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³ While Foucault's writings have long been understood as problematic when positioned outside of his primarily European interests, attempts to repackage his insights into an analytical framework more suited to colonial spaces have still proven fruitful. See Brown, Mark, Penal Power and Colonial Rule (New York: Routledge, 2014), pp. 17–46CrossRefGoogle Scholar; Heath, Deanna, Purifying Empire: Obscenity and the Politics of Moral Regulation in Britain, India and Australia (Cambridge: Cambridge University Press, 2010), pp. 8–34CrossRefGoogle Scholar; Scott, David, ‘Colonial Governmentality’, Social Text, 43 (1995), pp. 191–220CrossRefGoogle Scholar.

⁴ This reliance on violent punishment alongside claims of providing civilized governance has, in another study, been termed ‘the paradox of colonial discipline’. See Pierce, Steven and Rao, Anupama, ‘Introduction’, in Discipline and the Other Body: Correction, Corporeality, Colonialism, (eds) Pierce, Steven and Rao, Anupama (Durham: Duke University Press, 2006), p. 4Google Scholar.

⁵ For the early Company period, see Singha, Radhika, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press, 1998), pp. 246–253Google Scholar. For analysis of the legislation for whipping in late colonial India, see Sherman, Taylor, State Violence and Punishment in India (London: Routledge, 2009), pp. 26–31, 88–89Google Scholar. For military discipline, see Singha, Radhika, ‘The “Rare Infliction” the Abolition of Flogging in the Indian Army, circa 1835–1920’, Law and History Review, 34:3 (2016) pp. 1–36Google Scholar; Peers, Douglas, ‘Sepoys, Soldiers and the Lash: Race, Caste and Army Discipline in India, 1820–50’, The Journal of Imperial and Commonwealth History, 23:2 (1995), pp. 211–247CrossRefGoogle Scholar. For the use of corporal punishment for juveniles, see Sen, Satadru, Disciplined Natives, Race, Freedom and Confinement in Colonial India (New Delhi: Primus Books, 2012), pp. 178–185Google Scholar.

⁶ See Bailkin, Jordanna, ‘The Boot and the Spleen: When was Murder Possible in British India?’, Studies in Society and History, 48:2 (2006), pp. 462–493CrossRefGoogle Scholar; Kolsky, Elizabeth, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010)Google Scholar; Saha, Jonathan, ‘Histories of Everyday Violence in British India’, History Compass, 9:11 (2011), pp. 844–853CrossRefGoogle Scholar.

⁷ Chakrabarty, Dipesh, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, 2007), p. 8Google Scholar.

⁸ Ibid.

⁹ This leans heavily on Stoler's work on imperial formations and sovereignty. See, particularly, Stoler, Ann Laura, Duress: Imperial Durabilities in our Time (Durham: Duke University Press, 2016)CrossRefGoogle Scholar, particularly Chapter 5.

¹⁰ Handler, Phil, ‘Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England’, The Historical Journal, 48:3 (2005), pp. 700–702CrossRefGoogle Scholar.

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¹² See Wiener, Martin J., Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990), pp. 92–96Google Scholar. A falling use of corporal punishment has also been noted in other parts of the empire in this period. See, for instance, Edmonds, Penelope and Maxwell-Stewart, Hamish, ‘“The Whip is a Very Contagious Kind of Thing”: Flogging and Humanitarian Reform in Penal Australia’, Journal of Colonialism and Colonial History, 17:1 (2016)CrossRefGoogle Scholar.

¹³ Davis, Jennifer, ‘The London Garrotting Panic of 1862: A Moral Panic and the Creation of a Criminal Class in Mid-Victorian England’, in Crime and the Law: The Social History of Crime in Europe since 1500, (eds) Herman, V. A. C. B. and Parker, G. (London: Europa, 1980), p. 208Google Scholar.

¹⁴ Fisch, Jörg, Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769–1817 (Wiesbaden: Steiner, 1983)Google Scholar.

¹⁵ Singha, A Despotism of Law, pp. 229–274.

¹⁶ Anderson, Clare, Legible Bodies: Race, Criminality and Colonialism in South Asia (New York: Berg, 2004), p. 37Google Scholar. This was followed by similar regulations in other provinces: for Madras, A.D. 1833, Regulation II, The Regulations of the Government of Fort St. George In Force at the End of 1847; To Which Are Added The Acts of the Government of India In Force in That Presidency (London: J and H Cox, 1848), p. 551.

¹⁷ Regulation II of 1834, British Library, India Office Records (hereafter BL, IOR), V/8/21.

