Countries faced with
terrorism are currently struggling with how to establish legal
precedents, so that they can handle terrorists. Because there is no
clear cut answer, you get situations which range from outright human
right abuses of legal systems, such as Guantanamo Bay all the way to
situations where terrorists are released only to commit terrorism acts
again right after they have been let loose. This is not unusual. Legal
systems down the ages have had major systemic shocks, such as this and
the power of a liberal democracy lies in the fact that it is able to
incorporate these shocks and re-emerge stronger. If you do not believe
me, see how the British Indian Legal System reacted when it was faced
with the “Thugs”.
Thugs were a group of
criminals, who ran rampant in India and killed an estimated 50,000 to
couple of million Indians from circa 1250 to circa 1850. The number
actually does not matter, just like Stalin said, death of a million is
just a statistic. But in this particular case, the situation was very
bad indeed. Gangs of thugs ranged far and wide, from current Pakistan
down to South India, to the foothills of the Himalayas next to Nepal to
due east into Bangladesh, a very wide area indeed. Over the many
centuries, that we are talking about, their area of operation covered
hundreds of native states, and the decaying Mughal Empire as well as the
rapidly up and coming East India Company ruled areas. All this is before
1857, the great war of Independence or the Great Mutiny (take your
pick).
These Thugs were professional murderers, with techniques and training
passed around in special villages and in certain hereditary families.
They would be protected, trained and funded in many cases by the local
ruler/landlord in return for a significant cut of the proceeds. Gangs
had specialised roles, some would be the confidence boosters, others
would be the grave diggers, some would specialise in the actual murder
etc. They had strong rituals surrounding their equipment (specially the
pick used to dig the grave), religious rituals to the goddess, etc. And
their modus operandi, while difficult to generalise, would roughly go
like this. They would befriend fellow travellers, who they know were
carrying valuables (they picked up the information from the market
places or from guardsmen, etc.) and then will travel for extra-ordinary
distances with the victims, sometimes up to 100s of kilometres. And
then, at a carefully selected time and place, they would generally
strangle the entire party, then strip them completely, mutilate the
bodies and cut them open (so that the bodily gases do not expose the
body after being dumped in a well), and then hide them down a gorge, a
grave, well or ditch. Then the monies and goods will be divided amongst
the gang (and the sponsor) and off they will go to get the next victim(s)
for hundreds of years.
How on earth did they manage to get away with it all? Well, there were
many reasons. First was the fact that they had local protection, so
nobody could get to them as the only “authority” in that locality was
that local zamindar (landowner) and if he himself had given protection,
then there was no way you could get to the thugs. Second given the fact
that many bodies were hidden, nobody knew where the victims were. Given
the very bad roads, lack of communication, insular population,
fragmented country, that is not a surprise. Further to that, given the
frequent incidents of fatal illnesses, it was not surprising that people
would assume that their loved ones have died on the road and had been
buried by someone else or were eaten by wild animals. So no victim, no
crime!
Third, the legal system in force in India was an interesting one. It was
not designed for punishment and deterrence, but more around
compensation. So even in the remote instance that you were caught and
sentenced, you would not be locked up (very few prisons existed) for
long (you could get away by paying blood money or bribes). And,
according to one set of Islamic laws (Hanafi), you wouldn’t get the
death penalty as you did not kill using a sword or implement, you used a
rumal (handkerchief or scarf). I would not go too deep into the details
of this, but suffice to say, that is one of the major reasons why the
Thugs would strangle their victims rather than kill them with other
weapons. After all a scarf is totally innocent!
But from the 17th century onwards, the British started making deep
inroads into India and began creating their own states as well as having
rights over many native states. They also built their own standing
armies staffed with native soldiers, generally based in cantonment towns
far away from their native villages and towns. These soldiers would
travel long distances to go back (carrying arrears of pay, jewellery,
gifts, etc.) and were therefore frequent targets for the Thugs. Between
these two major reasons, the British got quite excited about the Thugs
and went after them with a vengeance and with great vigour. They used
political power, approvers, military and police force, new and improved
ways of communications, and so on and so forth. But they had a problem -
they could not simply hang their suspects, they had to go through due
legal process (never forget the power of bureaucracy).
The problem with using local law (variants of Muslim and Hindu law) was
huge for a Britisher. First of all, there was no consistency at all.
From ruler to ruler, jurist to jurist, country to country, town to town,
time to time, the same crime could get wildly different punishments.
Nobody wrote down the records in a systematic sense, although there were
some court records in the bigger cities and towns. But even with
records, there was no way to refer back to them. The appeal system was
non-existent. Judges were frequently very badly trained. Lawyers and
specialist legal personnel were rare or missing, a police system as we
know it also did not exist.
Actually, in most of the times and in most of the country, police did
not exist. There were state functionaries, but usually, policing would
be ad-hoc and based upon appeals to the local rulers (another reason why
you couldn’t catch the thugs, which ruler do you appeal to – the ruler
where the crime was committed or where the thug was from or where the
victim(s) were from? And how would evidence be collected? And presented?
And who has time and money to follow this?). To further complicate
matters, each person could have effectively gone after a different
corpus of knowledge and laws in terms of legal coverage. So if a group
of say three thugs were captured, each one could have appealed to three
different legal systems (Hindu, Muslim and Sikh). And the punishment
could well be totally different, depending upon who the ruler was. And
incidentally, there was nothing as Hindu or Sikh Law, not as we
understand it. It appealed to a series of philosophical statements,
guidelines of behaviour and well, what the judge thought at that very
moment. So, more often than not, the thug would be let off under native
law. The liberal scientific heart of a British Corporate officer could
not deal with such inconsistencies, and uncertainties.
But here an even the bigger problem! The United Kingdom, at that time
did not have a codified set of laws either. So the British courts could
not simply take up the “home country” laws and apply to British India.
Also, because the East India Company preferred to keep a very light hand
on the various states and natives, they had to use local laws, but
needed to codify them, so that a British officer in Peshawar or in
Madras could use the same law, be consistent, be uniform but also be
sufficiently diverse to cater for local circumstances. So, what we find
is an astonishing push to codify laws. Perhaps it is the first seeds of
a modern Anglo-Saxon legal systems which were implanted here. The
codification of British Indian law brought a bewildering variety of laws
ranging from British Parliamentary Charters and Acts, East India Company
Regulations and gazette notifications, English common law, Hindu law,
Muslim law, to local instances of law and precedents.
Courts following these codified systems were established way back in
1726 and over the next many decades, a legal system was established to
take care of law in India. One of the primary drivers for the criminal
law segment was due to the British attempts to prosecute these Thugs.
This was not just criminal law, but also related to family law in many
cases, such as disposal of assets and inheritance from victims, etc. A
police system was established and in addition to that also laws and
processes for forensic evidence, taking evidence from approvers,
multiple corroboration requirements, etc. etc. You could really draw the
origins of current Police Intelligence Departments across the world (as
opposed to military intelligence) from this department.
Nobody said that the British Legal implementation was 100% perfect and
that there were no miscarriages of justice. Sometimes reading about the
court hearings (for example in Mike Dash’s excellent book, Thug makes
for a hair raising read, but then when you compare what must have gone
on before and what happened after, then you can see how the British
legal system was such a huge improvement. This is the power of
democracies, which come up with legal systems and laws. Though they
might not be 100% fit for purpose, but over time, they evolve and keep
on improving. Similarly, for those who are getting excited about the
miscarriages of justice today, think back to the Thugs and their victims
of two centuries ago. That new legal system also committed some
miscarriages of justice, but now has become the standard against which
we judge others.
All
this to be taken with a grain of salt!
March 24,
2008
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