In On Liberty, Mill continued with his argument that “despotism is a legitimate mode of government in dealing with barbarians providing the end of their improvement.” The two seemingly contradictory impulses of positive law: the universalizing impetus to civilize and hence render equal and the particularizing drive of differentiating and hence subjugating the native; are at the heart of the colonial project. The dual considerations that occupied that the colonial administration necessitated the emergence of a plural legal order. “The colonial legal order was by its very nature a plural legal order. Multiple legal authorities were created out of the imposition of colonial law and the persistence, protection and invention of indigenous legal practices.” Which consideration would take primacy and what kind of legal regime could be implemented in what setting was largely dependent on the local contingencies as well as political and strategic concerns. A single hierarchal order was simply not feasible in a colony as vast and diversified as India. The construction of the colonial state was a cumbersome process with the colonizers facing myriad challenges and exercising different levels of authority at in different parts of India.
Jurisdictional politics in colonial settings was irresistible to all parties. Colonizing powers in most places sought both to limit the costs of judicial administration and to extend jurisdiction over European settlers and agents and their allies. Colonizers erected jurisdictional boundaries that were precise but inherently unstable and, therefore, subject to frequent revision. The elaborate rules required to establish appellate procedures, regulate access to courts, and define who could serve as witnesses and legal personnel were forced to change as quickly as they were assigned. Indigenous actors used the rules to move strategically through the legal order, and their successful maneuvers revealed to colonial administrators flaws in the architecture of the plural legal order. For all these social actors, disputes over the rules structuring this complex legal order were not merely procedural conveniences or tactical weapons but important, even vital, symbolic markers of the boundaries separating colonial constituencies. The boundaries, in turn, signified judgments about the character of these groups and the qualities that separated them from one another jurisdictional politics thus neatly merged cultural discourse about difference and conflicts over the location and scope of colonial political authority.
The British experience in the Frontier exemplified precisely such a scenario. The construction of the Frontier districts began with an arbitrary boundary the chief function of which was to serve as a jurisdictional boundary. This British sought to legally create and then reify a cultural difference between the “settled” and “tribal” communities – an endeavor which was constantly undermined by the local population. The analysis of archives discussed earlier manifests clearly that the British law and procedures were considered to be hopelessly inadequate to achieve the aims of the administrators there. By constantly challenging and disregarding the boundaries set up by the British, the Frontier tribes mounted a significant challenge for the colonizers. Thus they decided to revisit the law and more importantly reconsider their commitment to the ‘assimilationist’ element of the project. In other parts of India such as central Punjab and Bengal, the racial ‘inferiority’ of the ‘Hindoos’ and “Mohammadans” warranted the active implementation of English law with its reliance of English legal sources and procedures. In the Frontier however, the backwardness of the ‘tribes’ made them unfit to partake in English legal processes.
As the nineteenth century entered into its final phase, the aim of civilizing the native tribesmen was surrendered and the sole aim of frontier governance became the guarantying of imperial security. The rise of the territorial empire and the rise of Russia as a threat to the jewel in the British crown is the final factor explaining the unique legal regime that was implemented here.
In 1874, Benjamin Disraeli came to power and sought to initiate a new and more aggressive stance against Russian pressure in Central Asia. British interference in the Persia and Afghanistan increased. Concerns regarding British involvement in the country, particularly the permanent stationing of British garrisons nearby heightened Afghan tensions about a hostile environment. The result was the Second Afghan War in 1878. The British successfully attacked Afghan territory and the Amir of Afghanistan abdicated in favor of his son. Following the war, a joint Russo-British commission was set up to determine the border between Russian and Afghanistan. The British continued to pressure Afghanistan for more concessions. In 1892, the Afghan Amir travelled to London to negotiate directly with the British government. However, London asked him to reach an agreement with the British colonial authorities in India and reach an agreement on the eastern frontier of Afghanistan. The British appointed Indian Foreign Secretary, Sir Henry Mortimer Durand to travel to Kabul and negotiate on behalf of the British. The negotiations were contentious but eventually a decision was reached “Dir, Swat, Peshawar and Chitral should be British. In return the Afghans secured some strategic strong points, notably Asmar, which gave them access to Nuristan and various of Afghanistan’s eastern regions.” At the very end of the negotiations, Durand suggested that Afghanistan should retain the Birmal tract of Waziristan. This would result in the division of Waziristan and the tribal people living there. Nonetheless, the Amir agreed to this result.
The actual drawing of the line was another matter. The demarcation process continued between 1893 and 1896. “The British were unequivocal about their empire's need to have "scientific frontiers" that had to be demarcated under "European pressure and by the intervention of European agents". The designation of borders relied on cartographic knowledge – a central instrument in colonial governance.
