The Ilbert Bill proposal in its historical context

For the colonial administration, the proposed reform of criminal procedural law initially constituted just one of numerous steps in the nineteenth century liberal reform agenda.Footnote ¹¹ After a period of explicitly regressive policy under Viceroy Lytton, his successor Lord Ripon assumed office in 1880 with the aim to “restore” liberal policies in British India.Footnote ¹² Ripon had rejected imperialist projects like the British invasion of Afghanistan in 1878,Footnote ¹³ was personally chosen by the liberal Prime Minister GladstoneFootnote ¹⁴ and in fact “behaved as a liberal should have” during his time in India.Footnote ¹⁵ This included the (apparent) realization of liberal conceptions of rights and the idea of education as foundations of the “civilizing mission.”Footnote ¹⁶ The Queen's Proclamation of 1858 (by some referred to as the “Indian Magna Carta”)Footnote ¹⁷ served as orientation for apparent goals of equality in a “progressive” vision for the future,Footnote ¹⁸ yet always with one eye fearfully tilted backwards to the events of 1857.Footnote ¹⁹ There was a sense in which the slightest mistake in governance could have sparked revolts again.Footnote ²⁰ While Lord Ripon's predecessor Lytton regarded liberal policies as enhancing this danger and thus, for instance, planned to legally divide government service into two categories, one for Indians and one exclusively for Europeans, his successor Ripon sought to re-open civil service for Indians, yet failed with most reform proposals.Footnote ²¹

In this environment of attempts to introduce liberal reforms, the two Indians Behari Lal Gupta and Romesh Chandra Dutt suggested that Indian judges and magistrates should be allowed to try Europeans in criminal proceedings without exception, not only in towns and cities as was formally possible at that time.Footnote ²² Although the privilege that Europeans could only be convicted in one of the High Courts in Bombay, Madras, or Calcutta was abolished in 1872,Footnote ²³ the existing law had the effect that Europeans could de facto only be tried by European judges.Footnote ²⁴ Under the applicable Criminal Procedure Code of 1861, magistrates or judges had to be Justices of the Peace or judges of the Session Courts in order to convict Europeans.Footnote ²⁵ Those were exclusively British European, up until the first appointment of an Indian High Court justice in 1882.Footnote ²⁶

In practice, this led to a systematic non- or ill-application of criminal law vis-à-vis Europeans in rural areas, in particular on plantations—localities of grave but daily discrimination and brutality.Footnote ²⁷ Reportedly, Courtney Ilbert himself stated that the Bill aimed to “stop the impunity” enjoyed by planters who occasionally “did to death their native servants.”Footnote ²⁸ Other historiographical accounts highlight the fact that only in the 1880s, the issue of equality amongst Indian and European judges became a practical issue. Only now constellations occurred in which a more senior but Indian judge had less jurisdiction over European subjects than his less senior but European colleagues.Footnote ²⁹

Whatever their primary motivation may have been, Behari Lal Gupta and Romesh Chandra Dutt introduced the reform to the Viceroy. Such participation of Indians in imperial reform projects was far but uncommon in British India.Footnote ³⁰ Rather, it was another key element of colonial rule in general.Footnote ³¹ Following these suggestions,Footnote ³² the law member of the viceregal council, Sir Courtney Ilbert changed his draft of the intended amendment to the Criminal Procedure Act as to “remove from the Code, at once and completely, every judicial disqualification which is based merely on race distinctions.”Footnote ³³ This change would have provided for the possibility of Indian judges to try Europeans also in criminal proceedings in the rural areas (mofussils) outside the Presidency towns.Footnote ³⁴ In civil proceedings, Indian judges were already rather the rule than the exception, reportedly with about 90% of civil suits and 45% of magisterial matters coming before Indian judges and magistrates in 1888.Footnote ³⁵ As within the Indian civil service and government posts in general, the vast majority of judges and magistrates were part of local elites (mainly Hindu) who could afford education and the required examinations.Footnote ³⁶ Knowing that the judicial system (like all colonial administration) depended on Western-style-educated, liberal-minded Indians of the political and economic elite,Footnote ³⁷ the reform proposal introduced by Courtney Ilbert was initially supported by almost all provinces, in particular by the Bengali government.Footnote ³⁸ However, push-back arose primarily from the constellation in Bengal, facing on the one hand a higher percentage of Indian lawyers and judges than other provinces and on the other more “acrimonious” race relations within society.Footnote ³⁹ Nevertheless, with only a few Indian judges who would have been in the position to sit in a criminal procedure,Footnote ⁴⁰ the proposal was—at the face of it—a “minor administrative move.”Footnote ⁴¹

In a typically liberal fashion, the proposed Bill seemingly aimed for an “improvement” for (a small part of) the colonized population,Footnote ⁴² yet at the same time it sought to perpetuate and stabilize the British rule in, domination over and exploitation of India and its greater population.Footnote ⁴³ It needs to be stressed that the Bill, much like the already existing law that enabled Indians to judge Europeans in certain scenarios, would have first and foremost only been formal, black letter law. Yet, already the current practice under existing law was “governed by tacit conventions” that excluded Indian judges as “[r]acial social hierarchies cut across the supposed equality of the court room.”Footnote ⁴⁴ The Ilbert Bill would presumably not have changed this legal practice “governed by double standards.”Footnote ⁴⁵

The Ilbert Bill proposal emerged in the intellectual context of British and Western ideas of a “rule of law.”Footnote ⁴⁶ Famously, in 1885 Albert Dicey published a previously held lecture in which he defined his notion of the rule of law as the following:

