Emergency, Exception, and the Colonial Rule of Law: The Case of British India

ABSTRACT

Giorgio Agamben’s now axiomatic formulation of the ‘state of exception’ is problematic when we consider the colonial world. As scholars have pointed out, Agamben’s framework is inherently Eurocentric and fails to consider how racial difference rendered colonial rule an inherently authoritarian and anti-democratic enterprise from the outset. The blurring of executive, legislative, and judicial powers that Agamben identifies with the state of exception were, in fact, integral, systemic features of colonial power. Using British India as a case study, this article seeks to re-orient our understanding of states of emergency or siege away from the framework of the exception to consider how they may be more usefully considered as general techniques of colonial power. In so doing, it argues that rather than representing a point of rupture or change, the First World War simply offered an opportunity for the British colonial state to draw upon and expand an already extensive repertoire of coercive executive and legal practices that had been central to colonial control since the early nineteenth century.

KEYWORDS:

• Emergency
• India
• First World War
• Law
• Colonialism

Acknowledgments

I would like to extend my thanks to the editors of this special edition, Matthew Stibbe and Andre Keil for all their hard work in organizing and editing this volume. My thanks as well to Jon Wilson, Kim Wagner, Alistair McClure, and Elisabeth Leake, who all provided invaluable feedback on earlier drafts of this piece.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1. A Collection of the Acts, 1916, 13–20.

2. See André Keil’s contribution to this special issue.

3. A Collection of the Acts, 1916, 14.

4. A Collection of the Acts, 1916, 14–15.

5. Ibid.; India Home Department Proceedings (Confidential Political), April 1915–June 1915, BL IOR/P/CONF/7; Legislative Council Proceedings (Debates), 18 March 1915, BL, IOR, V/9/41.

6. A Collection of the Acts, 1916, 16.

7. Agamben, State of Exception, 7.

8. Chatterjee, The Nation and its Fragments, 14–19.

9. Agamben, State of Exception, 7.

10. Du Bois, The World and Africa; Césaire, Discourse on Colonialism; and Arendt, The Origins of Totalitarianism. For a critical summary of this line of analysis, see Gerwarth and Malinowski, “Hannah Arendt’s Ghosts.”

11. Brenkman, The Cultural Contradictions of Democracy.

12. For a good summary and critique of the former, see Neocleous, Critique of Security, chap. 2. Examples of the latter approach include Khalili, Time in the Shadows; and Bishai (ed.), Law, Security.

13. Kennedy, Of Law and War; and Dudziak, War Time.

14. See, generally, Kuss, German Colonial Wars; Gallois, A History of Violence; and Wagner, “Savage Warfare.”

15. Barkawi, “Decolonising War,” 200, 205.

16. Condos, The Insecurity State.

17. See Simpson, “Round Up the Usual Suspects”; Kalhan et al., “Colonial Continuities”; Reynolds, Empire, Emergency and International Law; and Roberts, “From the State of Emergency to the Rule of Law.”

18. Mbembe, “Necropolitics”.

19. Ibid., 24.

20. See Reynolds, Empire, Emergency and International Law, 50–1; Benton, A Search for Sovereignty, 32–3; and Comaroff, “Symposium Introduction.” Neocleous makes this point about the operation of emergency powers across states more generally – see Neocleous, Critique of Security, 69–72.

21. Comaroff and Comaroff, “Law and Disorder,” 24, 29–30.

22. Ibid., 29–30.

23. Hussain, The Jurisprudence of Emergency.

24. Benton, A Search for Sovereignty, 32–3, 286–7.

25. Reynolds, Empire, Emergency and International Law, 38.

26. Ibid., 48. Christopher N. J. Roberts has similarly pointed to the limitations of Agamben and Schmitt in focussing on major moments of exception, rather than its more quotidian manifestations. See Roberts, “From the State of Emergency”, 5–6.

27. Reynolds, Empire, Emergency and International Law, 48.

28. Ibid.

29. Tan, The Garrison State, 98; Das, India, Empire, and First World War Culture, 11; and Singha, The Coolie’s Great War, 3.

30. Das, India, Empire, and First World War Culture, 23.

31. Ibid.

32. Tan, The Garrison State, chap. 3.

33. On German collaborations with Indian revolutionaries during the war, see Brückenhaus, Policing Transnational Protest, chap. 2; Sohi, Echoes of Mutiny, 72, 77, 153–4, 165–71; Ramnath, Haj to Utopia, chap. 3; and Puri, Ghadar Movement, 88–100.