¹⁸ It is worth noting that those charged with attempting to codify English criminal law in this period also excluded corporal punishment in two of their reports; however, it later re-entered the draft code in 1843 for acts of treason. See Radzinowicz, Leon and Hood, Roger, A History of English Criminal Law: Vol. 5, The Emergence of Penal Policy (London: Stevens and Sons, 1986), pp. 690–691Google Scholar.

¹⁹ For the relationship between judicial discretion, colonial state formation, and the campaign against thuggee, see Wagner, Kim, Thuggee: Banditry and the British in Early Nineteenth-Century India (Basingstoke: Palgrave Macmillan, 2007), pp. 209–216CrossRefGoogle Scholar; Singha, A Despotism of Law, pp. 168–220.

²⁰ Singha, ‘“Rare Infliction”’, p. 6.

²¹ ‘Notes’, in A Penal Code Prepared by the Indian Law Commissioners (Calcutta: Bengal Military Orphan Press, 1837), BL, IOR, V/27/144/1, p. 13.

²² Kaye, John, Kaye and Malleson's History of the Indian Mutiny of 1857–8: Vol. I (London: Longmans, Green and Co., 1897), p. 199Google Scholar.

²³ Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 22.

²⁴ Streets narrates the violence in Bareilly in which three scaffolds and six whipping posts were set up and over 700 men were summarily executed and punished. Streets, Heather, Martial Races: The Military, Race and Masculinity in British Imperial Culture, 1857–1914 (Manchester: Manchester University Press, 2010), p. 40Google Scholar.

²⁵ Act No. XI of 1858, BL, IOR, V/8/36.

²⁶ Ibid.

²⁷ Ibid.

²⁸ A.D. 1827, Regulation XIV, Section VIII, BL, IOR, V/8/24.

²⁹ A.D. 1828, Regulation VIII, BL, IOR, V/8/28.

³⁰ A.D. 1844, Act II, BL, IOR, V/5240.

³¹ Legislative Council Proceedings, 31 August 1861, BL, IOR, V/9/3-6.

³² Charles Jackson in fact was keen to restrict the instrument to a rattan rather than cat o' nine tails but the final bill made no clear decision on this. Ibid.

³³ On the comparative underinvestment in the legal system, one journalist commented ‘England spends on judges alone for thirty millions of people covering an area of 119,924 square miles, more than twice the amount spent on the administration of justice on the same number of people in the North Western Provinces. Where England spends £2,600,000, besides the unpaid labour of an enormous number of magistrates and justices of the peace, India spends £247,000 and has no such honorary judges.’ Friend of India, 8 January 1863, p. 32.

³⁴ Legislative Council Proceedings, 8 September 1860, BL, IOR, V/9/3-6.

³⁵ Ibid.

³⁶ Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 25.

³⁷ See Rao, Anupama, ‘Problems of Violence, States of Terror: Torture in Colonial India’, Interventions, 3:2 (2010), pp. 186–205CrossRefGoogle Scholar. In other contexts, the link between slavery and corporal punishment in a post-abolition society retained very substantive links. In law courts in early nineteenth-century America, for instance, whipping was at times used as evidence of the previous slave status of an individual. See Scott, Rebecca, ‘Social Facts, Legal Fictions, and the Attribution of Slave Status: The Puzzle of Prescription’, Law and History Review, 35:1 (2017), p. 26CrossRefGoogle Scholar.

³⁸ Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 22.

³⁹ The Legislative Proceedings stated: ‘Our Judges would not readily submit to be turned into executioners; such scenes were so painful that no English gentleman would be present at them, who could possibly avoid it, and, the superintendence of the infliction of the punishment would be left to irresponsible Natives.’ Ibid., p. 24.

⁴⁰ Metcalf, Thomas, Ideologies of the Raj (Cambridge: Cambridge University Press, 1995), p. 56CrossRefGoogle Scholar.

⁴¹ Bartle Frere, a supporter of the Bill, was representative of this position when he claimed, ‘He was convinced he spoke for every one in that council anxious to see the punishment at once entirely and for ever abolished. His objection to its immediate abolition rested mainly on his belief that too many classes and in many parts of the country imprisonment or any other punishment which could be substituted for flogging was in reality the more inhuman of the two.’ Legislative Council Proceedings, 8 September 1860, BL, IOR, V/9/3-6.

⁴² ‘Letter from the Secretary to the Government of the North-Western Provinces to the Secretary to the Government of India, 441A Nynee Tal, 23^rd June 3^rd’, National Archives of India (hereafter NAI), Home (A)/Legislative/December 1862/Nos. 10–148.

⁴³ For an extended analysis of this ideological shift, see Mantena, Karuna, Alibis of Empire: Henry Maine and the Ends of Imperial Liberalism (Princeton: Princeton University Press, 2010)CrossRefGoogle Scholar.

