which local elites (who helped to ensure the recruitment of ‘suitable’ candidates) could co-​opt state power.165 The influence of government officials, not to mention their ability to charge for their favours, helps to explain why even an aspiring chaukidar would be willing to pay up to five months’ salary to a zamindar to secure his nomination to such a post.166 The weakness of the colonial state and its consequent need to share sovereignty with local elites meant that the state sought, in turn, to recruit those castes and occupational groups whose interests were allied with those of local power brokers.167 Such power dynamics ensured that the police were an often-​unreliable arm of the colonial state. They not only, at times, participated in the crime, rioting, and looting that they were meant to suppress, but declined to put a stop to such activities out of sympathy with the perpetrators (by, for example, firing over the heads of rioters rather than, as they were required to do, firing directly at them).168 But the connections between the police and local elites were more enduring than affinities between the police and subordinate classes as a result of the former’s wealth and influence.169 It was not uncommon, for example, for the village police to obtain the local landlord’s consent before reporting an offense of any importance, or for landlords to direct what to report.170 The police, as Chinoo’s case demonstrates, also carried out investigations at the behest of local elites. The biddability of the police was, to some extent, implied in the nature of policing in a regime of conquest, which was designed to ensure the security of both the state and

164 Ibid, 42. 165 Ibid, 53, 51. Bernard Cohn has illustrated how such a process works in the enactment of summary justice by a dominant caste against a member of the lower castes. See Bernard Cohn, ‘Anthropological Notes on Disputes and Law in India’, in An Anthropologist among the Historians and Other Essays (Delhi: Oxford University Press, 1987), 587–​8. 166 Madan, Indian Police (n 37) 180. See also Khan, Confessions of a Constable (n 68) 164–​5. A would-​be chaukidar would have to offer an additional naẕarāna (‘gift’) to various members of the police. A considerably higher fee was paid by members of the ‘criminal classes’ who sought to secure a chaukidari appointment for one of their members. 167 Madan, Indian Police (n 37) 65. 168 Arnold, Police Power (n 67)  62–​3; and David Arnold, ‘The Police and Colonial Control in South India’, Social Scientist 4/​12 (1976), 6 (hereafter Arnold, ‘The Police and Colonial Control’). Convictions of the police for theft, or for involvement in dacoities, were not uncommon, especially in the first half of the nineteenth century. In the mid 1830s, for example, roughly 1,100 chaukidars were dismissed each year in Bengal for a range of offences, including murder, thuggee, robbery and theft, embezzlement, forgery, perjury, bribery, extortion, affrays and assaults, being accessories to crimes, and concealing crimes or aiding escapes. Conviction rates for members of the Indian and village police remained high, however, throughout the nineteenth century. In 1878, for example, no less than 428 policemen were convicted of various offences in Madras alone. Gupta, Crime and Police in India [Up to 1861], 255; and Police Administration Report, Judicial Department, Government of Madras, 24 November 1879, Home, Judicial, B Proceedings, August 1880, No. 38–​9, NAI. 169 The British also invested new (including punitive) powers in local elites, which enhanced their status as well as giving them a share of the state’s police power. Ralph H. Retzlaff, Village Government in India: A Case Study (Bombay: Asia Publishing House, 1962), 29. 170 Evidence of Mr. Crooke, Magistrate of Mirzapur, Evidence Recorded by The Committee (n 49) 86; and Madan, Indian Police (n 37) 187.

The Perpetrators  171 property holders.171 That the police may have found it difficult, if not impossible, to determine where legitimate protection ended and illegal clientage began is evident in the numerous incidences in which the local landlord was also a member of the police.172 For the village police, who generally owed their appointment and allegiance to local landlords and who were used by village elites to collect rents or carry out other tasks there was, in fact, no such division.173 The obligations of the police to local elites, as well as pressures to obtain results as recompense for what could be considerable bribes, help to explain the recourse to torture by the police in cases such as Chinoo’s.174

Derisory Attitudes Towards the Police The Indian police are a despised minority.175 A third factor that facilitated the construction of in-​group dynamics among the Indian police was the derisory attitudes towards them by both the colonial state and the public. As the Calcutta Review protested in 1860, ‘our Indian Police have been vilified and abused till the whole vocabulary of vituperation has been expended’.176 The situation improved little over subsequent decades. Constables, regarded as ‘the pariahs of the police department’, were particularly disparaged.177 The public attitude towards the police, a product of the ‘intolerable burden’ the police placed on them, was no better.178 The spatial layout of colonial police stations (at least those 171 Arnold, Police Power (n 67) 63–​4. Policemen were, for example, hired out to banks and other businesses to protect property. According to a Mr. O’Dowds, the district superintendent of police of Mutra, police investigations were essentially fruitless unless they were attended by lambardars (village headmen) and zamindars, since such elites had ‘great influence on the bad characters and criminals in their villages’. Evidence Recorded by The Committee (n 49) 63. 172 Arnold, Police Power (n 67) 64. One deponent before the Madras torture commission, for example, was unable to obtain redress for the extortion and brutality to which he had been subjected by the police because the zamindar, Sunkara Royer, was also the head of police. In a case that caused considerably greater difficulties for the colonial state, one member of a local elite, who ordered or was at least complicit in the police torture of several men for no less than fourteen days, was also an honorary assistant police commissioner. Deposition of Kauleegaudoo before E. F. Elliot, 10 January 1855, Report of the Commissioners (n 71)159; and Secretary to the Chief Commissioner, Oude, to the Secretary to the Government of India, Foreign Department, 19 September 1863, IOR/​E/​4/​841, 1856–​1857, BL. 173 Gupta, Crime and Police in India [Up to 1861], 255; and Piliavsky, ‘The Moghia Menace’ (n 36) 762. Village police were, in fact, subject to a range of competing sources of power, including villagers, thanadars (heads of police stations), and zamindar’s naib’s, or agents. Madan, Indian Police (n 37) 33. 174 Balagopal, ‘Deaths in Police Custody’ (n 129) 2029. 175 Baxi, The Crisis (n 81) 86, emphasis in original. Baxi refers to the police in post-​colonial India as a ‘minority’ because they are exploited, vulnerable, and neglected, characteristics that apply equally well to the police in colonial India. 176 ‘The Madras Constabulary’, The Calcutta Review, Vol. LXX, December 1860, 351. 177 Arnold, Police Power (n 67) 69; and Nath, Forty Years of Indian Police (n 28) 15. This is evident in their treatment by their superior officers, who used their subordinates to carry out various forms of unpaid labour such as working at their residences. 178 Report of the Indian Police Commission, 1902-​03 (n 34) 207. For the Indian public, involvement with the police was to be avoided at all costs. According to William Chevers, ‘The concealment of crime by those who are unwilling to incur the trouble or risk of a police investigation’ was, as a result, ‘probably an almost

172  Colonial Terror that were built to be police stations, rather than existing buildings appropriated for police use) added both to the aversion the police engendered in the Indian public and the sense of isolation of the police from them, since such stations, with their large compounds surrounded by high walls and guarded by sentries, were clearly designed to keep the public out.179 That the architecture of police stations was designed in part to protect the police from the public is borne out by the fact that the latter could, at times, become emboldened to attack the police when they were few in number.180 The attitude of the public towards the police contributed to the general distaste towards serving in it, since service in the police was as unpopular, and as much avoided, as were the police themselves.181 The ‘starvation pay’ and trying nature of police duties (which were so severe, according to one Police Commissioner, that ‘twenty years wears a man out’), not to mention the generally abrasive and haughty manner of European officers towards their subordinates, meant that recruitment was a constant struggle.182 The police therefore tended to attract recruits who had few, if any, other employment options, and who were both willing and able, as one district magistrate put it, to ‘stand outdoor work in bad weather, . . . sleep under a tree or in a stuffy hut . . . search a filthy slum, and put up with personal inconvenience of all kinds’.183

daily occurrence’. The risks to those who sought police help is apparent in the case of the United Provinces darzi (tailor) whose report of a case of theft to the police led a sub-​inspector and group of constables to go to his home, ‘grossly’ insult his wife, and take his daughter to the thana to rape her—​horrors that led the entire family to commit suicide. Yet despite such hazards, the ineffectual criminal justice system in colonial India also generated a situation in which people expected the police to ‘give a sound thrashing’ to criminal suspects or those they deemed in need of it, like abusive spouses or errant relatives. Chevers, A Manual of Medical Jurisprudence (n 125) f. 46; Mishra, Police Brutality (n 101) 14; and Abhydaya (Allahabad), 11 October 1907, cited in Campion, ‘Watchmen of the Raj’ (n 92) 140. See also Gagan Preet Singh, ‘Property’s Guardians, People’s Terror: Police Avoidance in Colonial North India’, Radical History Review 137 (2020), 54–​74; Cox, Police and Crime in India (n 161) 142; Arthur, Reminiscences of an Indian Police Official, 74; Beatrice Jauregui, ‘Law and Order: Police Encounter Killings and Routinized Political Violence’, in Isabelle Clark-​Decès (ed.), A Companion to the Anthropology of India (Oxford: Wiley-​Blackwell 2010), 383; and Rachel Wahl, Just Violence: Torture and Human Rights in the Eyes of the Police (Stanford: Stanford University Press 2017), 62–​3, 94–​5. 179 Verma, ‘Consolidation of the Raj’ (n 65) 118; and Clea T. Finkle, ‘State, Power, and Police in Colonial North India’ (PhD Diss., University of Washington 1999), 157–​67. Since effective crime control is dependent on good police-​community relations—​most serious crime in modern Britain, for example, is reported by the public, who also play an important role in solving it—​the public fear and animosity against the police in colonial India was thus a severe impediment to reducing crime. Nicholas R. Fyfe, ‘The Police, Space and Society: The Geography of Policing’, Progress in Human Geography 15/​3 (1991), 257. 180 Arnold, ‘The Police and Colonial Control’ (n 168), 6; Kidambi, ‘The Ultimate Masters of the City’: Police, Public Order and the Poor in Colonial Bombay’, c. 1893-​1914, Crime, History & Societies, 8/​ 1 (2004) [DOI: https://​doi.org/​10.4000/​chs.513], para. 41; and Beatrice Jauregui, ‘Beatings, Beacons and Big Men: Police Disempowerment and Delegitimation in India’, Law & Social Inquiry 38/​3 (2013), 643–​9. The vulnerability of police authority in post-​colonial India leads Beatrice Jauregui to regard such authority as provisional, a characterization that, in light of the ways in which they negotiated the boundary between state and society, would seem equally apt for the colonial police. Such provisionality, however, rather than diminishing police violence could instead exacerbate it. See Jauregui, Provisional Authority (n 64). 181 Report of the Committee Appointed by Resolution (n 1) 19. 182 Ibid, 59; Evidence Recorded by The Committee (n 49) 25; and Report of the Indian Police Commission, 1902-​03 (n 34) 20. 183 Evidence Recorded by The Committee (n 49) 8.

The Perpetrators  173

Clannishness The very strong sense of solidarity . . . among the police almost ensures the use of torture.184 The extremely small numbers of police at the bulk of colonial police stations and outposts, the isolated conditions in which most members of the police worked, their lack of supervision, the predatory and oppressive way in which they conducted investigations, the network of relationships and obligations in which the police were enmeshed with local elites, and the derisory attitudes towards them by both the colonial state and the public help to explain what one critic described as the ‘great defect’ of the Indian police, namely the ‘clannish feeling that pervade[d]‌the force’.185 Such clannishness created a state of affairs in which, as one police commissioner put it, ‘departmentalism [was] rampant’.186 Caste dynamics exacerbated such a situation, since members of the Indian police often served with large numbers of relations and co-​caste men, who looked out for each other and endeavoured to further their mutual interests.187 This was true not only of the rank and file but of their superiors, since the latter likewise ran along ‘narrow grooves with a strong caste and provincial bias’.188 The ways in which hierarchy was displayed in the Indian police, such as the accompaniment of officers by a posse of constables wherever they went, exacerbated such power dynamics.189 The clannishness of the police meant that the bulk of the men who comprised India’s police forces only viewed themselves in terms of a larger collective when it came to defining themselves vis-​à-​vis the rest of Indian society, since despite the considerable hardships of the job (or perhaps because of them) their experiences as police, not to mention the public attitude towards them, generated a sense that they were ‘in many ways superior to the social strata from which they sprang’.190 Their loyalty largely lay, however, with their particular unit, caste, or power brokers. The localism of the Indian police was, as a result, a perennial complaint. According to the 1899 Punjab police committee, the apathy of police officers in regard to everything that occurred outside their own jurisdictions was one of the worst aspects of the Indian police.191 Such apathy was as true of European officers as it was of Indian, since it was not uncommon, according to the committee, ‘to find two neighbouring superintendents

184 Baxi, The Crisis (n 81) 128. 185 Colonel E. T. Dalton, Commissioner of Chota Nagpore, to Lieutenant-​Colonel J. R. Pughe, Inspector General of Police, Lower Provinces, 27 December 1867, Home, Police, A, January, 27–​9, 1869, NAI. 186 Police Commissioner Currie, Evidence Recorded by The Committee (n 49) 60. 187 Nath, Forty Years of Indian Police (n 28) 29. 188 Ibid. 189 Reynolds, Officiating Judge, Banda, Evidence Recorded by The Committee (n 49) 43. 190 Arnold, Police Power (n 67) 66. A belief in the superiority of the Indian police, at least in comparison with other branches of the colonial administration, also prevailed among European officers, since such men believed themselves to be more in touch with the practical difficulties of maintaining British rule. Wiener, An Empire on Trial (n 159) 137. 191 Report of the Committee Appointed by Government to Consider Certain Questions with the Police Administration of the Punjab, 99.

