The British found it necessary to establish some sort of authority and influence in the trans-Indus districts as well as Hazara. The Frontier provinces were divided into two Commissionerships; the Commissionership of Peshawar and the Commissionership of Derajat. Each district became the charge of a Deputy Commissioner.The British aimed to keep the ‘unwieldy tribes’ from entering into the British settlements. This would be the defining feature of what would come to be known as the Closed Border Policy. British officers and tribesmen living on the British territory were prohibited from going across the Frontier. Tribesmen living in the hills were denied access to British territories, including their markets and in many cases the tribes’ land on the settled plains. This arbitrary segregation between the settled and unsettled populations was in stark violation of the history and sociological reality of that area. As has been noted above, people living across the administered borders shared deep cultural, familial and economic ties. As such the local population did not accept such a division. The British decided to take a series of steps in order to coerce the inhabitants into submission. A considerable militia was raised which did not operate as regular policemen but were given the specific task of subduing the local population and defending the border. This body initially worked under the Border Police and later given the name of the Frontier Constabulary (FC). If they felt the need to do so and indeed they did so a lot, the FC would seek the help of the military. Eleven military operations took place in the twenty years succeeding the Indian Mutiny 1857. Punitive expeditions were by no means the only coercive method used to engender obedience – there were also bandish and baramta. The first was a blockade which was a means of exerting economic control over an offending tribe. The tribe was excluded from markets, land, or grazing in the neighboring district. This method was effective eventually but slow and it was difficult to enforce precisely because the border meant little to people on both sides. The second strategy – baramta – resulted in the seizure of persons, animal or property belonging to an individual or a tribe at fault.
It can be seen that these three punitive measures involved the idea of collective punishment. It sought to exploit a communal sense of responsibility within tribes. Caroe, who was a British colonial officer in the 20th century, discusses the justification of this approach as follows:
In any tribe with a living tribalism the outstanding feature is that the tribe as a whole, and every member of it, is responsible for the misdeeds of any of its members, just as it and they are entitled to share in any benefit or advantage secured by any member. It follows from this principle that an aggrieved party can enforce his remedy against any tribesmen on whom he can lay hands. That is the essence of tribal responsibility, a system which admits the justice of baramta as an effective weapon for securing rights and claims. The baramta weapon works best, when enforced against the tribal section actually responsible, or to which the aggressors actually belong; the smaller section on which pressure can be brought, the more likely is restitution.
Actually, the idea of collective punishment idea rested on the assumption that tribes would govern themselves in order to avoid such indiscriminate destruction. Central to the closed border system was the idea that ‘coercion is discriminating mercy, which the instructions of government inculcate’. Administers felt that the Frontier tribesmen must be made to fear the British in order for them to effectively govern. William Merewether, who was Commissioner of Sindh, was a key propend of such a course:
It is a great mistake to suppose that these wild tribes can be kept in order by simple arrangements and negotiations. They regard them as signs of weakness and only become more bold and insolent each time that their lawless acts do not meet with the punishment they deserve. Soft measures will never answer. They must be made to feel the strength of paramount power, and then anything can be done with them.
Administers also tried to ensure the loyalty of the tribes by making agreements with them. During the first twenty years, a number of agreements were signed with tribes residing on the British controlled territory. A typical agreement would contain several clauses including a general clause declaring friendship and goodwill followed by a statement of the services required of the tribe such as security of the border, control of raiders, protection of communication, a clause prohibiting the tribe from giving refuge to outlaws and one guaranteeing an annual allowance contingent on good behavior. The allowances known as muwajib were an important tool in the management system. These payments were made in order to induce the tribes to facilitate the order the British sought to impose. All allowances however were conditional and subject to forfeiture in part or in whole should the tribe or any member of the tribe commit an offence.
The closed border system was obviously a classic manifestation of the carrot and stick policy. However, the frequency with which the ‘stick’ was used is testament to the fact that British authorities failed to establish the kind of order they aimed to. Critics pointed out those military operations were costly and frontier warfare was both lengthy and ineffective. Secondly, collective punishment enhanced the sense of solidarity between tribesmen and created resentment against the British. Lastly, disallowing British officers to go beyond the border precluded them from gaining intelligence and information. Although it had been the preferred policy of the Punjab Commission for the last few decades, it was being seriously reconsidered by the late 1860s. Much of this change was brought about by a young colonial administer named Robert Sandeman. As Deputy Commissioner of the District of Dera Ghazi Khan, he put into a practice a system which was based on detailed knowledge of the tribes beyond the Frontier and personal interaction with them. The Sandeman system consisted of three features. The first involved developing relations with key tribal leaders by gaining their trust. The second was the installation of a system of tribal levies which would recruit local tribesmen. These levies would provide the manpower for local militias who in turn were the key to ensure order in the Frontier. The third element in his system was the use of ‘traditional’ institutions particularly the Jirga or the tribal council. Sandeman initially faced opposition from senior administers particularly Merewether who still championed the iron fist approach of the closed border system. However, Sandeman’s approach saw significant success in Dera Ghazi Khan and later in Balochistan where he served as First Agent of the Governor-General. It had far reaching consequences for future of frontier governance in India as well as beyond it. The changes he brought would have an influence in administrative policies pursued by the British from here on out.
