CHAPTER XVIII
ADMINISTRATIVE FAILURES (1793-1815)
THE measures organised first by Warren Hastings, and then by Lord Cornwallis, for the civil and judicial administration of the Company’s dominions in India have been briefly described in previous chapters. With much that was good and beneficial in those measures, they had some fatal defects which became more and more conspicuous with the lapse of time. In the first place, the judicial machinery set up was wholly inadequate for the requirements of a vast country, with a population which nearly amounted to a hundred millions in the tracts included in the Company’s dominions at the time of the death of Cornwallis. And in the second place, a plan of administering justice, and giving protection to life and property to this great and civilised population, without accepting the help and cooperation of the people themselves, was doomed to failure.
European judges were imperfectly acquainted with the language of the people, and had a still more imperfect knowledge of their customs and manners. Their Indian ministerial officers were meanly paid and therefore corrupt, and justice was often sold to the highest bidders. Worse than this, the cases accumulated to such an extent, and their decision was delayed so long, that there was a virtual denial of justice to the people. Armies of witnesses were dragged from their homes and occupations to attend distant courts, until the people, Hindu and Mahomedan, considered it one of the severest of punishments to be cited as witnesses. Charges and fees were imposed in order to make justice more expensive and to discourage recourse to courts. Additional powers were given to judges, and the privilege of appeal was limited, in order to reduce the work. Every repressive measure was vainly adopted to remedy that evil which had but one true remedy,—to accept the cooperation of the people, and to entrust the task of judicial administration to the people themselves.
“It seems to have been forgotten that, for centuries prior to the introduction of European agency, law and justice had been administered solely by natives; yet society had been held together, and there had been times when, according to the testimony of travellers and historians, India had been populous and flourishing, the people thriving and happy.“¹
If such were the defects in the administration of civil justice in the early years of the nineteenth century, the defects in the administration of criminal justice were graver. Bengal was infested by gangs of robbers who were known by the name of Dacoits, and whom the Magistrates, helped by an ill-paid and corrupt police, were unable to check. Daring robberies were committed in large towns and centres of trade, and villages remained in a continuous state of terror, and often paid blackmail to renowned heads of robbers. From 1800 to 1810 the country was kept in a state of perpetual alarm; the deeds of Bengal Rob Roys were narrated in bazaars and marketplaces; the Magistrate and the Police were powerless; the people accepted their fate. “A monstrous and disorganised state of society existed under the eye of the Supreme British authorities, and almost at the very seat of the Government to which the country might justly look for safety and protection. The mischief could not wait for a slow remedy; the people were perishing almost in our sight; every week’s delay was a doom of slaughter and torture against the defenceless inhabitants of very populous countries.” ¹
The measures which were adopted for remedying the evil were worse than the evil. Two European Superintendents of Police were appointed to act in concert with Magistrates for the suppression of crime. Special Magistrates were appointed and armed with special powers to put down robbery. They employed Goendas or spies to give information against suspected people, and thus the evils of an extensive system of espionage were added to the evils caused by crimes. Inhabitants of villages were indiscriminately apprehended on false information; they were kept in jail for months, and sometimes for years, before they were brought for trial; and they not unoften perished in prisons. Every large jail in Bengal was crowded with hundreds and thousands of innocent men; and the villagers dreaded the malice of the informer more than the wrath of the Magistrate.
In 1813 the Court of Directors circulated queries regarded the working of the judicial system in India to several of their distinguished servants, then in England. The majority of them still clung to the time-honoured tradition that the natives of India were unfit and unworthy of being entrusted with high duties—a tradition which had the merit of reserving all the high posts of India for their own sons and nephews, friends and relations. But the wisest and most thoughtful among the Company’s servants saw the hollowness of the doctrine, and they boldly proclaimed—what was then a heresy—that India could not be governed except through the cooperation of the people themselves. Among the first who had the wisdom to see and the courage to declare this truth were Sir Henry Strachey of Bengal, Thomas Munro of Madras, and Colonel Walker of Bombay. It is necessary that some portions of their replies to the Court of Directors should be placed before the reader.