This understanding articulated by Dicey arose from a set of (early) liberal ideas debated by legal theorists in England since the seventeenth centuryFootnote ⁴⁸ and was further informed and advanced by streams of nineteenth century liberalism in Victorian England, Britain and its colonies.Footnote ⁴⁹ By the 1860s and 70s, liberal theorists regarded the English constitutional conventions and principles as expressions of a spirit of legalism binding in particular the government.Footnote ⁵⁰ Legal historians date Dicey's first explicit use of the term “rule of law” for capturing this idea of legalism to 1875.Footnote ⁵¹ The “rule of law” was thus a relatively young concept in English constitutional thinking at the time of the Ilbert Bill Controversy in 1883. Those rule of law ideas merged with inter-related trends toward increased codification that had “seized the European continent” during the second half of the eighteenth century.Footnote ⁵² Yet, due to the tension with common law traditions,Footnote ⁵³ those ideas of a rule of (codified) law met more resistance in Britain than in the “peripheries” of the British Empire, where a more “experimental” spirit was actively pursued—partly with the hope to enhance codification in Britain as well.Footnote ⁵⁴ Especially liberals celebrated codification in British territories as a great achievement of British rule,Footnote ⁵⁵ although this certainly did not entail the establishment of one coherent system of equal laws for all subjects under one jurisdiction.Footnote ⁵⁶

Viewed in this context, the Bill proposed by Courtney Ilbert did not seem to fall considerably outside the scope of the liberal reform theories and policies of Victorian England and Empire.Footnote ⁵⁷ Nevertheless, this relatively marginal reform proposal was met by heavy criticism by the non-official Europeans, especially residents in Calcutta,Footnote ⁵⁸ rural tea and indigo plantersFootnote ⁵⁹ as well as entrepreneurs engaged in infrastructure projects.Footnote ⁶⁰ The Anglo-Indian and European Defense Association was initiated for campaigning against the proposed reform.Footnote ⁶¹ While the judges of the High Courts of Madras and Bombay were generally more reserved in their critique of the Bill, all judges of the Calcutta High Court expressed their strong objections (as seen below)—all Calcutta judges but the first ever Indian High Court judge Romesh Chunder Mitter.Footnote ⁶² Calcutta became a center for anti-Bill mobilization,Footnote ⁶³ with opposition also strong amongst planters in Bengal and the North-West Provinces, whose governmental representatives partially began to support the opposition movement.Footnote ⁶⁴ Europeans in India experienced a sense of collective identity and received support from the British public. Impactful newspaper campaigns, above all the Englishmen in IndiaFootnote ⁶⁵ and in the Times in EnglandFootnote ⁶⁶ campaigned against the proposed Bill. In fact, the majority of voices in the blooming, “enlightened” public sphereFootnote ⁶⁷ in Britain seemed to back the interests of their fellow country-people in India. In particular in conservative media characterized Lord Ripon's policy as liberal Radicalism.Footnote ⁶⁸

It appears as if Ripon had gone one step too far in reversing the policy of his predecessor. He had repealed the Vernacular Press Act and attempted to revoke European privileges concerning the licensing of firearms under the Arms Act.Footnote ⁶⁹ Salaries of judges in Calcutta had been reduced (in order to align them with other high courts), while those of Indian civil servants were said to be increased.Footnote ⁷⁰ Moreover, Ripon had appointed the first ever Indian judge as chief justice at the Calcutta High Court in 1882.Footnote ⁷¹ The Ilbert Bill proposal seemed to be the straw that broke the camel's back. Already during the Controversy, Lord Ripon regarded the Bill as “the excuse for the present outbreak of feeling, and not its main cause.”Footnote ⁷² Seemingly concerned with trying to achieve one liberal reform after the other, neither the Viceroy, nor his administration or the Indian political elites had expected that the Bill would spark a “whole body of hostile opinion as the fruit of panic.”Footnote ⁷³ This panic and hostility, even personally aimed at Lord Ripon,Footnote ⁷⁴ isolated the British governmental elite from their fellow Europeans in both India and Britain.Footnote ⁷⁵ As with other instances of “panics” and crisis in the colonies, historiography has not yet offered a convincing explanation for how the colonial administration could have misjudged public opinion and sentiments in such grave manners over and over again. It begs the question if this was a characteristic of colonial administration (in India), for instance due to lack of knowledge of and “strangeness” in the colony,Footnote ⁷⁶ or if such process is rather a characteristic of modern governmental politics after the rise of the “public sphere” in general.Footnote ⁷⁷ An attempt to answer this question would exceed the limits of this essay.

In this instance, the colonial government and the majority of white Europeans agreed on a compromise by the end of 1883, which was passed as legislation in February 1884.Footnote ⁷⁸ This compromise provided for the right of Europeans to demand that at least half of the jurors were Europeans if the presiding judge was Indian.Footnote ⁷⁹ Equality was compromised by (imagined) racial superiority—explicitly, as this essay will show.

