Between January and February 1858, Bahadur Shah Zafar II, the last Mughal emperor, was placed on trial for his role as the leader of the most consequential uprising in the British Empire since the American Revolution. Importantly, he was not charged for these crimes as a Mughal sovereign, but instead was accused of mutiny and treason as a subject and pensioner of the East India Company. In an act of pointed humiliation, the courtroom was set up in his former palace, the seat from where the Uprising was said to have been directed. Described by the legal scholar AG Noorani as “the first victor’s trial in modern history,” the event would see an elderly man in waning health face a court of questionable legitimacy, and in a language in which he was not fluent. Though the emperor maintained his innocence, the European Military Commission found him guilty on all counts. As his surrender to British authorities had been contingent on the guarantee of his life, the court banished him to Rangoon to live out the rest of his days in exile.
Within months of this trial, the British parliament in London had formally recognised India as a crown colony. The transfer of power was publicly announced by Queen Victoria through a royal proclamation, delivered to the people from cities and towns across the subcontinent. The charter laid out the new terms governing the relationship between sovereign and subject under colonial rule. Among the promises of economic prosperity, equality under the law, and the protection of local customs and traditions, the proclamation contained an offer. An amnesty was presented to rebels on the condition of their surrender. Forgiveness would be available to all but a small group of rebel leaders. After a display of power “in the field,” this new configuration of imperial sovereignty would be established through an act of mercy.
Over sixty years later, Mohandas Karamchand Gandhi led the Noncooperation Movement (NCM). This began in September 1920 and quickly became India’s largest organised mass political effort to bring about swaraj or self-rule. In echoes of the Uprising of 1857, the movement started with a call for Indian soldiers to withdraw from the British army. What followed was a strictly nonviolent program of boycotts which targeted schools, lawcourts, legislatures, and finally taxes. Here Gandhi was building on a reading of colonial power that he first articulated in Hind Swaraj in 1909. One of the most novel aspects of this thesis revolved around the question of consent. Unlike both liberal and revolutionary nationalists, who to different degrees critiqued the colonial state for its refusal to ground its authority in the popular will, Gandhi suggested that Indians had in fact already consented to colonialism. This was not a consent performed via the vote, but through everyday practices. Whether it be in commerce, law, politics, or education, Gandhi argued that, while Indians continued to be the patrons of colonial institutions in their daily lives, they conferred colonial rule legitimacy.
In a somewhat counter-intuitive move, by making colonial subjects complicit in their own subjugation, Gandhi’s reading of colonial authority proved incredibly empowering. The implication was that Indians need no longer petition the colonial government for constitutional reform. Nor should they target the institutions of colonial power through acts of revolutionary violence. The agency to end the empire was reimagined as a resource already available from within, something that could be activated through personal sacrifices and a disciplined program of nonviolent withdrawal. As the argument ran, the British remained in India only because Indians kept them there, and with full nonparticipation, colonial rule would collapse in a year.
Gandhi’s call to arms electrified anticolonial sentiment across India and inspired noncooperators to flood colonial prisons. For many, the act of jail-going became a moment of original liberation. As the future deputy prime minister C Rajagopalachari would write from his prison cell in 1921, “Have I really become so free that Government has to lock me up if they wish to keep me? For the first time in my life I felt I was free, and had thrown off the foreign yoke.” While the movement ultimately failed, this period is generally recognized by historians as a turning point in the history of popular anticolonial nationalism, and a blow to the authority of the colonial state that the British Empire would never fully recover from.
Myriad factors had led Gandhi to the conclusion that reform from within the existing constitutional order was no longer plausible. A major issue had been the infamous declaration of martial law in Punjab in 1919, passed in response to the outbreak of anticolonial protests across the province. In a coauthored report sent to the Indian National Congress examining the violence that ensued, Gandhi decried the indiscriminate use of flogging, the humiliating crawling orders, and the large number of severe sentences passed in hastily established martial law courts. The most grievous sin though had been the terrible violence of the Jallianwala Bagh massacre which had left almost 400 unarmed protestors dead and around 1,200 more injured. In the report’s words, this was a “calculated piece of inhumanity… unparalleled for its ferocity in the history of modern British administration.”
Gandhi recognised better than most the role played by violence in sustaining the empire. And yet during this period, he had also begun to consistently warn his followers about another dangerous instrument of colonial power: the ensnaring promise of mercy. In a series of political cases connected to arrests in 1919, colonial judges had tempered their sentences as a gesture of goodwill to the accused. Gandhi understood these measures as strategies to restore amicable relations between the government and the people, and throatily denounced them. Whether in his private correspondence or in his public writings, he advised those accused of crimes to demand justice but refuse mercy. When he wrote about the judges involved in these cases, he compared them to plunderers who first stole property and then decided to return a portion of it as an act of kindness. Gandhi argued that Indians needed to recognize that colonial violence did not always take the shape of a sword.
In March 1922, with the movement stuttering, Gandhi would find himself in a criminal court facing multiple charges of sedition. The experience of trial had been a demeaning one for the last Mughal emperor. The leader of the NCM, by contrast, positively welcomed the criminal charges brought against him. The accused explained that as an Indian citizen, he had been duty-bound to commit these crimes, and was similarly compelled to plead guilty and accept his punishment. If colonial rule attempted to coerce colonial subjects into promising their political allegiance to the Crown, bound through laws like the Indian Penal Code (IPC), this was summarily dismissed in his now-famous denunciation of the concept of sedition. As Gandhi stated, “Affection cannot be manufactured or regulated by law.”
For Gandhi, the citizen’s prime obligation lay not in obeying the sovereign commands of the modern colonial state and its assembly of positive laws, but “in obedience to the higher law of our being, the voice of conscience.” As he faced the colonial judge he declared, “I do not ask for mercy. I do not plead any extenuating act.” He pled guilty and asked, instead, for the strictest possible punishment. He was sentenced to six years imprisonment.
In a colonial context marked by tremendous violence, it is easy to dismiss the promise of imperial mercy as hollow. However, the place of amnesty in the Queen’s Proclamation had been no accident. Neither was its rejection by Gandhi an afterthought. The offer of mercy to rebels had rather been consciously organized to enfold a new class of subjects within an expanding imperial order in the aftermath of 1857, each individual bound to the sovereign through a tie of allegiance. It was only when colonial mercy was rejected that Indian nationalism began to express itself as fully unbound from the political and legal constraints of imperial subjecthood.
However, if mercy proved pivotal to both the founding of the modern colonial state and the emergence of a new iteration of anticolonial nationalism, its significance has received scant attention from historians of colonial law and violence in South Asia. This book by contrast takes mercy much more seriously. While colonial rule was at all times dependent on extreme force to maintain its authority and punish those that transgressed its laws, it remained equally reliant on calculated exercises of mercy and leniency to preserve its thin but vital claims to legitimacy as a paternalist force. As this book argues, to understand the complex nature of colonial violence, we need to examine its constitutive relationship to discretion and colonial mercy.
Excerpted with permission from Trials of Sovereignty: Mercy, Violence and the Making of Criminal Law in British India, 1857–1922, Cambridge University Press and is forthcoming from Yoda Press.
