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Colonialism as Civilizing Mission

Cultural Ideology in British India

Wimbledon Publishing Company

Dealing with Oriental Despotism: British Jurisdiction in Bengal, 1772–93

Michael Mann FernUniversitaet, Hagen

With regard to the rules by which justice was to be administered, the Hindoo and Mohamedan codes were in general to be the standard for the respective subjects of them, but tempered, in some instances where they are barbarous and cruel, by the mildness of British sentiments, and improved in others which have relation to political economy.

Charles Grant, Observations on the State of Society among the Asiatic Subjects of Great Britain, 1792

The Idea of Reform

During the last decades of the eighteenth century, intellectuals, clergymen and politicians in Britain dominated a general discussion about the moral improvement of human beings and society at large. This debate dealt with the universal betterment of mankind through social reforms. Leading figures were to be found in Robert Young's Philanthropic Society, but individuals, like William Jones, the ardent parliamentary reformer of the 1770s who went to India as puisne judge of Calcutta's Supreme Court in 1783 and Colin Miles of the Royal Humane Society, bear testimony to a general reform approach in terms of an overall societal enhancement. As will be seen, this discussion had an immediate influence on contemporary colonial politics in India where the idea of improvement was introduced into the political discourse by Governor General Charles Cornwallis (1786–93). Its other proponent, as the epigraph indicates, was Charles Grant, the ardent 'Evangelical' administrator and later director of the East India Company in India and first European theoretical reformer of Indian society.

The colonial constellation, however, is characterized by an unbridgeable hiatus between Indian and European civilizations more or less from the beginning. The character of Indians was thought inferior, as was their administration of the country, especially with regard to revenue and justice. In the early days of colonial rule, Alexander Dow, a servant of the East India Company, brought out his translation of Ferishta's History of Hindostan (1770–72), commenting on the miserable condition of the Indian polity, manifested in its arbitrary jurisdiction as well as in the inert Indian population, which was in stark contrast to the British sense of good government and civil society:

The history now given to the public, presents us with a striking picture of the deplorable condition of a people subjected to arbitrary sway; and of the instability on empire itself, when it is founded neither on law, nor upon the opinions and attachments of mankind [...]. In a government like that of India, public spirit is never seen, and loyalty a thing unknown. The people permit themselves to be transferred from one tyrant to another, without murmuring [...].

Since the 1780–4 war of the East India Company against Tipu Sultan of Mysore (1782–99), whom the British regarded as the prototype of an oriental despot and his state as a Muslim tyranny par excellence, the British had promoted the idea of their own beneficial rule in contrast to that of any Indian prince. The more they became involved in Indian warfare and politics the more they constructed the differences between Indian and British civilization to support the legitimacy of their rule. To appear as beneficial rulers, whose moral and civil duty it was to liberate by a just war an oppressed people from an unjust and cruel ruler, and to set up a just government as a means of civil improvement, became the core of British self-justification and helped to shape the future self-image of British rule in India.

It is interesting to note that the discussion on the moral and material improvement in British India was part of a general discourse on overall human betterment and that in both societies the British elite regarded betterment as a mandate to civilize the 'masses'. Therefore, the British civilizing mission was not restricted to the colonies but extended to society at home. But India became a 'laboratory' in which the ideology of a civilizing mission for subordinate and uncivilized people was promulgated, starting with reform in the revenue and judicial departments. In this article we will concentrate on moral improvement with regard to judicial reform because jurisdiction became the most contested field between the British and the Indian governments.

