Anxieties of Empire: Examining Frontier Governance in 19th Century British India

Conclusion

The policy of governance in the Frontier has largely been viewed as a pragmatic response to the looming Russian threat. Geopolitics were of course an important factor in the process of policy making; but this legal and political regime reveals something far more profound. The aim of this paper was to show the specificity of the colonial state by examining its often contradictory aims and strategies to consolidate its power. The Frontier was a space which came to manifest many of these contradictions.

Simple conceptions of the colonial state consider it “a bastardized reproduction of the forms of politics of the metropole.” As such it was means to implant values and institutions of European “modernity” throughout the imperial realm. Chief among these was the Westphalian “modern” state – a centralized, bureaucratized, geopolitical entity with defined borders, a single body of law and monopoly over legitimate violence. The story of colonialism with regards to state making is presented as one of state construction and centralization. Recent scholarship has shown the influence of local forms of politics on the colonial state. However, even such suggestions fail to highlight “the profundity of difference between the colonial state of British India and Weber’s ‘ideal type’. The colonial state was at one and the same time fundamentally a European creature of modernity and a ‘pre-modern’ South Asian polity. Nowhere was this more forcefully demonstrated than on the Frontier.”87

No single intellectual premise and political objective drove the imperial project in India. Particularly when it came to the governance of the Frontier, the colonial state found itself responding and adapting to changes on the ground. “British adopted what they understood to be local and historical practice to their needs and institutions on an ad hoc basis.” The debate between the closed border policy and the Sandeman system and on the efficacy and use of ‘tradition’ are testament to this fact.88

The adoption of local practice was responsible for shaping a different type of ‘modernity’ – an imperial modernity contoured by the colonial state’s conceptualization of the frontier and the categorization of its inhabitants. This state sought to retain tradition but in doing so divested it from its spirit, thereby recreating it. The popular assumption that the governance in the Frontier region was meant to retain custom is thus an erroneous notion. Indeed, ‘tradition’ and ‘history’ were used to enlarge the orbit of state power. On the one hand, the colonial state sought deeply from the experience and ideology from the conservative old guard of Munro, Malcolm and Elphinstone. At the same time, by promulgating the repressive legal regime that it did, it exhibited the raw, naked and unadulterated power of colonizing despotic rulers – in opposition to whom those earlier administrators had defined themselves.89

Frontier govermentality also shaped the imperial state, bureaucratizing practices of differences and codifying a parallel system of governance fundamentally at odds with the model of a Westphalian state. The ethnographic project – the plan to create difference through ethnographic surveys, state census and the codification of customary law, did not extend to the Frontier. The categories created by the ethnographic state allowed it to control the population through a policy of divide and rule. The distinguishing mark of Frontier governance was its exclusion. The tribesmen were independent, but that independence was not equivalent of the independence of a sovereign state. On the contrary, the tribesmen occupied “an older political space increasingly squeezed by the modernization of the colonial state.” The contours of subjecthood were being defined in the late 19^th century; the tribesmen remained excluded from this realm. Subjecthood, at least theoretically, guaranteed the right to fair government and the right to be tried as an individual in the case of wrongdoing as well as recourse to the due process of the law. The exclusion of the Frontier tribes made them more and not less vulnerable to the violence of the colonial state, allowing it to exhibit the full force of its might.90

This paper has also shown that the process of exclusion relied deeply on the creation of difference and the ordering of space. The modern conception of space created the conditions of possibility for spaces to be parceled and formed into differentiated segments. Positive jurisprudence with its insistence on a racialized hierarchy of institutions was the second enabling factor which allowed for the different laws to be applied to different categories of people. Thus what emerged was concomitant parceling of spaces and the people that allowed for a different and draconian legal regime to be implemented in the particular area designated as the Frontier.