Indian elites, who were in the process of organizing an all-Indian nationalist conference (from which the Indian National Congress emerged),Footnote ⁸⁰ were taken aback by the “racist agitation” against the Bill, as it ultimately demonstrated the deep reservations and even hostility vis-à-vis the educated, liberal-minded Indian elite.Footnote ⁸¹ Indian elites publicly countered the agitation. For instance, the prominent Indian lawyer Badruddin Tyabji argued that the question “ought never to be whether a judge is a European or a native, but simply whether he is fit for the exercise of the powers entrusted to him.”Footnote ⁸² Similarly, Nanabhai Haridas, acting judge at the Bombay High Court, opposed his superior and argued that “[a] judge's fitness for his post does not depend in the least upon the colour of his skin or upon the nationality of the prisoner to be tried.”Footnote ⁸³ In addition to Indian lawyers and judges, Indian-led press like the Lahore Tribune or the Quarterly Journal of the Poona Sarvajanik Sabha highlighted the “logical flaws” (Bayly) in the British and Anglo-Indian argumentation.Footnote ⁸⁴ However ultimately, the emerging Indian political leadership accepted the compromise and called for moderation and general support of Lord Ripon:

Instead of panic or (rather reasonable) outrage amongst the Indian elites, there was a sense in which, as the Lahore Tribune phrased it in May 1883, “[t]he Ilbert Bill […] has brought together the people of India of different races and creeds into one common bound of union […] the growing feeling of national unity which otherwise would have taken us years to form […].”Footnote ⁸⁶ In this light, the Ilbert Bill Controversy can be regarded as having accelerated the process of an emerging Indian Nationalism—until today one main reason why the Controversy is so widely referred to in the historiography of British India.Footnote ⁸⁷

The Ilbert Bill in the historiography of British India

While historiography of India widely recognizes the importance of the Ilbert Bill Controversy, the majority of historical work follows a rather conventional historiographical approach by focusing on the description of series of events coupled with some explanations for (potential) causalities.Footnote ⁸⁸ In this vein, historiography understands the Ilbert Bill Controversy primarily as a significant moment or even a cause for the politicization of Indian communities which ultimately resulted in the formation of the Indian National Congress.Footnote ⁸⁹ Moreover, historiographical studies highlight the (causal) relation between the Controversy and the rise of the press as a public institution.Footnote ⁹⁰ Although these accounts undoubtedly provide for important insights into the (socio-)political dynamics of the time and in particular of Indian nationalism, they do not provide for deeper analytical understanding of the discourse over the nature and character of British rule in India.

Mrinalini Sinha's Colonial Masculinity (1995) constitutes an early exception. Sinha pursues a rather analytical approach and investigates fundamental structures of and their implications for the British rule inter alia through the Ilbert Bill Controversy.Footnote ⁹¹ In light of her overall argument, Sinha applies the concept of “colonial masculinity” to the ControversyFootnote ⁹² and argues that it demonstrates that colonial masculinity “substituted for a straightforward defense of racial exclusivity a supposedly more ‘natural’ gender hierarchy between ‘manly’ and ‘unmanly’ men.”Footnote ⁹³ In short: the category of race was “substituted” by gender. While trying to live up to Sinha's methodological approach, this essay rejects the argument of “substitution.” In fact, the arguments analyzed in the following sections demonstrate that there was no “straightforward substitution” of racial discrimination with more complex intersectional conceptualizations (Sinha), but instead actors recognized racial discrimination as the foundational element of British rule in India with “striking clarity” (cf. Kolsky). This does not mean that an intersectional concept like “colonial masculinity” cannot explain constitutional elements of the British rule in India.Footnote ⁹⁴ Yet, such perspectives should be accompanied by an in-depth analysis of the reasoning against absolute racial equality in British India's judiciary and its society at large.

Historiography seems to be rather puzzled by the explicitness of racist argumentation by British and British Indians against the Bill.Footnote ⁹⁵ For Partha Chatterjee, it “seems something of a paradox that the racial difference between ruler and ruled should become most prominent precisely in that period in the last quarter of the nineteenth century when technologies of disciplinary power were being put in place by the colonial state.”Footnote ⁹⁶ Chatterjee seeks to resolve this puzzle by reminding us that “forms of objectification and normalization of the colonized had to reproduce […] the truth of the colonial difference.”Footnote ⁹⁷ Yet, this does not explain why a relatively marginal reform proposal to the criminal procedure suddenly “brought up most dramatically the question of whether a central claim of the modern state [impersonal, nonarbitrary system of rule of law, P.C.] could be allowed to transgress the line of racial division.”Footnote ⁹⁸ Similarly, for Elizabeth Kolsky the “paradox of attempting to create domestic legal institutions in the context of absolute authoritarianism manifested itself with striking clarity in the debates about the Code of Criminal Procedure.”Footnote ⁹⁹ Concerned with demonstrating how codification during the “prelude to the ‘white mutiny’ of 1883”Footnote ¹⁰⁰ often “brought to surface internal tensions in liberalism and empire,”Footnote ¹⁰¹ Kolsky does not attempt to answer why this seeming paradox between universalism and racismFootnote ¹⁰² came to surface with such “striking clarity.” This essay suggests that a collective state of panic offers some explanation for this “striking clarity.” From this analytical perspective, this essay digs deeper into the argumentative patterns in the British and Anglo-Indian public discourse in the relatively short moment of constitutional panic in 1883.

The Ilbert Bill Controversy as “constitutional panic”

This essay employs the concept of “constitutional panic” as an empirically grounded analytical tool for better understanding the Ilbert Bill Controversy and its implications. The term “constitutional panic” seeks to capture the sudden, fast-paced and emotionally charged element of the debate (panic), which lead to the “striking clarity” with which Britons revealed the foundational role of racial discrimination within the British Indian legal, political and social order (constitutional).

