Between Law and Enforcement: Legacies of Colonial Criminal Laws on Citizenship

Colonial rule relies on the creation of a racialised hierarchy between the colonisers and the colonised and their membership to the imperial centre (Sadiq 2017). But even within colonised populations, the membership of different groups of ‘natives’ to each other is not equal. European imperial rulers frequently pitted different groups against each other, through explicit policies such as divide-and-rule as well as through taxation; the census; access to education, military service, and employment; and through the targeted deployment of different legislations. What was the role of criminal legislation in entrenching racialised categories during colonial rule? How were colonial criminal laws designed to target specific groups of people in the colonies? What are the legacies of colonial legal regimes on postcolonial citizenship? This paper is particularly concerned with the design and construction of criminal legislation—including the meanings and scope of ‘crime’—in colonial India in the late nineteenth and early twentieth centuries. India provides fertile ground for this study as a multi-ethnic and multi-religious society that saw close to 200 years of colonial rule and because the colonial administration across the subcontinent was not uniform: various spaces were ruled either directly or indirectly and laws were deployed differently depending on who was being targeted. In the aftermath of the Rebellion of 1857, the colonial government enacted mammoth policing and surveillance legislation, including the Criminal Code (1859), the Indian Penal Code (1860), and the Criminal Tribes Act (1871). A busy period of constitutional reforms—through Government of India Acts—followed in the early twentieth century, largely in the context of world events including the two World Wars, the fall of the Ottoman empire, and the Bolshevik Revolution in Russia. Among the laws introduced or tightened during this time were those surrounding sedition, terrorism, and policing. The passage of these laws armed the colonial state with increased capacities and justification to surveil, arrest, or detain those Indians whose activities were seen as a threat. As the freedom struggle in India grew larger, the legal regime continued to legitimise the increasing violence meted out by the British against their colonial subjects. Since Independence, India has seen these laws (largely inherited from the colonial administration) used, abused, and contested by many different sections of the population. Thus, it is important to look at the historical context of the creation of these criminal laws. I conduct a thorough textual analysis of the legislation on crime, policing, and sedition in colonial India to argue that the legal regime and law enforcement as constructed by the colonial government was designed specifically to be employed as a tool in ordering and racialising the colony and making it governable and to extract obedience from colonised subjects. I attempt to show first, how British understandings of race and ethnicity as social ordering tools informed laws intended for greater control and suppression and, second, how these practices of inclusion and exclusion by targeting through laws laid the groundwork for inclusion and exclusion through citizenship after independence.