174  Colonial Terror jealously watching their respective frontiers as if the adjoining district were a foreign territory’.192 The issue of localism (or of the fact that the boundaries beyond individual police stations or outposts, and even entire districts, were conceptualized in terms of ‘frontiers’ by the police) is a useful place to begin in order to understand the particular group dynamics that transformed policemen into torturers in colonial India, since ‘the more a police department is divided into small units, with each under pressure to produce and excel, the greater the likelihood . . . [of] abuse’.193 Because torture is a product of training—​people ‘become torturers, they are not born to it’ (emphasis added) —​the ‘clannishness’ of the Indian police, coupled with the power they were given by the colonial state to act as ‘petty sovereigns’, generated a group dynamic in which torture became a means not only of enacting sovereignty but of carrying out summary justice and performing or restoring masculinity.194 Torture was also a means through which group dynamics were solidified, since ‘The way we do things around here’ is also a way of demonstrating group belonging.195 That torture played a fundamental role in solidifying group dynamics in the Indian police is clear from the centrality of sexual violence in the torture they enacted, since such violence operates as a form of male bonding.196 The colonial regime was certainly well aware that torture was one of the ‘temptations’ into which Indian police officers were led by their peers.197 Low-​caste men were undoubtedly under particular pressure to conform to such group dynamics due to the ways in which, as Ranajit Guha suggests, a lower-​caste man’s identity ‘amounted to the sum of his subalternity’ (since his identity was impressed upon him by those higher in the class and caste hierarchy).198 The intense pressure experienced by subordinate members of the colonial police, both to conform and to obey explicit or implicit orders to enact torture, served, in turn, to mask individual responsibility for group violence and assuage feelings of individual guilt, or even to make individual perpetrators ‘feel 192 Ibid. 193 Martha K. Huggins, Mika Haritos-​Fatouros, and Philip G. Zimbardo, Violence Workers:  Police Torturers and Murderers Reconstruct Brazilian Atrocities (Berkeley: University of California Press, 2002), 189 (hereafter Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers). 194 Sironi and Branche, ‘Torture and the Borders of Humanity’ (n 126) 544. As rural elites continued to share the power of punishment with the colonial state, this made it almost inescapable that the state would turn a blind eye to the various forms of summary justice enacted by the Indian police, even when these did not directly benefit it. Ranajit Guha, Elementary Aspects of Peasant Insurgency in Colonial India (New Delhi: Oxford University Press 1983), 7 (hereafter Guha, Elementary Aspects of Peasant Insurgency). For studies on the transformation of ordinary individuals into torturers see, for example, John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture (New York: Alfred A. Knopf 2000); Hal Gold, Unit 731 Testimony (Singapore: Yen Books 1996); and Mika Haritos-​Faturos, The Psychological Origins of Institutionalized Torture (New York and London: Routledge 2002). 195 Rejali, Torture and Democracy (n 5) 421. 196 Joanna Bourke, Rape:  A History from 1860 to the Present Day (London:  Virago Press 2007), 376. Bourke is referring, here, specifically to gang rape (which is, notably, often carried out in conjunction with other types of torture and mutilation), but her comments are applicable to other forms of sexual violence enacted by groups since the role of such violence is to acquire or uphold group prestige. See also Philippe Bourgois, ‘The Everyday Violence of Gang Rape’, in Nancy Scheper-​Hughes and Philippe Bourgois (eds), Violence in War and Peace: An Anthology (Malden, MA: Blackwell 2006), 343–​47. 197 Reports of Cases Determined in the Court of Nizamut Adawlut for 1856, Vol. VI, Part I (Calcutta: Thacker, Spink and Co. 1856), 477, 478. 198 Guha, Elementary Aspects of Peasant Insurgency (n 194) 18.

The Perpetrators  175 self-​righteous about having carried out their “worthy” deeds against inhuman or unworthy adversaries’.199 That a sense of collective guilt may, however, have persisted is suggested by one Commissioner Williams, who in 1859 shrewdly observed that the Indian police were ‘All bound together . . . by a mutual consciousness of guilt and fear of retaliation’.200 But regardless of the ways in which torture was facilitated by group dynamics or served to foster group cohesion, the long-​term effect of its use by the Indian police was to de-​skill them. Since it was far easier for the Indian police ‘to sit comfortably in the shade rubbing pepper into a poor devil’s eyes than go about in the sun hunting up evidence’ they were forced, over time, to rely on torture to conduct their investigations as a result of their inability to carry out other investigative tasks (which their general lack of training only exacerbated).201 This created a vicious cycle in which the police were forced to resort to torture out of necessity which, in turn, strengthened group cohesiveness. What ultimately solidified such in-​group dynamics was, however, the culture of silence that surrounded the brutality enacted by the Indian police. Victims and their families rarely came forward because of the ‘generally prevailing feeling of terror’, as one informant to the Madras torture commission put it, of turning themselves into ‘marked men’ (or women).202 The ‘intense dread which the police as a body inspired’ transformed even the most subordinate members of the Indian police into ‘petty tyrant[s]‌’, and served to mark them out as distinct from, and superior to, the society that they purportedly served.203 Such a culture of silence also prevailed within the police, since the subordinate police, in the rare instances in which they might find themselves on trial for torture, rarely tried to exculpate or explain their own conduct by shifting responsibility for their crimes onto their superior officers.204 Such silence, instead of revealing, as the British professed, that police subordinates who tortured acted on their own initiative rather than that of their superior officers, demonstrates the tremendous power of the group dynamics that pervaded the colonial Indian 199 Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers (n 193) 257. 200 F. Williams, the Commissioner 1st division, to the Military Secretary to Government, North-​Western Provinces, and Commissioner of Military Police, 15 September 1859, 55, Home, Legislative, April, B, 6, 1861, NAI. That the colonial regime, if not its Indian subordinates, had developed a collective sense of guilt about its reliance on torture is, perhaps, suggested by the fact that it began to feel compelled, beginning in 1910, to give compensation to relatives whose family members had been killed by police torture. See, for example, Home, Police, B, October, 147, 1910, NAI; IOR/​L/​PJ/​6/​1143, File 649; Home, Police, A, April, 37–​100, 1912, NAI; and Home, Police, June, 138–​67, 1912, NAI. 201 James Fitzjames Stephen, A History of the Criminal Law of England, Vol. I (Cambridge: Cambridge University Press 1883), footnote, 442, cited in Rejali, Torture and Democracy (n 5) 456. 202 Evidence of J. Miller, Esq., Merchant, Calingapatam, Ganjam district, Report of the Commissioners (n 71) 69. It was for this reason that, according to Mr. Bullock, Magistrate of Bijnoor, ‘The sight of a policeman coming to make an enquiry is sufficient to empty a village.’ Victims were also, doubtless, fearful of the harsh social judgment that making their sufferings known would entail because of the ways in which victims tend to be blamed for the violence to which they are subject—​which is often credited, for example, to their purportedly weak moral characters. Evidence Recorded by The Committee (n 49) 64; and Herman, ‘From Trauma and Recovery’ (n 127) 368. 203 Report of the Committee Appointed by Resolution (n 1) 19. As the North-​Western Provinces Police Committee noted, such fear of the police forced them to enact ever greater acts of terror, since ‘the more the people hold aloof, the greater becomes the necessity for police pressure to elicit information, and the more the police put on pressure, the greater is the want of sympathy shown by the public’. Ibid, 17. 204 Colonel King, Commander, Neilgherries, Ootacamund, 11 October 1840 to W. V. Conolly Esq, Acting Magistrate, IOR/​ F/​4/​1930/​82995,  NAI.

176  Colonial Terror police, and the institutional structures that facilitated these—​dynamics that the subordinate police were either unwilling or unable to undermine even at the risk of their own lives or livelihoods.

The Psychology of Individual Perpetrators The fact that it is an institution which wields coercion and violence as a tool . . . often leads the individual policeman under pressure to crack a case to dehumanize himself while dehumanizing the other.205 What, then, about the psychology of individual perpetrators? Was there an innate propensity to commit various forms of extreme harm among the men who joined the police in colonial India? Understanding the psychology of torturers is difficult, even in situations in which the torturers are still living. Studies of individual torturers have generally been carried out long after the crimes that they committed, and in many cases after the institutions and states that they served have ceased to exist.206 This is doubtless because torturers tend to leave behind little evidence of their motivations; what remains is, therefore, mediated largely through legal frameworks. In the case of colonial India, the voices of police torturers, in contrast to those of their victims are, however, largely absent from the colonial archive, including from colonial legal documents. It is, nonetheless, possible to make some assumptions about the psychology of the men who joined the police in colonial India. Darius Rejali outlines several reasons that are commonly given for why torturers do what they do: that they torture out of necessity, such as for economic reasons, or because they are following orders; that they are driven by an ideology that prevents them from understanding what they are actually doing; and that they enjoy the feeling of power that torture gives them.207 Torturers are rarely, therefore, zealots and sadists, particularly in the case of torture enacted by government officials, since individuals with over-​zealous or sadistic tendencies are generally not recruited by state agencies due to the disciplinary problems they pose.208 Torturers, like other violence workers, tend to be, instead, what Hannah Arendt refers 205 Khanikar, State, Violence (n 120) 60. 206 Janice T. Gibson, ‘Factors Contributing to the Creation of a Torturer’, in Peter Suedfeld (ed.), Psychology and Torture (New  York:  Hemisphere Publishing Co. 1990), 78 (hereafter Gibson, ‘Factors Contributing to the Creation of a Torturer’). 207 Darius Rejali, Torture and Modernity: Self, Society, and State in Modern Iran (Boulder, CO: Westview Press 1994), 1. For arguments that examine issues relating to the ‘necessity’ of torture see, for example, Janice T. Gibson and Mika Haritos-​Faturos, ‘The Education of a Torturer’, Psychology Today (November 1986), 50–​6; Milovan Djilas, Of Prisons and Ideas (Michael Boro Petrovich tr., San Diego: Harcourt Brace Jovanovich 1986); and Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (rev. and enl. edn, Harmondsworth: Penguin 1979). For those that consider the role of ideology in shaping torturers see Edward Peters, Torture (Oxford: Basil Blackwell 1985); and Lazreg, Torture and the Twilight of Empire (n 116). For arguments relating to the pleasure of torture, or the power it gives, see Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York and Oxford: Oxford University Press 1985); and Lazreg, Torture and the Twilight of Empire. 208 Gibson, ‘Factors Contributing to the Creation of a Torturer’ (n 206) 78; Higgins, Haritos-​Fatorous, and Zimbardo, Violence Workers (n 193) 254; and Rejali, Torture and Democracy (n 5) 455.

The Perpetrators  177 to as ‘terrifyingly normal’.209 In the case of colonial India, recruits joined the police for a variety of reasons, such as because they had relatives serving in it, or because it suited their aspirations (such as an entrée into government service), or communal status (such as castes who identified with warrior traditions).210 Police service was also seen as a way of warding off hunger, unemployment, and even greater poverty than that induced by a police constable’s salary.211 It was, in addition, regarded as a means of perpetrating or facilitating crime, including through ‘plunder policing’.212 But although an innate propensity for violence or sadism did not drive men to join the police in colonial India, this is not to suggest that violence did not play a role in spurring police recruitment, or in the retention of such recruits, since emotions such as hatred and jealousy drove members of the police to commit acts of violence both against members of the public and their own force.213 Being in the police also gave recruits a certain power and status that led them to exploit the peasantry from which they predominantly sprang.214 Since being a perpetrator of extreme forms of harm doing is ‘an achieved status’ (emphasis in original), what such behaviour suggests is that it is more productive to see the predominant perpetrators of police torture in colonial India as sharing the status of victims along with those whom they preyed upon, particularly since trauma plays a key role in transforming ordinary men into torturers.215 As Françoise Sironi and Raphaël Branche argue, ‘National or cultural groups which have in the course of their history undergone repeated, violent processes of cultural assimilation can provide highly fertile nurseries for the making of torturers’, but so, too, did the process of unworlding unleashed by colonial rule in India.216 In other words, what transformed ordinary peasant men into torturers was, first and foremost, the poverty and exploitation to which they were subject.

