UNIVERSITY OF CALGARY Gender and Sexuality in Colonial Law, India 1 830- 1862 by James Henderson Warren A THESIS SUBMZTTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR TNE DEGREE OF MASTER OF ARTS DEPARTMENT OF HISTORY CALGARY, ALBERTA AUGUST, 200 1 OJames Henderson Warren 200 1 National Libraty Bibliothèque nationale 1+1 of,, du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Welington Street 395, rue Wellington Oltawa ON K1A ON4 atawaON KlAûN4 carlada Canadn The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, 10- distribute or sell reproduire' prêter, distribuer ou copies of this thesis in microfonn, vendre des copies de cette thèse sous paper or electronic formats. la forme de rnicrofiche/h, de reproduction sur papier ou sur format électronique. The author retains ownersbip of the L'auteur conserve la propriéte du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. Have done with childish days- The lightly pro ffered Laurel, The easy, ungrudged praise. Cornes now, to search your manhood Through al1 the thankless years, Cold-edged with dear bought wisdom, The judgement of your peers! - Rudyard Kipling, The White Man 's Burden Abstract This is a cultural history of the indian Penal Code: of how culhually and discunively constructed notions about gender and sexuality were ernbedded in the Code. An examination of the Code's legai definitions of rape and their ancestry in English law demonstrates that an early nineteenth-century philosophy of anti-sensualism and the gendered prescnpts of a discourse of bourgeois respectability uiformed those definitions and were enforced by them. The laws were coded by particular notions about morality, proper ferninine behaviour, and sexual restraint as conceived by the Code's author, Thomas Babington Macaulay, and elaborated through Evangelical moral phlosophy. Applied in India, the criminal law of rape had to undergo processes of negotiation and accommodation to reconcile ideas about gender and sexuality produced in Britain with colonial constructions of Indian social identities such as gender, caste, race, age, and the appropriate expressions of sexuaiity in India. Acknowledgements Numerous people assisted, supported, and guided me through the process of writing a Master's Thesis. My supervisor, Doug Peers, knew when to push and when to be patient. For that, and his constant questioning and never ceasing enthusiasm I am grateful. It has been a great pleasure to work with a scholar and a person such as Elizabeth Jameson. Her guidance and encouragement helped me to begin to believe that I could sunive this. 1 would also like to thank Miriam Grant for her comments on this work and for her patience in receiving it. The History Department at the University of Calgary comprises the larger context for my developrnent. Many professors have been influential in shaping my interests and in assisting me through my apprenticeship. Moreover, the office staff in the department have made the last years nui smoothly, especially Olga Leskiw, without whom 1 would have missed more deadlines than 1 made. The research and writing of this study was made possible by grants and scholarships from the Department of History, the Faculty of Graduate Studies, and Research Services at the University of Calgary. Many thanks to the community of gender researchers, both professors and graduate students, at the U of C, who have provided a rich atmosphere in which to work. The organizing cornmittee for the Gender Research Symposium, especially my brilliant CO-chairJulie Quinn, and al1 those involved with the Institute for Gender Research, particularly Lee Tunstall and Mary Valentich, warmly welcomed me and made me feel part of this comrnunity. My graduate school experience would not have been what it was (whatever that is) without the support and commiseration of my fellow grad students, Whitney Lackenbauer, Laurel Halladay, Cristine Bye, Cynthia Loch-Drake, and Sean Marchetto in Calgary and Sailaja Krishnamurti, Brooke Montgomery, and Kristin Burnett elsewhere. My best fnend Allison Leischner has been the only source of sanity for the last two years. 1 thank her for al1 the Friday nights that she reminded me that there was more to life than books. And finally, 1 want to thank my family, without whom nothing is possible and eve-ng is without meaning. Their love and support pervade al1 that 1 do. Jim, Pat, Carie, and Melissa, Thank you. iv TABLE OF CONTENTS .. Approval page.. ........................................................................... -11 ..