File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Racial Discrimination in the Administration of Civil And Criminal Justice in British India

In her study, Linda Colley[1] offers two parables about "the making and meanings of the British. The first, portrayed by Daniel Defoe's Robinson Crusoe, is the imperialist as warrior: seizing and settling land, conquering and colonizing natives. The second, manifest in Jonathan Swift's Gulliver's Travels, is the colonizer as captive: oppressed, bound, and dominated by native people." This second story precludes the starting point for Colley's book, which argues that "overseas venturing brings no conquests, or riches, or easy complacencies: only terror, vulnerability, and repeated captivities."

Initially, the British in India enjoyed immunity from the subcontinent's general laws, bringing their own legal system and securing the right to be governed by it through a 1618 treaty with the emperor. In early colonial India, the British did not form a unified ruling class, and the emerging Company state's efforts were focused on rival Indian powers and territories. However, by the late eighteenth century, violent British individuals often escaped justice due to the law's inability to apprehend, try, or punish them locally.

As legal jurisdiction expanded, European British subjects largely remained immune from prosecution and punishment. In the late nineteenth century, charges against British who assaulted or murdered Indians were frequently reduced from murder to manslaughter, grievous hurt, or dismissed entirely, resulting in mitigated punishments and minimal culpability. This contrasted sharply with the promise of colonial modernity, which included formal legal equality and impartial justice. Consequently, the Indian public perceived colonial justice as increasingly unjust in cases of British violence against Indians. Over time, this immunity extended to being subject to different courts for civil and criminal matters, reinforcing a sense of British superiority.

Discrimination in Civil Matters

Exemption for British Subjects: The British born subjects were originally exempt from the jurisdiction of the Company's courts. Under the Regulating Act, these persons even though residing in the mofussil were to be subject to the Supreme Court of Judicature at Calcutta[2]. In Madras and Bombay also, they were subject to His Majesty's courts at the Presidencies.

In 1793, Cornwallis tried to redeem the situation in Bengal by prohibiting the British subjects from Presiding beyond ten miles of Calcutta unless they executed a bond placing themselves under the jurisdiction of the mofussil diwani adalat in cases up to Rs. 500. Thus. cases up to five hundred rupees against the British subjects could be instituted in the diwani adalat in the mofussil. All cases beyond five hundred rupees had to be instituted in the Supreme Court at Calcutta.

The Charter Act of 1813 provided that the British subjects residing trading or holding immovable property beyond ten miles from Presidency limits could be sued in the Company's civil courts of the place subject to a benefit that the appeal against the decision of such could be filed only in the Crown's Court and not in the Sadar Diwan Adalats.

Regulation IV of 1827

Lord Hastings in his reforms of 1814, however, provided that cases which British subject, European or any American was a party, could not be heard in the courts of Munsifs and the Sadar Ameens i.e., the matter could be heard only by the district court usually presided over by English judge. But in 1826, on the petition of certain British subjects, the provision was amended and the courts of Sadar Ameens were authorised to take cognisance of such cases. In 1831, Lord William Bentinck again reversed the position prohibiting the jurisdiction of the courts with Indian judges over such persons.

The Charter Act of 1833

The Charter Act of 1833 introduced significant changes, including allowing British subjects to settle in rural areas of India. Section 85 of the Act mandated that the East India Company's government ensure protection for natives against various forms of harm, such as insults, physical harm, property violations, and religious persecution. The Act removed any privileges for British subjects in civil matters, a stance strongly supported by Lord Macaulay, the first Law Member of the Government, who criticized preferential treatment for British subjects in the justice system. This included the right of appeal to Crown courts against decisions of Company courts, which had been granted under the Act of 1813.

To streamline legal systems, the Charter Act led to the creation of legislative bodies with jurisdiction across British India, and the Governor-General of Bengal became the Governor-General of India, overseeing the entire government. Despite opposition from some British interests, the Legislative Council of India enacted the 1836 Act, Section 107, under Macaulay's influence, abolishing privileges granted in 1813. It also extended the jurisdiction of Sadar Ameens and District Munsifs in Madras to all individuals without distinction of birth or descent.