209 Hannah Arendt, Eichmann in Jerusalem (n 207)  276. The normality of the violence workers who made the Final Solution possible, such as prison guards and police, has been well documented. See, for example, Christopher Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (New York: Harper Collins 1992); Daniel Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York: Alfred A. Knopf 1996); and J. M. Steiner and J. Fahrenbert, ‘Authoritarianism and Social Status of Former Members of the Wafffen-​SS and SS of the Wehrmacht: An Extension and Reanalysis of the Study Published in 1970’, Kolner-​Zeitschrift fur Soziologie and Sozialpsychologie 52 (2000), 329–​48. 210 Arnold, Police Power (n 67) 48–​9. 211 Ibid. 212 Piliavsky, ‘The Moghia Menace’ (n 36) 754. 213 Arnold, Police Power (n 67) 63. 214 Ibid, 65. 215 Huggins, Haritos-​Fatouros, and Zimbardo, Violence Workers (n 193)  25; and Rejali, Torture and Democracy (n 5) 436. 216 Sironi and Branche, ‘Torture and the Borders of Humanity’ (n 126) 544.

Conclusion: Torture in a State of Exception The disclosures in these trials have focused public attention to police misconduct in a manner which it would be unwise of the authorities to ignore.1

As the preceding chapters have demonstrated, police torture in colonial India did not disappear in the aftermath of the Madras torture commission. Indeed, the commission, as I have suggested, served to legitimate it, and to pave the way for torture to be systematized rather than eradicated as a technology of colonial policing. Although the literal denial of torture may be rare when torture erupts into scandal, it is all too common in the aftermath of scandal, since scandals serve both to validate existing norms and to erase their underlying systemic causes, in addition to offering a sense of assurance that the problems they exposed have been resolved. When it came to colonial India, therefore, the transformation of torture into scandal in the mid nineteenth century meant that torture had, in essence, ceased to exist. In the reports and voluminous bodies of evidence produced by the numerous police commissions that took place in the late nineteenth and early twentieth centuries—​a sign that the ‘new’ Indian police were failing to live up to the expectations of their colonial masters—​the only attention they devoted to torture was, therefore, to dismiss it. As a British witness to the 1890 North-​Western Provinces and Oudh police commission opined, ‘the talk about malpractices committed by the Police is very absurd and exaggerated’; acts of torture such as ‘women hung up naked over a charpai by their feet, and otherwise cruelly treated, and men hung up by their thumbs’ simply could not exist because they were relics of ‘the old days’.2 But rather than being a reflection of reality, declarations that ‘serious cases of torture are not nearly so frequent as in former times’, or that charges of torture were ‘much exaggerated’, instead reveal the ways in which the British could, as ‘An Englishman’ observed in the Indian journal The Modern Review, ‘find pretexts for shutting their eyes to truths which they dislike[d]‌’.3 1 Amrita Bazar Patrika, 5 June 1909, Bengal Newspaper Reports January–​June 1909, IOR/​L/​R/​5/​36,  BL. 2 Evidence Recorded by the Committee Appointed by Government under Resolution (Police Department) no. 373/​ VIII-​186A-​2, dated 6th June, 1890, to Enquire into Certain Questions Connected with the Police Administration of the North-​Western Provinces & Oudh. (Allahabad: Printed at the Pioneer Press 1891), 62 (hereafter Evidence Recorded by the Committee). See also IOR/​L/​PJ/​6/​516, File 1450, BL; and IOR/​L/​PJ/​6/​965, File 3635, BL. 3 Report of the Committee appointed by Government under Resolution (Police Dept). No. 373/​VIII-​186A-​ 2, dated 6th June 1890 to Enquire into Certain Questions connected with the Police Administration of the North-​Western Provinces and Oudh (Allahabad: North-​Western Provinces and Oudh Government Press 1891), 20; Evidence of Mr. Cantor, District Superintendent of Police, Saharanpur, Evidence Recorded by the Committee (n 1) 49; and ‘An Englishman’, ‘The Agitation of Indian Grievances in England’, Modern Review VI/​12 (December 1909), 579. Colonial Terror. Deana Heath, Oxford University Press (2021). © Deana Heath. DOI: 10.1093/​oso/​9780192893932.003.0006

180  Colonial Terror By the early twentieth century it had, however, become much harder for them to do so, thanks to the emergence of a vocal Indian press that had become a strident critic of police violence. But torture did not erupt, once again, into scandal until a group of British Liberal MPs, who had formed what they called the Indian Civil Rights Committee, began calling attention to a series of particularly heinous cases.4 The Committee’s quest, like that of its nineteenth-​century forbear, the India Reform Society, was to make police torture more accountable, not to question the nature of its relationship to colonial rule—​even less to question the validity of such rule. Notably wary of calling for yet another commission on the Indian police, which as one critic bemoaned, ‘result[ed] in nothing but a waste of time . . . labour and . . . money’, their tactic was, instead, to badger the Secretary of State for India with questions about police torture in Parliament and put pressure on the British and Indian governments to take measures to curb its practice.5 The Indian press, in addition to alerting the Committee to important torture cases, put additional pressure on the colonial regime by reporting on the activities of Committee members in Parliament. But in addition to the rise of a vociferous Indian press, what had also changed by the early twentieth century was an expansion of the environments in which torture took place and a broadening of its targets. No longer restricted largely to peasants in the mofussil, or districts, members of the Indian middle classes in cities such as Calcutta and Delhi also began to find themselves the victims of police torture.6 For with the emergence of a mass nationalist movement and widespread unrest, such as in Punjab in 1907,7 groups of predominantly middle-​class urban youth, most notably in 4 The Committee, led by the Liberal MP and lawyer Frederic Mackarness, was initially formed in 1909 in response to the deportation without trial of nine Bengali nationalists, which it viewed as one of a series of anti-​liberal measures undertaken by the Indian Government to curb nationalist resistance. Mackarness, who was also a member of the British Committee of the Indian National Congress, published a pamphlet on police torture a year later which was promptly banned by the Indian government. Although according to the Indian government the outbreak of the First World War led to the abatement of ‘the curiosity of a certain section of the House of Commons on the subject’ of police ‘ill-​treatment’, the Committee’s ‘curiosity’ had, in fact, largely come to an end by 1913. Nicholas Owen, The British Left and India: Metropolitan Anti-​ Imperialism 1885-​1947 (New York: Oxford University Press 2007), 58; Frederic Mackarness, The Methods of the Indian Police in the 20th Century (London: National Press Agency 1910) (hereafter Mackarness, The Methods of the Indian Police); and Note, G. M. Young, 26 October 1916, Home Department, Police, Deposit Proceedings, November 1916, no. 16, NAI; and IOR/​L/​PJ/​6/​1368, File 1823, NAI. See also Home, Political, B, July, 34–​40, 1910, NAI; Home, Political, B, July, 48, 1910, NAI; Home, Political, B, August, 78–​78A, 1910, NAI; Home, Political, A, August, 159–​70, 1910, NAI; IOR/​L/​PJ/​6/​1020, File 2634, BL; and IOR/​L/​PJ/​6/​ 1020, File 2639, BL. 5 Nawab Muhammad Abdul Majid, United Provinces Legislative Council debates, 28 February 1912, 284, IOR/​L/​PJ/​6/​1368, File 1823, BL; and note by M. S. D. Butler, 16 March 1912, Home, Police, A, April, 37–​100, 1912, NAI. See also IOR/​L/​PJ/​6/​947, File 2385, BL; IOR/​L/​PJ/​6/​965, File 3635, BL; IOR/​L/​PJ/​6/​966, File 3740, BL; IOR/​L/​PJ/​6/​1070, File 831, BL; IOR/​L/​PJ/​6/​1087, File 1608, BL; IOR/​L/​PJ/​6/​1368, File 1823, BL; Home, Police, B, November, 40–​8, 1909, NAI; Home, Police, B, December, 49–​50, 1909, NAI; Home, Police, B, December, 51–​3, 1909; Home, Police, B, December, 67–​9, 1909; and Home, Police, Deposit, April, 18, 1911, NAI. 6 As Taylor Sherman notes, the middle classes ‘brought considerable change to the coercive network as they were brought into contact with it’. Taylor C. Sherman, State Violence and Punishment in India (London and New York: Routledge 2010), 40 (hereafter Sherman, State Violence). 7 Gerald Barrier, ‘The Punjab Disturbances of 1907: The Response of the British Government in India to Agrarian Unrest’, Modern Asian Studies 1/​4 (1967), 353–​83; and Kim Wagner, ‘Treading Upon Fires: The “Mutiny”-​motif and Colonial Anxieties in British India’, Past & Present 218/​1 (2013), 159–​97 (hereafter Wagner, ‘Treading Upon Fires’). Unrest in Punjab was always a source of alarm for the colonial regime thanks to its importance as a recruiting ground for the Indian army and police—​half a million troops from Punjab, many recruited through coercive means (including torture), served during the First World War, and

Conclusion: Torture in a State of Exception  181 Bengal and Punjab, were emboldened to take more direct action against British rule in the only language the colonizers understood.8 Their acts of revolutionary terrorism, which included targeted assassinations of British and Indian officials, including members of the police, generated tremendous fear and paranoia among the British.9 Perceiving such acts as a serious threat to their rule, particularly in Bengal, the colonial regime began, in 1908, to prosecute a series of lengthy and high-​profile ‘conspiracy’ cases involving dozens, and sometimes hundreds, of individuals who were believed to be plotting against it.10 But in addition to generating widespread publicity such troops made up a large proportion of the one-​third of the original British Expeditionary Force to France constituted by the Indian Army. Mark Condos, The Insecurity State: Punjab and the Making of Colonial Power in British India (Cambridge:  Cambridge University Press 2017), 67–​98 (hereafter Condos, The Insecurity State); Kim Wagner, Amritsar 1919: An Empire of Fear and the Making of a Massacre (New Haven and London: Yale University Press 2019), 29 (hereafter Wagner, Amritsar 1919); Ranajit Guha, Dominance Without Hegemony:  History and Power in Colonial India (Cambridge, Mass.:  Harvard University Press 1997), 28; and Gajendra Singh, ‘Mirrors of Violence: Inter-​racial Sex, Colonial Anxieties and Disciplining the Body of the Indian Soldier During the First World War’, in Harald Fischer-​Tiné (ed.), Anxieties, Fear and Panic in Colonial Settings: Empires on the Verge of a Nervous Breakdown (Basingstoke: Palgrave 2017), 185. 8 Terror was thus the font of politics in colonial India, although the British lumped together a range of forms of resistance and dissent as ‘terrorist’. The handy flexibility of the term, for the colonial regime, is demonstrated by the Bengal Emergency Powers Ordinance of 1932, in which a terrorist was defined as anyone who ‘has done or is doing any act to assist the operations’ of a terrorist organization. Cited in Michael Silvestri, Policing ‘Bengali Terrorism’ in India and the World:  Imperial Intelligence and Revolutionary Nationalism, 1905-​1939 (Cham, Switzerland:  Palgrave Macmillan 2019), 156 (hereafter Silvestri, Policing ‘Bengali Terrorism’). On the early revolutionary terrorist movement in India, which is generally dated between 1907 to 1918, see Leonard Gordon, Bengal: The Nationalist Movement, 1876–​1940 (New York: Columbia University Press 1974), esp. Ch. 5; Rajat K. Ray, Social Conflict and Political Unrest in Bengal, 1875-​1927 (Delhi: Oxford University Press 1984); Dalia Ray, The Bengal Revolutionaries and the Freedom Movement, 1902-​1919 (New Delhi: Cosmo Publications 1990); Hiren Chakrabarti, Political Protest in Bengal:  Boycott and Terrorism, 1905-​18 (Calcutta:  Firma 1992); Amitabha Mukherjee (ed.), Militant Nationalism in India, 1876-​1947 (Calcutta: Institute of Historical Studies 1995); Peter Heehs, The Bomb in Bengal: The Rise of Revolutionary Terrorism in India 1900-​1910 (2nd edn, Oxford: Oxford University Press 2004) (hereafter Heehs, The Bomb in Bengal); and Alex Tickell, Terrorism, Insurgency and Indian-​ English Literature, 1830-​1947 (New York and London: Routledge 2012), Ch. 4 (hereafter Tickell, Terrorism, Insurgency). 9 Kama Maclean, ‘The Art of Panicking Quietly: British Expatriate Responses to “Terrorist Outrages” in India, 1912-​33’, in Harald Fischer-​Tiné (ed.), Anxieties, Fear and Panic in Colonial Settings: Empires on the Verge of a Nervous Breakdown (Basingstoke: Palgrave 2017), 135–​67; see also D. K. Lahiri Choudhury, ‘Sinews of Panic and the Nerves of Empire: the Imagined State’s Entanglement with Information Panic, India c. 1880-​1912’, Modern Asian Studies 38/​4 (2004), 965–​1002 (hereafter Choudhury, ‘Sinews of Panic’); Wagner, ‘Treading Upon Fires’ (n 7); and Gajendra Singh, ‘India and the Great War: Colonial Fantasies, Anxieties and Discontent’, Studies in Ethnicity and Nationalism 14/​2 (2014), 343–​61. One of the reasons for such fear was the international nature of the Indian revolutionary terrorist movement, which included the assassination of an aide to the Secretary of State for India, Sir William Curzon Wyllie, in London in 1909. See, for example, Richard J. Popplewell, Intelligence and Imperial Defence: British Intelligence and the Defence of the Indian Empire 1904-​1924 (London: Frank Cass 1995) (hereafter Popplewell, Intelligence and Imperial Defence); Tickell, Terrorism, Insurgency (n 8) Ch. 4; Maya Ramnath, Haj to Utopia: How the Ghadar Movement Charted Global Radicalism and Attempted to Overthrow the British Empire (Berkeley: University of California Press 2011); Seema Sohi, Echoes of Mutiny: Race, Surveillance, and Indian Anticolonialism in North America (New York: Oxford University Press 2014); Harald Fischer-​Tiné, ‘Mass-​Mediated Panic in the British Empire? Shyamji Krishnavarma’s “Scientific Terrorism” and the “London Outrage”, 1909’, in Harald Fischer-​Tiné (ed.), Anxieties, Fear and Panic in Colonial Settings: Empires on the Verge of a Nervous Breakdown (Basingstoke: Palgrave 2017), 99–​134; and Condos, The Insecurity State (n 7) 201–​15. 10 Popplewell, Intelligence and Imperial Defence (n 9) 109. Such cases included the Alipore Conspiracy Case (1908), the Muzzafarpur Conspiracy Case (1908), the Midnapore Conspiracy Case (1908), the Dhaka Conspiracy Case (1909), the Howrah Conspiracy Case (1910), and the Delhi Conspiracy Case (1912). Bengal was at the forefront of the Indian nationalist movement, particularly after the province was

