This article examines the way in which legal codification, the scrutiny of the high courts, and the expansion of the ‘native Bar’ restructured colonial ‘preventive policing’. Habitual Offender legislation in England targeted the ex-convict, but in India the bad-livelihood sections of the Code of Criminal Procedure (CrPC sections 109–110) permitted a far more flexible construction of ‘habituality’. They illustrate the degree to which summary judicial powers wielded by the executive head of the district were incorporated into the code, not excised from it. Educated Indians critiqued this combination of executive and judicial powers in the hands of the district magistrate, yet CrPC ‘preventive sections’ proliferated. Furthermore, in 1918 the Punjab province passed a Habitual Offender Act which, drawing upon the pattern of the Criminal Tribes Act (Act XXVII of 1871), permitted CrPC section 110 to be used to restrict the suspected ‘habitual’ to a certain area as well. Hitherto amendments to the CrPC were supposed to be matters for central not provincial legislation. The Punjab Act inaugurated an era of provincial enactments to intern or release ‘habituals’, structured around essentialist contrasts between urban and rural space. Under the surface of drives to codify colonial law a striated jurisdictional topography continued to re-form.
I am grateful to C. A. Bayly, the L. M. Singhvi foundation, and Kevin Greenbank at the Centre of South Asian Studies, Cambridge, for research support, to Jane Caplan for sustaining my interest in identity protocols, and to Ravi Vasudevan and Gayle Lonergan for imaginative editing. All manuscript references are from the National Archives of India, New Delhi, unless otherwise stated.
1 ‘All the world's rakes and rogues prostrate before you: proud, perverse, awkward, maverick. . .all acknowledge you to be their boss.’ Carla Pietivich supplied this delightful she’r by Mir Taqi Mir and its translation.
2 Stephen, J. F. (1883), A History of the Criminal Law of England, Routledge, 1996, Vol. III, p. 344. Law Member, Governor-General's Council, India (1869–1872).
3 Saunders, R. F. (1867), The New Police Code for the North Western Provinces, Benares, p. 258.
4 In the first half of the nineteenth century, the badmaash was also discovered amid dispossessed courtiers and landholders or unemployed cavalrymen.
5 For that reason rebel proclamations in 1857 referred to the British as badmaash angrez.
6 Yet women did figure in surveillance registers, and police ethnographies cast women of ‘hereditary predatory communities’ as very active in crime.
7 Dhareshwar, Vivek and Srivatsan, R., ‘“Rowdy-Sheeters”: An Essay on Subalternity and Politics’, in Amin, Shahid and Chakrabarty, Dipesh (eds) (1996), Subaltern Studies IX: Writings on South Asian History and Society, Oxford University Press, Delhi.
8 From a large corpus of insightful work: Chandavarkar, Rajnarayan (1998), Imperial Power and Popular Politics: Class, Resistance and the State in India, 1850–1950, Cambridge University Press; Gooptu, Nandini (2001), The Politics of the Urban Poor in early Twentieth Century India, Cambridge University Press; Kidambi, Prashant (2007), The Making of an Indian Metropolis: Colonial Governance and Public Culture in Bombay, 1890–1920, Ashgate.
9 Regulation 22, section 10, Bengal, 1793. The parallel in England can be found in the law relating to recognizances.
10 Radzinowicz, Leon and Hood, Roger (1980), ‘Incapacitating the Habitual Criminal: The English Experience’, Michigan Law Review, 78 (8), pp. 1305–1389.
11 Sections 72, 75, 400–401, of the Indian Penal Code (1860) prescribed an enhanced punishment on a second conviction for certain offences, or for crimes which ‘seemed to suggest a profession’. But magistrates often preferred to use the CrPC bad-livelihood sections with their looser standard of evidence rather than the Indian Penal Code, and to keep the case in their own court, rather than send it up to the sessions judge for a heavier sentence.
12 Acts 32 and 33 Vict. Cap. 99, and Acts 34 and 35 Vict. Cap. 112, section 8, put released convicts under surveillance so they could be punished, not only for actual recidivism, but for signs of it. The minor recividist of the ‘vagabond’ type was also targeted but some past conviction was usually on the record. In England it was the end of transportation and therefore the presence of the convict mass in society that was invoked to pass Habitual Offender legislation. In India, this was the very period in which the Andaman islands emerged as a viable penal colony.
13 North Western Provinces and Oudh Government to Legislative Department, Government of India, 10 January 1898, India Office Library and Records, P 5370, North Western Provinces and Oudh Government, Judicial (Criminal) February 1898.
14 Legislative, B, May 1918, 119–122; see below.
15 The first CrPC for India was Act XXV of 1861, revised by Act X of 1872, then by Act X of 1882 and again by Act V of 1898.