The maintenance of order was severely undermined due to the high incidence of crime in the Frontier. The links between the ‘settled’ and ‘tribal’ populations posed an acute problem when it came to the capture of criminals. Although tribal agreements included undertakings refraining tribes from protecting criminals, this undertaking was never carried out. The extension of hospitality is a central feature of the Pakhtun custom. It is incumbent on a house observing the custom to provide help to a party, even an enemy who seeks it. Should the desired favor not be granted, the host party will incur dishonor. “The giving of hospitality to the guest is a national point of honor so much so that the reproach to an inhospitable man is that he is devoid of Pakhtu, a creature of contempt.”
Persons convicted under the Indian Penal Code often fled from ‘justice’ and these ‘fugitives’ found refuge amongst the local population. Increasingly, it was felt that there was no solution to the outlaw problem. Writing from administrative perspective, Caroe argues that the problem lay in the nature of British law which was ill-suited to the people of the Frontier.
The British judicial system, with its lawyers and its appeals and its European scale of criminal values was hopelessly out of accord with Pathan sentiment, not only in the tribal territory but within the districts also. The rigidity and magistracy emphasized the advantages, in the eyes of many, of the freer life on the other side of an arbitrary border. The law frequently outraged strongly held convictions. Where it imposed sanctions and penalties not justified by custom, there would be no hesitation in evading it by giving false evidence or by absconding; where the law of evidence secured the acquittal of persons whom everybody knew to be guilty there would be contempt for processes regarded as fussy, niggling and even unjust. The whole thing, for years was a garment that did not fit.
The state of affairs warranted a change in plans. In what can be considered a nod to the Sandeman sentiment, it was decided that some measure should be taken to involve the districts themselves. This attempt to modify the law to suit local exigencies found its fruition in the first version of the Frontier Crimes Regulation (FCR) in 1872.
This Regulation acted as a supplement to the existing law rather than a substitute for it. It authorized settlement of issues such as blood-feuds, disputes about women and generally questions of ‘honor’ to be dealt with by tribal jirgas or the Council of Elders. Importantly, this council was not independent but appointed by the magistrate who had the power to direct a case to it. They acted as type of tribal jury but were not bound by the laws of evidence and other procedures. This system was only used when it was felt by colonial authorities that procedural technicalities of ordinary law made it unlikely for them to arrive at the facts of a particular case. What emerged was a system which was a mix of law and custom but that satisfied the requisites of neither. More importantly, the inefficacy of the law can be gauged by its inability to control crime in the Frontier.Continued on Next Page »
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1.) Shamim Shahid, “’Traitor’ gets 33 years”
2.) Ismail Khan, “Prison Term for Helping CIA Find Bin Laden”
3.) Robert Nichols (Ed), The Frontier Crimes Regulation: A History in Documents, xxiv-xxv
4.) Olaf Caroe, Pathans, 329-330
5.) The only exception to this general rule was the district of Kohat in which the British penetrated the low Khatak hills. See Ibid.
6.) Ibid.
7.) Marsden and Hopkins, Afghan Frontier, 52
8.) Caroe, Pathans, 347
9.) Ibid. 346
10.) Robert Sack, Human Territoriality, 29-40
11.) Doreen Massey, For Space,
12.) Tim Ingold, Lines – A Brief History
13.) Marsden and Hopkins, Afghan Frontier, 62
14.) Sack, Human Territory, 41
15.) Caroe, Pathans, 347
16.) Marsden and Hopkins, Afghan Frontier, 55
17.) Ibid.,
18.) Caroe, Pathans, 348
19.) Ibid., 350
20.) Ibid.,
21.) See supra note 13
22.) Ibid.,
23.) Caroe, Pathans, 349
24.) It is beyond the scope of this paper to go into details regarding the Sandemen system in Balochistan. For details regarding this history see
25.) Caroe, Pathans, 351
26.) Ibid.,
27.) Ibid., 353
28.) Ibid.,
29.) “Official Letter Dated Lahore 15th February 1886”
30.) Punjab Frontier Crimes Regulation. 1887. 10. (1) “Where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood-feud or murder, or culpable homicide not amounting to murder, or mischief or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing; stating the grounds of his being so satisfied”
31.) (2) The order of reference made under Sub-section (1) shall state the matter or matters on which the finding of the Council of Elders s required.