⁴⁴ Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1862, Vol. 1, BL, IOR, L/V/9/8, p. 52.

⁴⁵ Bartle Frere perhaps embodied this position most clearly, stating in support of corporal punishment: ‘There were hundreds of thousands of savages and uncivilized tribes on all the borders of Bengal, in Berrbhoom and Bhangulpoor in Assam and on the Burmese frontier, among whom the mortality of prisoners shut up in jail was enormous, compared with the mortality of other classes. It was the simple confinement that killed them, and no device had yet been found by which the mortality of these savages when shut up in prison could be kept within such limits as were usual with other classes.’ Legislative Council Proceedings, 8 September 1860, BL, IOR, L/V/3-6.

⁴⁶ Ibid. Parallels can be drawn to other examples in the British empire. The Aboriginal Offenders Act of 1892, for instance, brought back whipping as a summary punishment specifically for indigenous groups in Western Australia. See Wadiwel, Dinesh Joseph, ‘Thick Hides: Whipping, Biopolitcs and the White Soul of Power’, Social Semiotics, 19:1 (1999), pp. 47–57CrossRefGoogle Scholar; Nettelbeck, Amanda, ‘Flogging as Judicial Violence: The Colonial Rationale of Corporal Punishment’, in Violence: Colonialism and Empire in the Modern World, (eds) Dwyer, Philip and Nettelbeck, Amanda (Basingstoke: Palgrave Macmillan, 2017), pp. 111–131Google Scholar. See also Peté, Stephen and Devenish, Annie, ‘Flogging, Fear and Food: Punishment and Race in Colonial Natal’, Journal of Southern African Studies, 31:1 (2005), pp. 3–21CrossRefGoogle Scholar.

⁴⁷ Beames, John, Memoirs of a Bengal Civilian (London: Chatto and Windus, 1961), p. 102Google Scholar. I thank one of my reviewers for pointing me towards this reference.

⁴⁸ For the production of colonial knowledge in this period, with particular reference to ideas around caste, see Dirks, Nicholas B., Castes of Mind: Colonialism and the Making of Modern India (Princeton: Princeton University Press, 2001)Google Scholar.

⁴⁹ Abstract of the Proceedings of the Council of the Governor-General of India Assembled for the Purpose of Making Laws, 1864, Vol. III, BL, IOR, V/9/6-9, p. 35.

⁵⁰ Legislative Council Proceedings, 18 August 1860, BL, IOR, L/V/9/3-6.

⁵¹ See W. Morgan and A. G. Macpherson (eds), Indian Penal Code (Act XLV. of 1860) with Notes (Calcutta: G. C. Hay and Co., 1863), Chapter IV, Section 95, p. 72.

⁵² Legislative Council Proceedings, 31 August 1861, BL, IOR, L/V/9/3-6.

⁵³ Ibid.

⁵⁴ The full quote from Mr Harington states ‘But moderate floggings as a punishment for certain classes of offences not of the most heinous kind has, we think, many advantages over other punishments, especially in this country.’ Legislative Council Proceedings, 18 August 1860, BL, IOR, V/9/3-6.

⁵⁵ On cannonading, see Wagner, Kim, The Skull of Alum Bheg: The Life and Death of a Rebel of 1857 (London: Hurst and Company, 2017), pp. 175–189Google Scholar. For recent scholarship that has examined similar themes in relation to the ‘Kooka’ outbreak of 1872 in Punjab, see Condos, Mark, The Insecurity State: Punjab and the Making of Colonial Power in British India (Cambridge: Cambridge University Press, 2017), pp. 103–139CrossRefGoogle Scholar.

⁵⁶ Act No. VI of 1864, BL, IOR, V/8/39.

⁵⁷ Ibid.

⁵⁸ A comparison between Madras and Bombay in 1907 reveals that in the city of Madras whipping was carried out in the Penitentiary; in the mufassil, it usually took place in court and in public, but in some districts in the street or even the marketplace. In Bombay, there was no consistency: some whippings were carried out in prison, others in the precincts of the court. Where on the body whipping occurred also varied between the buttocks and bare shoulder. NAI, Home (A)/Judicial/March 1907/Nos. 167–183.

⁵⁹ Complaints of illegal whippings, for instance, were not uncommon; see ‘Proposal to amend the Whipping Act (VI. Of 1864)’, NAI, Home (A)/Judicial/August 1878/Nos. 19–21.

⁶⁰ Legislative Council Proceedings, 5 Jan. 1861, BL, IOR, V/9/3-6.