182  Colonial Terror about the nature of the Indian police and, with it, that of the regime that fostered the violence and predation on which they relied, the manufacture of evidence and use of torture to extract confessions in such cases also led to their repeated failure.11 Faced both with growing public and political pressure and watching one purported terrorist after another walk free, the British and Indian governments were forced, therefore, to act, although their primary concern, once again, was to put a stop to the scandal rather than address its underlying causes. For if, as the failure of so many ‘conspiracy’ cases seemed to suggest, ‘the forces of law and order working through the ordinary channels were beaten’, which according to the 1918 Sedition (Rowlatt) Committee report had happened in India by 1914, revolutionary crimes could no longer be successfully prosecuted according to the rule of law.12 The obvious solution, then, was not to eradicate police torture—​not when ‘torturing the terrorist . . . was essential for the law to operate’—​but rather to reduce its exposure to legal, political, and public scrutiny by transforming India from what I have termed a regime of exception into a fully-​fledged state of exception.13 The 1908 Alipore Conspiracy Case has become regarded as the most seminal, and undoubtedly most sensational, of the ‘conspiracy’ cases that shook Bengal prior to the First World War, not least because the prominent nationalist and later spiritual partitioned, in 1905, into West Bengal and East Bengal and Assam, a move that, while designed in part to curb the movement, instead turned it into a mass one. For a seminal analysis of what became known as the swadeshi movement see Smit Sarkar, The Swadeshi Movement in Bengal, 1903-​1908 (New Delhi: People’s Publishing House 1973). 11 Indian High Courts demonstrated considerably greater compunction than the lower courts about relying on confessions obtained through torture to secure convictions. Of the 1,038 individuals implicated in 210 acts of terrorism in Bengal and 101 attempted acts between 1906 and 1917, only 84 were convicted, 30 of which were under special tribunals constituted by the Defence of India Act. Although more were initially found guilty, their sentences were later overturned or reduced on appeal or, as in the case of the eight coolies who were convicted for the attempt to blow up a train carrying the Lieutenant-​Governor of Bengal, Sir Andrew Fraser, in 1907, were simply released in the face of evidence that the confessions upon which their convictions were largely based were false. Choudhury, ‘Sinews of Panic’ (n 9) 997; Heehs, The Bomb in Bengal (n 8) 121; and Extraordinary Suit No. 5 of 1910 in the High Court of Judicature at Fort William in Bengal, Extraordinary Original Civil Jurisdiction Before the Hon’ble Mr. Justice Fletcher, 7 August 1911, Peary Mohan Das v. D. Weston and others, 43, IOR/​L/​PJ/​6/​1020, File 2639, BL (hereafter Extraordinary Suit No. 5 of 1910). 12 Sedition (Rowlatt) Committee 1918: Report (Calcutta: Superintendent of Government Printing 1918), 196, cited in Wagner, Amritsar 1919 (n 7) 46. The purpose of the Sedition Committee, established in 1917 and chaired by Sidney Rowlatt, was to evaluate the nature and impact of revolutionary terrorism in India and its international connections. 13 Ranabir Samaddar, ‘Colonial State, Terror and Law’, in Imtiaz Ahmed (ed.), Understanding Terrorism in South Asia: Beyond Statist Discourses (Manohar: Regional Centre for Strategic Studies, Colombo 2006), 69. See also Ranabir Samaddar, ‘Law and Terror in the Age of Colonial Constitution Making’, Diogenes 212 (2006), 5; and John Pincince, ‘De-​centering Carl Schmitt:  The Colonial State of Exception and the Criminalization of the Political in British India, 1905-​1920’, Politica Común 5 (2014) [DOI: http://​dx.doi. org/​10.3998/​pc.12322227.0005.006] (hereafter Pincince, ‘De-​centering Carl Schmitt’). Although revolutionaries documented the treatment they received at the hands of the Indian police the extent to which torture was used on purported terrorists is, however, impossible to verify due to the widespread destruction of files detailing such abuses before their hand-​over to Indian authorities in 1947. See David Anderson, ‘British Abuse and Torture in Kenya’s Counter-​insurgency, 1952-​1960’, Small Wars & Insugencies 23 4/​5 (2012) [DOI:10.1080/​09592318.2012.709760] 700–​19; Mandy Blanton, ‘Destroy? “Migrate”? Conceal? British Strategies for the Disposal of Sensitive Records of Colonial Administrations at Independence’, Journal of Imperial and Commonwealth History 40/​2 (2012), 321–​5; and Silvestri, Policing ‘Bengali Terrorism’ (n 8) 99–​102, 139.

Conclusion: Torture in a State of Exception  183 guru Aurobindo Ghose was one of the accused.14 But it was arguably the Midnapore Conspiracy Case, which began that same year (although it dragged on for three more through an appeal and various civil actions), that ‘focused public attention to police misconduct in a manner which it would be unwise of the authorities to ignore’ and threatened ‘permanent and indelible’ damage to the credibility of the colonial regime.15 The ‘conspiracy’ involved an alleged plot to murder Midnapore District Magistrate Donald Weston by over 150 men, which included, as itemized by the Anglo-​Indian newspaper the Statesman, ‘one Rajah. . . 15 pleaders, 21 zemindars [sic], 3 mukthears [sic], 20 students, 6 doctors, 40 shopkeepers, one blacksmith, one tout, and last but not least, a beggar’.16 The police could only muster sufficient evidence, however, against just three men (leading the Bengal High Court Chief Justice to question whether a conspiracy could, in fact, consist ‘of only three people’), who were each sentenced to between seven to ten years’ transportation.17 But after an appeal trial at the High Court which dragged on for 189 days, these sentences were overturned on the grounds that the confessions on which the prosecution had so heavily relied were legally inadmissible since they were extracted through coercion, threats, and torture and hence were not ‘voluntarily made’, and without the confessions the police lacked any valid evidence.18 The court condemned, in addition, the police conduct of the case, which included tampering with—​and, possibly planting—​false evidence, and regarded various aspects of the behaviour of the British officials involved, particularly Weston, who although the victim of the alleged conspiracy was responsible for overseeing its investigation, as ‘irregular’.19 14 On the Alipore Conspiracy Case see, for example, Bejoy Krishna Bose, The Alipore Bomb Trial (Calcutta:  Butterworth 1922); S. C. Sarkar, The Notable Indian Trials (2nd edn, Calcutta:  M. C.  Sarkar 1948); Heehs, The Bomb in Bengal (n 8) 159–​241; Amiya K. Samanta (ed.), Alipore Bomb Trial, 1908-​1910: A Compilation of Unpublished Documents, Vol. 1 (Kolkata: Frontpage 2017); and Amiya K. Samanta, Alipore Bomb Trial 1908-​1910: Arguments in Courts and Judgements, Vol. 2 (Kolkata: Frontpage 2018). 15 Indian Nation, 7 June 1909, Bengal Newspaper Reports January–​June 1909, IOR/​L/​R/​5/​36, BL; and letter from Sir F. W. Duke to Sir Archdale Earle, 12 January 1912, Home, Police, A, March, 34–​66, 1912. The Midnapore Conspiracy Case was in a sense, however, an offshoot of the Alipore case, since it involved several men involved in the latter. 16 Note, Satyendra Prasanna Sinha, Advocate-​General, 20 December 1909, Home, Political, A, June, 28–​ 80, 1911, NAI; and Statesman (Calcutta, 18 May 1909), Home, Political, A, June, 28–​80, 1911, NAI. Pleaders and mukhtars were legal practitioners in district and subordinate courts. 17 Statesman (Calcutta, 27 May 1909), Home, Political, A, June, 28–​80, 1911, NAI. One of the three men, Santosh Das, was a probationary sub-​inspector of police. Whether this was an effort to infiltrate the police—​ during the 1930s, for example, 161 men who sought employment in the Bengal police were rejected for having ‘terrorist’ connections—​is unclear. Silvestri, Policing ‘Bengali Terrorism’ (n 8) 87. 18 All three prisoners were forced to undergo various forms of ill-​treatment and illegal confinement. Santosh Das was also ‘subjected to sleep deprivation’ and ‘moral pressure’, although only Surendra Nath Mukerjee was the victim, as Frederic Mackarness put it, of ‘[a]‌ll kinds of torture’, which included both physical assault and food deprivation. Mackarness, The Methods of the Indian Police (n 4) 10; Statesman (Calcutta, 22 May 1909), Home, Political, A, June, 28–​80, 1911, NAI; and Extraordinary Suit No. 5 of 1910 (n 11) 97–​100. 19 Criminal appeal nos. 310, 312, and 317 of 1909 in Gogjiban Ghose v. the Emperor, Santish Chandar Das v. Emperor, and Surendra Nath Mukerjee v. Emperor, Home, Political, A, June, 28–​80, 1911, NAI. A chief source of contention was the argument of the defence that a bomb that had been found in Das’s house had been planted there by the police. Although the justices did not conclusively confirm that the police had planted the bomb, the court was ‘by no means prepared to waive aside . . . the defence story’ that they had. C. J. Stevenson-​Moore, Chief Secretary to the Government of Bengal, to Secretary to the Government of India, Home, 29 March 1913, Home, Police, B, April, 76–​8, 1913, NAI.