“The remedy I propose,” wrote Sir Henry Strachey, “for the defects I have stated, is the establishment of more Courts, composed of natives, both Mahomedans and Hindus, to be guided entirely by our Regulations. Let the Native Judges be well paid, and they will do their duty well; of this I feel the strongest conviction. The expense would be little or nothing, as the fees might defray the whole, though it would be better to give the Native Judges liberal salaries. There should, at all events, in cases of undue exactions of rent, be no fees on documents, no stamps, no expense except the institution fee.”
“If the powers of the Munsiffs [Native Civil Judges] were only extended to the decision of suits to the amount of Rs. 200 [£20], the limit of the Registrar’s authority at present, the institution fee alone would, I conceive, form an ample fund for the payment of the Native Judges and their Amla [clerks]. When I speak of a liberal salary for a Native Judge, I would be understood to mean somewhat less than one-tenth of the salary of the European Judge.”
“It is my opinion that all the judicial functions of Bengal might gradually be thrown into the hands of the Natives, if such were the pleasure of the Company, and that the business would be as well conducted, under our Regulations, by the Natives as by Europeans, in some respects better, and at one-tenth of the expense.” ¹
Speaking of European traders in India, Sir Henry wrote: “The trade of Bengal has been for the most part in the hands of Europeans for half a century and longer.
“It was not till the Courts, civil and criminal, had been some time established under their present form and in full operation, that oppression committed by European traders was put an end to. Labourers and manufacturers, in the employment of the Company and of private European traders, were imprisoned and beaten and harassed by peons.
“This I conceive to have been the ancient custom of the country, and not invented by Europeans; but the agents of the Company had most power, and were, of course, the worst tyrants.
“In the salt department a shameless system of cheating and severity was universally practised. Many thousands of men were compelled to work, and allowed a most scanty subsistence. Some hundreds were pressed every year into this service. They were, in some instances, bound hand and foot, and sent off to the most unhealthy parts of the Sundarbans, to manufacture salt for the Company’s monopoly.
“All these practices remained till the Courts were established in 1793, and then it was soon discovered that they were wrong. They prevailed till that time; not that we had made laws to authorise them, but because the people seldom complained of them. Because, if they had been in the habit of complaining, the Collector could not have heard the hundredth part of the complaints, and because their practices were conformable to the custom of the country.
“Generally speaking, in the commercial transactions carried on by the Company and by Europeans out of the service, the Natives were treated ill, though signal acts of cruelty would occasionally be punished by the Collector.
“The decisions of the Civil Courts, and the sentences of the Magistrates in petty Foujdari [Criminal] cases, which last are speedy and expeditious, have produced, since 1793, a great change for the better.” [1]
On the important question of Executive and Judicial duties, which were separated by Lord Cornwallis in 1793, Sir Henry Strachey’s remarks are of special interest at the present time.
“It was not till the year 1793 that the powers of Collector and those of Judge and Magistrate were first separated and held by different persons in Bengal. The plan had been tried, I think, but partially, several years before, and given up; but till this period the administration of justice, whether committed to the Collector or not, appeared to be a secondary affair. It occupied less time than the other duties of the Collector, and the collection of the revenue was still considered, according to the ancient characteristic usage of the country, as the primary object, the chief function of the internal Government.
“It was not till this period [1793] that the Bengal Government, through the agency of its judicial servants, began seriously to attend to the welfare and protection of the numerous people subject to their dominion.” [2]
Sir Henry Strachey had much to say of the oppression of the cultivators of Bengal under the Zemindari system, an oppression which has since been stopped by the Rent Acts of 1859, 1868, and 1885. And he also spoke in equally forcible words of the oppression of the cultivators of Madras under the Ryotwari system.
“Well may the Ryotwari Collectors talk of the incompatibility of their system with that of the judicial institutions of Bengal. Well might the Madras Government delay, from year to year, the introduction of the Bengal Regulations, lest the Collectors’ influence should be destroyed and the collection of the revenues impeded. . .
“If the Ryotwari plan can be carried on successfully after the establishment of the judicial authorities, if rules can be framed under which the Ryotwar Collector shall act as Manager only of an estate, and the Judge shall have the usual power of redressing grievances, then I shall not condemn the plan; but I protest against the Ryotwar Collector having any judicial power whatever. As Manager of an estate only he ought to be considered; consequently we must be jealous of his power, lest he should pervert it to purposes of extortion. Every Manager of an estate has, in India, a natural inclination or tendency towards extortion. If any man, whose business it is to collect rent from the Ryots, shall persuade himself that, while so occupied, he is the fittest person in the world to defend these Ryots from the oppressions which he and his dependents commit, that his occupation supersedes the necessity of all control, that person, in my opinion, grossly errs.“¹
It is necessary to quote one more passage from Sir Henry’s valuable letter, in which he emphatically asserts the fitness of the people of India for judicial duties of a high and responsible nature, without the superintendence of European officials.