16 Warner, H. E. and Husain, Munshi Safdar (1920), Practical Methods in Police Work, Allahabad, The Pioneer Press.
17 Campbell, George (1893), Memoirs of my Indian Career, London, Macmillan.
18 Maine, Henry, ‘Over-legislation’, 1 October 1868, in Minutes by Sir H. S. Maine, 1862–1869 (1892), Calcutta, Government of India; Stephen, J. F., ‘Legislation under Lord Mayo’, in Hunter, W. W. (1876), A Life of the Earl of Mayo, Fourth Viceroy of India, Vol. II, Smith, Elder, and Co., London.
19 Maine outlined the following expedients: confining laws to the statement of principles, giving local governments the power to make rules consistent with some law, and, in ‘less advanced parts’, introducing a simplified legal machinery with large discretionary powers for the administrator. Maine, ‘Over-legislation’.
20 Maine, ‘Over-legislation’; and ‘Minute of Sir Fitzjames Stephen on the Administration of Justice in India’, Selections from the Records of the Government of India (1872), XXXI. The insertion of areas of summary and discretionary authority into bodies of rationalized law is also illustrated by the incorporation in 1869 of the Summary Court Martial into the Indian Articles of War. This was a ‘tribunal peculiar to the Indian Army’ in which the Commanding Officer of a corps was the sole judge, one whose sentence could be carried out immediately. Manual of Military Law, 1911 (1912), Calcutta.
21 Home, Judicial, A, February 1876, 168–171; Nelson, J. H. (1873), Commentaries on the Code of Criminal Procedure (Act No. X of 1872), Madras, Higginbotham and Co.; Currie, Fendall (1874), The Indian Code of Criminal Procedure, J. Flack and Co., p. xvi.
22 ‘Two things suffice for ease and comfort. Keeping your wife content and the collector sahib.’
23 Report of the Committee on the Improvement of the Mofussil Police in Bengal, 1838.
24 Home, Police, B, 5 December 1862, 4–5.
26 Prinsep, H.T. (1901), The Code of Criminal Procedure, Calcutta, S. K. Lahiri, p. 49.
27 One superintendent of police recalled how he used to add and delete names from thana surveillance lists: ‘These people had to be called in from their villages, the Police examined as to their knowledge of them. . .. I used to strike off the names very freely. . .. In doubtful cases I used to get some respectable person to give informal bail.’ Cox, E. (1909), My Thirty Years in India, London, Mills and Boon, pp. 126–127. The district magistrate continued to pass orders on petitions pleading for the removal of a name from some surveillance list, although this had no legal basis. Phillips, H. A. D. (1887), ‘Preventive jurisdiction’, The Law Quarterly Review, 3, pp. 180–208, 194, fn. 1.
28 See, for example, The Punjab Police Rules (1934), Vol. III, p. 51, para. 23.
29 12 May 1897. Elgin was comparing the more discreet procedure in England which allowed ex-convicts to report at the police station. India Office Library and Records, IOR/L/PJ/6/460, File 2245/1897.
30 Currie, Fendall (1900), Below the Surface, Westminster, A. Constable and Co., pp. 231–232.
31 See testimonies about the policing of Mhang and Mher communities, Bombay and Sindh papers, Report of the Indian Police Commission, 1902–1902 (1903), Simla.
32 Section 117, CrPC 1882 stated, ‘For the purposes of this section (110) the fact that a person is a habitual offender may be proved by evidence of general repute or otherwise.’
33 Mal, Kallu, 1904, A W N 140, Desai's All India Consolidated Criminal Digest, 1811–1934 (1935), I, Baroda, pp. 536–552.
34 The very terms of the legal formulation generated a certain dynamic of ‘illegality’. Recommending that suspicious characters be compelled to report periodically to the police station, a district officer added frankly, ‘These expedients cannot of course be enforced by law, and if any person objects to them, he should file regular security’. He was suggesting that the threat of the legal weapon be used to reconcile ‘bad-characters’ to looser, if illegal, measures. Whish, C. W. (1892), The District Office in Northern India, Calcutta, Thacker, Spink and Co., pp. 189–190.
35 Warner and Husain, Practical Methods, p. 111.
36 Report of the Indian Jails Committee, 1919–1920 (1920), Vol. I, para. 102, Government Central Press.
37 Section 117, Act X of 1882.
38 Home, Judicial, A, January 1880, 136–166.
39 Nelson, Commentaries, p. 469.
40 Saran, Magistrate, 28 December 1890. Papers relating to a Bill to provide for the more Effectual Surveillance and Control of Habitual Offenders in India, in Selections from the Records of the Government of India (1893), CCC, Calcutta. (HO Bill).