184  Colonial Terror The collapse of the case, coupled with persistent questions regarding it in Parliament by the Indian Civil Rights Committee and the High Court’s strictures against the police and magistracy, forced the Bengal government, desirous of absolving its officials of the charges against them, to set up an inquiry.20 Since it was carried out by Weston’s superior, D. J. Macpherson, then Commissioner of Burdwan, assisted by Weston, the inquiry set about exculpating the behaviour of all officials involved in the case with considerable gusto, despite a host of new allegations being made during its four-​month course about the falsity of the conspiracy (for many of its critics the case was concocted in an effort to undermine the nationalist movement) and the behaviour of the police (from assault to threats, coercion, and bribery of both witnesses and suspects).21 Such a thorough job of whitewashing did not, however, put an end to the whole affair. For following the High Court judgment, a number of civil suits were brought against Weston and the police who had investigated the case, Deputy-​superintendent Maulvi Mazhar-​ul-​Haq and Inspector Lal Mohan Guha, which the Bengal government promptly leapt to defend.22 Things again went badly for the government, however, when after an astonishing eleven-​month trial Santosh Das’s father, Peary Mohan Das, a former sub-​registrar of deeds, was awarded Rs. 1,000 in damages for wrongful arrest.23 Yet despite further revelations about the wrongdoings of Haq, Guha, and Weston, the government of Bengal provocatively promoted all three the day the court delivered its judgment (and later threw in a couple of honours to boot, with Haq being made a Khan Bahadur and Guha a Rai Bahadur).24 The inevitable appeal that followed, however (paid for, again, by the 20 See Home, Political, B, February, 28–​31, 1909, NAI; Home, Political, B, August, 84–​6, 1909, NAI; Home, Political, B, August, 103–​8, 1909, NAI; Home, Police, B, December, 38–​43, 1909, NAI; IOR/​L/​PJ/​6/​ 965, File 3635, BL; Home, Political, A, August, 159–​70, 1910; and IOR/​L/​PJ/​6/​1017, File 2296, BL. 21 Note, H. H. Risley, 23 December 1909, Home, Political, A, June, 28–​80, 1911, NAI; and Statesman, 22 May 1909, Home, Political, A, June, 28–​80, 1911, NAI. For the prominent jurist Satyendra Prasanna Sinha, Bengal’s first Indian Advocate-​General, it was ‘a curious fact that a case which at the outset was looked upon as extremely suspicious, if not false’ by prominent officials, including senior members of the Bengal Criminal Intelligence Department, ‘should in its last stage be found to be true in all its essential particulars and every official connected with it to be absolved from blame’. Although they crowed about Macpherson’s findings, the Bengal, Indian, and British governments were understandably wary of the reaction in both India and Britain to his three-​volume report and hence refrained from publishing it. Satyendra Prasanna Sinha, Note, 20 December 1909, Home, Political, A, June, 28–​80, 1911, NAI; and Home, Political, A, March, 56–​67, 1913, NAI. 22 Both Haq and Guha had impressive service records. Haq, for example, had thirty-​three-​years’ service in the Bengal police and painstakingly worked his way up from constable to deputy-​superintendent—​a journey that few Indians were permitted to take. That he succeeded in doing so was doubtless due to his own intelligence and ingenuity, and suggests that, like Deputy-​superintendent Shams-​ul-​Alam, who investigated the Alipore Conspiracy Case and who seemed to have engaged in the alteration of evidence with the implicit approval of his superiors, he had come to muster many means to secure whatever results were expected of him. Petition from Maulvi Mazhar-​ul-​Haq, Deputy-​superintendent of Police, to the Hon. L. F. Morshead, Inspector-​General of Police, n.d., and Petition from Babu Lal Mohan Guha, Inspector of Police, to the Hon. L. F. Morshead, Inspector-​General of Police, 30 October 1911, Home, Political, A, September, 1–​5, 1912; and Silvestri, Policing ‘Bengali Terrorism’ (n 8) 88. 23 Extraordinary Suit No. 5 of 1910 (n 11). 24 Home, Political, A, September, 1–​5, 1912, NAI; Home, Political, B, October, 24–​8, 1910, NAI and Indu (Bombay, 28 June 1910), Bombay Newspaper Reports 1910, IOR/​L/​R/​5/​165, BL. The government of Bengal was forced, however, to postpone such promotions by the Indian government until all proceedings in relation to the Midnapore case were over—​a decision that purportedly ‘caused a shock to the Indian Civil Service’ and led to dire warnings about the effect such a decision would have on civil service recruitment. Note by H. Craddock, 9 March 1912, Home, Political, A, September, 1–​5, 1912, NAI; and Home, Political, A, December, 44–​69, 1912, NAI.

Conclusion: Torture in a State of Exception  185 Bengal government) helped finish the job of whitewashing the whole affair, since in his 185-​page judgment Mr. Justice Woodroffe completely exonerated the defendants of all wrong-​doing; there was no proof, he argued, of improper conduct on the part of the police and any suggestions that a British official like Weston had behaved in such a manner were simply ‘grotesque’.25 For the government of Bengal, the civil suits may have cost them Rs. 1,176, 636 to defend, but this was a small price to pay for such an exculpatory outcome.26 It was hard to deny, however, that the Midnapore case had nonetheless been a fiasco from a legal, policing, and reputational perspective, and not just for the Bengal government. As the Secretary of State for India, Lord Crew, bemoaned to his Under-​Secretary, Edwin Montagu, before the whole saga was even over, ‘our reputation . . . has suffered from the Midnapore case and . . . must be restored by such public action as will improve our Parliamentary position and re-​establish our bonafides’ (emphases in original).27 Something, therefore, had to be done. The series of measures that the India Office pressured the Indian government to take may, therefore, have been regarded as ‘vexatious’ and a ‘waste of time’ by the officials tasked with implementing them—​a series of inquiries to provincial governments regarding their policies in regard to ‘ill-​treatment’, laying out procedures for local governments to follow in the event of complaints regarding such treatment (although these amounted to little more, as one official put it, than ‘a mixture of suggestion, instruction and communication of information’), and some minor changes in the recording of pre-​ trial confessions—​but they gave the impression that something was being done about police torture.28 No reforms were, however, made either in Indian law or police practice, and in 1917 the Indian government quietly let the matter drop.29 That such measures may not have been enough, however, to restore any lost bonafides is suggested by the list of cases instituted against the police for ‘ill-​treatment’ between the years 1906 and 1911 that is the only record of its kind. The list makes for disconcerting reading. Of the 166 torture cases (involving 360 police officers)

25 Draft Judgment Liable to Revision, in the High court of Judicature at Fort William in Bengal, Original Appellate Jurisdiction, 15 August 1912, 143, 181. 26 C. J. Stevenson-​Moore, Chief Secretary to the Government of Bengal, to Secretary to the Government of India, Home, 29 March 1913, Home, Police, B, April, 76–​8, 1913. 27 Letter to Lord Crew, from E. S. M. (Montagu), 26 December 1910, Home, Police, Deposit Proceedings, August 1911, no. 30, NAI. The file is marked ‘strictly confidential’. 28 Note by M. S. D. Butler, 16 March 1912, Home, Police, A, April, 37–​100, 1912, NAI; Home, Police, A Proceedings, May 1911, no. 213–​29, NAI; Home Department, A Proceedings, July 1911, no. 240, NAI; Home, Police, Deposit, 12, 1911, NAI; Home, Police, A, January, 22, 1912, NAI; Note by H. Wheeler, 15 April 1913, Home, Police, A, July, 85–​95, 1913, NAI; Home, Police, A, July, 96–​119, 1913, NAI; Home, Police, A, December, 149–​54, 1913, NAI; Home, Police, Deposit, February, 18, 1914, NAI; Home Department, Police, B, August, 52, 1914; Home, Police, A, March, 150, 1917, NAI; and IOR/​L/​PJ/​6/​1368, File 1823, BL. Pre-​trial confessions were only to be admissible as evidence if recorded by the magistrate who had jurisdiction in the case, a first-​class magistrate, or a specially empowered magistrate of the second class. Magistrates were also required to examine prisoner’s bodies for signs of ‘ill-​treatment’ when prisoners were first brought before them. The British government produced, in addition, a blue book of correspondence relating to police procedure regarding confessions. ‘Confessions’, IOR/​L/​PJ/​6/​1368, File 1823, BL; and Home, Police, Deposit, 12, 1911, NAI; and East India (Police): Correspondence relating to the Procedure in Regard to Confessions of Persons Accused of Criminal Offences (London: Stationery Office 1914). 29 Home Department, Police, Deposit Proceedings, November 1916, no. 16, NAI.

186  Colonial Terror prosecuted during this period only fifty-​seven of them ended in conviction.30 In addition, although such torture resulted in thirty-​one deaths the perpetrators were charged with murder in just four cases, and were actually sent up for trial in only one case—​which was then dismissed.31 Such figures reveal a conviction rate of roughly 33 per cent for all police torture cases sent to trial between 1906 and 1911, which although poor presents a much rosier picture of the colonial regime’s attitude towards police torture than was actually the case. For during this five-​year period there were no less than 582 torture cases that never went to trial, since 424 were simply ‘dismissed by Magistrates’ and the remaining 158 ‘disposed of by enquiry’.32 As the lawyer and later Indian National Congress president Bhupendranath Basu lyrically observed in the Indian Legislative Council in 1912, since only those torture cases ever came to light in which the victims suffered injuries that could not be concealed or died, rather than being ‘rare exceptions’ such cases were, instead, ‘like small flotsams indicating an immense wreck swallowed by the silent waters of the sea’.33 Such evidence made it difficult to continue to plead ignorance about police torture in colonial India, or, as the 1902–​1903 Police Commission sought to do, to claim that little could be done to reform the Indian police because of the ‘difficulty of the task of governing India arising from the nature of the instruments which it is necessary to employ’.34 Denying British culpability for police torture did not help matters, as Secretary of State for India, Viscount Morley, tried to do in 1911 on the grounds that although ‘certain minds’ were of the opinion that ‘Britain’s government of India [was] essentially in nature arbitrary and capricious’, the men who ran India were English gentlemen, which meant that they knew ‘what is just and right’.35 Morley therefore tried another approach. India’s population was vast and its police force large; looking at torture statistically it was, therefore, the relative ‘infrequency of the cases’ that arose that was striking.36 Such an argument was, of course, based on the small body of torture cases that ended in conviction, not the innumerable ones that did not, or that were never even prosecuted. While admitting the possibility of individual, isolated torture cases, it also thus denied that torture was either a large or systemic problem. What the perceived acceptable levels of torture were relative to population size and police numbers remained, in addition, unclear. If police torture in India could no longer be denied or explained away, the obvious solution was to make it disappear by renaming it. Acts that involved considerable 30 Memorandum forwarding a return of cases instituted against the police for ill-​treatment of prisoners or witnesses during the last six years, 1905-​1910, Home, Police, B Proceedings, July 1911, no. 227–​35 (hereafter Memorandum). 31 ‘Tabulated replies of local Governments and administrations in connection with the question asked in Parliament in respect of police ill-​treatment’, Home, Police, A, April, 37–​100, 1912, NAI. 32 Ibid. 33 Excerpt, Legislative Council debates, 28 February 1912, 268, IOR/​L/​PJ/​6/​1368, File 1823, BL. 34 ‘Resolution on the report of the Indian Police Commission’, 21 March 1905, Government of India, Home Department, Police, no. 248–​59, IOR/​L/​PJ/​6/​716, File 998, BL. 35 Speech by Viscount Morley, House of Lords, 16 March 1911, IOR/​L/​PJ/​6/​1070, 518. 36 Ibid. As Lord Courtney of Penwith put it, such statistics revealed that torture did not ‘exist as a practice’. Speech by Lord Courtney of Penwith, House of Lords, 16 March 1911, IOR/​L/​PJ/​6/​1070, File 831, 515, BL. See also speech by Viscount Morley, House of Lords, 16 March 1911, IOR/​L/​PJ/​6/​1070, File 831, 515, BL; and speech by Edwin Montagu, Under Secretary of State for India, House of Commons, 23 March 1911, IOR/​L/​PJ/​6/​1076, File  1001.

Conclusion: Torture in a State of Exception  187 physical torture but whose effects were not clearly visible were therefore rebranded as ‘malpractices’ or, in one interesting turn of phrase, as ‘isolated acts of tyranny’.37 By 1911 the Government of India had gone so far as to completely discard using the word ‘torture’. As a memorandum on police ‘ill-​treatment’ insisted, ‘the term “police torture” ’ was a complete ‘misnomer’, since it called up an ‘image of methods of barbarism’ that were ‘as a rule quite foreign to the methods adopted by the police on the rare occasions when they use[d]‌improper means for coercing a prisoner or a witness’.38 Such a linguistic sleight of hand ensured that, officially at least, police torture in colonial India had virtually disappeared. The literal erasure of torture may have helped to restore political and public ‘bonafides’, at least in Britain. Since it did little to undermine the use of torture as a technology of colonial rule, such efforts were understandably less successful in India, not least in ensuring that ‘conspiracies’, or other forms of anti-​colonial resistance, could be addressed through existing legal means. What was needed, then, were extra-​ legal means, or the legalization of exceptional measures—​measures such as the 1907 Prevention of Seditious Meetings Act, the 1908 Explosive Substances Act, the 1908 Newspapers (Incitement to Offences) Act, the 1908 Indian Criminal Law Amendment Act, the 1910 Indian Press Act, the 1911 Criminal Tribes Act, the 1913 Criminal Law Amendment Act and, following the onset of the First World War, the 1914 Ingress into India Ordinance and the 1915 Defence of India Act. Collectively, they made it possible for the British to: ban meetings; prohibit newspapers, confiscate presses, and issue fines; search the post and customs; detain suspects without trial (although in Bengal this was already possible under Regulation III of 1818); screen, detain, and restrict the movement of returnees to India; establish special tribunals; deport or banish those deemed a threat to public security; and indemnify their violence workers for acts done ‘in good faith’.39 Such exceptional measures were accompanied by more repressive surveillance and policing tactics, as well as greater resort to deadly force.40 37 Reply of the Under-​Secretary of State for India, the Master of Elibank, to Dr. Rutherford, House of Commons, 28 September 1909, IOR/​L/​PJ/​6/​965, File 3635, BL. The report of the 1902–​1903 Indian Police Commission paved the way for such developments by urging that ‘[a]‌ctual physical torture’ hardly existed any more, since members of the Indian police could ‘exercise strong pressure and great cruelty without having recourse to such physical violence as leaves its traces on the body of the victim’. Report of the Indian Police Commission, 1902-​03 (Simla: Printed at the Government Central Printing Office 1903) 17. 38 Memorandum (n 30). Such renaming tactics were by no means new. Words like ‘mistreatment’, ‘fanatic’, etc. were, instead, classic tools in the colonial armoury to create ‘blank discursive label[s]‌that could be manipulated by the creative and often flexible interpretations of individual colonial officials, making what was already a powerful form of executive prerogative even more deadly’. Condos, The Insecurity State (n 7) 144. 39 Choudhury, ‘Sinews of Panic’ (n 9) 996; K. S. Dhillon, Defenders of the Establishment: Ruler-​Supportive Police Forces of South Asia (Shimla:  Indian Institute of Advanced Study, 1998), 192 (hereafter Dhillon, Defenders of the Establishment); Pincince, ‘De-​centering Carl Schmitt’ (n 13); and Condos, The Insecurity State (n 7) 208–​9. 40 Sherman, State Violence (n 6); Janaki Bakhle, ‘Savarkar (1883-​1966), Sedition and Surveillance: The Rule of Law in a Colonial Situation’, Social History 35/​1 (2010), 51–​75; and Mark Doyle, ‘Massacre by the Book: Amritsar and the Rules of Public-​Order Policing in Britain and India’, Britain and the World 4/​2 (2011), 247–​68. A central Criminal Intelligence Department had been established in 1904, and provincial branches were established shortly thereafter. According to K. S. Dhillon, ‘The brutalization of the police caused by frequent recourse to repressive laws by the Government from the early decades of the twentieth century . . . became even more unrestrained and unchecked with the intensification of each successive agitation and flowed uncontrolled into the post-​Independence period’. Dhillon, Defenders of the Establishment (n 39) 208.