* Abstract.. .................................................................................. -111 Acknowledgments. ........................................................................ iv Table of Contents........................................................................... v Abbreviations and Short Titles Used in the Notes.. ................................. .vi .* Glossary of Terms. ...................................................................... .vu INTRODUCTION: The Respectable and the Colonial.. ...........................1 CHAPTER ONE: Colonking Morality: Macaulay's Dr& Penal Code and the Elaboration of Pararnountc y. ...................... -29 CHAPTER TWO: The Codification of Respectability: Thomas Babington Macaulay and the Bourgeois Ferninine. .......6 1 CHAPTER THREE: Negotiating Identities: Rape and Colonial Law, 1830-1862.. ................................................... .95 CONCLUSION: A Colonial Legacy.......................................... -135 BIBLIOGRAPHY.. ..................................................................... 137 ABBREWATIONS AND SHORT TITLES USED IN THE NOTES Macaulay MSS Macaulay MSS, Trinity College Library, Cambridge University. PC The Portland Collection. The Papers of Lord William Bentinck. Department of Manuscripts and Special Collections, Nottingham University Library. Broughton Papers, Vol. VI. Add MSS. 47227. Manuscript Collections, British Library, London. Trinity Correspondence Correspondence of Thomas Babington Macaulay, Trinity College Library, Cambridge University. T.B.M. Thomas Babington Macaulay Works The Works of Lord Macaulay Albany Edition, 12 vols. London: Lonpans, Green and Co., 1898 Oriental and India Office Collections, British Library, London Parliarnentary Papers Minutes and correspondence of the Judicial Branch of the Government of India, O.I.O.C., British Library, London BSNAR Law Reports of the Bengal Sadr Nizarnat Adalat, 1827-1859. V/22/44246l, O.I.O.C., British Library, London. BSFAR Law Reports of the Bombay Sadr Foujdari Adalat, 1827-1 86 1. V/2S/Sj8-571, O.I.O.C., British Library, London. MSFAR Law Reports of the Madras Sadr Foujdari Adalat, 1826- 186 1. V/22/6 10-6 15, O.I.O.C., British Library, London. GLOSSARY OF TERMS adula t court of Law formal opinion by a rnztfri on Islamic law fautari adalat criminal court hadd prescribed penalties for acts forbidden by the Koran scholar in Islarnic law nizumat adalat the superior criminal court pandit Hindu Iaw officers razinamah deed of agreement or mutual satisfaction I Sadr Nizamat Adalat chief criminal court of Bengal Sadr Fouidari Adalar chief criminal court of Bombay and Madras. sati refers to both the act of a widow self-immolation and to the widow herself sharia the religious law of Islam thagi deceiving for criminal purposes, colonial administrators used it to refer to ritualized murder and robbery zina prohibited sexual intercourse according to the sharia INTRODUCTION:The Respectable and the Colonial In October 1837, Thomas Babington Macaulay, head of the Indian Law Commission and the legislative member of the Council of India, submitted a draft pend code for al1 of Xndia to Govemor-General Lord Auclciand for consideration. For nearly a quarter century the fate of that code remained uncertain. In London, Calcutta, Madras and Bombay, it was alternately considered and ignored, Iauded and derided, and subjected to amendment, revision, and finally an alrnost complete reversion to its initial form. Ultimately, as a result of the 'greatest' threat to colonial authority, namely the indian rebellion of 1857-58, (if ody because it was perceived and described as such by the very people in whose hands that authority rested) the code was enacted as Act XLV of 1860 and came into effect on January 1, 1862. In the afiermath of the Indian rebellion of 1857- 58, the colonial govemment, reconceived as a central body directly responsible to parliament and the crown, was buttressed through a series of legislative initiatives designed to consolidate and systematize authority. The indian Penal Code was a component of a larger initiative to overhaul the legal system: codes of cnminal and civil procedure were enacted and the judiciary was çtrearnlined.' Since 1862 the Indian Penal Code has become iconic of the 'benefits' of colonial rule to impenal apologists and idealized by legal scholars. Substantively the code was primarily composed of English law, that 'supenor' and 'modem' system of jurisprudence. Theoretically and stylistically it owed to the influence of the