41 Act X of 1882.
42 Home, Police, B, December 1862, 4–5.
43 Home, Judicial, A, January, 1880, 136–166.
44 For even higher figures of ‘success’, see Report on the Administration of the Police of the United Provinces, for the years 1902–1906.
45 In 1879 when chamars were accused of causing high levels of cattle mortality by poisoning livestock in collusion with hide dealers, the district magistrate of Gorakhpur placed a large number from this community on the surveillance list. Selections from the Records of the Government of India (1881), CLXXX, Calcutta, p. 62. In 1902, in a sweep against false coinage in the United Provinces, the chapparbands (itinerant metal workers) were hounded by summary arrests and section 109 proceedings. Report on the Administration of the Police of the United Provinces, 1902.
46 Leigh, M. S. (1922), Punjab and the War, Lahore, p. 17; The Punjab Record (1918), Vol. LIII, p. 19.
47 The district magistrate from Montgomery district remarked ironically that it was seldom that the really influential criminals came within the reach of the CrPC: ‘It would, perhaps be more accurate to say that the leading bad characters generally appear as witnesses for the prosecution.’ Report on the Administration of the Police, Punjab (1898), p. xix.
48 The frequency with which the police were warned not to rely only on informers is an index of the power generated at this interface.
49 Edwardes, S. M. (1923), The Bombay City Police, Oxford University Press.
50 ‘Congress Report on the Punjab Disturbances’, Collected Works of Mahatama Gandhi (1920),Vol. 20, pp. 130, 139.
51 This is a theme which requires a separate investigation.
52 Edward Henry, Inspector-General, Police, Report on the Administration of the Police, Bengal (1891), para. 35. Hakim: ruler, person in authority.
53 Report of the Indian Police Commission, para. 135.
54 Warner and Husain, Practical Methods, pp. 128–129.
55 The Bengal lieutenant governor blamed the police for initiating bad-livelihood enquiries on insufficient evidence, then seeking adjournments. Report on the Administration of the Police, Lower Provinces (1890), p. 8, para. 21.
56 The government of India rejected this proposal. Home, Police, A, November 1905, 132–133.
57 Part XI, CrPC 1872.
58 Nelson, Commentaries, p. 448.
60 Section 409, CrPC 1861.
61 Section 267, CrPC 1872. However, if the term of imprisonment for default of security under section 110 exceeded a year, the sessions judge had to review the proceedings. For this reason magistrates tended to limit the term for which security was demanded to one year. In the United Provinces, for the years 1902–1906, the average duration of a jail term in default of security for good behaviour, was one year and one month. Report on the Administration of the Police of the United Provinces, 1902–1906.
62 Supplement to Gazette of India, 17 December 1870; Legislative, A, June 1872, 141–340.
63 Emphasis added. Compare section 296, Act XXV of 1861. CrPC 1872 also permitted the magistrate to impose rigorous imprisonment in place of simple imprisonment if the person was unable to produce security for good behaviour. Legislative, A, June 1872, 141–340.
64 Report on the Administration of the North Western Provinces for 1875–1876 (1876), Government Press, p. 65; Home, Judicial, A, January 1880, 136–166.
67 Circular, 16 February 1878, ibid.
68 See section 406, Act X of 1882.
69 4 March 1881, Legislative, A, June 1882, 1–429.
70 Ibid. Section 110, CrPC 1882 also broadened the definition of bad-livelihood by bringing habitual extortion into the frame of enquiry. Menace to person was thereby linked to menace to property.
71 The Legal Practitioners Act (Act XVIII of 1879) permitted sessions judges and district magistrates to set out certain qualifications for mukhtars, and to allow only those they enrolled annually to practise in the subordinate criminal courts. Mukhtars protested vehemently that such measures were an attack on the growing independence of the legal profession. Legislative, March 1896, 209–230.
72 Currie, Below the Surface. In 1881 Hobart, inspector general of police, Bengal, complained that the Indian judiciary was ‘hypercritical with regard to evidence’. An investigation revealed that acquittals under Indian magistrates of the first class were just five per cent more than for European magistrates. Not convinced, Hobart demanded a comparison of returns from magistrates of the second and third class. Home, Police, December 1888, 118–135. The Sedition Act, section 124-A, Indian Penal Code and section 108, CrPC 1898, were framed in part to protect Indian magistrates from the ‘intimidation’ of the vernacular press. See below.
73 Ghosh, Manomohan, ‘Necessity of maintaining the independence of the judiciary in India’, The Imperial and Asiatic Quarterly Review (1896), 1 and 2, January–April, pp. 31–40.
