This is the first article in the series ‘Law and Justice: A Journey through History’.
Rule of law is the bedrock of any modern society. It ensures equality of all before the law. Through notions of justice, punitive mechanisms, and multiple avenues of enforcement, law shapes social relationships and also in turn gets reconstituted and challenged by actors and contexts. In these moments law takes on another attribute – that of virtue. As we explore the troubled relationship between law, justice and society in the following essays, we will note how law struggles to negotiate a delicate balance between its punitive trait and as a messiah for justice. The essays in this series will uncover some fascinating aspects of law by turning to the archives of law. This will help uncover the commonalities between history, legal history, and socio- legal studies and also foster greater dialogue between historians and lawyers in South Asia. The essays for this special series will be curated by Dr Nitin Sinha (Leibniz-Zentrum Moderner Orient, ZMO Berlin), Dr Sukhalata Sen (Former Assistant Professor, National Law School of India University, Bengaluru) and Vidhya Raveendranathan (Centre for Modern Indian Studies, University of Göttingen).
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While growing up in India, making sense of two distinct modes of public behaviour was often puzzling. In the 1980s, 1990s, and later on as well, light bulbs from the wagons of Indian railways were often found missing. Ironically, stealing and damaging public property was a form of public protest or entertainment.
The second widespread public behaviour, which is still exhibited, is to invoke the fear of, or summon, the police. If a servant has been accused of stealing something or a worker is accused of defaulting on their work, the fear of the police is immediately invoked. In many other situations, depending on the degree of class and network-privilege, the jugaad of justice is initiated by finding connections in the police.
There is another troubling and more institutionalised ritual of justice-deliverance that is practised in India – ‘janta durbar’ held by political leaders, heads of states, and even bureaucrats to distribute on-the-spot justice. This is another variation of jugaad justice.
The law’s courts or normal course of administrative redressal are clearly not viewed as enough. The ruler, therefore, needs to organise a people’s court, that is, the ‘janta durbar‘. Justice is served from within the apparatus of the law but by adopting a hyper-legal process of passing on-the-spot summary commands to the officials. This is a political form of legal mimicry which, while claiming to make justice accessible, reiterates the relationship of the ruler and the ruled in modern democracy.
What do these actions by different stakeholders in providing justice signify?
Damaging public property shows an alienated relationship between the state and the people. The state ceases to remain an institution that ought to be seen as borne out of an equal stakeholding process between the government and its citizens. This can be read as the absence of the rule of law in forming a foundation of public and social morality. The law’s expectations towards public property are resisted and mocked.
In the second example, the state, through police, becomes an active and sought-after institution which acquires a close, and at times, intimate, kin-ly power over people. The punitive power of the same alienated state is readily used to seek justice by instilling fear in others. The police are both feared and favoured because it delivers summary justice. People tend to use the coercive legal power of the police for others even when, precisely for that same reason, they despise it being used upon themselves. The rule of law – as a state-centric, neutral normative principle of justice – thus begins to appear in an uneasy relationship with the liking for summary justice.
For the third, some may argue that it exemplifies persistence of culture through ancient and medieval times in which the king heard the complaints of the praja, the subjects, directly. The problem with this argument is that in monarchical dispensations, kings and queens personified justice; in modern times, the law is the king. And yet, patrimonial and monarchical forms of justice-deliverance persist, at least in its optic if not in content.
Why is this optic required?
This persistence is neither a reflection of the survival of a cultural practice through time immemorial nor of anomalies of law and justice which would inevitably force a modern institution to remain dependent upon a premodern practice.
What we see in junta durbars is a well-crafted initiative to turn justice into a commodity of public consumption; a performance of ritual or spectacle in which the legislative openly directs and rebukes the executive under the claim of making justice publicly accessible.
Seen differently, what is being touted as personal involvement in promptly disbursing justice is actually a commentary on the failure of the procedural vitality of the law. For, had the law worked well, the need for simulation of divine intervention on the part of the head of state or political leaders would not have arisen in the modern state structure. And yet, in another sense, it reflects the perpetual dialectical character of the law in which justice ought to depend on or utilise the element of coercion which it tries to obliterate at the same time.
Also read: The Unconstitutionality of ‘Bulldozer Justice’
All these practices symbolise our troubled relationship with law, authority, and justice. We need the intervention of one to question the other, while seeking the third. Often, the retributive form of public-, mob-, jugaad-, or summary-justice triumphs over the processual nature of law’s justice through the mediation of a superior authority. They appear contradictory but they are not. Seen in a different manner, these are the two modalities of law: one, the rule of law, which is procedural in nature and can take longer to materialise, and two, the rule of police which is instant and pervasive but delivers a summary form of justice.
Can history of law and justice as it unfolded in India from the eighteenth century, when some of the basic foundations of the modern law were themselves being crafted, provide a clue, if not genesis, to some of the aspects of this troubled relationship between law and justice? The history of the emergence of the police in eighteenth century India can provide some explanation. It exposes the tussle between the rule of law and the rule of police whose antecedents first take us to the eighteenth century’s foundational discussions on law and police.