Further reforms in 1839 granted Munsifs jurisdiction over matters concerning arrears or exactions of rent. By 1843 and 1850, respectively, racial discrimination in civil matters was fully abolished in Bengal and Madras, marking the end of differential treatment based on race in Indian courts by 1850.

Discrimination in Criminal Matters

In the sphere of criminal justice, the discriminations continued throughout the British Rule and ended only after the independence.

The Regulating Act of 1773 initially limited the jurisdiction over British subjects to the Supreme Court in Calcutta, excluding the courts in the Mofussil regions. This allowed British individuals to commit offenses knowing that natives lacked the means to prosecute them. In 1790, Lord Cornwallis empowered Magistrates in the Mofussil to refer British subjects to the Supreme Court for trial if evidence suggested wrongdoing. Similar arrangements were later established in Bombay and Madras.

The British Parliament's 1793 Act enabled the Governor-General-in-Council to appoint Justices of the Peace who could arrest British offenders, gather evidence, and send them for trial at the Supreme Court in Calcutta. Regulation II of 1796 extended these powers to all Magistrates, with Bombay and Madras adopting similar measures by 1807.

Under the Charter Act of 1813, district Magistrates could act as Justices of Peace, empowered to punish British offenders for assault, unlawful entry, or other violent acts with fines up to Rs. 5000- or two-months' imprisonment in default. However, convictions could be set aside by the courts of Oyer and Tri miner and Goal Delivery via a writ of certiorari.

Initially restricted to covenanted servants or British residents, the 1832 provision allowed Indian natives to serve as Justices of Peace within presidency towns. This extension was only applied outside presidency towns in 1923..

The Charter Act of 1833 prohibited the Government of India from enacting laws without the Directors' approval that allowed any court other than the Supreme Courts to sentence British subjects or their children to death, or abolished these chartered courts. This provision signaled the end of special privileges for British subjects. Despite calls for equality in criminal justice from Lord Macaulay and others, reforms in 1836 did not address this issue. Efforts continued with criticisms from the Directors in 1841 and recommendations by the First Law Commission in 1843.

Finally, in 1843, an Act of the Indian Legislative Council ended the privilege of certiorari for British subjects tried by Justices of Peace in rural areas, ensuring appeals were heard under the same rules as Magistrates' convictions. The issue persisted even after the establishment of High Courts in 1865.In 1849, then Law Member Mr. Bethune made an unsuccessful effort in drafting a bill to extend the jurisdiction of the Company's courts to all British subjects except in case of death penalty. It was rejected on the ground that how the Mofussil courts administrating Muslim criminal law could try the English people.

In 1872, the revised Code of Criminal Procedure maintained disparities where only courts with British judges could try British criminals for minor offenses punishable by up to one year of imprisonment, a fine, or both. Serious offenses were reserved for High Courts, causing distrust among Indian judges. Despite proposals by Lord Ripon in the 1880s, opposition prevented change. The Ilbert Act of 1884 allowed for mixed juries of Indians and Europeans/Americans to try British subjects. Not until 1923 did the Criminal Procedure (Amendment) Act unify court jurisdiction, eliminating disparities. The last racial discrimination in jury composition was abolished by the Criminal Law (Removal of Racial Discrimination) Act, 1949.

Case Study 1[3]:
On March 14, 1808, Peter Hay, James Reilly, and John Reid entered the home of an Indian woman named Buxee Begum and seized her by the throat. When her, chowkidar tried to protect her, Hay grabbed his bludgeon and struck the chowkidar on the head three times, killing him.