188  Colonial Terror They also ensured that a fiasco like the Midnapore case could never happen again. Between 1915 and 1918, nine high-​profile conspiracy trials were prosecuted by special tribunals, which culminated in twenty-​eight death sentences and hundreds of sentences of imprisonment and transportation.41 The judges in such tribunals, like those who oversaw the martial law courts established in the aftermath of the 1919 Amritsar Massacre, largely disregarded claims regarding confessions acquired through torture.42 Although the massacre may, therefore, have been intended to ‘strike terror’ into Indians, I would like to end by suggesting that it was not in such an act, horrific though it undoubtedly was, that the true terror of British colonialism in India lay.43 As Mohandas Gandhi was well aware, ‘the slow torture, degradation and emasculation’ inflicted by the British in the aftermath of the massacre ‘was much worse, more calculated, malicious and soul-​killing’.44 For Gandhi the men who inflicted widespread summary and indiscriminate ‘justice’ under the protection of martial law, including various forms of torture, deserved greater punishment than the man who had perpetrated the massacre, General Dyer, since ‘[t]‌he latter merely destroyed a few bodies but the others tried to kill the soul of a nation’.45 Brutal, systematic violence, as Fanon revealed, destroys the souls, and with it societies, of those who perpetuate it as well as those who are victimized by it.46 Both Britain and India are long overdue, therefore, for a reckoning—​less with, I would argue, spectacular forms of violence such as the Amritsar Massacre than with the systemic, normalized forms, such as torture, that destroyed souls and undid worlds.

41 Condos, The Insecurity State (n 7) 210. 42 Wagner, Amritsar 1919 (n 7) 204. 43 Kim Wagner, ‘ “Calculated to Strike Terror”:  The Amritsar Massacre and the Spectacle of Colonial Violence’, Past and Present, 233 (2016), 185–​225. 44 Mohandas Gandhi, 14 July 1920, The Collected Works of Mahatma Gandhi, Vol. 18, 45–​6, cited in Wagner, Amritsar 1919 (n 7) 243. 45 Ibid. The reprisals and punishments that were inflicted on Indians in the massacre’s wake included widespread house searches and arrests, extortion, coercion, forced salaaming of British people, and public humiliations (including Dyer’s notorious ‘crawling order’, imposed between April 19–​24 1919, in which Indians who wished to pass through the street in which a British woman was assaulted were forced to crawl). In addition to torture inflicted by the police and soldiers, various individuals were also subject to being publicly whipped. Nick Lloyd, ‘Sir Michael O’Dwyer and “Imperial Terrorism” in the Punjab, 1919’, South Asia: Journal of South Asian Studies 33/​3 (2010), 363–​80 375, 378; Wagner, Amritsar 1919 (n 7) 188–​90. 46 Frantz Fanon, ‘Colonial War and Mental Disorders’ in The Wretched of the Earth, (first published in 1961, tr., Constance Farrington, New York: Grove Press 1963), 249–​310.

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192 Bibliography Amin, S., ‘Approver’s Testimony, Judicial Discourse: The Case of Chauri Chaura’, in R. Guha (ed.), Subaltern Studies V:  Writings on South Asian History and Society (Oxford:  Oxford University Press 1987), 166–​202. Amin, S., Event, Metaphor, Memory:  Chauri Chaura 1922-​1992 (Delhi:  Oxford University Press 1995). Anderson, C., Convicts in the Indian Ocean: Transportation from South Asia to Mauritius, 1815-​ 1853 (Houndmills, Basingstoke: Palgrave Macmillan 2000). Anderson, C., The Indian Uprising of 1857-​8: Prisons, Prisoners and Rebellion (London: Anthem Press 2007). Anderson, D., Histories of the Hanged: The Dirty War in Kenya and the End of Empire (New York and London: W. W. Norton & Company 2005). Anderson, D., ‘Mau in the High Court and the “Lost” British Empire Archives:  Colonial Conspiracy or a Bureaucratic Bungle?’, The Journal of Imperial and Commonwealth History 39/​5 (2011), 699–​716. Anderson, D., ‘British Abuse and Torture in Kenya’s Counter-​insurgency, 1952-​1960’, Small Wars & Insurgencies 23 4/​5 (2012), 700–​19 [DOI:10.1080/​09592318.2012.709760]. Anderson, D., ‘Guilty Secrets: Deceit, Denial and the Discovery of Kenya’s “Migrated Archive” ’, History Workshop Journal 80 (2015), 142–​60. Anderson, D. and Killingray, D., ‘Consent, Coercion and Colonial Control: Policing the Empire, 1830-​1940’, in D. M. Anderson and D. Killingray (eds), Policing the Empire: Government, Authority and Control, 1830-​1940 (Manchester and New York: Manchester University Press 1991),  1–​15. Anderson, D. and Weis, J., ‘The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya, 1952-​60’, Law and History Review 36/​2 (2018), 267–​94. Anderson, M. R., ‘Islamic Law and the Colonial Encounter in British India’, in D. Arnold and P. Robb (eds), Institutions and Ideologies:  A SOAS South Asia Reader (Richmond, Surrey: Curzon Press 1992), 165–​85. Anghie, A., Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press 2005). Appadurai, A., ‘Number in the Colonial Imagination’, in C. A. Breckenridge and P. van der Veer (eds), Orientalism and the Postcolonial Predicament:  Perspectives on South Asia (Philadelphia: University of Pennsylvania Press, 1993), 314–​39. Arendt, H., The Origins of Totalitarianism (New York: Schocken 1951). Arendt., H., On Violence (New York: Harcourt 1970). Arendt, H., Eichmann in Jerusalem: A Report on the Banality of Evil (first published in 1963, rev. and enl. edn, Harmondsworth: Penguin 1979). Arendt, H., The Human Condition (first published in 1958; Chicago:  University of Chicago Press 1998). Arnold, D., ‘The Police and Colonial Control in South India’, Social Scientist 4/​12 (1976),  3–​16. Arnold, D., ‘Dacoity and Rural Crime in Madras, 1860-​1940’, The Journal of Peasant Studies 6/​ 2 (1979), 140–​67. Arnold, D., ‘European Orphans and Vagrants in India in the Nineteenth Century’, The Journal of Imperial and Commonwealth History 7/​2 (1979), 104–​27. Arnold, D., ‘Bureaucratic Recruitment and Subordination in Colonial India:  The Madras Constabulary, 1859-​1947’, in Ranajit Guha (ed.), Subaltern Studies IV:  Writings on South Asian History and Society (Delhi: Oxford University Press 1985), 1–​53. Arnold, D., Police Power and Colonial Rule:  Madras 1859-​1947 (Delhi:  Oxford University Press 1986).

Bibliography  193 Arnold, D., ‘Police Power and the Demise of British Rule in India, 1930-​47’, in D. M. Anderson and D. Killingray (eds), Policing and Decolonisation: Politics, Nationalism and the Police 1917-​ 65 (Manchester and New York: Manchester University Press 1992), 42–​61. Arnold, D., Toxic Histories:  Poison and Pollution in Modern India (Cambridge:  Cambridge University Press 2016). Arnold, D., ‘The Poison Panics of British India’, in H. Fischer-​Tiné (ed.), Anxieties, Fear and Panic in Colonial Settings: Empires on the Verge of a Nervous Breakdown (Basingstoke: Palgrave 2017),  49–​71. Arondekar, A., For the Record: On Sexuality and the Colonial Archive in India (Durham: Duke University Press 2009). Arthur, T. C., Reminiscences of an Indian Police Official (London: Sampson, Low, Marston & Company 1894). Asad, T., ‘On Torture, or Cruel, Inhuman and Degrading Treatment’, in A. Kleinman, V. Das, and M. Lock (eds), Social Suffering (University of California Press 1997), 285–​308. Asad, T., ‘Where Are the Margins of the State?’, in V. Das and D. Poole (eds), Anthropology in the Margins of the State (Santa Fe: School of American Research Press; Oxford: James Currey 2004), 279–​88. Atkinson, D., ‘Encountering Bare Life in Italian Libya and Colonial Amnesia’, in M. Svirsky and S. Bignall (eds), Agamben and Colonialism (Edinburgh: Edinburgh University Press 2012), 155–​77. Auerbach, J., Imperial Boredom: Monotony and the British Empire (Oxford: Oxford University Press 2018). Bailkin, J., ‘The Boot and the Spleen: When Was Murder Possible in British India?’, Comparative Studies in Society and History 48/​2 (2006), 462–​93. Bayly, C. E., ‘Knowing the Country: Empire and Information in India’, Modern Asian Studies, 27/​1 (1993),  3–​43. Bakan, J., The Corporation:  The Pathological Pursuit of Profit and Power (New  York:  Free Press 2004). Bakhle, J., ‘Savarkar (1883-​1966), Sedition and Surveillance:  The Rule of Law in a Colonial Situation’, Social History 35/​1 (2010), 51–​75. Bakir, V., Torture, Intelligence and Sousveillance in the War on Terror: Agenda-​Building Struggles (London and New York: Routledge 2016). Balachandran, A., Raman, B., and Pant, R., ‘Introduction: Iterations of Law: Legal History from India’, in A. Balachandran, R. Pant, and B. Raman (eds), Iterations of Law: Legal Histories from India (New Delhi: Oxford University Press 2018), 1–​15. Balagopal, K., ‘Deaths in Police Custody: Whom and Why Do the Police Kill?’, Economic and Political Weekly (22 November 1986), 2028–​9. Bambooque, W. A., ‘The Revenue Agent’, Comrade (18 May 1911), in M. Hasan (ed.), The Awadh Punch: Wit and Humour in Colonial North India (New Delhi: Nyogi Books 2007), 125. Banerjee, R. N., ‘Three Decades in the Indian Civil Service’, in R. K. Nigam (ed.), Memoirs of Old Mandarins of India: The Administrative Change as the ICS Administrators Saw it in India (New Delhi: Documentation Centre for Corporate & Business Policy Research 1985), 1–​26. Banerjee, S. B., ‘Live and Let Die:  Colonial Sovereignties and the Death Worlds of Necrocapitalism’, Borderlands 5/​1 (2006) accessed 17 May 2020. Banham, C., Liberal Democracies and the Torture of their Citizens (Oxford: Hart Publishing 2017). Banivanua-​Mar, T., Violence and Colonial Dialogue:  The Australian-​Pacific Indentured Labor Trade (Honolulu: University of Hawaii Press 2007). Barnes, J., A Genealogy of the Torture Taboo (London and New York: Routledge 2017).