The concept “constitutional panic” draws from the concept of “legal panics” as developed by Lauren Benton and Lisa Ford.Footnote ¹⁰³ Benton and Ford lay out how legal reforms resulted in debates “about the fundamental nature and structure of imperial rule.”Footnote ¹⁰⁴ Since Benton and Ford show how “[l]egal panics focused attention on core constitutional questions,”Footnote ¹⁰⁵ Lauren Benton elsewhere referred to such dynamics as “constitutional panics.”Footnote ¹⁰⁶ In their conception of “legal panics,” Benton/Ford explicitly draw from Christopher Bayley's description of “information panics.”Footnote ¹⁰⁷ Just as in “information panics,” in which “British officials knew they possessed inadequate or flawed information and then, in the absence of alternatives, sought more bad information, in the process making crises worse,”Footnote ¹⁰⁸ in “legal panics,” law-makers knew that their reasoning was incoherent, but, in the absence of alternatives, sought more incoherent reform, thereby (from their perspective) making crises worse. In light of the Controversy's effects on Indian nationalism, the Ilbert Bill Controversy appears as a materialization of such a process, in which “flawed” policies led to further “flawed” reforms with negative long-term effects for British colonial rule.

While aiming to “improve” the criminal justice system, the reform of 1884 deliberately perpetuated racial inequality amongst judges as well as amongst non-official European and Indian subjects. This reproduction of contradictions through law was not only characteristic of “legal panics” in the sense employed by Benton and Ford, but also of the legal framework of modern colonialism and imperialism in general.Footnote ¹⁰⁹ Yet, rather than understanding the Ilbert Bill Controversy as one of many “legal panics,” this essay understands “constitutional panics” as extraordinary instances. The Ilbert Bill Controversy—as a constitutional panic—was less concerned with yet another legal reform proposal but more with the political, social, and legal colonial framework of British India, thus its constitution (in both the legal and socio-political sense).Footnote ¹¹⁰ For instance, one British judge regarded the Ilbert Bill proposal as ultimately “shifting the foundations on which the British Government of India rests.”Footnote ¹¹¹

Not only the constitutional element of the “constitutional panic” is empirically grounded. Also, panic was felt and expressed at the time. Today, panic generally refers to “a sudden strong feeling of fear that prevents reasonable thought and action.”Footnote ¹¹² Although common conceptions of “panics” in the late nineteenth century differed from today's use of the term,Footnote ¹¹³ “[t]here was a new quasi-psychological sense in which the words ‘nervousness’, ‘panic’, ‘hysteria’ were being used during this period and an eagerness to use ‘mental’ terms to explain group behaviour.”Footnote ¹¹⁴ In fact, contemporary participants and observers of the Controversy noticed both elements of “panic,” first a sudden strong feeling of fear, and secondly the inhibitory effect on reasonable thought and action.

As to the first, an article in The Times, described the “whole body of hostile opinion” against the Bill as “the fruit of panic.”Footnote ¹¹⁵ Others spoke of “a feeling of insecurity”Footnote ¹¹⁶ or a “fearfully dangerous” policy.Footnote ¹¹⁷ For some “[i]t was impossible […] to exaggerate the gravity of the present crisis.”Footnote ¹¹⁸ Even though commentators like George Campbell (Member of Parliament) thought that “the panic among Europeans in India was ridiculously exaggerated,” that it was “an artificial alarm created by lawyers, and others no better than lawyers,” there was “no doubt, a certain amount of panic did exist.”Footnote ¹¹⁹ This essay agrees with this observation. Panic did exist.

As to the second element, observers acknowledged that the Controversy had “the unhappy tendency […] to bring into broad daylight everything which a wise and prudent administrator should seek to hide.”Footnote ¹²⁰ While it was not regarded unreasonable to uphold racial discrimination (as will be shown below), it was regarded as unreasonable to reveal this very nature and character (the constitution) of the British rule in such clarity and publicness as done during the Controversy.Footnote ¹²¹ This article suggests that this occurred precisely due to a state of panic.Footnote ¹²²

Per definition, a (constitutional) panic is an exceptional state in public discourse. However, this essay does not argue that the “normal” state of mind of British imperialists was one of unchallenged security and confidence. It could well be that imperialists and Empires in general were more anxious than historiography has long suggested.Footnote ¹²³ In this vein, recent studies argue that anxiety and fear arose rather frequently amongst the British administration in India, some even claiming that British rule was a “fundamentally anxious and insecure endeavor.”Footnote ¹²⁴ Generally in those accounts, “panics and anxieties […] stand in the same relation as event and structure.”Footnote ¹²⁵ While Condos, Wilson, Wagner and others claim that latent anxieties formed part of the structure of British rule in India (“colonial culture of fear”),Footnote ¹²⁶ this essay merely analyzes the Ilbert Bill Controversy as an exceptional incident of constitutional panic (“event”), in which Britons revealed how they thought their Empire was structured (or constituted). Thus, this essay neither supports nor rejects the claim that British rule in India was structurally anxious.

The Ilbert Bill Controversy as self-exposure (remarks on method, sources and perspectives)