Rule of law versus the rule of police
In the 18th century, from being of peripheral importance, law moved into the centre stage of peoples’ lives. It became the principal source of life’s facts. It became the foremost mediating instrument in social and economic relationships related to work, employment, marriage, property, and so on.
Rule of law is not a benign object of progress. It can be a political tool of social oppression, a bourgeois tool of class domination, and a tool for the underprivileged to fight for their liberties and rights. In general, it is a system through which power asymmetries in the society are both concretised and obscured at the same time.
Law can dominate in the name of equality; it can impose new social norms under the name of progress and development; and it can pervade into the most private of the private spheres in the name of security. However, the basic idea enshrined in the rule of law is that there is no authority above the law. This is the general characteristic of law’s duality: it is an instrument of equality and justice while at the same time, it is also a sort of fabric into which scripts of inequalities are stitched. Particularly, seen through the lens of criminal law, all modern laws including the colonial examples, simultaneously exhibit the dual feature of fairness and despotism.
Distinct from this was the conceptual genealogy of the rule of police. In the 18th century, the police were seen as an instrument of establishing public well-being, industrious moral order and safety. Adam Smith regarded it as a means of satisfying the natural wants and demands of mankind. In the 18th century, the German Polizei had a similar meaning: it meant less the institutions for maintaining communal order than the condition for good order and prosperity in the community itself. It did not mean a uniformed force employed by the state to maintain law and order but a general system of government to regulate broad aspects of communal existence.
Under this idea, the police were not seen as a bureaucratic arm of the state. It rather borrowed the model of governance from the householder’s authority as applicable to the family. Thus, the idea of public safety, good, and happiness was premised upon discretionary and patriarchal order. In Blackstone’s views, the police would ensure good behaviour and manners of the individuals towards the state and fellow citizens similar to the conduct of the family members towards the heads of the family. In the 18th century, the term ‘police’ acquired the meaning akin to ‘science of government’. It was meant to regulate public morals. But the sovereign was the paterfamilias.
The rule of law and the rule of police were two distinct modes of government. The communitarian meaning of the police stood in opposition to law because ideologically law stood for the aggregate of individuals in which their personal and private rights were secured as long as they did not infringe upon others. In other words, the objective of the law was not to secure a common good for all but to guarantee the rights of individuals. In reality, however, both modes constituted two sides of the making of the modern penal state.
Gradually, the language of law subsumed the model of the rule of police. In England, for instance, the moderation in criminal law, the rise of the prison as a primary form of punishment, and the creation of a salaried professional police altered the notion of justice in the first half of the 19th century. Private prosecution and informal policing made way for public police system. There was, of course, the deepening of the police state over the 19th century, but it was also largely accompanied by the separation of power. Police became a preventative force, devoid of judicial powers. The historical process was complicated and tardy but conceptually, law became the primary source of authority for justice.
In theory, the police were entrusted with the prevention and detection of crime, but not with punishment. This is the modern meaning with which we identify the term police.
Also read: Justice in India Requires Inspiration from the Tricolour, Not Temple Dhwajas
The question then is: what was the conceptual evolution of the relationship between law and police, or between accountability in the law and discretion of the police power, in India? Was the summary power ever seen as an aberration to the rule of law or was it a necessary accompaniment of justice?
The emergence of police in 18th century Calcutta
In 1785, a new police Bill envisioning to grant the London police the power of arrest was rejected on grounds of defence of personal liberty and check on arbitrary power. The same year, in India, the justices of the Supreme Court in Calcutta fined the police superintendent, Thomas Motte, and his deputy, Edward Maxwell, for exercising arbitrary power. This summary power existed in detaining people upon suspicion, inflicting punishment through various humiliating forms of flogging, public shaming, and imprisonment in a range of petty cases of crime, insolence, breach of contract, etc.
In his judgment, William Jones made a distinction between the police’s power to apprehend offenders on the one hand and their power to deliver justice through punishment on the other. If the former is exercised in moderation, he noted, then it ‘may be highly useful’. However, on the second point he called the power of punishment exercised by the superintendent ‘a deformity in this government.’ He chastised the police for having power outside the law, which in its nature was ‘dark, [and] unauthorized’.
The two other justices agreed that the superintendents had failed to act moderately but upheld the necessity of summary power to suit the purposes of justice. In Hyde’s words, ‘if all these offences were to be tried by English law, all the Englishmen in the settlement would be hardly sufficient for the purpose.’ Chambers was more direct in advocating the need for summary punishment: ‘Every man who has been a long resident in this country would admit the expedience, if not the necessity of corporal punishment for such offences and I think the exercise of summary justice is essential to the safety of the British government here.’
The government, of course, harboured the view that the situation of justice desired the superintendent to wield summary power even when the office of the superintendent itself was repetitively accepted to be illegal.
This tussle between rule of law and expediency of summary justice was at the heart of the creation of this office in 1772-73.
Warren Hastings reasoned, ‘A rigid observance of the letter of the law is a blessing in a well regulated state, but in a Government loose as that of Bengal is, and must be for some years to come, an extraordinary and exemplary coercion must be applied to eradicate those evils which the law cannot reach.’
The summary mode of justice was thus justified precisely on the grounds that it will usher in a just system, security, and order. It was an accompaniment rather than the adversary of the law.
On the other hand, in these ‘some years to come’, William Jones constantly reproached the government for allowing police to exercise arbitrary power. In his address to the Grand Jury of the Supreme Court in 1788, he said the superintendent’s powers are ‘dark and undefined, which our law most abhors’. The government nonetheless allowed the superintendents to exercise their arbitrary power and footed the bills of the fines which they received, from time to time, from the Supreme Court.
To rectify the illegality of this office, an ordinance was brought in 1778. Interestingly, it was nullified by none other than the King-in-Council in London. It accused the Bengal government of creating ‘a dangerous power’ in the position of the superintendent. A series of regulations were subsequently brought in to establish the body of commissioners of police. They were enshrined with the tasks of maintaining drainage, survey and repair roads, numbering the streets, keeping the city clean, and so on. However, the office of the superintendent continued to exist until 1793 and it continued to use its arbitrary summary power.
One would have expected that the practice of summary power would have ended with the abolition of the office of the superintendent and the subsequent appointment of police magistrates or justices of the peace, but it lingered on, and perhaps became worse. In a note written in 1814, the then Chief Justice of the Supreme Court laid out proper objectives of the police. First, it was meant to prevent crime and, second, to carry out inquiry after the crime was committed. The third was in apprehending the offender but any union of these powers with those of trial and punishment, he reasoned, was a ‘dangerous tendency’.
This dangerous tendency did not fizzle out in the coming decades. The epitome was reached in the 1830s when the law commissioners who drafted the Indian Penal Code remarked, “In India, it is too common a practice for magistrates to decide what law is.” If one reads the letters written by David McFarlan, who was the chief police magistrate in Calcutta in the 1830s, the words of the law commissioners would appear an understatement. The magistrates did not decide what the law was, but they were law unto themselves.
In a letter written to his father in England, he said, “Your heart grow grit to see the Lady Davy in the midst of a crowd of Hindoos sitting upon his Arab horse examining into the merits of a boundary dispute, to see both parties respecting him for the pains he takes and the patience with which hears all they have to say, and in a case where one party has to suffer an injustice palpable only from actual inspection, to hear shouts of applause and blessings rise from a surrounding multitude – it is enough to turn a young head and certainly quite enough to make a papa as happy as a prince.”
To his grandma, he boasted, “My decisions are relied on with as much confidence and carried out with effect as fully as those of the Lords of Council and Session.”
Past’s presence
In India, the rule of law and the arbitrary power of the police share an uneasy but proximate relationship.
Charles Playdell and Thomas Motte were heavily popular police superintendents in Calcutta in the late18th century. ‘Motte’s Cutcherry’, as the police court was called in the 1780s, was a popular reference point in the city. Summary justice had an appeal amongst elites, workers, shopkeepers, artisans, and other sorts of people. It flourished not in spite but because of the rule of law.
Hindi proverbs celebrate the idea of litigation as the mechanism of true revenge. If one has to trouble their kin or neighbours for a long, long time, as the proverbs go, they should get them framed under the law. If the rule of law is touted as one stretching the process of justice to abnormally long periods, then the rule of police is regarded as speedy and instant. Police usually sides with the powerful but visits to the court are still to be avoided as far as possible. In such a scenario, every section of the society would ideally prefer to use the coercive and summary power of the police for their benefit but at the larger level both rule of law and rule of police tend to stabilise the existing social order.
Historically, when it came to disciplining the labouring pool, the rule of law deliberately left that task to be performed by the arbitrary power of summary justice. The institution of the police was the political response of the colonial government to meet the immediate situation of labour discipline and crime. It made justice popular and folded the power of the law into the everyday coercive practices of the police. Expedience became the defining factor of this mode of governance rather than the rule-based idea of justice. Efficiency triumphed over concerns for rights. Immediacy and swiftness which are the hallmarks of a summary mode of punishment made the idea of justice itself popular.
The jugaad-justice of contemporary India is also a political performance of justice. The symbolic presence of the likes of McFarlan still pervades the political and legal lives in India. There is nothing unchanging in the last two hundred years. I am not drawing a direct line from the past into the present. But what is startling is the uncanny presence of the past in the present, around the same issues of the troubled relationship between law and justice that once constituted a vital theme of debate among lawmakers, jurists and public intellectuals in the 18th century. When the justice of bulldozer, apparently done under some formal conditions of the rule of law, and when lynching, as a form of public justice, done with impunity towards law, are creating a new normal of social and political life, the question of the relationship between law and justice deserves another robust debate in our contemporary times as well.
Nitin Sinha is a historian and a research fellow at the Centre for Modern Oriental Studies, Berlin.