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Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. abandonment 63 see also ‘Homo sacer/​bare life’ of colonized peoples  7, 12–​13, 35–​36, 58 of the Kikuyu  7 Agamben, Giorgio on biopower  60n.90 the role of the camp in  59, 62 on states of exception  7–​10, 12–​13, 37–​38, 40, 43, 54–​57, 59–​61, 62, 62–​63n.104, 63n.106 see also ‘exception: state of ’ Amritsar Massacre, the  15, 188 Archive destruction of colonial records in, by Britain  4n.23, 182n.13 lack of information in  144–​45, 176 reading along the grain of  24–​26 secret Foreign and Commonwealth Office  of  3–​5 violence of colonial  17–​20 Army, Indian, recruitment of  51n.40, 180–​81n.7 biopower definition of  71n.10 operation of  59–​60,  70–​72 role of racism in  71–​72 role of violence in  63n.106 role of ‘welfare’ in  59 see also ‘disciplinary power’ and ‘governmentality’: ‘role of ‘welfare’ in to ‘let die’, concept of  59, 70–​72 to ‘make live’, concept of  60n.90, 70–​72 Blackett, John, MP  73–​78 body, the reform of  70 role of, in investigations  97–​98, 104–​5, 108n.17, 133–​34, 149–​50,  169–​70 role of, in making law legible  65–​66 see also ‘law: illegibility of ’ bureaucracy, colonial India  72, 73–​75, 108, 112, 118–​19, 122–​31, 150–​51,  169–​70 Indian Civil Service, in  122–​24, 127–​30, 157, 184n.24 ‘paperreality’ in  108, 112n.40, 118–​19, 127, 168–​69 role of officials in  75, 79, 122–​31, 150–​51, 169–​ 70 see also ‘collectors, colonial India’, and ‘district magistrates’

transfers within  122, 126, 127–​29, 154–​55, 169n.160 Burke, Edmund  52–​53, 58, 78–​79 caste, in colonial India see also ‘torture: in colonial contexts: in India: role of caste in; police: in colonial contexts: in India: role of caste in’ pre-​colonial attitudes in regard to  51–​52 role in recruitment  30–​31n.170 Chronicles of Budgepore, The  106–​8,  116–​17 collectors, colonial India  73–​75 see also ‘bureaucracy, colonial India: role of officials in’ colonial violence between the colonized, as a form of  45–​48, 88 see also ‘Fanon, Frantz: concept of collective autodestruction’ murder rates among  46n.13 nature and operation of  7–​12, 17–​20, 22–​24, 40, 43–​52, 66–​67, 73–​79, 88, 96–​97, 101–​2, 107–​8,  155–​56 rationale behind  44–​45, 101–​2,  155–​56 role of, in the colonial ‘civilizing mission’  44–​45, 66, 155–​56 see also ‘torture: in colonial contexts: as a “civilizing” tactic’ scholarship on  13–​15, 16–​20, 22, 46–​47 importance of  42 silencing of  22–​24 systematization of  7, 188 see also ‘torture: in colonial contexts; in India: systematization of ’ unexceptional nature of  7–​10 unworlding nature of  40, 48–​52, 53–​54, 177, 188 see also ‘pain: unworlding nature of extreme’ and ‘torture: unworlding effects of’ colonialism, pastoral power in  2–​3, 102–​3, 118n.80 see also ‘sovereign power: relationship to pastoral power’ colonized see also ‘subjectivity: of the colonized’ alienation of  51–​52 displacement of blame for colonial violence onto  7, 26–​28, 38–​39, 41, 78–​79, 96–​97, 102, 186 see also ‘denial: of colonial violence: through victim-​blaming; displacement of blame for colonial violence’

224 Index colonized (cont.) terrorization of, by the colonizers  40, 52, 188 see also ‘police: in colonial contexts: in India: as a source of terror’; ‘sovereign power: role of, in perpetuating terror’; ‘terror’; and ‘torture: in colonial contexts: in India: as a terrorizing tactic’ violence against, by the colonizers  6–​7, 6n.30, 10–​12, 22–​24, 40, 43, 44–​46, 47–​54 commissions of inquiry  73, 92–​93, 95–​96, 131, 134–​37, 179–​80, 184 see also ‘torture commission, Madras’ confessions history of  113–​16 role of police torture in extracting, colonial India  36–​37, 41, 81–​82, 86–​88, 91–​92n.128, 96–​97, 109, 113–​23, 125–​ 26n.119, 144–​45, 180–​83n.11, 185, 188 see also ‘torture: in colonial contexts: in India: role of legal environment in enabling’ failure of conspiracy trials as a result of  42, 180–​ 85 see also ‘conspiracy cases and trials, colonial India’ conspiracy cases and trials, colonial India  42, 180–​85,  187–​88 Midnapore conspiracy case  182–​85, 188 corruption  38–​39, 50n.38, 75, 78–​79, 83–​84, 109, 131n.150, 140–​41, 152–​53, 157–​58, 160n.108, 167–​68, 169–​71,  182–​84 ‘counter–​insurgency’ campaigns, in British colonies  4n.22, 13–​15,  17–​20 Criminal Procedure Code, The  94–​96, 112, 116, 117–​18, 120–​21, 124–​25, 128n.137, 130n.148, 134–​35, 147n.42, 159 darogas (inspectors)  91–​92n.128, 140–​41, 146–​47, 152–​53, 157, 166n.142 death penalty  52, 65, 111, 188 denial of colonial violence  5–​7, 15–​16, 114–​15, 167n.148, 175n.200 through ‘rediscovery’  16–​20, 82–​83,  90–​92 through renaming  7, 42, 89–​90, 141n.4,  185–​87 through victim–​blaming  7, 99–​100 see also ‘colonized: displacement of blame for colonial violence onto’, and ‘displacement of blame for colonial violence’ of torture in colonial India  41, 76–​77, 83, 85–​88, 92–​93, 96–​97, 102, 106, 107, 179, 184–​87 unravelling of attempts at  42 disciplinary power  17n.90, 62–​63, 65, 69–​71 role of ‘welfare’ in  70, 102–​3 see also ‘biopower’ and ‘governmentality’: ‘role of welfare in’ violence of  70–​72, 102 Discipline and Punish  70–​71

displacement of blame for colonial violence  26–​ 28, 38–​39, 41, 73, 86–​87, 88, 186 see also ‘colonized: displacement of blame for colonial violence onto’, and denial: of colonial violence: through victim-​blaming’ thesis on  3–​5, 7, 11–​12 District Magistrates see also ‘bureaucracy, colonial India: role of officials in’ recruitment and training of  41, 80n.65, 93, 123–​ 24, 126, 127–​28, 131 role of, in the perpetuation of torture  86n.97, 99–​100, 106–​7, 108, 116–​19, 120–​21, 122–​23, 124–​25, 125–​26n.119, 126, 127–​ 28, 138–​39,  185–​86 Dutt, Romesh Chunder  49–​51, 58, 93, 126 East India Company  41, 49–​51, 52n.46, 58, 74n.28, 75–​81, 87n.100, 89–​92, 93–​94, 107–​8, 116, 122–​23n.100, 136–​37,  145–​47 Board of Control of  76n.42 Court of Directors of  79n.60, 80, 81–​83, 83n.80, 90–​92, 116n.66, 127–​28, 129n.138, 139n.195, 147 Court of Proprietors of  79n.60 economic violence  47–​51 emergency  71–​72 in colonial contexts  10–​11, 12–​13, 17–​20, 34–​ 37, 53n.55, 92–​93, 109–​10 in Kenya  1–​5, 15n.72 scholarship on  17–​20, 24–​25n.141 empire, attitudes towards in Britain  13–​15,  16–​17 by scholars of empire  13–​15 European Convention on Human Rights  3n.15 Evidence Act of 1872  116, 117–​18, 133–​34 exception, the as norm  7–​12, 36–​37, 55–​56, 57–​58, 66–​67, 69–​70,  140–​41 regime of  12–​13, 34–​35, 37n.217, 40, 41, 43, 54, 109–​10,  182 resistance to  56–​57, 61, 162 see also ‘Homo sacer/​bare life: resistance to’ role of violence in  62 role of torture in  36–​37, 182 state of  7–​10, 12–​13, 35–​38,  71–​72 in colonies  7–​12, 43, 54–​61, 64–​67 warlike nature of  66–​67 in colonial India  11–​13, 20, 31–​32, 33–​35, 42, 57–​58, 67–​68, 69–​70, 159–​60,  179 in colonial Kenya  2–​5, 7–​10 role of racism in constructing  60–​61 ‘war on terror’  7–​10 facilitation of imperial violence  7–​11

Index  225 of torture in colonial India  41, 69, 106, 140–​41, 175n.200, 179–​80,  184–​85 facilitators, atrocity, role of in facilitating torture in colonial India  41, 72, 73–​92, 96–​97, 103, 106–​8,  179 famine  20–​22, 31–​32, 45–​46, 47–​48, 49, 57n.77, 58–​59, 62, 93 Fanon, Frantz  44–​46, 103, 160, 188 concept of ‘collective autodestruction’ by  45–​46 see also ‘colonial violence: between the colonized, as a form of ’ faujdars  115–​16,  145–​46 First World War  180–​81n.7, 182–​83, 187 flogging 45n.7 Foucault, Michel relationship of violence, concept of  56–​57 understandings of the operation of power by  56–​57, 70–​71, 72, 92n.130 gendered violence  46–​47, 51–​52, 142–​43, 163–​64, 169n.160, 171–​72n.178 see also ‘Sati, scholarship on’ genocide in colonial India  15–​16 in colonial Kenya  3–​5, 7 scholarship on, colonial  17–​20 governmentality definition of  70–​71 operation of  60n.90, 62–​68, 70–​71 in colonial India  12–​13, 40, 69–​72, 73–​ 75, 102–​3, 106–​7, 108–​10, 116–​17, 119–​20, 140–​41, 164–​65 see also ‘sovereignty: in India: operation with governmentality’ role of statistics in  119–​20, 151–​52, 156n.88,  168–​69 role of bureaucracy in  63, 64n.111, 108–​9 see also ‘bureaucracy, colonial India’ role of law in  62–​63, 64–​65, 70–​71 role of violence in  62–​63, 65 role of ‘welfare’ in  62–​63, 64n.111, 73–​75, 78–​79, 102–​3 see also ‘biopower’ and ‘disciplinary power’: ‘role of “welfare” in’ Hastings, Warren, impeachment of  73, 78–​79,  107–​8 Homo sacer/​bare life  37–​38, 66 reduction of the colonized to  54–​61, 62, 77–​78,  102–​3 in colonial India  40, 43 relationship between zoē and bios in  56–​57 resistance to  43, 56–​57, 59, 61 see also ‘exception: resistance to’ role of the Indian police in being rendered as  37–​38, 41 see also ‘torturers, the: in colonial India’

role of the Indian police in rendering subjects as  37–​39 role of racism in constructing  60–​61 see also ‘exception: state of: role of racism in constructing’ humanitarianism, violence of colonial  17–​20, 52–​53 hyperlegality  64–​65 impoverishment, of the colonized  49–​52 Indian Penal Code, The  94–​95, 102–​3, 112, 116, 128n.137, 147n.42 Indian Police Commission, The, 1860  93–​94 Indian Police Commission, The, 1902  72, 93–​94, 123, 137–​38, 145–​46, 149–​50n.54, 158–​ 59, 166–​67, 186, 187n.37 India Reform Society  73–​76, 77–​78, 79–​80, 81n.73 Indian Civil Rights Committee  119n.83, 180, 184 judges, colonial India recruitment and training of  41, 112, 123, 128–​29,  131 role of, in the perpetuation of torture in  79–​80, 88, 97–​98, 100–​1, 111, 112, 118, 122–​23, 133–​34,  135–​36 judicial system in colonial India  41, 51–​52, 107–​8, 110–​12, 115–​16, 121–​39, 149n.50 attitudes towards Indians in  88, 99–​100, 118, 129–​30n.143,  131–​32 colonial evidentiary norms, problems with  41, 88, 112, 117–​18, 131–​35 impunity in  41, 97–​101, 102–​3, 104, 106–​7, 108–​10, 127–​28, 134–​35, 139 see also ‘torture: in colonial contexts: in India: role of legal environment in enabling’ lack of separation of powers between judiciary and executive in  41, 80–​81, 87, 93, 107–​ 8, 109–​11, 126n.123, 128–​31, 135–​39 history of  136–​37 reliance on medical testimony in  41, 107, 131, 133–​34, 150n.56 terror of, by the colonized  52, 112, 113 violence of  52, 70, 110–​13, 115–​18 in pre-​colonial India  51–​52, 113–​14, 115–​ 16, 131–​32 see also ‘law: rule of: in colonial India’ juridical order  55–​56, 58, 64n.115 power  62–​63,  70 Kafka, Franz, ‘On the Penal Colony’  65–​66 kotwal  80–​81, 141–​43,  145–​46 land revenue Bengal Permanent Settlement, system of  49–​51,  73–​75