Since this essay is concerned with the explicitness of racial discrimination as a constitutional feature of the British rule as revealed public discourse, the methodological approach and the selection of sources follow approaches of historical discourse analysis rather than (quasi-)psycho-analytical approaches for better understanding the mental state of administrators. Neither does this essay provide for an analysis of archival material such as minutes or confidential letters within the British administration for understanding how the administration could have underestimated the degree of opposition to the Ilbert Bill proposal so enormously. As indicated above, this raises the question to what extent this failure in the decision-making process is exceptional or rather the rule in modern governance, especially after the rise of the “public sphere.”Footnote ¹²⁷ The latter questions would have resulted in a different study, searching for the “very foundations of colonial power” in the archivesFootnote ¹²⁸ and contrasting those with general features of modern government. Yet, interested in analyzing the public discourse about key constitutional elements, this essay draws from sources that formed part of the public discourse at the time. These were in particular published letters, reports of public speeches and meetings including parliamentary records and newspaper articles.Footnote ¹²⁹ The latter were of particular importance for contemporaries not only as a relatively new medium for spreading opinion, especially in what can be called a large-scale media campaign against the Bill,Footnote ¹³⁰ but also simply as one of the fastest media for publicly available information between Britain and India. For instance, asked for details concerning the debate about the Ilbert Bill a government official stated in the House of Commons that “the Government had received no information other than that which appeared in The Times.”Footnote ¹³¹ The increasing pace of communication, information and opinion had an accelerating effect on political debates, including law-making processes, and thus also enhanced (legal/constitutional) panic.Footnote ¹³² Mirroring this contemporary importance of newspapers as tools for communication and public discourse, the essay primarily analyzes arguments (re-)produced therein next to statements made in Parliament and published reports of town hall meetings.

The emphasis on the explicitness of racial discrimination as a constitutional feature of British India within the British discourse further results in a focus on “British” sources and voices. At first, this may seem as yet another piece of historiography of Empire in an imperial fashion, unduly ignoring perspectives of colonized peoples. Yet, generally this critique against Western-centric historiography draws attention to the fact that one-sidedness of sources and perspectives commonly results in an unnuanced or even apologetic account of Empire.Footnote ¹³³ German historian Sebastian Conrad referred to this process as “double marginalization,” once in history and again in historiography.Footnote ¹³⁴ This essay, however, analyzes “British” sources and voices exclusively for critical purposes. Rather than risking to be apologetic, this study may serve as rebuttal against charges of anachronism against critiques of empire. In a rather subversive manner, the essay demonstrates that British colonial administrators, settlers, journalists, and domestic politicians knew exactly how fundamental racial discrimination was to British India and the Empire in general. For substantiating this claim, this essay necessarily employs close textual analysis of arguments made in the British discourse during the Ilbert Bill Controversy as a moment of self-exposure. While it would be both interesting and important to investigate Indian responses to the Ilbert Bill and the subsequent “compromise” further, such investigation would exceed the scope of this essay. Moreover, the analysis of the British discourse results in a reproduction of colonial dichotomies. The discussants generally assumed that there were only two categories of judges and accused: European and “Native”/Indian. They tended to ignore even the relatively large group of “Eurasians.” The agitators against the Ilbert Bill quite literally only saw “black and white.”Footnote ¹³⁵ While the approach of close textual analysis results in a reproduction of those over-simplified accounts uttered during the Controversy, it needs to be stressed that those colonial dichotomies fail to grasp complex social realities in many respects.Footnote ¹³⁶ This essay does neither aim nor claim to provide an accurate account of social realities. It merely attempts to show that the “British” discourse clearly acknowledged that British India was constituted by racial discrimination.

The “right” of Europeans to be tried by their peers

A prominent argument against the proposed scenario of Indians convicting Europeans in criminal court proceedings was based on the invocation of a “right” of Europeans to be tried by their own peers. The Times, for instance, referred to this as “the most dearly prized right of Englishmen,” stating that “preservation of that right is incompatible with the transfer of criminal jurisdiction to men differing from them in race, religion, history, and education.”Footnote ¹⁴² To invoke this “right” was in itself a noteworthy transplant of a legal arrangement.

Under common law and later statutory law, the House of Lords held exclusive jurisdiction over holders of a peerage (except Irish Peers in the House of Commons and bishops) and their wives or non-remarried widows in cases of treason, felony, or misprision thereof.Footnote ¹⁴³ This was referred to as the right of Peers only to be tried by fellow Peers. This constituted no individual right in a strictly doctrinal sense, but a privilege of “peerage as a class.”Footnote ¹⁴⁴ This “collective right” was based on a rather de-contextual understanding of clause 39 of Magna Carta which read:

In the thirteenth century when Magna Carta was drafted, “peer” was often used interchangeably with the term “baron,” signifying that the clause was intended to ensure trials of Peers by Peers, instead of trials of Peers by the monarch.Footnote ¹⁴⁶

After the end of feudal society, when (almost) all men were formally free in the sense of clause 39, the Peers held on to their privilege apparently guaranteed by Magna Carta.Footnote ¹⁴⁷ Yet, at the time of the Ilbert Bill Controversy, this privilege had come under considerable pressure. The related interpretations of Magna Carta were questionedFootnote ¹⁴⁸ and the privilege seemed hardly compatible with those rule-of-law-ideas that were gaining ever-greater momentum in the 1880s.Footnote ¹⁴⁹ A legal challenge to this privilege was ultimately dismissed by the Peers themselves in the House of Lords in 1887,Footnote ¹⁵⁰ which indicates that the proceeding was initiated at the time of or shortly after the Ilbert Bill Controversy.Footnote ¹⁵¹ Thereafter, a proposal to abolish this privilege by legislation failed in 1901 and the privilege remained part of English law until 1948.Footnote ¹⁵²

The fact that this rather obscure “right” became one of the main arguments against the Ilbert Bill was presumably due to misunderstandings or (deliberate) misinterpretation of initial connections drawn between the privilege in criminal proceedings enjoyed by Peers in Britain and arguably by Europeans in the so-called mofussil. Relatively early during the Controversy, in April 1883, Earl of Lytton argued that the fact that Indian judges were not allowed to try Europeans shall not be regarded as a “humiliation.” He referred to an English High Court judge who was not allowed to try a Peer as an analogous constellation:

With this comparison the Earl supposedly wanted to evoke the sympathy of his fellow Lords for his argument against the Ilbert Bill, implying that the reasoning behind the proposed Bill could also lead to the Peers losing their own privilege to be tried only by Peers (in certain cases). Yet, Lytton neither applied the “right” of the Peers directly to Europeans in India nor did he broaden the scope of that “right.” His argument did not state that this “right” guaranteed any European only to be tried by his or her “equals” in terms of “race, religion, history, and education,” as claimed in The Times. Footnote ¹⁵⁴ Nevertheless, from thereon many adversaries of the Bill invoked this “right,”Footnote ¹⁵⁵ making it one of the main line of arguments against the Ilbert Bill. However, this extremely broad and de-contextual understanding of the seemingly outdated “right” to be tried by one's own peers appeared to lack any legal footing. Reportedly, it had been “for many years” disputed that Englishmen had “any constitutional right to be tried [only] by Englishmen” in India at all.Footnote ¹⁵⁶ Taken out of context, “peers” now simply meant “equals”; and “free men” (cf. clause 39) meant all European men and women. In this understanding, Indians were neither free nor equals. Instead of class—the original parameter for the privilege—now race was the decisive category for group identification.

Besides this symbolic shift from class to race as the decisive category for self-identification amongst Europeans in India, the invocation of an apparent right to be tried by fellow Europeans demonstrates how also Indian members of the judiciary (seen as the most “westernized” Indians) were ultimately characterized, differentiated and subordinated by racial imaginations.Footnote ¹⁵⁷ In summation, the argument that Europeans should only be tried by fellow Europeans rested on the claim that Indian judges were—qua race—“naturally” less equipped to appreciate the lack of criminal fault of Europeans in certain scenarios.

One such scenario commonly constructed was that of a planter or his wife who were falsely accused of crimes by the local population.Footnote ¹⁵⁸ Here, the Indian judge—even if not part of the conspiracy—was said to be “naturally” inclined to believe the constructed charge. What qualified the European judge to identify and debunk those (hypothetical) cases was that apparently he had the

Another scenario often constructed was one where a lower-class Englishman, usually a sailor or railway worker, committed a low-scale offence.Footnote ¹⁶⁰ One commentator could “hardly imagine a more distressing position than that, say, of a railway guard, who, having misconducted himself when drunk, is brought up to be tried before a man who has no sort of knowledge of him or sympathy with him, and only half understands him.”Footnote ¹⁶¹

These two hypothetical scenarios were meant to highlight the importance of the apparent right to be tried only by fellow Europeans. The scenarios rested on the implicit argument that Indian judges were qua nature (and/or culture) less qualified to fully grasp the level of guilt properly attributed to Europeans.Footnote ¹⁶² This inherent lack of abilities was—so the argument went—specifically dangerous to Europeans in the rural areas. The adversaries of the Bill painted a picture of the “poor, isolated Englishmen in India under criminal jurisdiction”Footnote ¹⁶³ who “is a foreigner in a strange country,”Footnote ¹⁶⁴ who comes before a criminal court almost without any fault (thus often drunk), and is now faced with an Indian judge who will—“by nature”—never be capable of fully recognizing the lack of fault. Any ordinary European person could find himself or herself in such a setting (either constructed charges or intoxicated foolery). The apparent right only to be tried by fellow Europeans thus functioned as an insurance against apparently improper criminal convictions in such cases. Besides the sense that the imagined scenarios appeared to be largely counter-factual, also to contemporaries,Footnote ¹⁶⁵ this line of argument reveals two aspects of the fundamental nature and structure of British India.

First, the argument rests on the discursive creation of “otherness” mainly based on race and culture, which was a typical line of colonial thought and which operated as the ultimate barrier between the colonized and the (fully) civilized.Footnote ¹⁶⁶ Although education had been central to the “civilizing mission,” the constructed “otherness” of the collective always trumped individual English-modelled education or religion.Footnote ¹⁶⁷ This “racial gulf theory” led to the situation that no matter how well-educated an Indian person was, he or she could never be fully recognized as equal due to the “gulf” between the races which was imagined as unbridgeable.Footnote ¹⁶⁸ Therefore, the statement presumably made with some normative endorsement that “white skin is a certificate of social status in Hindustan”Footnote ¹⁶⁹ held at least true descriptively. The created or imagined otherness directly led to and upheld social status and privilege, such as being able to sit as a judge in all types of legal cases or being able to reject being tried by a person of a different color of skin. This constructed otherness underlying the invocation of a right to be tried by one's own peers (equals) will re-appear as a constitutive element of the other two main arguments below. This demonstrates not only how central the creation of otherness was for the constitution of British Empire, but also how explicit and widespread it was in the discourse at the time.

Second, and equally characteristic for colonial thinking was the reversion of the relation between norm and exception. Although it was recognized that the English were foreigners,Footnote ¹⁷⁰ it appeared to be almost unthinkable that an English person was subject to societal institutions, including criminal jurisdiction controlled by locals. Naively speaking, this would have been the “norm” for a foreigner. However, quite to the contrary, the norm was considered to be one of privilege, no matter where white Europeans happened to be. Crucially, this privilege was either not regarded as an “anomaly” at all, or—more commonly—it was seen as an anomaly to a certain extent, but it was subsequently argued that “[t]he ‘anomaly’ would be really greater if, in the case of isolation from friends and counsel, the trial took place before a single Native judge.”Footnote ¹⁷¹ Implicit here is the assumption that a white privilege was not actually “abnormal,” rather it reflected the “normal” hierarchy of races.Footnote ¹⁷²

This hierarchy—more specifically the apparent supremacy of white Europeans—also served as the explicit explanation why this argument of a right to be tried by one's own peers would not equally apply in favor of Indians. As Justice Stephen claimed in a letter to The Times,

Besides the fact that the language argument seemed distorted and was challenged accordingly,Footnote ¹⁷⁴ there are at least two elements in this argument that are noteworthy. First, the reiteration of the separation between “lower class” English people and Indian judges. The underlying reasoning of this re-introduction of class considerations appears to be that only the European judges were equipped to fully and objectively understand the “character” of all classes in India, including “lower class” Europeans.