The legal regime prevalent in the Frontier accorded the colonial state with extraordinary power. Since decolonization, the Pakistani state has done little to rectify this legal anomaly and bring the territory into the folds of the state. Human Rights groups continue to condemn the law showing it to be a gross violation of human rights. But as the case of Shakil Afridi shows, the state continues to enjoy extraordinary privileges there. Perhaps, this is the greatest legacy that the British gave the Pakistani state with regards to the governance of the Frontier: the perception of the Frontier as an extraordinary space. Curzon believed that the only way to deal with the Frontier tribesman was “to pay him and humour him when he behaves, but to lay him out flat when he does not.”91 The Pakistani state has been unable to divest such stereotypes from its political imagination. Pakistani has continued to consider the value of this region as a buffer zone through which to make strategic advances– to be simultaneously excluded yet controlled. The most systematic articulation of this dream was the policy of “strategic depth,” pursued by the Pakistani military establishment during the last decades of the twentieth century. But as its colonial predecessors learnt a century ago, such a policy could not be effective in the long run. Ethical and intellectual reasons should impel us to view the conditions as a product of a long and protracted history. The same considerations should lead to an interrogation of the philosophical axioms that continue to underpin Pakistan’s state relations with the Frontier tribes, many bequeathed from an inalienable colonial past.

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References

Ali, Shaheen Sardar and Javed Rehman. Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives. London: Taylor and Francis, 2001.

Anghie, Antony. Imperialism, Sovereignty, and the Making of International Law. New York: Cambridge University Press, 2005.

“Appendix I: A Regulation Amending the Punjab Frontier Crimes Regulation” in The Frontier Crimes Regulation: A History in Documents edited by Robert Nichols. Karachi: Oxford University Press, 2013.

Benton, Lauren. “Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State.” Comparative Studies in Society and History, Vol. 41, No. 3, Jul., 1999.

Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. Cambridge: Cambridge University Press

Biggs, Michael. “Putting the State on the Map: Cartography, Territory, and European State,” Comparative Studies in Society and History, Vol. 41, No. 2, Apr. 1999, pp. 374-405.

Caroe, Olaf. The Pathans. Karachi: Oxford University Press, 1999.
Fitzpatrick, Peter. Modernism and the Grounds of Law. New York: Cambridge University Press, 2001.

Edney, Matthew. “The Irony of Imperial Map Making” in The Imperial Map – Cartography and the Mastery of Empire edited by James Akerman. London: University of Chicago Press, 2009.

Gilmour, David. Curzon: Imperial Statesman. London: John Murray, 1994.

Ingold, Tim. Lines - A Brief History. London: Routledge, 2007

Khan, Ismail “Prison Term for Helping CIA Find Bin Laden,” 24 May 2012

Massey, Doreen. For Space. London: Sage, 2005.

Marsden, Magnus and Benjamin. D. Hopkins. Fragments of the Afghan Frontier. Karachi: Oxford University Press, 2013.

Nichols, Robert. Introduction to The Frontier Crimes Regulation: A History in Documents edited by Robert Nichols. Karachi: Oxford University Press, 2013

“Official letter dated Lahore, 15^th February 1886” in The Frontier Crimes Regulation: A History in Documents edited by Robert Nichols. Karachi: Oxford University Press, 2013.

Omrani, Bijan. “The Durand Line: History and Problems of The Afghan-Pakistan Border.” Asian Affairs Volume 40, Issue 2, 2009.

Raman, Kartik Kalyan. “Utilitarianism and the Criminal Law in Colonial India: A Study of the Practical Limits of Utilitarian Jurisprudence.” Modern Asian Studies, 28, pp 739-791.

“Report of the Frontier Crimes Regulation Committee, 1899” in The Frontier Crimes Regulation: A History in Documents edited by Robert Nichols. Karachi: Oxford University Press, 2013.

Sack, Robert. Human Territoriality: Its Theory and History. Cambridge: Cambridge University Press, 1986.

Shahid, Shamim “’Traitor’ gets 33 years,” Pakistan Times, May 23 2012

Stokes, Eric. English Utilitarians and India. London: Oxford University Press, 1986

Tayyab Mahmud. “Colonial Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars Along the Afghanistan-Pakistan Frontier,” 36 BROOK. J. INT'L L. 1 (2011.

“The Punjab Frontier Crimes Regulation, 1887” in The Frontier Crimes Regulation: A History in Documents edited by Robert Nichols. Karachi: Oxford University Press, 2013.

Walsh, Declan and Ismail Khan, “New Details Emerge on Conviction of Pakistani Who Aided Bin Laden Search,” New York Times, 31 May 2012

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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 15^th 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