⁶¹ I have included among the eight crimes relating to theft or property, varying forms of theft, dishonestly receiving stolen property, house trespass, or house-breaking. See Act No. VI of 1864, BL, IOR, V/8/39.

⁶² To clarify some of these groupings, the crimes of sexual violence towards women included ‘Assaulting or using criminal force to any woman with intent to outrage her modesty’ and rape.

⁶³ Act No. VI of 1864, BL, IOR, V/8/39.

⁶⁴ Singha, Radhika ‘Punished by Surveillance: Policing “Dangerousness” in Colonial India, 1872–1918’, Modern Asian Studies, 49:2 (2014), p. 4Google Scholar.

⁶⁵ As one official commented: ‘The law can, of course, make no difference between persons of good castes and others. But executive order could direct magistrates to respect the general feeling except in the case of juveniles.’ H. C. A. Conybeare to UPG, 11 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

⁶⁶ D. C. Baillie to UPG, 20 July 1905, ibid.

⁶⁷ While this was criticized by the legislative council, a circular sent in Madras in 1882 had expressed this view to judicial officers in clear terms, stating ‘whipping should not ordinarily be inflicted in cases in which the offender holds a respectable station in life’. NAI, Home (A)/Judicial/May 1882/Nos. 105–111.

⁶⁸ See Bedwell, C. E. A., The Legislation of the Empire: Being A Survey of the Legislative Enactments of the British Dominions from 1898 to 1907: Vol. III (London: Butterworth and Co., 1909), p. 9Google Scholar.

⁶⁹ BL, IOR, L/PJ/6/533.

⁷⁰ It was admitted, though, that there were also reports of the crime taking place in Burma and the British Army. A particularly harrowing example of such case in Burma is described in Kolsky, Colonial Justice, pp. 199–200.

⁷¹ BL, IOR, L/PJ/6/533.

⁷² Ibid.

⁷³ Legislative Council Proceedings, 5 Jan. 1862, BL/IOR/V/9/3-6.

⁷⁴ BL, IOR, L/PJ/6/805.

⁷⁵ NAI, Home (A)/Judicial/March 1907/Nos. 167–183, p. 42.

⁷⁶ Kolsky, Elizabeth, ‘“The Body Evidencing the Crime”: Rape on Trial in Colonial India, 1860–1947’, Gender and History, 22:1 (2010), p. 115CrossRefGoogle Scholar.

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⁷⁸ Act No. V of 1900, BL, IOR, V/8/63.

⁷⁹ That is not to say that support for corporal punishment in response to crimes of a violent sexual and non-sexual nature towards women and children did not exist in Britain. However, the numerous attempts to reinstate the punishment in law in comparable terms in this period ultimately failed. See Radzinowicz and Hood, A History of English Criminal Law, pp. 693–696.

⁸⁰ Conley, Carolyn, ‘Rape and Justice in Victorian England’, Victorian Studies, 29:4 (Summer 1986), p. 525Google Scholar. Discussion of gang-rape in nineteenth-century Britain can also be found in Stevenson, Kim, ‘“Ingenuities of the Female Mind”: Legal and Public Perceptions of Sexual Violence in Victorian Britain, 1850–1890’, in Everyday Violence in Britain, 1850–1950, (ed.) D'Cruze, Shani (London: Routledge, 2014), pp. 89–91Google Scholar; Wiener, Martin, Men of Blood: Violence, Manliness and Criminal Justice in Victorian Britain (Cambridge: Cambridge University Press, 2004), pp. 104–108CrossRefGoogle Scholar.

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⁸² As Conley shows, in 81 per cent of cases involving men of higher status than soldier or labourer, charges of rape were lessened to attempted rape or indecent assault. Conley, Carolyn, ‘Rape and Justice in Victorian England’, Victorian Studies, 29:4 (1986), p. 523Google Scholar.

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⁸⁵ ‘Notes and Orders’ Commissioner, Fyzabad, UPSA, LB, List 2 Judicial (Criminal) Department/N.W.P and Oudh/Nov. 1889/Nos. 51–67.

⁸⁶ Ibid.

⁸⁷ See Metcalf, Thomas, Aftermath of Revolt: India 1857–1870 (Princeton: Princeton University Press, 1964)Google Scholar.

⁸⁸ Act No. V of 1900, BL, IOR, V/8/63.

⁸⁹ ‘Notes’, NAI, Home (A)/Judicial/March 1907/Nos. 167–183.

⁹⁰ Hansard, 21 July 1904, cc. 755–756. From Secretary to Government of India to Secretary to Government of United Province, 8 June 1905, British Indian Association Papers, Nehru Memorial Museum and Library, New Delhi.