Reorganization and reform of Bengal's judicial system became of critical importance after 1765, when the East India Company had acquired the diwani of Bengal. Five different courts already existed in the city of Calcutta, with different areas of responsibility in respect of the resident British and other European traders and, in a much more limited capacity, of the Indian inhabitants. Apart from that, the British were now vested with the civil jurisdiction in the Mughal subas (provinces) of Bengal, Bihar and Orissa. The various courts and laws created a confusing situation. The early British colonial administrators quickly realized that, in the long run, they would not be able to administer Bengal's jurisdiction properly, and that the current way of dealing with the laws of Bengal would neither stabilize the fairly ephemeral British rule nor be advantageous to the indigenous population. After Warren Hastings had become governor of Fort William in 1772, the East India Company's Court of Directors in London informed him that he and his government in Calcutta should 'stand forth as Duan'. Whatever they meant by this, they left it to Hastings and his council to set up a plan for the future management of Bengal's, as well as Bihar's and Orissa's, fiscal administration along with the administration of civil justice as the diwani comprised both these rights and obligations.

Hastings took seriously the dual obligations of his new post and began with the reform of revenue administration in Bengal. Simultaneously, he launched a reform programme for the judicial administration with the plan of the Committee of Circuit in Bengal, dated 15 August 1772. It was never implemented but served as a blueprint for the judicial reforms in the 1780s and the reforms of 1789–93. Hastings and his government tried to organize the judicial system of Bengal according to British needs rather than the Bengalis' common good, shown by Elijah Impey's procedural code in 1781. The Supreme Court's judge compiled a set of regulations to establish how everyday business in Bengal's civil courts should be implemented. These regulations were supposed to diffuse into Bengal society and end corruption, while enforcing a reliable jurisdiction. On top of that, the British attempt to take over the right to administer the death penalty sheds light on the rather unsuccessful early colonial rule characterized by many trials, and many errors. Therefore, this article will, in the first place, deal more with the failure of the civilizing mission in the eighteenth century than its success, which only took shape in the nineteenth.

British-Indian history is closely connected with the reforms of Cornwallis, Governor General in India from 1786 to 1793, and the 'Cornwallis Code', beginning with its first regulation, the Permanent Settlement of 1793. Fiscal reform was integrated in a grand scheme for the improvement and betterment of the Indian people. 'Improvement' became Cornwallis's leitmotif. The term is usually applied to the Utilitarian attitude towards India, particularly to the ambitious Governor General William Cavendish Bentinck (1828– –35). A disciple of Jeremy Bentham (1748–1832), Bentinck wanted to modernize India according to western notions of administration, organization and, most importantly, morals. Among many, the abolition of sati was the most infamous attempt to improve the – in British eyes – degenerate morals of the Indian people. It was under the administration of Bentinck that Thomas B Macaulay, chairman of the first Law Commission (1834–7) on the future administration of justice in British India, drafted his equally infamous 'Minute of Education', strongly favouring English against Persian as the future administrative language of British India in the wider context of root-and-branch reforms of the Indian judiciary.

But this 'fundamental improvement' was not on the political agenda of the colonial state in its initial phase. Besides, the British were bound by treaty to administer law according to the valid laws of Bengal. At this early stage of colonial rule, the power and position of the British in Bengal were still too weak for them to break with the treaty stipulations and act politically according to their own legal code. However, when taking a closer look at Cornwallis's correspondence at the end of his Indian career, it becomes clear that the idea of improvement as Cornwallis expressed it resembles Bentham's and Macaulay's assumption of 'reform' as a matter of correcting the individual's relationship to government and society and, therefore, a step towards general improvement that would create a better mankind.

It will be argued that, from the beginning of their rule in Bengal, the British were concerned with the reform of the existing dual fiscal and civil judicial system, as the diwani provided for it. The British felt that the diwani showed fundamental organizational defects and, therefore, had to be restructured on sound rational principles according to contemporary European understanding. The idea of reform was not only related to the administrative needs of the colonial regime: it was also meant to root out rampant bribery as well as ransom decisions – in short, Oriental despotic rule manifested in an arbitrary jurisdiction. The development of British attempts at administrative judicial reforms towards a judicial code with the aim of overall improvement in 'civilization' was brought to a temporary end with the reforms of Cornwallis, anticipating the Utilitarian concept of improvement as a civilizing mission for the material and moral progress of the people of India.