Second, Stephen—and othersFootnote ¹⁷⁵—seemed to acknowledge that there could have been some merit in the argument that the right to be tried by one's own peers should apply in favor of Indians as well, yet Stephen conceded that “in so far” this inequality or double standard simply reflected the nature of the British power in India.Footnote ¹⁷⁶

Thus, viewed together, the underlying imaginations that informed the invocation of a “right” to be tried only by fellow Europeans mirror typical colonial thinking. The argument was based on a pseudo-legal argument that “transplanted” a legal arrangement from Britain to British India in such a way that it supported the imperial mission. Thereby, the actors openly acknowledged that a consistent and equal application of that “right” was incompatible with imperial rule. This inevitable inequality was ultimately justified by the imagination of “otherness” and racial discrimination, the white European being the unquestioned rulers; an element that will re-appear below.

The (faith in) proper administration of justice

A second, more structural argument was one concerning the faith in the proper administration of justice. Introducing full racial equality on the benches would result in a loss of faith in the judicial system on the side of Europeans, so this argument went.

This line of argument had two streams, one assuming that Indian judges would actually be less trustworthy in the administration of justice than Europeans and the other stream arguing that even if this was not the case, Europeans would nevertheless reasonably believe so, which would similarly undermine the proper administration of justice.

As to the first, in a memorandum-like letter that was described as “one of the most important documents that have ever been transmitted from India”Footnote ¹⁷⁷ a number of judges from Calcutta argued that Indians would

This assumption of a general lack of trustworthiness was widespread.Footnote ¹⁷⁹ The Calcutta judges emphasized at this point that it was “no disparagement of the integrity or ability of a Native judge to say that he is necessarily more amenable to the external influence” since—in their view—the lack of impartiality and independence stemmed from their natural characteristics and them being situated within the local community from which “some unknown or improper influence will be brought to bear on that officer.”Footnote ¹⁸⁰ In other words, this line of argument assumed that Indian judges were less impartial not due to their individual lack of integrity or by individual fault, but due to their “natural” and cultural otherness. This in turn meant that first, no individual judge could possibly rebut this assumption by his educational background or experience in the Civil Service, and second, no program or institution of education or professional training could overcome this very last barrier toward equality. Therefore, following this logic, an Indian judge would always pose a threat to the proper administration of justice which was only mitigated in the cities by social institutions such as the press.Footnote ¹⁸¹

The second variation of the argument aiming to protect the administration of justice twisted this further. Exemplifying this line of argument, one adversary rhetorically asked his audience in a town hall meeting whether

The speaker then—much like the Calcutta judges—immediately stressed that he was arguing against the Bill “[w]ithout saying one single word against the class of Native judges, whose integrity and impartiality I am bound to admire.”Footnote ¹⁸³

This even-if-argument essentially acknowledged that Indian judges might in actuality not constitute a threat to the proper administration of justice, but argued that Europeans in rural areas believed so.Footnote ¹⁸⁴ In this twisted argument, it was not the proper administration of justice as such that was to be protected, but the trust therein.Footnote ¹⁸⁵ Consequently, this line of argument sought to “protect” views that were undoubtedly present in the European community, but which were based on prejudices.Footnote ¹⁸⁶ It was acknowledged that those prejudices were possibly ill-informed or mistaken, yet they were still considered worthy of protection. In other words, the fact that “want of confidence in the natives, which, whether it were right or wrong, clearly existed”Footnote ¹⁸⁷ justified the discrimination of Indian judges by law.

Instead of relying on transformative powers of law or abiding by principles of true equality, this way of reasoning complied with discriminatory views held in European communities. Thereby the argument consciously perpetuated existing prejudices and “legalized” them in the sense that the law was to protect prejudices to the expense of the individuals that were degraded by those prejudices in the first place. Thus, one could conceptualize this process as another form of “double marginalization” of Indian judges, first by society and then by law.Footnote ¹⁸⁸

Already at the time, the argument that racial inequality in the judicial system would protect (trust in) the proper administration of justice was questioned based on the fact that the argument could go both ways. For instance, the Marquess of Hartington argued in the House of Commons that the continuation of racial differentiation within the judicial system would lead to distrust on side of the Indian population, even more so now if the draft would be withdrawn.Footnote ¹⁸⁹ The policy that a European can only be tried by another European would raise “suspicion—or, at least, a prejudice against our rule—that we think it necessary, in the interest of our countrymen, to require that they shall have something more than a fair and impartial trial, and that they are to be tried by men who may be presumed to have some bias in their favour.”Footnote ¹⁹⁰ For maintaining British rule in India, there should rather be a “general belief that an offence will be punished by whomsoever committed.”Footnote ¹⁹¹

Consequently, as the protection of proper administration of justice was a double-edged sword, it is not surprising but telling that in an (implicit) act of balancing interests, the trust of Europeans in the judicial system clearly outweighed the trust of the Indian population that was diminished due to the open and systematic bias within the judicial system. This demonstrates again that the public institutions introduced by the Government in India were meant to serve first and foremost the European population in India, not the locals, including those officially serving the British.Footnote ¹⁹² This finding is certainly no surprise or new, yet in the moment of constitutional panic, British themselves revealed this element of the nature and structure of British India very explicitly. The informed public was well-aware of this dynamic.