226 Index land revenue (cont.) high demands of, in colonial India  49–​51, 73–​78, 83–​84, 90–​92, 93 see also ‘economic violence’ lack of redress against assessments of  49–​51 ryotwari, system of  49–​51, 73–​75, 87 law illegibility and ignorance of  65–​66, 123, 125–​26, 128–​29, 131, 139n.197, 150–​51 see also ‘body: role of in making law legible operation of, in states of exception  54–​56, 61, 64–​65 on torture, United Kingdom  1n.4, 2–​5, 7–​10 rule of, in colonial contexts  12–​13, 64–​65, 111 in colonial India  32–​34, 107–​8, 109–​11, 122–​ 39, 150–​51, 182 see also ‘legal system: in colonial India’ accommodation of the illegal within  34–​ 37, 41, 64–​65, 106–​7, 108–​10, 113, 116–​18, 123, 131, 134–​35, 139, 149n.50, 170–​71, 182, 185–​86, 188 on torture  79–​80, 90–​92, 95–​96, 102–​3, 115–​16​,  120–​21 performative nature of  33–​34, 107–​8 repressive nature of  58n.81, 110–​11, 180–​82 role of collective punishment in  40, 48n.28, 111–​12,  159 scholarship on  32–​33,  110–​11 suspension of  12–​13,  33–​35 violence of  17–​20, 33–​34, 54n.56, 65n.116, 94–​95, 107–​8,  110–​13 inclusion of colonial subjects in  12–​13, 35–​37,  64–​65 legalization of exceptional measures in  12–​ 13, 35–​36, 64–​65,  67–​68 lawfare  12–​13, 33–​34,  110–​11 law-​making violence  64–​65, 66–​68, 110–​11,  113 law-​preserving violence  11–​12, 66–​67,  113 Mackarness, Frederic  104, 134–​35, 180n.4, 183n.18 Madras Native Association  75–​77, 81n.73, 87n.100, 89n.115, 90–​92 Madras Police Act, The, of 1859  93–​96 Manto, Sadaat Hasan, ‘Due Supervision’  69–​70, 71–​72 massacre, scholarship on  17–​20 Mutua & Ors. v. The Foreign and Commonwealth Office (2011)  1–​3, 5–​6, 7–​10,  15–​17 Mutua & Ors. v. The Foreign and Commonwealth Office (2012)  3n.18 Nationalism, Indian  180–​82, 184, 188 revolutionary terrorism in  180–​83, 187 role of Indian press in  180 necrocapitalism 59 necropolitics 60n.90 North-​Western Provinces Police Committee, The, 1891  119n.84, 120–​21, 138n.188, 149–​50, 152–​53, 157–​58, 161n.118, 175n.203, 179

Norton, John Bruce  85n.93, 87, 112, 127–​29, 130–​ 31, 134–​35 see also ‘torture commission, Madras: commissioners on’ pain infliction of, in torture  143–​44, 145 role of, in disciplining  70, 102 see also ‘body: the, reform of ’ silencing of  22–​24,  52–​53 understandings of  52–​53, 83–​84, 99–​100,  140–​41 connection to obscenity and pornography  52–​53 unworlding nature of extreme  22–​24, 40, 48, 52 see also ‘colonial violence: unworlding nature of ’ and ‘torture: unworlding effects of ’ ‘petty sovereigns’  7–​13, 28–​29, 33–​35, 62–​68, 70–​72, 88, 90–​92, 102–​3, 106–​7, 109–​10, 113–​23, 124–​28, 139, 140–​41,  173–​74 police, in colonial contexts  24–​26, 28–​29, 66–​67 in India  28–​32 as central to the maintenance of colonial rule  24–​26, 92, 93–​96, 101–​2, 131, 140–​ 41, 152–​53, 158–​60, 170–​71,  180–​82 clannish dynamics among  165, 173–​76 crime and disorder by  145–​46, 153–​54, 170–​71,  176–​77 exceptional nature of  28–​29, 33–​34, 66n.127, 67–​68, 113–​22, 140–​41, 142–​43,  159–​60 false charges against, belief in  79, 80–​81, 89–​ 90, 97, 99–​100, 131–​32, 135–​36 false charges by  88, 106–​7, 109, 140–​41,  182–​85 history of  28–​29, 73–​75, 115–​16,  145–​47 investigations by, and detective abilities of in  95–​96, 133–​34, 149–​50, 166–​69, 171n.171, 173, 174–​75, 182–​83 lack of separation of powers between revenue officials and  93 law in relation to  93–​96 see also ‘Madras Police Act of 1859’ and ‘Police Act of 1861’ literacy rates in  152n.67 militarized nature of  28–​29, 93–​94, 95–​96, 145–​46, 151n.59,  158–​59 pay of  147–​48, 152–​56, 157–​58, 160, 168–​69, 172,  176–​77 perceptions of  165, 168–​69, 171–​72, 173–​74 promotions of  156–​57 punitive powers of  147–​48, 158–​60 recruitment of  51n.44, 160–​62, 169–​70, 172, 176–​77, 180–​81n.7 relationship between state and society, or divided loyalties, of  11–​12, 38–​39, 93–​94, 101–​2, 144–​45, 151–​52, 169–​72, 173–​74,  177 reform of, nature  92–​97, 115–​16, 146–​47

Index  227 purpose 41 rewards to  146–​47, 149–​50,  154–​55 role of caste in  30–​31n.170, 147–​48, 150n.55, 160–​65, 173–​75,  176–​77 role of discipline in relation to  28–​29, 30–​ 31, 38–​39, 96n.152, 102, 119–​20, 152, 153n.68, 155–​56, 168–​69, 170n.168 as a source of terror  11–​12, 41, 72, 101–​2, 151–​52,  175–​76 supervision of  96–​97, 102, 123, 126, 127–​28, 141n.7, 145–​47, 149–​50n.54, 150–​51, 152–​53, 156–​58, 165–​69, 171n.177, 172,  173–​74 torture by  11–​12, 17–​20, 24–​26, 37–​40, 41–​42, 69, 72, 79–​81, 86–​87, 88–​90, 95–​96, 97–​ 100, 103, 106–​10, 113, 116–​18, 119–​21, 122–​23, 135–​37, 141–​43, 144–​46, 151–​52, 158, 165, 168–​70, 173–​76, 179–​87, 188 role of statistical test in  119–​20, 168–​69 training of  147–​53, 160, 174–​75 underfunding of  147–​48, 152–​54,  165–​66 village police, role of in  99–​100, 147n.42, 148–​49, 153–​54, 155–​56,  170–​71 working conditions of  147–​48, 154–​56, 160, 172, 173 memoirs by  24–​26 scholarship on  24–​26 violence of  17–​20, 24–​29, 69–​70, 71–​72, 113–​14, 151–​53, 158, 160, 167–​68, 172n.180, 180–​82 Police Act, 1861 (Act 5 of 1861)  94–​96, 137–​38, 149–​50 see also ‘police, colonial India: law in relation to’ punishment, spectacle of  53n.54 Revolt of 1857, Indian  15–​16, 51n.40, 57–​58n.78, 93–​94, 95–​96, 100–​1, 109–​10n.26,  133–​34 rogue–​colonial individualism, or ‘bad apple’, theory  3–​6,  17–​20 sati, scholarship on  46–​47 scandal role of, in the perpetuation of colonial violence  11–​12,  39–​40 role of, in the putative efforts of the colonial regime in India to eradicate torture  39–​40, 42 scholarship on  17–​20 on torture in colonial India  41, 42, 73–​79, 92–​93, 102, 179, 180–​85 sexual violence  142–​44, 159–​60, 163–​64, 179 scholarship on colonialism and  17–​20 see also ‘torture: in colonial contexts: in India: role of sexual violence in’ Seymour, Henry Danby, MP  75–​78, 79–​80, 82–​83 sovereign power operation of  70–​71 in states of exception  55–​56

operation of, in colonial India  12–​13, 28–​30, 34–​35, 36–​38, 43,  140–​41 as a power relation  56–​57 as a relationship of violence  56–​57 relationship to pastoral power  49n.30, 118n.80, 138 see also ‘colonialism, pastoral power in’ role of, in perpetuating state terror  12n.57, 151–​52,  188 sovereignty, colonial  12–​13, 17–​20, 34–​36, 39–​40, 54, 57–​58, 59–​60, 64–​65,  138–​39 in India  11–​13, 28–​32, 34–​35, 38–​39, 49n.30, 52, 57–​58, 73–​75, 102–​3, 107–​8, 146–​47,  169–​70 operation of, with disciplinary power  28–​29,  102 operation of, with governmentality  7–​10, 12–​13, 43, 52–​53, 63, 67–​68, 102–​3, 106–​10, 140–​41,  164–​65 role of the ‘rule of law’ in constructing  34, 95–​96, 107–​8,  111–​12 role of the police in constructing  11–​12, 28–​32, 34–​35, 38–​39, 113, 138–​39, 152–​53,  173–​74 role of torture in constructing  7, 36–​37, 38–​ 39, 41, 103, 175n.200, 187 starvation, of the colonized  44, 45n.10, 47–​48,  51–​52 state, the colonial  26–​33, 48, 169–​70 fragmentary nature of  29–​31, 169–​71 role of the extra-​legal in constructing and upholding  65–​66, 109–​10, 113, 123, 134–​35,  180–​87 role of the police in constructing and upholding  26–​32, 134–​35,  138–​39 role of law in constructing and upholding  32–​ 33, 65, 94–​96, 107–​8, 109–​10, 111–​12,  170–​71 violence of  26–​28, 31–​32, 33–​34, 66–​67, 69–​72, 88, 90–​92, 103, 110–​11, 179 structural violence  10–​11, 15, 20–​22, 42, 43, 45–​ 46, 47–​48, 49, 59–​60, 65, 77–​78, 79, 88, 90–​93, 112, 160 elision of, in scholarship on colonialism  17–​20,  46–​47 subjectivity of the colonized  43, 44–​45, 48, 59–​60, 64–​65 see also ‘colonized’ transformation of, by disciplinary power  62–​63, 102 see also ‘disciplinary power’ suffering disregard of  47–​48, 51n.41, 52–​54, 66 ‘expert’ administration of  70, 71–​72 see also ‘disciplinary power’ social 14n.71 symbolic violence  12n.57, 20–​22, 111, 112

228 Index terror reliance of the Indian colonial regime on  40, 41,  180–​82 and sovereign power  12n.57, 54, 188 see also ‘police, in colonial contexts: as a source of terror’; ‘sovereign power: role of, in perpetuating terror’, and ‘torture: in colonial contexts: in India: as a terrorizing tactic’ terrorist, British understandings of term  181n.8, 182 theory, importance of in writing history  42 torture and democracy, relationship between  7–​11, 36–​37, 43,  114–​15 as murder  71–​72,  140–​41 as a power relationship  72 attitudes towards, in Europe  83–​84 career advancement, model of  160 definition of  36–​37 forms of, significance  140–​41, 142–​44 history of  113–​16 in colonial contexts  7–​11, 36–​37 as a ‘civilizing’ tactic  2, 66, 67–​68, 83–​84, 97 see also colonial violence : role of, in the colonial ‘civilizing mission’ in India see ‘police, colonial India: torture by’ as a tactic of governmentality  72, 73, 96–​97, 106–​10, 140–​41 see also ‘governmentality: operation of: role of violence in as a means of suppressing ‘revolutionary terrorism’  118,  140–​83 as a terrorizing tactic  11–​12, 40, 82n.77,  101–​2 beliefs about, by the British  86–​87, 88, 90–​ 92, 99–​100, 104–​5, 118, 179 by Europeans  82, 96–​97, 98–​100 culture of silence surrounding/​lack of complaints in regard to  88, 140n.3, 146n.37, 171–​72n.178,  175–​76 for extracting revenue  49–​51, 75–​81, 83, 85–​88, 89n.115, 90–​92, 93 history of  73, 79–​80, 82–​83, 113–​14,  115–​16 lack of punishments for  11–​12, 38–​39, 80–​ 82, 90–​92, 97–​100, 102–​3, 104, 106–​7, 134–​37, 155n.81,  182–​86 protection of indigenous allies who tortured  97,  100–​1 role of caste in  98–​99, 103, 140–​44, 147–​48,  160–​65 role of legal environment in enabling  36–​ 37, 41, 106 see also ‘confessions: role of in enabling police torture in colonial India

role of sexual violence in  78–​79, 104, 142–​ 44, 147–​48, 163–​64, 174, 179 systematization of  11–​12, 41, 67–​68, 72, 89–​90, 96–​105, 109–​10, 113–​22, 147–​ 48, 179, 188 see also ‘colonial violence: systematization of in Kenya  1–​6 in Iraq  8–​9n.43 in modern mechanisms of criminal justice  51–​52 in the ‘War on Terror’  7–​11 juridical model of  36–​37, 109, 113–​15 national security model of  36–​37 privatization of  52–​53 rationales for  143–​45, 147–​48, 160–​62, 174–​75,  176–​77 in eliciting ‘truth’  22–​24, 83–​84, 90, 114–​15,  143–​44 role of spectacle in  53n.54, 103, 143–​44, 163–​64 United Nations Convention Against  2–​3 unworlding effects of  22–​24, 48, 162–​64, 188 torture commission, Madras  42, 73–​93, 104, 137–​ 38, 171n.172, 179 see also ‘commissions of inquiry’ commissioners on  85–​86, 87 report by  87–90 scholarship on  73 torturers, the, in colonial India  41, 89–​9 0, 103, 140 see also homo sacer/​b are life: role of the Indian police in being rendered as the group dynamics and institutional structures that drove them to become  41, 144–​45,  165–​76 historical and cultural characteristics that facilitated the creation of  41, 144–​65 psychological processes and motivations that drove them  41, 144–​45, 158, 160, 164–​65,  175–​77 trauma  15–​16, 17–​20,  177 violence lack of scholarly focus on  20 understandings of  20–​22 violence workers  11–​12, 177n.209 role of Indians as, for the British colonial regime  11–​12, 90–​93, 97, 176–​77,  187 Wood, Sir Charles, President of the East India Company’s Board of Control  76–​78 Zamindars  50n.36, 85–​86, 145–​47, 156n.87, 169–​71