34. PG to the GOI, 19 December 1914, BL, IOR, P/CONF/7; PG to the GOI, 25 February 1915, Ibid.; and PG to the GOI, 5 March 1915, Ibid.

35. Isemonger and Slattery, An Account of the Ghadr Conspiracy, 126.

36. Waraich and Singh, Ghadar Movement Original Documents, 336, 340. In their judgement, the commissioners took special pains to explain exactly how the actions of these revolutionaries constituted waging war against the King or its abetment: Ibid., 350–391.

37. Report of the Sedition Committee, 1918, para. 143, 157.

38. Agnew, The Indian Penal Code, 60–61.

39. McQuade, A Genealogy of Terrorism, 144.

40. Report of the Sedition Committee, 1918, para. 197, 210.

41. Horniman, Amritsar, 49.

42. See Ghosh, Gentlemanly Terrorists, 35, citing Brown, Gandhi’s Rise, 134.

43. “In my opinion,” Jinnah continued, “a Government that passes such a Law in times of peace forfeits its claim to be called a civilized Government.” Cited in Saiyid, Mohammad Ali Jinnah, 116–17.

44. Wagner, Amritsar 1919.

45. See Ibid.; Manela, The Wilsonian Moment; Lawrence, “Forging a Peaceable Kingdom”; and Gallagher, “Nationalisms.”

46. Report of the Sedition Committee, 1918, 195–212.

47. Report of the Sedition Committee, 1918, para. 175, 195.

48. See Ghosh, Gentlemanly Terrorists.

49. McQuade, A Genealogy of Terrorism, 160.

50. Ghosh, Gentlemanly Terrorists, 34–5; Manela, The Wilsonian Moment, 168–71; and Chandra et al., India’s Struggle for Independence, chaps. 13–15.

51. Chandra et al., India’s Struggle for Independence, chap. 15.

52. Wagner, Amritsar 1919; Wagner, ‘‘Calculated to Strike Terror”; and Condos, The Insecurity State, 2–24.

53. Stern, The Company-State.

54. Ibid., 10.

55. Ibid., 12, 29.

56. Ibid., 209; and Hussain, The Jurisprudence of Emergency, 42.

57. Hussain, The Jurisprudence of Emergency, 42; and Stern, The Company-State, 143.

58. See Metcalf, Ideologies of the Raj; Travers, Ideology and Empire; and Wilson, The Domination of Strangers.

59. Singha, A Despotism of Law.

60. Hussain, The Jurisprudence of Emergency, 124. For Benjamin’s notion of ‘mythical’ and ‘law-making’ violence, as opposed to ‘law-preserving’ violence, see Benjamin, ‘Critique of Violence’.

61. Collins, Martial Laws and English Laws, esp. 6–8, 280.

62. Beginning in the early nineteenth century, however, martial law was increasingly divorced from its original and more limited application during times of war, and was transformed into a more expansive and general set of powers that could be called upon during times of ‘crisis’ or ‘emergency’, including periods of civil strife, rebellion, or other kinds of internal disorder. See Neocleous, Critique of Security, 46–9.

63. Stern, The Company-State, 67.

64. Regulation X of 1804, Regulations passed by the Governor General in Council of Bengal, 6 vols. (London: J Cox, 1829), Vol. 3, 39.

65. Minattur, Martial Law, 15–16. For an examination of some of these revolts, see Guha, Elementary Aspects.

66. The Governor-General of India in Council to the Court of Directors, 11 December 1857, PP, 1857–58 (26), Letters from Governor General of India to Court of Directors, December 1857, with Resolution of Government of India, July 1857, Relating to the Mutinies in India, para. 4, 2.

67. These included the State Offences Act (Act XI of 1857), the Military or State Offences Act (Act XIV of 1857), also known as the ‘Hanging Act’, and the Heinous Offences Act (Act XVI of 1857). See Proceedings of the Legislative Council of India, 3 vols.; Theobald, The Legislative Acts of the Governor General of India, 2 vols., 644–7, 661–4, 758–61; The Governor-General of India in Council to the Court of Directors, 11 December 1857, PP, 1857–58 (26), Letters from Governor General of India to Court of Directors, December 1857, with Resolution of Government of India, July 1857, Relating to the Mutinies in India, para. 13, 3.

68. Peers, “The Indian Rebellion,” 25.

69. On 1 August 1857, Deputy Commissioner Frederic Cooper summarily executed 237 sepoys at Ajnala without trial: Cooper, The Crisis in the Punjab, 160–67; also Condos, “The Ajnala Massacre.”