74 Misra, B. B. (1970), The Administrative History of India, 1834–1947, Oxford University Press, p. 553. This painstaking scholar expressed his own conviction that an independent judiciary could be appreciated only by a few, ‘for the rest, the conditions of India were such that a strong executive was needed to maintain order’. Ibid.
75 Warner and Husain, Practical Methods, p. 17.
76 Report of the Indian Police Commission, paras 97, 177.
77 Ibid. Appendix VII. Emphasis added.
78 Home, Police, A, November 1905, 132–133.
80 Warner and Husain, Practical Methods, p. 114.
81 Home, Police, A, November 1905, 132–133.
82 Report on the Administration of the Police of the United Provinces, 1904, para. 30.
83 Warner and Husain, Practical Methods, pp. 117–118.
84 Ibid. It concluded that the thanedar should induce ‘surveilles’ to remain at their residence, lest they become traceless.
85 The Punjab Police Rules (1934), Vol. III, section 23.9(3).
86 Singha, Radhika (2000), ‘Settle, Mobilise, Verify: Identification Practices in Colonial India’, Studies in History, 16 (2), pp. 151–198.
88 Home, Police, A, June 1905, 121–122; Home, Police, A, 1907, 132–136; Home, Police, B, June 1909, 103–104.
89 Ibid. The Karachi Fingerprint Bureau was allowed to maintain a separate establishment for Sindh.
90 Judicial Department, Vol. 114, Maharashtra State Archives, Mumbai.
91 Ibid, 5 June 1908. Emphasis added.
92 Ibid. Also Curry, J. C. (1932), The Indian Police, London, Faber and Faber, p. 156.
93 Warner and Husain, Practical Methods.
94 Cox, My Thirty Years in India, p. 127.
95 HO Bill, 1893.
96 Section 110(d), relating to ‘mischief’, was shaped by the Punjab government's battles with pastoral communities on the frontiers of canal colonization.
97 Native Newspaper Reports, Bengal, No. 3 of 1898, p. 60. In the case of Sundar Lal and Ors vs Emperor on 5 June 1933, the Allahabad High Court ruled that section 110 could be used against members of secret societies with revolutionary objectives. Desai's Digest, 1934, Vol. I, p. 534.
98 Native Newspaper Reports, 1898, for Bengal and Bombay; Legislative, A, April, 1898, 24–128.
100 A narrower provision, section 565, CrPC 1898, which obliged certain categories of released convicts to notify the police of their residence and change of residence, was introduced.
101 Home, Judicial, A, July 1906, 1–2.
102 Cust, R. N. (1896), ‘Twenty-five years after India’, Asiatic Quarterly Review, 1 and 2, January–April.
103 Home, Police, A, August 1917, 75–76.
106 Legislative, B, May 1918, 119–122.
108 Daulat Rai, Malik Muhammad Amin Khan, Ram Saran Das, Behram Khan, Ikram Ullah Khan. Ibid.
109 26 July 1918, Home, Police, A, December 1918, 111–112.
110 Pamphlet of instructions for the working of the Habitual Offender Restriction Act (Burma Act No. II of 1919) (1922), Government Printing, Rangoon. In fact, the Burma Act could be enforced in towns using police agency alone. Ibid.
111 Home, Police, A, June 1920, 322–323; Home, Police, B, File 787/1922; Home, Police, File 4/X/31.
112 Singha, ‘Settle, Mobilise, Verify’.
113 Ibid. In a report on mallahs, boatmen attributed their pilferage of cargo on eastern riverways to their entrepreneurial ambitions to pass themselves off as traders. P. B. Bramley (1907), Report on River Crime and River Police Re-organisation Scheme, Vols. I–III, Calcutta.
114 In Punjab, the insertion of ‘canal colony’ villages into the grasslands between the rivers Ravi and Chenab encouraged migration from the densely populated central districts and from devastated riverine pastoral villages, creating a concern about the destabilization of rural hierarchy at both ends. See Punjab Police Manual (1934), Vol. III, section 23.13.
115 Desai’s All India Consolidated Criminal Digest, 1811–1934 (1935), Baroda, pp. 519–520.
116 Home, Judicial, B, December, 1881, 94–99.
* I am grateful to C. A. Bayly, the L. M. Singhvi foundation, and Kevin Greenbank at the Centre of South Asian Studies, Cambridge, for research support, to Jane Caplan for sustaining my interest in identity protocols, and to Ravi Vasudevan and Gayle Lonergan for imaginative editing. All manuscript references are from the National Archives of India, New Delhi, unless otherwise stated.
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