2. The Taming of the Despot

To start with, we should look at Hasting's reform scheme of August 1772 as it was outlined by the Committee of Circuit, since it delineated the main aspects of the future judicial reforms of Cornwallis in 1790 and 1793. In an accompanying letter to the plan the Committee of Circuit stressed its familiarity with the existing legal traditions: 'the general Principles of all despotic Governments, that every degree of Power shall be simple and undivided, seems necessarily to have introduced itself into the Courts of Justice.' The Committee's members considered themselves as the executors of a governmental system that was both accommodating and serviceable to the Indian people because of the undivided and simple form of administration it promoted, which was regarded as 'benevolent despotism' or 'paternalism' – India needed to be ruled by a strong hand. The British favoured their own ideas of government by describing the actual conditions euphemistically: the modern western European state claimed to be 'undivided and simple', which anticipated Utilitarian thought, expressed by British officials in Bengal. The Commissioners' intention was to free the indigenous administration from arbitrary Oriental habits and, of course, to establish British control.

According to the plan, two courts – one for criminal and one for civil law – were to be established in every district: the mufassil diwani adalat and the faujdari adalat. Special clauses regulated the details. The two High Courts, the sadr diwani adalat and the sadr nizamat adalat, were to have their seat in Calcutta and serve as courts of appeal for the cases of the mufassil courts. Criminal jurisdiction remained in the hands of the nawab, whose technical sovereignty consisted of the right to confirm as chairman (daroga) of the sadr nizamat adalat the candidate put forward by the British. The final decision on capital punishment also rested with the nawab. The plan tied in perfectly with existing administrative structures, and modified them only slightly.

At the same time Hastings was eager to reform the application of capital punishment according to contemporary understanding of it as a deterrent as well as punitive measure. Article 35 of the reform plan from August 1772 became symptomatic of the approach of the colonial jurisdiction and its civilizing mission. Since the British were unable to control the activities of the dacoits (bandits) with the police forces and even the military, Hastings considered draconian punishments:

[...] that it be therefore resolved that every such Criminal on Conviction shall be carried to the Village to which he belongs and be there executed for a Terror and Example to others, and for the further prevention of such abominable Practices, that the Village of which he is an Inhabitant shall be fined according to the Enormity of the Crime & each Inhabitant according to his Substance, and that the Family of the Criminal shall become the Slaves of the State, and be disposed of for the General Benefit of the Government.

Dacoits were regarded as professional criminals by birth who could not be compared to British criminals and to whom, therefore, British law could not be applied. Their execution would show the force of the law. Enslaving their families was supposed to serve as a means of a moral improvement for the population. It was assumed that an Indian dacoit had a lower cast of mind than a British thief. And as Islamic law was inferior to British law, the latter could not be applied to the dacoits in the first place. With Regulation XXXV from 21 August 1772 the order was approved, and thus the inferiority of Indian people and institutions was established. At the same time the idea gained strength of the need to improve the population's moral fibre and was increasingly regarded as a duty.

Now and then, the British colonial administration tried to intervene in criminal jurisdiction, but the imposition of capital punishment remained in the hands of the nazim, that is the nawab in his function as supreme criminal judge. Technically, he was supposed to confirm the sentences, while the trial and the execution were conducted by the British. Hastings formulated the principal aims for reforming the criminal law. At the top of the list for the British-Bengal government in Calcutta, the Calcutta Council and the Governor General, was the right to investigate all criminal offences. Here, though, drastic intervention in Bengal criminal law was necessary: first, the abolition of the distinction between weapons used in a crime as proof of intent to kill or murder, as made in the Hanafi school prevalent in Bengal; second, the removal of the right of a victim's family to pardon a murderer – that is, transferring murder from the private sphere of civil law into public law; and third, in cases of murder within a family, prohibiting execution of the murderer by a member of the family.

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Excerpted from Colonialism as Civilizing Mission by Harald Fischer-Tiné, Michael Mann. Copyright © 2004 Wimbledon Publishing Company. Excerpted by permission of Wimbledon Publishing Company.
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