70. “30 May 1857: Offences Against the State,” Proceedings of the Legislative Council of India, 3 vols., IOR, V/9/3, 283–4.

71. Resolution of the Government of India, 31 July 1857, PP, 1857–58 (26), Letters from Governor General of India to Court of Directors, December 1857, with Resolution of Government of India, July 1857, Relating to the Mutinies in India, 8–10.

72. Collins, Martial Laws and English Laws, 4.

73. This is an example of what David Dyzenhaus describes as the ‘puzzle’ of martial law: even those who believe martial law to be an absence of law conceive of this as a space ultimately created by, and potentially bounded, by the law See Dyzenhaus, “The Puzzle of Martial Law,” 1–2, 61.

74. Simpson refers to this as “executive detention.” See Simpson, Human Rights and the End of Empire, 55.

75. Regulation III, Bengal Regulations, 1815–1819, BL, IOR/V/8/19. Similar laws were subsequently passed in the Madras and Bombay Presidencies in 1819 and 1827, respectively. In 1850, the Regulation was extended to most of British India through Act XXXIV, and its provisions were also re-enacted under Act III of 1858. See Theobald (ed.), The Legislative Acts of the Governor General of India, 2 vols., 796–8; and Goodeve (ed.), The Bengal Law Reports, 6 vols., 459.

76. Regulation III, Bengal Regulations, 1815–1819, BL, IOR/V/8/19.

77. A Collection of the Acts, 1916, 14–16; McQuade, A Genealogy of Terrorism, p. 142.

78. Stephens, “The Phantom Wahhabi.” On the history of British fears of Muslim conspiracies in India, see Mallampalli, A Muslim Conspiracy; Condos, “Fanaticism”; and Padamsee, Representations of Indian Muslims.

79. Mayo to Argyll, 12 August 1870, BL, Mss Eur B380/5, 119.

80. ”The Regulation [III of 1818] differs from Acts passed for the suspension of the Habeas Corpus Act in this – that it is not a temporary Act but if the danger to be apprehended from the conspiracies of people of such a character as those I have mentioned is not temporary, but from the condition of the country must be permanent, it seems to me that the principles which justify the temporary suspension of the Habeas Corpus Act in England justify the Indian Legislature in entrusting to the Governor-General in Council an exceptional power of placing individuals under personal restraint when, for the security of the British dominions from foreign hostility, and from internal commotion, such a course might appear necessary to the Governor-General in Council.” See Goodeve (ed.), The Bengal Law Reports, 6 vols., 455.

81. Inagaki, The Rule of Law; and Condos, The Insecurity State.

82. Pandey, “Hundred Years of Ordinances in India,” 263.

83. Manz and Panayi, Enemies in the Empire.

84. Sohi, Echoes of Mutiny.

85. See McQuade, A Genealogy of Terrorism, chap. 3; Mawani, Across Oceans of Law; Condos, The Insecurity State, chap. 5; and Sohi, Echoes of Mutiny.

86. See Puri, Ghadar Movement, 88–100, 169; Popplewell, Intelligence and Imperial Defence, 166, 175–87; and Brückenhaus, Policing Transnational Protest, chap. 2.

87. Between October 1914 and December 1917 a total of 331 suspected Ghadarites were interned under the Ingress into India Ordinance, while a further 2,576 were confined to their villages. See Report of the Sedition Committee, 1918, para. 145, 160.

88. Pandey, “Hundred Years of Ordinances in India,” 264.

89. Kalhan et al., “Colonial Continuities,” 126; and Pandey, “Hundred Years of Ordinances in India,” 262.

90. McQuade, A Genealogy of Terrorism, 164.

91. Ghosh, Gentlemanly Terrorists; and Pandey, “Hundred Years of Ordinances in India,” 265.

92. Condos, “Licence to Kill”; and Condos, “Fanaticism.”

93. Condos, The Insecurity State, chap. 4.

94. Report of the Sedition Committee, para. 143, 157.

95. Minto to Morley, 11 June 1908, BL, Mss Eur D573/16, fp. 22. Minto’s writing here is a good example of what Kama Maclean has described as “the art of panicking quietly:” Maclean, “The Art of Panicking Quietly.”

96. GOI to the PG, 7 May 1907, BL, IOR, P/7590, para 2, fp. 93; Tegart, “Notes on the Situation in Chandernagore,” para. 2, 276; Springfield, List of Persons in Bengal, BL, IOR L/PJ/12/676.