In the first section of this paper, I discussed the modern conception of space as a rex extensa, fixed and absolute. Cartography understands space as pure quantity, abstracted from experience and time. As a form of representation, it is defined by explicit measurement of space. Cartography is the means through which this absolute space is represented. When the cartographer looks at the world, he looks upon it with a sense of mastery, as a world of absolute space (and time) from which all uncertainties and ambiguities could in principle be banished and in which human calculation could uninhibitedly flourish. Such a conceptualization is underpinned by the assumption that space and the process through which space is defined can be divorced.
As territoriality became as a central concern to the modern empire, the value and centrality of territory to the modern empire, the value of maps increased manifold. Cartography emerged as indispensible tool to imperial administrations because it was a means of demarcating and defining the territory occupied. “The idea of “empire” is constructed through cartographic representation for the benefit of one group but that exclude the inhabitants of the territories represented. “Imperial mapping” is thus an ironic act, postulating as it does a double audience: the population in the mapped territory remains ignorant while another population is actively enabled and empowered to know the mapped territories.”
The map also claims to be a mimetic and an exact correspondence with the reality on the ground. It places the viewer/user of the map outside it. The claim to scientific exactitude and objectivity of European maps was has been a defining feature of their discursive power. “Cartographic science became, within European discourses, a crucial marker of difference between Europeans (the knowing Self) and non-Europeans (the un-knowing Self).”
The irony of both of these assumptions was felt in the case of construction of the Durand Line. The boundary sought to impose a particular order on the inhabitants of the Frontier, arbitrarily dividing them into two domains. Since the understanding of space that undergirded this policy was an absolute one, it remained consciously blind to the relation between people and spaces. In this way, the British authorities reenacted the policy of dividing historically connected communities of the Frontier into different spatial zones. Only this time, the division was on the international level.
Secondly, the administrations celebration of objectivity was brought into sharp relief by realities on the ground. British claims to the scientific nature of their frontiers notwithstanding, the maps that Durand relied on were inaccurate and misrepresentative. This is proven the fact that when “the demarcation teams went out into the field to try to delimit the boundary, there were areas represented on the map which did not exist on the ground and vice versa. The demarcation team tried to make the line as sensible as possible by using natural features, such as mountain crests, streams and rivers as boundaries, thus splitting up areas of river drainage. They also tried to set up boundary pillars so that there was some physical evidence of the boundary. However in many cases it was not clear where the boundary ran. It is not much of a physical feature and the unknowing can easily cross it unaware.”
It is evident that the demarcation of boundaries is an exercise in power and in this case specifically the power of the colonial state. Strategic concerns regarding “the simultaneous expansion of British and Russian empires in heartland of Asia” were what drove British policy. Lord Curzon, the Viceroy of India at the time envisioned at “three-fold frontier.” “The first frontier, at the edge of directly controlled territory, enabled the colonial regime to exercise full authority and impose its legal and political order. The second frontier, just beyond the first, was a zone of indirect rule where colonial domination proceeded through existing institutions of social control. The third frontier was a string of buffer states which, while maintaining formal political autonomy and trappings of statehood, aligned foreign relations with the interests of the British.”
This would form the blue-print for the ‘creation’ of the North West Frontier Province (NWFP) in 1901. The new province was made up of five districts: Hazara, Peshawar, Kohat, and parts of Bannu and Dera Ismail Khan. Between the “settled areas” of NWFP and the Durand Line, a tribal belt would be established. The control of this belt called Federally Administered Tribal Area (FATA) would lie with the center and it was to serve as a “buffer to buffer.” British law as it was applied to the rest of India was not applicable in this zone since the administrators maintained that “‘rigour is inseparable from the government of such a people. We cannot rein wild horses with silken braids’.” The Pashtun Tribes living in FATA were not British subjects in the formal sense yet they were considered to occupy British territory. Moreover, they were subject to the Frontier Crimes Regulation which though unique was nonetheless a British law. The designation of such a zone was meant to facilitate order and ensure territorial integrity. But tribes on either side of the Durand Line continued to disregard it. Incessant tribal resistance continued to prompt punitive expeditions. The revolts of the tribes impelled the British to the first use of aerial bombardment in the history of India, in the early twentieth century. The tribes maintained their traditional links with Afghanistan while negotiating with FATA’s special status.Continued on Next Page »
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Walsh, Declan and Ismail Khan, “New Details Emerge on Conviction of Pakistani Who Aided Bin Laden Search,” New York Times, 31 May 2012
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
