Criminal Laws, Colonial Subjectivity, and the Postcolonial State

• In Event: Migration, Citizenship, and the Legacies of Colonialism

Abstract

How did colonial legal regimes shape the boundaries of citizenship in the colonies? How did imperial understandings of race and racialized divisions inform the construction of these laws? What are the legacies of such legal regimes for citizenship in the postcolonial era? In this paper, I aim to tackle these questions by examining the construction and use of criminal and policing laws in colonial British India. Scholarship on colonial policing tells us that these legislations were not simply intended to control or reduce crime, but rather they were a means of transforming populations seen as ‘unproductive’ into productive and law-abiding colonial subjects. In the aftermath of the Rebellion of 1857 and the transition to Crown Rule, the British Indian government enacted mammoth policing and surveillance legislation, including the Criminal Code (1859), the Indian Penal Code (1860), and the Criminal Tribes Act (1871). Further, a busy period of constitutional reforms—through Government of India Acts—followed in the early twentieth century. The passage of these laws armed the colonial state—disparate as its jurisdiction within India was—with increased capacities and justification to surveil, arrest, or detain British Indian subjects. As the freedom struggle in India grew ever larger, the legal regime grew in tandem to enable the violence meted out by the British against their colonial subjects. I analyse archival documents collected from the India Office Records as well as available digital documents, minutes, reports, and other correspondence to trace how the colonial state designed these laws to target specific groups with the aim of categorizing them and pathologizing their behaviour. Racialized notions of identity were critical in this endeavour. I show how British understandings of race and ethnicity as social ordering tools informed laws and policies that were intended for greater control and suppression. I also trace how these practices of inclusion and exclusion by targeting through different laws laid the groundwork for inclusion and exclusion through citizenship after independence. This examination reveals how colonial state-consolidation practices were transformed into employed in practices of state-making and state-keeping after independence and continue to inform postcolonial citizenship regimes. Analysis of the Indian subcontinent under the British empire allows us to bring a non-Western case to bear on questions of citizenship and belonging and also trace historical and (post/)colonial shifts in our understanding of citizenship.

Author

• Nandini Dey