97. Agnew, The Indian Penal Code, 60–63; and generally, Ghosh, Gentlemanly Terrorists.

98. The Bengal Criminal Law Amendment Act was initially promulgated by Viceroy Lord Reading as the Bengal Criminal Law Amendment Ordinance in October 1924, but was later affirmed and passed as law through the legislature. See McQuade, A Genealogy of Terrorism, 177–8.

99. The Bengal Suppression of Terrorist Outrages Act, 1932 (Bengal Act XII of 1932), BL, Mss Eur F161/40; and NAI, Home, Political, 1932, nos. F-4/65/32-Poll. For a good summary of these laws and the logic behind them, see Hale, Terrorism in India.

100. For example, in July 1915, the Home Secretary for the GOI issued instructions that no European should be tried using the special tribunals that were permitted under the DOI Act: McQuade, A Genealogy of Terrorism, 153.

101. Ghosh, Gentlemanly Terrorists.

102. Home Department Resolution no. 714, 19 September 1921, NAI, Foreign and Political, General B, February 1922, no. 82, 12.

103. Report to the Government of India of the Committee appointed to examine repressive laws, 2 September 1921, NAI, Foreign and Political, General B, February 1922, no. 82, para. 11, 17.

104. The committee, however, did recommend maintaining the Seditious Meetings Act, which had been extended in 1911, and parts of the Criminal Law Amendment Act of 1908.

105. Hansard, HC Deb. 9 December 1929, 233 vols., cols. 4–5. Most of these laws were repealed by Act IV of 1922, while Act V of the same year repealed certain sections of the Indian Criminal Law Amendment Act of 1908. See A Collection of the Acts, 1923.

106. Springfield, List of Persons in Bengal Warned or Dealt with (since 1930) under Regulation III of 1818, the Bengal Criminal Law Amendment Act, 1930 (Act VI of 1930), and 16A of the Bengal Suppression of Terrorist Outrages Rules, 1934 (Calcutta: Superintendent, Government Printing, 1939), BL, IOR, L/PJ/12/676; and BL, IOR, L/PJ/8/490.

107. Statement of Objects and Reasons, NAI, Home, Political, 1935, nos. 24/6, fp. 50.

108. Legislative Assembly Debates, 9–23 April 1936, 3817.

109. List of Persons in Bengal Warned or Dealt with (since 1930) under Regulation III of 1818, the Bengal Criminal Law Amendment Act, 1930 (Act VI of 1930), and 16A of the Bengal Suppression of Terrorist Outrages Rules, 1934 (Calcutta: Superintendent, Government Printing, 1939), BL, IOR, L/PJ/12/676.

110. Simpson, “Round Up the Usual Suspects,” 638; and Kalhan et al., “Colonial Continuities,” 128.

111. Gandee, “The ‘Criminal Tribe’ and Independence.”

112. Kalhan et al., “Colonial Continuities.”

113. For example, see The Constitution of India 1950, art. 359 and the Constitution of Pakistan 1973, art. 233. See Darr, “Shadow of the Raj,” 183.

114. Darr, “Shadow of the Raj,” 184.

115. “Use and Misuse of Sedition Law: Section 124A of IPC,” India Today, 9 October 2019: https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533–2019-10-09. First accessed 26 October 2020; and John Simte, “Why the State Continues to Validate the Archaic Sedition Law,” The Wire, 19 July 2019: https://thewire.in/law/why-the-state-continues-to-validate-the-archaic-sedition-law. First accessed 26 October 2020.

116. Kayani, “Antiterrorism as Neocolonialism,” 166.

117. Despite its repeal, cases which were pending at the time have carried on, while certain aspects of this law were later re-enacted as amendments to the Unlawful Activities (Prevention) Act. See Kalhan et al., “Colonial Continuities,” 152–3, 185–6.

118. Human rights activists, for instance, have been branded as ‘terrorists’ under this law. See Ibid., 136; and Amartya Sen, “As India drifts into autocracy, nonviolent protest is the most powerful resistance,” The Guardian, 26 October 2020: https://www.theguardian.com/commentisfree/2020/oct/26/india-autocracy-nonviolent-protest-resistance. First accessed 26 October 2020.

119. Kalhan et al., “Colonial Continuities,” 150–1.

120. Legislative Council Proceedings (Debates), 18 March 1915, BL, IOR, V/9/41, 473, 475. For more on DORA, see André Keil’s contribution to this special issue.