The floodgate toward absolute equality and end of Empire

A further prominent argument was one of floodgates. To introduce racial equality in the judicial sector would, it was widely argued, first lead to similar arguments concerning other official posts and ultimately to absolute equality which would mean the end of Empire. Thus, the Ilbert Bill was characterized as a stepping-stone toward Indians demanding other “privileges” such as that of carrying arms,Footnote ¹⁹³ becoming “Lieutenant-General of a Province, or Chief Commissioner, of Commander-in-Chief of the Army, or Viceroy.”Footnote ¹⁹⁴ This line of argument directly made the transfer from the concrete issue of racial equality in the judicial sector to a question of principle.

On this level of abstraction, the adversaries claimed that absolute equality was not only impractical, but virtually impossible in British India. The floodgate argument was to demonstrate that “it was perfectly impossible and ridiculous, so long as we retained our hold on India, to give Native races full equality.”Footnote ¹⁹⁵ This was the line of reasoning that stood behind the relatively common and widespread mantra that “[i]f the Government really set themselves to work to sweep away anomalies, the first which they would have to remove was the British Government itself.”Footnote ¹⁹⁶

This was not an anti-imperialist argument at all. Rather, the anomaly of the overall situation of Britons in India was argumentatively accepted in order to highlight the impossibility of introducing absolute equality. At this point of “logic,” when proclaiming the necessity of an anomaly, racialized reasoning was introduced into this argument. Consequently, the abstract argument against absolute equality was two-fold: In the first step it was acknowledged that “Europeans in India are essentially and always must be neither more nor less than a handful of foreigners”; in the second step it was concluded that they needed to be “divided from the general population of the country by every line of demarcation.”Footnote ¹⁹⁷ Put more clearly: for there to be a British imperial rule in India there needed to be British rulers and ruled Indians and thus a demarcation between the “races.”

In considering what these lines of demarcation were, James F. Stephen explained that “[i]n the first place, the difference of color makes an indelible outward and visible distinction, which appeals forcibly, emphatically, and at every moment to the eye.”Footnote ¹⁹⁸ He continued by claiming that the distinction of color coincided with a series of other distinctions “which it comes to typify and symbolize,”Footnote ¹⁹⁹ meaning that the color of the skin was the symbol for the differentiation between human races of different quality, the white skin symbolizing the greatest social status as already observed above.

This demarcation between races was generally based on and justified by a socio-Darwinist conception of Europeans naturally being “not the equals, but, the superiors” while Indians supposedly accepted this hierarchy as “a just, a natural, and a necessary inequality.”Footnote ²⁰⁰ Consequently, as Earl of Lytton observed in the House of Lords, the Government of India was “founded on a wise recognition of this inevitable inequality.”Footnote ²⁰¹ If one were to “place it on any other foundation, or administer it by any other principle,” the unofficial Europeans would certainly leave India,Footnote ²⁰² which implied the end of British India. This reasoning was echoed by fellow Lords stating that the entire abnormal position existed to a great extent in the “force of character in the dominant race”Footnote ²⁰³ and to deny it was useless “political hypocrisy” as Indians apparently knew “perfectly well that they are governed by a superior race, and that all this talk [about equality] is hollow and unreal.”Footnote ²⁰⁴ Directed at those “Radicals” informed by “elementary principles of morals,” the Earl of Lytton concluded that a “system which you regard as founded upon fraud and maintained by oppression can never come to good in your hands. You are attempting an impossible task.”Footnote ²⁰⁵

Thus, the general state of “anomaly” was justified by proclaiming the naturalness of inequality, whereby the apparent “anomaly” was in fact not abnormal after all.Footnote ²⁰⁶ In this light, the “sentimentalist” and “pseudo-humanitarian” supporters of the Ilbert BillFootnote ²⁰⁷ were said to pursue the most “fearfully dangerous” policy of “shifting the foundations on which the British Government of India rests.”Footnote ²⁰⁸ To reject the Bill, on the other hand was to realistically accept that the government in India was “essentially an absolute Government, founded, not on consent, but on conquest.”Footnote ²⁰⁹

It is here that one can see most clearly that even though the Controversy was a moment of “panic,” it was not a moment of complete irrationality. Rather, the constitutional panic revealed or made explicit how instrumental the employed reasoning for constituting Empire was.Footnote ²¹⁰ It was realized that British India could only remain the crown jewel of the Empire if a demarcation was upheld between the rulers and the ruled, especially in branches of government. The most functional operator of demarcation, as can be seen in Stephen's letter, was that of skin color.Footnote ²¹¹ The use of this tool for demarcation was then justified by racial differentiation and hierarchization along the line of (pseudo-)scientific socio-Darwinist ideas. Thus, this line of argument against the Ilbert Bill exemplifies the general observation by Sumit Sarkar that “a certain amount of white racism had a functional and necessary role in the political and economic [to add: and legal, G.M.] structure of colonial India” and that it was “not irrational, after all, from the British point of view, to exclude Indians from the really senior and key posts in the military and administrative cadre as much as possible.”Footnote ²¹²

The panic, regardless of whether it was exaggerated or not, was informed by the sense that the Ilbert Bill was only one further step toward the total loss of control over government, society, and ultimately British India and Empire.