⁹¹ ‘Statement showing how the sentence of whipping is carried out in the different provinces’, NAI, Home (A)/Judicial/March 1907/Nos. 167–183.

⁹² Ignatieff, Michael, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (London: Macmillan, 1978)CrossRefGoogle Scholar.

⁹³ There was significant criticism of corporal punishment in its various forms from Indian newspapers, lawyers, and nationalist politicians, from its reintroduction in 1864 and peaking in this period. For perhaps the most thorough example of this critique, see Chakravarti, Hiralal, Whipping in India: A Plea for its Abolition (Calcutta: Majumdar Library, 1908)Google Scholar. For a more sustained analysis of corporal punishment as a site of anti-colonial nationalism, see Alastair McClure, ‘Violence, Sovereignty, and the Making of Colonial Criminal Law in India, 1857–1914’, PhD thesis, University of Cambridge, 2017, Chapter 6.

⁹⁴ These included the British Indian Association, the Eastern Bengal Landholders’ Association, and the Provincial Muhammadan Association, BL, IOR, L/P/J/6/805.

⁹⁵ Ibid.

⁹⁶ The crimes in relation to rape were rape, abetment to rape, and attempt to commit rape.

⁹⁷ Magistrate of Banda to Secretary to UPG, 11 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

⁹⁸ Statement of Objects and Reasons, 11 March 1908, BL, IOR, L/PJ/6/805.

⁹⁹ Ibid.

¹⁰⁰ Deputy Commissioner of Bara Banki to Secretary to UPG, 19 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

¹⁰¹ Act No. V of 1900, BL, IOR, V/8/63.

¹⁰² See Theobald, W. (ed.), Code of Criminal Procedure (Calcutta: Messrs Thacker, Spink and Co., 1861)Google Scholar, Chapter 31, Section 433.

¹⁰³ This section has been informed by new scholarship which analyses age as a category of historical analysis. See, for instance, Leow, Rachel, ‘Age as a Category of Gender Analysis: Servant Girls, Modern Girls, and Gender in Southeast Asia’, The Journal of Asian Studies, 71:4 (2012), pp. 975–990CrossRefGoogle Scholar.

¹⁰⁴ See Sen and the ‘juvenile periphery’ as symbolic of the broader colonial position on the periphery of modernity. Sen, Satadru, Colonial Childhoods: The Juvenile Periphery of India, 1850–1945 (London: Anthem Press, 2005), pp. 1–8CrossRefGoogle Scholar.

¹⁰⁵ See ibid.; Pande, ‘Phulmoni's Body’.

¹⁰⁶ Exceptions included concerns around child prostitutes. See Sen, Satadru, ‘A Separate Punishment: Juvenile Offenders in Colonial India’, The Journal of Asian Studies, 63:1 (2004), p. 85CrossRefGoogle Scholar.

¹⁰⁷ Sen, Colonial Childhoods, p. 115.

¹⁰⁸ Sec. to Gov NWP to the Sec. to Gov of India, 7 December 1893, NAI, Home (A)/Judicial/Jan. 1894/Nos. 109–116.

¹⁰⁹ Ibid.

¹¹⁰ Deputy Commissioner of Bara Banki to Secretary to UPG, 19 August 1905, UPSA, LB, List 43 Judicial (Criminal) Block/Judicial (Criminal) Department/United Provinces Proceedings/Dec. 1905/Nos. 1–62.

¹¹¹ Variations on the phrase ‘Whipping is considered a suitable punishment for boys and for low caste thieves’, for instance, emerged on numerous occasions. See District and Sessions Judge of Cawnpore to Secretary to UPG, ibid.

¹¹² BL, IOR, L/PJ/6/533.

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¹²² Bandyopadhyay, Aparna, ‘Of Sin, Crime and Punishment: Elopements in Bengal 1929’, in Intimate Others: Marriage and Sexualities in India, (eds) Sen, Samita, Biswas, Ranjita and Dhawan, Nandita (Kolkata: STREE, 2011), p. 103Google Scholar.

¹²³ Political theorists seeking to understand colonial discourse have long emphasized the depoliticizing metaphor of the colonial subject as a child. Nandy, Ashis, Intimate Enemy: Loss and Recovery of Self Under Colonialism (Oxford: Oxford University Press, 2013)Google Scholar. Mehta points to the use of the childlike metaphor of Indians in the writings of both Mill, Locke, and Burke, among others. Mehta, Uday, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999), pp. 31–33CrossRefGoogle Scholar.

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¹²⁶ The act was ultimately repealed after independence, under Act No. 44 of 1955, the Abolition of Whipping Act.

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