(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may -
(a) remand the case to the Council for a further finding; or
(b) refer the case to a second Council; or
(c) refer the parties to the Civil Court; or
(d) pass a decree in accordance with the finding of the Council, on any matter stated in the reference; or
(e) declare that further proceedings under this section are not required.
32.) 13. (1)Where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned in Section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner mayor if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council of Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council of Elders shall, in each case, be nominated and appointed by the Deputy Commissioner.
(2) Where reference to a Council of Elders is made under Sub-section (1) and the members of the Council have been nominated, the names of the members· so nominated shall, as soon as may be, be communicated to. the accused person, and any objection which he may then make to the nomination of any ·such member shall be recorded. The Deputy Commissioner shall consider every objection made by an accused person under this sub-section, and· may, in his discretion, either accept or reject the objection, provided that, in the latter case, he shall record his reasons for so' doing.' The Deputy Commissioner shall, after disposing of any objection made by the accused person, appoint the members of the Council.
(3) On receipt of the finding of the Council of Elders under this
section, .the Deputy Commissioner may -
(a) remand the question to the Council for a further finding; or
(b) refer the question to a second Council; or
(c) acquit or discharge the accused person or persons, or any of them; .or
(d) in accordance with the finding on any matter of fact of the Council, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty
Provided that a 'person discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after ·the expiry of two years from the date of such discharge.
33.) 16. (1) The powers conferred by Section 13 on the Commissioner and Deputy Commissioner, respectively, may be exercised by them, in cases committed to the Court of Session, at any time before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session, at any time before an order of conviction or acquittal has been made.
34.) 17. (1) In any trial before a Court of Session, the Public Prosecutor may, when instructed in writing in that behalf by the Commissioner or Deputy Commissioner, at any time before an order of conviction of acquittal has been made with respect to any accused person, withdraw from the prosecution of such person in order that the case may be referred to a Council of Elders.
35.) 15. (2) Any decision of Elders ordered by the Deputy Commissioner under the Punjab Frontier Regulation Amendment Regulation IV of 1873, to be carried out into effect as if it were a sentence of the court of law, may direct in accordance with the provisions of sections 64, 65, 66, 67 of the Indian Penal Code, XLV of 1886, that the offender shall suffer imprisonment in default of payment of fine.
36.) 21. (1) An appeal shall not lie from' any decision given, decree or sentence passed, order made, or act done, under any of the provisions of this Regulation.
(2) The Commissioner may call for the record of any proceeding under this Regulation and revise any decision, decree, sentence· or order given, passed or made therein.
37.) Article 23
38.) 24. (1) The Deputy Commissioner may, with the sanction of the Commissioner, impose fines on any village community or part of a village-community the members of which, after due inquiry, are found to be guilty of colluding with or harboring or failing to take all reasonable means to prevent escape of criminals or combining to suppress evidence in criminal cases.
39.) 33. (1) No new hamlet, village-habitation, tower or walled enclosure shall, without the previous sanction in writing of the, Commissioner, who may either grant or refuse such sanction as he thinks fit.
40.) Article 35 (1)
41.) Article 37 (1)
42.) 39. (1)Where the Commissioner or the Deputy Commissioner is of opinion that it is necessary for the purpose of preventing murder, or culpable homicide not amounting to murder·, or the dissemination of sedition, to require a person to execute a bond, for good behavior or for keeping the peace, as the case may be, he may order the person to execute a bond with or without sureties, for his good behavior or for keeping the peace, as the case may be, during such period not exceeding three years, as the Commissioner or the Deputy Commissioner, as the case may be, may fix.
43.) 43. (1) Where a person ordered to give security under Section 39; or Section 40 does not give security on or before the date on which the period for which the security is to be given commences; he shall be committed to prison, or, if he is already in prison, be detained in prison until that period expires, or until within that period he furnishes the required security.
44.) Document [Nos.235]: Report by the Frontier Crimes Regulation Committee
45.) Ibid.
46.) The relevant amendment was made in the 1901 version of the FCR: 33. (1) No building of the kind commonly known as "hujra" or "chauk", and no building intended to be used as a "hujra" or "chauk", shall be, erected or built, and no existing building not now used/as a "hujra" or "chauk", shall at any time be used as such, without .the previous, sanction in writing of, the Deputy Commissioner. Whoever contravenes the provisions of Sub-section (1) shall be punishable with imprisonment; for "a term, which may extend to six months or with fine, or with both.