When the Calcutta Supreme Court's European jury convicted them of manslaughter, Judge Henry I Russell angrily questioned why it wasn't considered murder. He argued that such crimes should be fully punished to protect the native population, criticizing Europeans who saw Indians as inferior and often treated them brutally, disregarding their lives as if they were no more valuable than animals.

Violent Britons invariably saw their Indian victims in some way as inferior and sometimes as sub-human. As one Indian commentator observed, the innumerable cases of racial violence proved that "Europeans have no regard for the lives of the Indians. They rank them with the beasts."

Case Study 2:[4]
Private Frank Richards recalled in his memoir that the physical abuse of Indians by British soldiers was often presaged by racially abusive language. When the punkhawallah took a momentary break from pulling the fan, someone in the barracks would shout, "'Cinch, you black bastard, or I'll come out and kick hell out of It was commonplace for Britons of all classes to refer to Indians as "blacks" and "niggers" and to treat them accordingly. As a mid-nineteenth-century British observer noted:

Cases of violence towards natives leading to their death are always sadly too common ... This springs chiefly from the vulgar conceit that the "Saheb," no matter what his character or position, is immeasurably above the "nigger," and that indeed the latter, poor soulless wretch, exists but to serve the master race and to be cursed or cuffed as though he were really no more than a pariah dog.

Case Study 3:[5]
In July 1809, James Tickborne, a timber merchant in Sarun district, faced trial at the Calcutta Supreme Court for the killing of his servant, Mungrah Aheer. Here's a summary of the events: Tickborne had Mungrah brought before him despite Mungrah being too ill, then confined him without food or water in a separate building where he died after fourteen days. Local outcry led to Tickborne's prosecution, supported by Governor-General's orders. Tickborne resisted arrest violently when a warrant was issued, resulting in his conviction in Supreme Court.

The Calcutta Supreme Court ultimately convicted Tickbome of manslaughter in the death of Mungrah Aheer, sentencing him to twelve months, imprisonment and a 400-rupee fine. Tickborne was also convicted of aggravated assault and false imprisonment of another servant, Rugbunse Lal, whom he had severely beaten and confined for eight days. For this, he was sentenced to an additional twelve months in prison and a 100-rupee fine. In July 1811, as his two-year prison term was set to expire, the government passed an order forbidding Tickborne from living outside the Town of Calcutta. Disobeying the order, Tickborne fled upcountry to Soonapure beyond the Company's frontiers, where a warrant could not be served on him.

Case Study 4:[6]
In 1796, Patna Circuit Court Judge Charles Keating criticized the criminal law for obstructing justice. He had dealt with a case involving an indigo planter, Richard Johnson, who sued his bearer, Bhola, and Bhola's wife, Bussiah, for allegedly stealing a writing box with 481 rupees and 1,200 pice. Johnson provided no evidence for his claim, turning the civil case into a criminal one against him in the Supreme Court. Keating highlighted the significant barriers Indians faced in seeking justice against Europeans and urged Calcutta authorities to protect Indian subjects from British misconduct. Johnson was ultimately convicted of assault and banned from returning to Tirhoot.

The law itself was part of the structure of violence. The jurisdictional exemptions provided by law gave men like Richard Johnson practical impunity from prosecution and punishment in the mofussil, enshrining a place of lawlessness at the center of law's empire in India.

Case Study 5:[7]
In Lower Bengal, European indigo planter Wyatt claimed he accidentally shot his servant Fuqueerah while aiming at sheep. However, over thirty witnesses testified that no sheep were present when the shooting occurred. Despite this, the local European magistrate sent the case to Calcutta, where Advocate-General John Pearson deemed it an "accidental death" and chose not to prosecute Wyatt further. The Court of Directors used the Fuqueerah case to emphasize the need for a uniform criminal jurisdiction system, highlighting the inadequate handling of the case as evidence for the necessity of proper tribunals for British subjects in the Mofussil accused of henious crimes.