“I think no superintendence of Europeans is necessary. I have already in my reply to Question 4th offered my opinion upon this subject. If the Natives are not qualified for these or any other offices, I conceive the fault to be ours, and not theirs. If we encourage them, if we allow them to aspire to high office, if we pay them well, if we raise them in their own estimation, they will soon be found fit for any official employment in India.
“I beg to repeat what I long ago said in substance upon this subject, that the Natives are depressed and humiliated, being confined by us to subordinate and servile offices. Although their education is most defective, and ignorance and credulity pervade all ranks, especially among the Hindus, they are nevertheless found to acquire easily the requisite qualifications for the duties which we are pleased to entrust to them. From temper, habit, and peculiar circumstances, they are in many respects fitter for the office of a Judge than ourselves.
“But we place the European beyond the reach of temptation. To the Native, a man whose ancestors perhaps bore high command, we assign some ministerial office, with a poor stipend of twenty or thirty rupees [£2 or £3] a month. Then we pronounce that the Indians are corrupt, and no race of men but the Company’s European servants are fit to govern them.”¹
We must here take leave of Sir Henry Strachey, though a great deal of what follows in the subsequent part of his letter is valuable. He quotes figures to point out the harshness of the measures adopted to suppress robberies in Bengal. Two hundred and nine prisoners were kept in confinement, some of them for five months, in the jail of the Twenty-four Perganas, on suspicion and without being even examined by the Magistrate. Sixty-two persons were arrested on suspicion after a robbery at Arwal; nine of them died in jail; not one was convicted on trial. Eighty-four persons were arrested on suspicion after a robbery at Dungain; only two of whom were found guilty by the Judge. One hundred and ninety-two persons were arrested on suspicion after a robbery at Madanpur; confessions were extorted from them or fabricated against them; forty-six of them were detained in irons above a year ; three of them died ; the rest were proved innocent at trial and acquitted. In the District of Nadiya, 2071 persons were arrested on suspicion between November 1808 and May 1809. In six months forty-eight had died in jail, 278 were still under inquiry, and 1477 were not yet examined. “Such shocking cruelty,” says Sir Henry, “such a monstrous perversion of justice, committed with our eyes open and with deliberation, the imprisonment of multitudes, the harassing, the subornation of perjury, the plunder, the death of innocent men in jail, these scenes I conceive to be most discreditable to those who permitted them. They ought not, under any circumstances, to have been endured. Dacoity itself, dreadful as it is, cannot be compared in its quantum of mischief to what was produced by this horrid system.” 1
We now turn to the opinions of Thomas Munro, which are equally significant.
“In a civilised, populous country like India, justice can be well dispensed only through the agency of the Natives themselves…. Most European Governments have deemed it advisable to purchase integrity in high public officers by honours and emoluments. If we want it in India, we must adopt the same means; and if we pay the same price, we shall find it among the Natives of that country as readily, I am afraid, as among Europeans. Under the sway of every Mahomedan conqueror, the Natives of India have been admitted to all the highest dignities of the State; it is only under the British Government that they have been excluded from this advantage, and held in a condition, even when employed in the public department, little superior to that of menial servants.” 2
In another Memorandum, Thomas Munro wrote of the ancient Hindu system of dispensing justice through Village Panchyets, with all their merits and all their defects.
“The strong attachment of the Natives to trial by Panchyet has, no doubt, in some degree arisen from the dread of the venality of their rulers; but it has probably been increased and confirmed by the conviction, resulting from experience, that no Judge, however upright or active, was so competent as such a body to dispense justly, correctly, and expeditiously.”
Contrasting this old system with the system introduced under the British Rule, he made some thoughtful remarks.
“It is evident that our present system is not only most expensive and vexatious, but totally inefficient. There is, under the Bengal Government, about one hundred and thirty thousand suits in arrear. These suits will, on a moderate calculation, require a million of witnesses; and if we consider the expense, the distance, and the time they must be absent from their homes, it will not be easy to estimate the amount of injury which the country thereby sustains. But the evil, it has been asserted, is unavoidable, and springs from the litigious spirit of the people of India. Had this been their real character, it would have appeared when they paid nothing for trials. I have had ample opportunity of observing them in every situation, and I can affirm that they are not litigious. I have often been astonished at the facility with which suits among them were settled, and at the fairness with which the losing party acknowledged the claim against him. But when irritated by expense and by delay, it is not surprising that litigation should grow with the progress of the suit through its tedious stages…. Our system produces the litigation which we groundlessly impute to the character of the people.”¹
Lastly, we turn to the remarks of Colonel Walker of Bombay, who wrote with a commendable moderation and impartiality on the excellence as well as on the defects of the judicial system introduced in India under the British Rule.
“The excellence of the British judicial system has been often acknowledged and recorded with the fervour of national pride. The system has been dictated by the purest philanthropy, and is administered with the most honourable and scrupulous integrity. Justice is, in fact, administered with exactness to all ranks of subjects; and, allowing for the weakness of human nature, with strict and uniform impartiality. The disadvantages of the system may be principally ascribed to the great difference of manners, and the unfavourable situation of strangers in administering justice to a foreign people. This is a great disadvantage, which never can be effectually removed, but might be softened by admitting the Natives to a share in the administration…. The greatest defect of the present system, perhaps, is the employment of strangers to the total exclusion of the Natives of the country.”
To this subject Colonel Walker reverted again and again in his reply to the ninth question set by the Directors, in respect of the integrity and diligence of the natives of India.
“The most prominent feature in the civil government of the Company is the almost entire exclusion of native agency. The offices held by Natives are only those of the lowest description—such as could not be the object of ambition to any European; and the salary attached to these appointments is such as barely affords to themselves and families the means of subsistence. To Natives of rank and liberal education no temptation is held out which can induce them to engage in the service of the Company. Not only are the emoluments offered scanty, but the want of confidence reposed in them, the general light in which they are received, cannot fail to inspire them with insurmountable disgust. . . .
“The admission of the Natives to offices of honour and profit is the only mode by which they can be effectually conciliated. It is vain to expect that men will ever be satisfied with merely having their property secured, while all the paths of honourable ambition are shut against them. This mortifying exclusion stifles talents, humbles family pride, and depresses all but the weak and worthless. By the higher classes of society it is considered as a severe injustice; but these are the men of influence and consideration in the country, the men by whom the public opinion is formed. So long as this source of hostility remains, the British administration will always be regarded as imposing a yoke. . . .
“The Romans, whose business was conquest, and who extended their yoke over the greatest part of the civilised world, may be safely taken as guides in the art of holding nations in subjection; that wise people always left a great share of the administration of the countries they subdued in the hands of the natives.“¹
It is remarkable that a wide survey of historical antecedents suggested to Colonel Munro and to Colonel Walker the same conclusions. Colonel Munro pointed to the Mahomedan conquerors who ruled Northern India for five hundred years by admitting the Hindu natives of India “to all the highest dignities of state;” and Colonel Walker pointed to the Roman conquerors who held the Western world under their sway for a similar period by leaving “a great share of the administration of the countries they subdued in the hands of the natives.” Those who are most keenly conscious of the blessings of England’s Rule in India—and the educated people of India are the foremost among them —are, nevertheless, painfully aware how the virtual exclusion of Indians from the higher services and the control of the administration makes the British Rule needlessly unpopular and weakens the Empire.
And this exclusion is often justified by a misrepresentation of the Indian character which Colonel Walker guardedly refers to towards the end of his letter.
“There is no source of deception against which it would behove the Company to guard than the reports which they receive concerning the capacities of their native subjects. They are, of course, transmitted through the medium of Europeans holding employments in that country; but they often undervalue the qualifications of the Natives from motives of prejudice or interest. There are many, indeed, who would be superior to such motives, and few, perhaps, who would act upon them deliberately. But still the principle is secretly active, and will always have a powerful effect, though perhaps unfelt influence, on men’s views and opinions.¹
Footnotes
¹ East India Papers (London, 1820), vol. ii. p. 56.
¹ East India Papers (London, 1820), vol. ii. pp. 185, 186.
¹East India Papers (London, 1820), vol. ii, p. 188. The italics are our own.