34. (1) Where the [Deputy Commissioner is satisfied that any building is habitually used as a meeting place by robbers, house-breakers, thieves or bad characters or for the purpose of gambling, he may, by order in writing, prohibit the owner or occupier thereof from so using such building, and, if the order is not obeyed, may, by a like order, direct that the building be demolished. Such further order shall be without prejudice to any punishment to which the owner or occupier of such building may, under any law for the time being in force, be liable for disobedience of the prohibitory order. No person shall be entitled to any compensation in respect of the demolition of any building under Sub-section (1).
47.) For an account on the rise of religious fundamentalism in South Asia, see Barbara D. Metcalf (ed.). 2009. Islam in South Asia in Practice.
48.) Marsden and Hopkins, Afghan Frontier, 78-80
49.) See supra note 41
50.) 36. Power to require persons to remove in certain cases. —
Where in the opinion of the Deputy Commissioner, any person is a dangerous fanatic; or belongs to a frontier tribe and has no ostensible means of subsistence or cannot give a satisfactory account of himself; or has a blood-feud; or has occasioned cause of quarrel likely to lead to blood-shed; the Deputy Commissioner may, by order in writing, require him to reside beyond the limits of the territories to which this Regulation extends or at such place within the said territories as may be specified in the order: Provided that, if the person has a fixed habitation in the place which the Deputy Commissioner requires him to leave, an Order under this section shall not be made without the previous sanction of the Commissioner.
51.) Correspondence Dated June,1883
52.) Eric Stokes, English Utilitarians and India, xiii
53.) Lauren Benton, Law and Colonial Cultures, 150
54.) Stokes, English Utilitarians and India, 19
55.) Ibid., 23
56.) Ibid., 30
57.) Ibid., 31
58.) Ibid., 42
59.) Ibid., 53
60.) Ibid., 55-71
61.) Kartik Kalyan Raman, “Utilitarianism and the Criminal Law in Colonial India,” 739
62.) Antony Anghie, Imperialism, 33
63.) Ibid., 37
64.) Ibid., 42
65.) Peter Fitzpatrick, Modernism and The Grounds of Law, 153
66.) Ibid
67.) Ibid., 157
68.) Ibid
69.) It is important to note that there positivist retained some of the elements of the naturalistic jurisprudence. Indeed there were jurists who attempted to reconcile the two. See Anghie, Imperialism at 43, “Jurists in the late eighteenth century and early nineteenth century combined positivism and naturalism in various ways, arguing, for example, that while a certain universal natural law applied to all nations without distinction between civilized and noncivilized, a considerable body of positive law specific to Europe was also emerging.”
70.) Anghie, Imperialism, 55
71.) However, the establishment of such a hierarchy did not mean that Europeans did not recognize the legal status of those people. The British for example, continued to make agreements with the tribes of the Frontier. But the positivists argued that such peoples lacked the requisite characteristics to be regarded as equal members of the civilized community of nation-states. See Anghie, Imperialism at 57.
72.) Quoted in Fitzpatrick, Modernism and The Grounds of Law, 160
73.) Lauren Benton “Colonial Law and Cultural Difference,” 563
74.) Ibid., 564
75.) Mahmud Tayyab, “Colonial Cartographies,” 33
76.) Bijan Omrani, “Durand Line,” 185
77.) Tayyab “Colonial Cartographies,” 27
78.) Matthew Edney, “The Irony of Imperial Mapping,” 13
79.) Michael Biggs, “Putting the State on the Map,” 378:
80.) Edney, “The Irony of Imperial Mapping,” 13
81.) Bijan Omrani, “Durand Line,” 185
82.) Tayyab “Colonial Cartography,” 27
83.) The Tribal Areas are defined by the Article 246 of the Pakistani Constitution as: 246 (c) Federally Administered Tribal Areas includes
(i)
Tribal Areas adjoining Peshawar district;
(ii)
Tribal Areas adjoining Kohat district;
(iii)
Tribal Areas adjoining Bannu district;
(iii a) Tribal Areas adjoining Lakki Marwat District;
(iv)
Tribal Areas adjoining Dera Ismail Khan district;
(iv a) Tribal Areas adjoining Tank District;
(v)
Bajaur Agency;
(v a) Orakzai Agency;
(vi)
Mohmand Agency*;
(vii)
Khyber Agency;
(viii) Kurram Agency;
(ix)
North Waziristan Agency, and
(x)
South Waziristan Agency.
*The Mohmand Agency was not created by the British but came into being in 1951. See Shaheen Sardar Ali and Javed Rehman. Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives
84.) Tayyab “Colonial Cartography,” 36
85.) Ibid
86.) Ibid., 37
87.) Magnus and Hopkins, Afghan Frontier, 62-63
88.) Ibid
89.) Ibid., 64
90.) Ibid., 65
91.) Curzon, 28 June 1902, quoted in David Gilmour, Curzon