Case Study 6:[8]
In 18 16, a military court of enquiry was assembled in Delhi to investigate the death of a bearer named Bunder. According to an artillery captain, Robert Granshaw, Bunder accidentally knocked his hat off while raising the chatta (umbrella) over Granshaw's head. An irritated Granshaw struck Bunder once on the left side of his head and once on the left side of his body, leaving Bunder unable to walk or speak. Granshaw carried Bunder to the house of a European surgeon, where he died within thirty minutes. The Governor-General decided not to prosecute Granshaw, reasoning that it was a case of manslaughter at worst and not worth the expense of prosecution.

Case Study 7:[9]
On the night of December 15,1814, Mussamaut Mooneah was at home in Cawnpore when two European men knocked on the door of her compound and demanded admittance. When she refused, they climbed on top of a neighbour's house and onto her veranda. One of them crossed the compound and accosted her mother, while the other, whom Mooneah distinctly recognized as a Company private named Thomas Gallagher, pushed her aside, blew out her bedroom lamps, and reached for her jewellery. Gallagher, whose blue army cap was later found in the lane near Mooneah's house, was tried, convicted, and sentenced by the Supreme Court to transportation to New South Wales for seven years.

The case of Thomas Gallagher suggests that the race-gender hierarchy that conventionally places white men and brown women on opposite ends of the spectrum of imperial power was sometimes inverted.

Case Study 8:[10]
In July 1816, Malcolm MacKenzie, a shipbuilder in Chittagong, faced charges for beating and illegally detaining his worker Abdoolla. MacKenzie admitted to whipping Abdoolla ten times with a rattan, then placing him in 10 kg leg irons and confining him for a day and night, justifying his actions because Abdoolla had left to work at another factory without proper notice. Chittagong Magistrate W. Pechele condemned MacKenzie's actions as tyrannical and unjust, contrary to how Europeans should treat natives and British laws on justice in India. MacKenzie was convicted, fined 100 rupees, with 20 rupees awarded to Abdoolla as compensation.

In contrast to colonial modernity's promise of progress, a promise that included formal legal equality and impartial justice, the Indian public perception was that colonial justice became less just over time in cases where British were charged with violence against Indians

The colonial rule of law purported to treat all subjects equally, but it did not (and could not) do so given its fundamental involvement in the entrenchment and protection of British power. At the end of the day, the paramount purpose of law was to maintain Britain's hold on India. But the bloodied handprints which that hold left behind revealed the unseemly fact that it was not only justice that anchored the empire, but also violence. The cases discussed above and the umpteen anecdotes of cases in the history are apt to support this contention.

In the late nineteenth and twentieth centuries, the problem of white violence and the miscarriage of justice associated with trials of Europeans accused of brutalizing natives were increasingly reported on by a host of vernacular and English-language newspapers. Prejudicial medico-legal evidence, and the diseased-spleen defence in particular, were frequently singled out by critics for tilting the scales of justice in the white man's favour..

  • M.P.Jain, Outlines of Indian Legal & Constitutional History (LexisNexis Butterworths Wadhwa, Nagpur,6th edn., 2010).
  • Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge University Press, England, 2009).
  • V.D Kulshreshtha's, Landmarks in Indian Legal and Constitutional History (Eastern Book co., Lucknow,6th edn., 1989).
  • Mahendra P. Singh, Outlines of Indian Legal & Constitutional History (Universal Law Publishing co. Pvt. Ltd., New Delhi, 8th edn., 2006).
  1. L.Colley, Captives: Britain. Empire, and the World, 1600-1850 (Jonathan Cape, London, 2002).
  2. M.P.Jain, Outlines of Indian Legal & Constitutional History 66 (LexisNexis Butterworths Wadhwa, Nagpur, 6th edn., 2010)
  3. Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law p.15 (Cambridge University Press, England, 2009).
  4. Ibid p 18
  5. Ibid p 27
  6. Ibid p 34
  7. Ibid p 78
  8. Ibid p 56
  9. Ibid p 53
  10. Ibid p 58

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly