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Public penology: postcolonial

biopolitics and a death in Alipur


Central Jail, Calcutta
BAIDIK BHATTACHARYA
The public execution is to be understood not only as a judicial, but also as a
political ritual. It belongs, even in minor cases, to the ceremonies by which power
is manifested.
Michel Foucault
Death is the sanction of everything that the storyteller can tell.
Walter Benjamin
Prologue
On 14 August 2004, just the night before Indias fifty-seventh anniversary of
decolonization, the Alipur neighbourhood of Calcutta, and the Central Jail
(recently renamed sam

sodhanagar or Rectification Home) located in that


area, had a remarkable pack of visitors to witness the most controversial
death by hanging in the recent history of India. A motley group of people, as
newspaper reports pointed out, from different quarters of the city and its
suburbs, braved the occasional downpour to gather around the jail building*
activists from various human rights and civil liberty groups, journalists,
curious spectators, stray vagabonds, street vendors, sex workers from nearby
red-light districts and so on. The group seemed eagerly solicitous for any
piece of news about the convict*indeed sixty-two of them had earlier sought
permission to be allowed inside the jail premises*and the provincial
government of West Bengal was forced to erect an unprecedented security
cover to restrain the almost uncontrollable crowd of voyeurs, professionals,
and activists. In the dimly lit alleys surrounding the jail building, one could
see heavily armed security personnel*at least two thousand in number*
barricading and cordoning off the sensitive area in front of the onlookers.
The main entrance of the building was being manned and monitored by
special security forces*the Rapid Action Force*generally deployed to tackle
large-scale communal violence and related public disorder, but they now had
the onerous task of holding back both human rights activists and a frenzied
mob.
ISSN1368-8790 print/ISSN1466-1888 online/09/01000722 #2009 The Institute of Postcolonial Studies
DOI: 10.1080/13688790802616225
Postcolonial Studies, Vol. 12, No. 1, pp. 728, 2009
Inside that imposing red-brick building of the colonial era, the convict of
our story was the centre of attention. After a long haul of solitary
confinement for nearly fourteen years, it was his last night within the high
security cell. As a precautionary measure, the cell was kept under continuous
surveillance and was closely monitored by the officials and medical staff of
the prison. What surprised or even puzzled these veteran officials was the
convicts serenity, bordering on indifference, during his final hours. His placid
face hardly betrayed any horror or panic. Instead, he wanted to have a shave
and new clothes before the execution, presumably for a fresh look during the
occasion. The lone sign of any agitation that the medical officer noted during
the night was the convicts acute sleeping disorder or insomnia*in spite of
their best efforts, the prison officials were unable to get him to sleep.
At around 3.20 in the morning, after the ritual bath, he sat on the floor and
opened his copy of S

r mad Bhagvad G ta. This was one of the texts he had


been plodding through, often reading aloud, again and again for the last few
days. And this was the only time, the medical officer insisted, when he briefly
showed signs of breaking down in the face of his imminent death, murmuring
to himself a few words about his fate and his wife. He also offered his prayers
with incense in front of a framed portrait of his old father that he kept in his
cell, and then returned to his G ta as if with a renewed zeal. Soon afterwards,
at around 4.10 in the morning, prison officials proceeded towards the gallows
with the convict.
The scaffold was covered with a makeshift tent made of tarpaulin sheets to
ward off monsoon rain; so was the platform meant for the officials. After a
night of occasional drizzle, however, it was no longer raining by then. The
scaffold bore an uncannily theatrical look, waiting for the dramatis personae,
as it were. During his walk from the condemned cell to this theatrical setting, a
walk of barely 100120 metres, the convict suddenly, and quite dramatically,
broke into a popular but pensive song and encouraged others to join him. The
hangman, Nata Mullick, and his assistants, in contrast, were befittingly stern
and sombre. While inserting the black hood over the convicts face and
literally tightening the Manila-rope noose around his neck, Mullick repeat-
edly asked for forgiveness and described his action as his job that he had to
perform following administrative orders. In reply, the convict wished and
prayed for everyone present there. His hands and feet were then tied.
At precisely 4.30, in front of other prison officials, the Jail Superintendent
dropped a red handkerchief; with professional deftness Mullick pulled the
iron lever; the iron dais beneath the convicts feet opened like a trapdoor and
banged against the concrete walls with a loud thud. Within minutes one of the
officials called the District Commissioner of North 24 Parganas to inform
him that Dhananjoy Chatterjee alias Dhana, convicted of raping and
murdering an 18-year-old girl, had been hanged successfully.
The return of the spectacular
My reproduction of the last hours of Dhananjoy Chatterjees life is culled
from extensive media reports and is just the proverbial tip of the information-
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PUBLIC PENOLOGY
iceberg that flooded both print and electronic media.
1
This impending
hanging provided sensational headlines for both local and national news-
papers/television channels over a period of several months: apart from
detailing the execution, the media interviewed Chatterjees entire family, the
hangman and his family; invited prominent personalities from virtually all
walks of life for their precious views on capital punishment; ran repeated
opinion polls among their viewers and readers; published hour-by-hour
descriptions of Chatterjees life in a dingy cell; produced television pro-
grammes graphically detailing the methods of hanging, with technical input
from Mullick; and extensively covered Chatterjees dietary preferences,
favourite music, reading habits, and every other conceivable aspect of human
life. Even before the actual hanging could take place, this theatre of cruelty
had developed into a public event in the everyday life of a postcolonial
nation-state, largely through public dissemination and state vindication.
This public penology is the central concern of this essay since such
publicness poses serious challenges to any study of the contemporary
postcolonial state and compels one to re-theorize some of the received axioms
of postcoloniality. It allows one to question, for example, the trajectory
of postcoloniality, the nature of the postcolonial state, and the scope of
disciplinary biopolitics in the postcolony. It also allows one to interrogate
the specific mode of subjection (mode dassujetissement) and the nature of
postcolonial biopolitics in this age of the globalized postcolony.
Let us start from a relatively unproblematic point*the history of
postcolonial penology and the way it extends the colonial frame of penal
reforms. In his study of penitentiary and disciplinary systems in Europe,
Michel Foucault describes one of the most consequential changes in modern
penal regimes in the following words:
Punishment [ . . .] will tend to become the most hidden part of the penal process.
This has several consequences; its effectiveness is seen as resulting from its
inevitability, not from its visible intensity [ . . .]. As a result, justice no longer takes
public responsibility for the violence that is bound up with its practice. [ . . .] it is
the conviction itself that marks the offender with the unequivocally negative sign:
the publicity has shifted to the trial, and to the sentence; the execution itself is
like an additional shame that justice is ashamed to impose on the condemned
man; so it keeps its distance from the act, tending always to entrust it to others,
under the seal of secrecy.
2
This, according to Foucault, reflected a shift from sovereign power (power
over death) to the beguilingly gentle and accountable modern power
structure (power over life, biopower) that attempted to integrate penal
practices within a rational and responsible schema. Such changes took place
between 1750 and 1850 and signalled the structural shift in penology from
corporal punishment to incarceration and disciplinary correction as part of
the governmental mode of biopower.
3
The evolution of this penological model, which was part of a larger
disciplinary and biopolitical regime, as I argue below in greater detail, was
occasioned through intrinsic and intimate transactions between Europe and
9
BAIDIK BHATTACHARYA
its colonies. That is to say, the evolution in Europe, in Foucaults case, and in
the colony, which is our primary concern here, must not be treated separately
or must not even be considered within a structure of modularity where the
European model always already precedes its colonial mimicry. Rather, this
biopolitical regime needs to be seen as part of what I call contiguous but
affiliated histories of colonialism that would account for connected and
coherent developments across the colonial divide. The suggestion of histories
being contiguous helps us link events across space, and the notion of
affiliation contextualizes such historical events within the uneven spatial
economy of colonialism. As far as governance and prison reform are
concerned, it is worth reminding ourselves as part of this contiguous history
that the earliest functioning panopticon prison (the paradigm of modern
power-structure according to Foucault) within the British empire came into
being not in Britain, but in Pune, around 1822, as part of the empires effort
to consolidate its rule in western India.
4
To continue with the Indian case, the much-cited Report of the Committee
on Prison-Discipline (1838) will be a singular document in our search for such
contiguous histories of prison management. The purview of prison reform in
the Report, in an effort to produce docile prisoners, considerably extended the
range and routine of menial work that could be carried out within the
confines of the prison and under direct surveillance of prison officials. The
comparative framework for this reform*in replacing earlier forms of
punishment such as torture and mutilation with different types of menial
labour*was informed not so much by any distant European model but by
the parallel experience of other colonies.
5
Similar prison reforms in
contemporary England with an explicit aim to improve discipline and
economy extended the contiguity of this story.
6
These reforms across the
colonial divide were often conceived within analogous ideological climates of
utilitarianism, but within the larger territorial economy of the empire they
assumed their unique inflections. The success of these contiguous experi-
ments, especially the Indian one, and its relevance for the colonial enterprise
at large, was attested to in commendatory terms by John Stuart Mill as late as
1858.
7
Even from a purely administrative perspective the achievements of the
1838 Report were accredited by The Imperial Gazetteer of India (1909). The
Gazetteer describes how the Report influenced later Prisons Commissions in
1864 and 1876 and the Prisons Act for British India (IX of 1894), and how its
proposals led to a well-considered system which in its essential features is still
in force.
8
When this episode is enlisted in the general narrative of penological
development, the colonial moment must be seen as a pluralizing inter-
vention*and not simply as creating parallel templates*that unambiguously
rewrites the universal narrative of European modernity across spatial
differences.
Coming back to our central issue, penological reforms in the colony, as
recent scholarship has shown, were bound up with various concerns and
anxieties*disciplinary, regulatory, coercive, and authoritarian*that accom-
panied early colonial rule.
9
Crime, criminality, criminal body, and prison
offered important sites where the colonized culture and population were often
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PUBLIC PENOLOGY
constituted/controlled, and where important governmental policies were
shaped.
10
Public execution in India, as part of such normative legal discourse,
made its gradual exit in the early decades of the nineteenth century,
predominantly during and after Colonel W H Sleemans thuggee campaign.
11
Such histories must be seen, according to my suggestion of contiguity and
affiliation, from at least two different perspectives. On the one hand, they
must be seen as springing from what Radhika Singha calls the ambitions and
perspectives of political authority that defined early British rule in India.
12
But, on the other, they must be seen as intriguingly mirroring Foucaults
formulae of avoiding public responsibility of punishment and making it an
invisible but inevitable outcome of the colonial rule. Early colonial records
accentuate this duality by providing detailed and comparative tabular indexes
of crime in England and its colonies, and of their respective rates of crime as
indicative of the regulatory power of law.
13
It is at the cusp of these two that we need to situate the complex and
contiguous penal reform in colonial India that responded to various needs
and constraints of governmentality, available legal discourse, local/contextual
demands and so on.
14
Within a few years of the Committees Report, for
example, the immensely popular Penny Cyclopaedia of the Society for the
Diffusion of Useful Knowledge (1843) revealed under its entry on Prisons in
the British Dependencies that such changes were fashioned by crucial
differences between English and Indian conditions. Practical considerations
often shaped penological nuances*it was estimated that the close yard,
which is adapted for classification and is not unwholesome in England,
would become a sink of malaria in the Indian environment. But the
overwhelming concern was to accommodate Indian habits, and an inveteracy
of prejudice and of feeling [ . . .] such as are not elsewhere to be encoun-
tered.
15
The disappearance of public torture and execution, therefore, must
not be seen as belated imitation of a distant European ideal. It was rather an
intervention into the volatile context of Sleemans campaign and the empires
expansion in such a way as to ameliorate a more local anxiety (habits, and an
inveteracy of prejudice and of feeling) about the new form of governance.
Apart from a few exceptions this penological resolution remained in place
throughout the colonial period and was the mainstay for postcolonial
penitentiary systems.
16
What distinguishes our story of public penology is precisely its publicness,
almost with a pointed agenda of subverting what Foucault describes above,
and its unrestricted simulation of hidden penal practices in the media. This is
significant not only because such publicness utterly ignores the complex legal
history I briefly allude to but also because it signals a transformed
postcolonial Indian state that so far had retained almost entirely the legacy
of this colonial history in its regimes of surveillance and penal sanctions.
17
Such exceptional moments cannot be construed as natural descendants of
what I call colonial exception for at least two reasons. First, they are neither
associated with nor responses to any national crisis. And second, it is
important to note that executions in postcolonial India, except when
connected to sensational political assassinations, hardly stirred public
11
BAIDIK BHATTACHARYA
emotion, and the secret methods of hanging were confined to the enclosed
space of the prison. The afterlife of the colonial resolution, in other words,
had a continued grip over the living postcolonial body politic. It is against
this backdrop of secrecy and reprimand surrounding penal violence that we
need to place the publicness of Chatterjees death.
Even in an age of reality TV, docusoap, and cinema-verite, this simulated
death is remarkable for its meticulous details and theatricality in recreating
the two principal objects of this public discourse: infliction of pain in the
public sphere and invention of the convicts body as the primary target of
punitive repression.
18
In this essay I read this simulated text of penal
oppression in its social context, with specific attention to its implications for a
postcolonial nation-state like India, the public domain within which it has
been circulated and consumed, and what such public penology tells us about
the society that savours it. My effort here is not to rehearse the arguments for
and against capital punishment,
19
but to take this event as an entry point to
explore how diverse social and juridical investments in death facilitate the
social viability of the postcolonial nation-state in India. It is also true, as
Jacques Derrida points out, that it would be quite difficult to argue against
capital punishment philosophically*and Derrida cites as evidence both Kant
and Locke who support the death penalty*as one would face the seemingly
impossible task of differentiating it from other forms of physical punishment.
The opposition to capital punishment, in the absence of philosophical
unanimity, then, must be based on political consensus which is by definition
contingent and needs to be renewed repeatedly.
20
This essay is offered in this
double spirit of consensus and contingency.
Death as a socially symbolic act
The first notable aspect of this text is the gloomy celebration of death that
enjoyed state support and public patronage in equal measures. Within such an
environment death ceases to be itself, signifies something other than itself,
and lends itself to larger structures of punitive practices and statist discourses.
This legal endorsement of death, admittedly, is not unprecedented in India
and is not an exceptional practice worldwide. Table 1, which is taken from
Amnesty Internationals annual report on capital punishment, gives a rough
picture of such executions between 1999 and 2004, which are sanctioned by
various nation-states as part of their everyday functioning.
About 97 per cent of the 3,797 recorded executions in 2004 took place in
China, Iran, Vietnam, and the US. The picture in India is not very bright
either. Human rights activists have frequently expressed their concerns about
the exact number of executions in India ever since decolonization in 1947, and
have reported their frustration with the government which jealously guards
any information on the issue.
22
In spite of such technical and bureaucratic
blockades, it has been estimated that between 1996 and 2000 approximately
forty-nine people were sentenced to death, and at least five people were
executed during the same period of time, the last being in 1997.
23
There was
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PUBLIC PENOLOGY
a virtual moratorium on such executions after 1997, and our story marked a
violent break in this course of events, it would seem, with vengeance.
This somewhat global celebration of death within statist discourses signals
a phase of what Achille Mbembe calls necropolitics or the politics of death
as the sovereign manifestation of power. Mbembe, however, insists that
necropolitics does not mark a crisis point in what Foucault calls biopower
and rather considers it as an extension of Foucaults theory vis-a`-vis the
notions of sovereignty (imperium) and the state of exception.
24
This
extension must take an extra-statist form and must place modernity at the
heart of the multiple concepts of sovereignty and biopolitics.
25
Mbembes
theorization assumes a linear development from the purposive, self-conscious
Enlightenment subject to the normative sovereign in the philosophy of
modernity. This model of governance in the postcolonial world has manifold
implications for our story, and I will explore this in greater detail in the next
section, but it is necessary at this stage to state the differences between
Mbembes notion of necropolitics and what I propose here as modes of
postcolonial biopolitics.
My reading of capital punishment as a legal variety of destroying life,
unlike Mbembes theory, is based not on a purported continuity between
biopolitics and sovereignty but on a critical and necessary split in the modern
forms of governmentality between, to borrow Foucaults vocabulary, the
mechanics of discipline and the principle of right.
26
Giorgio Agamben has
described this duality, and the absence of its resolution, to be the unfinished
project of Foucault that sought to reconcile the juridico-institutional and
biopolitical approaches to the problem of power. The completed project,
Agamben argues, must take into account the fact that bare life (zoe), which
used to be excluded from political life in the pre-modern era and which
entered the calculations of the state with the advent of modernity, now
corresponds with politically qualified life (bios) into a zone of irreducible
indistinction. This is a direct result of the regularized state of exception that
constitutes bare life as a category simultaneously excluded and included and
constructs every political system of the modern era as crucially dependent on
the biopolitical body of humanity.
27
The legacy of biopolitics in the
postcolonial world, however, is a fractured one and thoroughly different
from Agambens account.
Table 1. Recorded worldwide executions by year, 19992004
21
Year No. of countries
carrying out
executions
No. of
executions
recorded
No. of countries with
over 100
executions
% of all recorded executions
in countries with
over 100 executions
1999 31 1,813 4 80%
2000 28 1,457 2 77%
2001 31 3,048 2 86%
2002 31 1,526 2 77%
2003 28 1,146 2 73%
2004 25 3,797 2 94%
13
BAIDIK BHATTACHARYA
On the one hand, the fundamental model of governance was developed
through contiguous colonial encounters, most notably through racism, and
this colonial resolution continues to inform the essential coercive and
disciplinary techniques of the postcolonial state. Making live for a
postcolonial state is inextricably linked to such techniques of controlling
and ordering the population, often in the guise of development and through
various macro and micro institutions. The central emphasis on race in
colonial governance, however, has been replaced in this new context with
more pressing concerns of class and/or caste apartheid. On the other hand,
however, this contiguous history is made more complex as decolonization
introduces within the biopolitical field the discourse of rights and citizenship
that finds its eventual expression in legal rhetoric and practices. Such rights
are perforce derived from the decolonized nation-state and are in a
fundamental conflict with the first model.
In the following section I propose that the postcolonial nation-state is
simultaneously an arbiter between these two axes of biopolitics and
sovereignty and the structural field within which they unfold. This doubling
is the result of colonial negotiation between the two modes of power,
evidenced in its official endorsement of racism, and remains a legacy for the
postcolonial state and its mode of governance. One of the more practical
ramifications of this duality is the strategic separation of the citizen from the
population or, in other words, selective political qualification of the popula-
tion.
28
The postcolonial biopolitics I describe in this essay is essentially
hinged on this differential population management. If politicization of zoe
constituted the fundamental moment of modernity, as Agamben has
suggested, the (post)colonial twist of this story is the criminalization of the
same zoe as part of this differential population management. There is an
inexorable thrust to manage the nation-people within the exclusive appara-
tuses of the state, and whoever remain peripheral to this project by their own
deviancy become exceptional and hence dangerous. The general provision of
the death penalty is a telling example of how the postcolonial state maintains
this differential regime by progressively criminalizing the state of exception in
its everyday functioning.
The texts and discourses available during the controversy, which I take up
in the next section, however, alert us to a different possibility*a public and
everyday configuration of this exceptional-as-criminal rhetoric. The social
distinction between prohibition and permission to destroy criminal life in
public debates predominantly followed the juridical raison detre, by
subscribing to the logic of exceptionality. There was, nevertheless, an
additional attempt to explain this rhetoric of exceptionality into more
accessible social narratives, as if to bring the postcolonial state into some
conversation with its constituency. As a result, this logic is couched in various
narratives of the rarest of the rare crime, retribution, maintaining order, and
is an integral part of the bizarre event of turning the hangman into some
sort of celebrity who eventually concludes an extraordinary series of events
and punishes an unusual criminal. Such peculiarly postcolonial aberrations of
justice, contrary to Mbembes claim, allow one to see the postcolonial state
14
PUBLIC PENOLOGY
not as a defunct structure but as a mutative ensemble that renews its dual
responsibility of sovereignty and biopolitics through the sordid theatre of
exceptional death.
The colonial contiguity and the exceptional population management I have
recounted so far face a critical challenge from the contemporary discourse
of human rights. The ingenious postcolonial answer to such a challenge is
neither a reduction of the gap between the governed and the excluded nor a
collapse of the two within the logic of governance, but a legal separation of
the governed and the ungovernable. This is a fundamental manoeuvre as far as
the postcolonial state is concerned since on its way to stigmatize even the bare
life of the ungovernable criminal, it approaches the limits of sovereignty
where it exhausts every other narrative of right (including human right) to
establish its biopolitical authority. Indeed, the criminals bare life or its legal
destruction summarizes the contiguous histories of postcolonial biopolitics
and sovereignty, and even the claim of human rights is no guarantor against
such histories.
The postcolonial state of exception
In his study of the contemporary forms of subjugation of life to the power of
death, or necropolitics, Mbembe locates the modalities of late-modern
sovereign power outside the territorial limits of the nation-state.
29
If we
consider late-modern colonial occupations such as Palestine or the extra-
statist war-machines in contemporary Africa, he argues, the vagrancy of
power, being defused and disposable, forces us to think beyond the settled
notions of state-sovereignty. These received wisdoms of sovereign power
follow two broad patterns: first, the technologies [of sovereign power] which
ended up producing Nazism [ . . .] originated in the plantation or in the
colony; and second, the contrary*Foucaults thesis*[that] Nazism and
Stalinism did no more than amplify a series of mechanisms that already
existed in Western European social and political formations (subjugation
of the body, health regulations, social Darwinism, eugenics, medico-legal
theories on heredity, degeneration, and race).
30
Contemporary forms of
necropolitics render both versions and their difference irrelevant and
demonstrate their inadequacy in explaining how death, terror, freedom, and
resistance attain their unique meanings in the death-world that we inhabit.
Mbembes formulation is an important reworking, hence extension, of
Foucaults notion of biopolitics. It permits us to reread Foucault, particularly
his lecture series at the Colle`ge de France in 19751976, entitled Society Must
be Defended, while thinking about the civil authority of the postcolonial
nation-state. It also makes it possible to reflect on what Agamben calls
Foucaults unfinished project on power*I would argue that this reflection
must concentrate on the crucial question of colonial racism and the metaphor
of racial war introduced in this lecture series. Mbembe somewhat neglects
the centrality of colonial racism in the thinking of later Foucault and
unproblematically proposes two different genealogies for the modern state:
one that locates the coercive techniques of modern statecraft in the history of
15
BAIDIK BHATTACHARYA
colonialism, and the other, presumably Foucauldian, that restricts such
developments within the social and political histories of Western Europe. The
division is overdrawn and needs re-evaluation. Mbembe correctly points out
Foucaults emphasis on race within biopower*it is a paradigm for the
distribution of human species into groups, the subdivision of the population
into subgroups, and the establishment of a biological caesura between the
ones and the others.
31
Mbembe, however, does not follow this logic and fails
to recognize that in Foucaults schema, or war-model of biopower, the
materiality of race is as important as its paradigmatic signification: it
authorizes death within biopower*which is otherwise oriented towards
preserving life*as a preservative principle and a pre-emptive measure. To
protect the I*not an individual, but a racialized self*the destruction of the
Other becomes a necessity in this new model of politics as war:
[R]acism justifies the death-function in the economy of biopower by appealing to
the principle that the death of others makes one biologically stronger insofar as
one is a member of a race or a population, insofar as one is an element in a
unitary living plurality. [ . . .] The specificity of modern racism, or what gives it its
specificity, is not bound up with mentalities, ideologies, or the lies of power. It is
bound up with the techniques of power, with the technology of power.
32
Colonial racism enacts the overpowering desire for safety against racial
contagion/degeneration, and death enters the mechanism of biopolitics
through the slippery rhetoric of racial purity. Racism, therefore, has a
twofold function within biopolitics*first, it consolidates biopower through a
practical and viable state, particularly by affecting the techniques of the care
and preservation of self; as Foucault argues, racism is bound up with the
workings of a State that is obliged to use race, the elimination of races and the
purification of race, to exercise its sovereign power.
33
And second, by letting
death (of the other) within the discourse of biological life it marks a perennial
zone of exception within the mechanics of biopower that would be used as an
alibi for sovereignty. Foucault unambiguously locates the genealogy of this
dual function of racism in colonial genocide*not within an immanent plane
of politics internal to Western Europe*and the way the colonial state
consolidated its governmentality around the fetishized discourse of race:
Racism first develops with colonization, or in other words, with colonizing
genocide. If you are functioning in the biopower mode, how can you justify
the need to kill people, to kill populations, and to kill civilizations? By using the
themes of evolutionism, by appealing to a racism.
34
Foucaults central emphasis on colonial racism is not an isolated frame of
thinking. It finds supportive echoes, for example, in Hannah Arendts notion
of the racist state,
35
and in Gilles Deleuze and Felix Guattaris concept of the
Oedipal repression of state-power which they claim is always colonialism
pursued by other means.
36
On the other hand, Agambens work readjusts this
emphasis somewhat differently: his account of the holocaust and the camp as
biopolitical paradigm explores a different, and more intimate, version of
racism (i.e. anti-Semitism).
37
To return to Foucaults text, racism, thus, is the
16
PUBLIC PENOLOGY
point of departure for the changes in modern modes of power*a change
inaugurated by the shift from individual subjects to the generalized totality of
population and a change that allow[ed] biopower to work.
38
Colonial
genocide and racism constitute the ultimate horizon of state power, which
Deleuze and Guattari define as unconditioned Urstaat
39
and which Marx
famously describes as a shameless, bare-faced rule of sword and cross.
40
How does death, particularly as punishment in a postcolonial nation-state,
relate to such history? How do we make sense of the continuing presence of a
former mode of power within the newer modalities? To answer such questions
it is important to move beyond Foucaults sanctioned ignorance
41
of
colonialism and to acknowledge the virtually explicit suggestion of contig-
uous and affiliated histories in his text. His proposition of colonial genocide
as the foundational moment and racism as the organizing principle for
modern states allows one to think through the contiguity of colonial histories.
To explore the link further we must concentrate on death in our story (not as
an abstraction, but a historically embedded category) as a particularly dense
point of transaction between sovereignty and biopower, rights and citizen-
ship, and diverse social forces such as populism, electoral democracy, identity
politics and so on. Within the plural and fragmented context death becomes
the link between sovereignty and biopower*sovereignty resides in the
exceptional power of the sovereign over his subjects death, and biopower is
made possible only through the death of the (racialized) Other. Though
postcolonial biopower is impervious to death as it takes life as both its object
and its objective,
42
it still destroys life in the name of the sovereign people,
and as such, through death, installs sovereignty within disciplinary me-
chanics. Indeed, the most significant transformation in modernity is the shift
of sovereignty, through the slimy and dark notions of death, from the body of
the monarch to the social body of the people. In Deleuze and Guattaris
somewhat Foucauldian reading of territorial sovereignty, this shift is also
linked to the emergence of capitalism as a territorial system that needed a new
locus of biopolitical body to inscribe its desiring production.
43
And in more
recent discussions, Michael Hardt and Antonio Negri have described this
shift as taking place from the patrimonial body of the monarchic state to
modern nation-people.
44
The continuing presence of the former within the latter (nations do claim
sovereignty) ensures that sovereignty functions through legal discourses/
institutions and by extending itself over the exceptional population who must
come under its disciplinary corrections. But it also guarantees that
postcolonial biopolitics, which is otherwise impervious to death, perforce
accommodates death as a perennial zone of exception within such legal
discourse. To continue with Foucaults vocabulary, the colonial/postcolonial
legal regimes are strategic combinations of biopolitics and thanatopolitics,
bios and thanatos, life and death.
45
Indeed, politically qualified death is the
other half of biopolitics, its necessary supplement, and it is through the
functional anachronism of two different modes of power that the colonial/
postcolonial state becomes effective. In colonial India this functional
anachronism was achieved through a variety of practices*criminalization
17
BAIDIK BHATTACHARYA
of the poor, declaring certain tribes hereditary or habitual criminals, and
designating popular (often peasant) rebellions as criminal conspiracies
against the colonial state.
46
In our postcolonial version of the story this
racial resolution returns under a secular guise*the convict is a veritable
source of contagion, and, therefore, what was earlier applicable in terms of
racially/socially threatening groups, now becomes desirable for this excep-
tionally menacing individual*i.e. death.
47
The legacy of race/class apartheid
within the legal discourse is even more evident in the fact that most of the
people executed in recent Indian history are from the urban and rural poor*
individuals who did not benefit from the agrarian revolution of the early
decades of decolonization and who again do not find a place in the more
recent saga of glossy and rapid urbanization.
The postcolonial career of this resolution, along with the figure of the
exceptional criminal, is often distributed through diverse socio-legal narra-
tives and the pressing need for the rule of law. All the courts that approved
Chatterjees execution, and indeed the two presidents of India who refused
clemency appeals, upheld the socio-legal logic of the rarest of rare crimes
and the need to defend the society against such exceptional criminals. Let us
read a passage from the judgment of the Indian Supreme Court on
Chatterjees case:
The faith of the society by such a barbaric act of the guard, gets totally shaken
and its cry for justice becomes loud and clear. [ . . .] We agree that a real and
abiding concern for the dignity of human life is required to be kept in mind by
the courts while considering the confirmation of the sentence of death but a cold
blooded preplanned brutal murder, without any provocation, after committing
rape on an innocent and defenceless young girl of 18 years, by the security guard
certainly makes this case a rarest of the rare cases which calls for no punishment
other than the capital punishment and we accordingly confirm the sentence of
death imposed upon the appellant for the offence under Section 302 IPC.
48
The real and abiding concern for the dignity of human life in this narrative is
offset by the twin nature of the crime*rape and homicide. The role of law is
largely seen as a moral condemnation of and a necessary corrective to such
acts of crime and it is here that the status of rape as an exceptionally
barbaric act becomes decisive. The public condemnation and legal
discourses routinely accentuated the sexual overtone of the crime and
portrayed the security guard as the dangerous individual, the sexual
predator, or the living threat to women who must be terminated.
49
There
was a hidden contradiction within such a socio-legal narrative of justice. The
zealous guardians of feminine honour paid scant attention to decade-long
feminist activism in India opposing the death penalty as the only legal reprisal
for rape. If capital punishment was the only available form of punishment,
feminists argued, then the legal system would thoroughly depoliticize sexual
violence by making it an absolutely moral and singularly central event in the
lives of the women concerned. They also put forward the more pragmatic
argument that any legislation proposing the death sentence for rape would
18
PUBLIC PENOLOGY
inversely affect the issue by further lowering the already pathetic rate of
conviction for rape and other sexual offences.
50
My point here, of course, is not to mitigate the seriousness of sexual
violence but to point out the entrenched social hypocrisy in depicting this
particular instance as an exceptional crime in a nation of rampant female
foeticide, widespread domestic and public sexual abuse, and an increasingly
high rate of sexual violence against women.
51
One could almost feel the
pulsating body of the sexually violated girl behind the maze of public outcry
and legal admonition, so much so that it peremptorily justified state reprisal
on her behalf. The trope of rape and sexual violence only enhanced the
efficacy of this public discourse. The body is invoked, and simultaneously
erased, only to allow other narratives their legitimate space; it is an alibi, or a
condition, for other narratives*whether of gendered honour or state
intervention*that would continue the colonial resolution and ensure instant
appeal in the public domain.
Indeed, sexual violence in this case provided yet another justificatory
ground for the exceptional yet everyday state violence. It is different from
Agambens description of routinized exceptionality as this postcolonial
legitimacy did not emerge through national crises and other geopolitical
predicaments of the twentieth century.
52
Rather one would be hard pressed to
explain the universal acceptance of the states exclusive access to violence,
rituals which clearly emerge from the colonial era, and how this exclusivity is
achieved in the name of the sovereign people. The crucial question of letting
die in Chatterjees case was determined in the name and on behalf of this
sovereign and exclusive right to violence. The socio-legal narrative of
exceptionality and its reprisal, it would seem, offered a fitting preamble.
Our public text of penology becomes decisive precisely here*in its public
vindication of exceptional crime and singular state violence. Let us read a
passage from a popular tabloid here, which captures the public mood in its
most apoplectically crude form:
Were that my child, I would have killed the man myself. And no. That is not an
idle boast. The thought of my child being violated and killed by someone like
Chatterjee makes me mad. Cold, rational, mad. Not in a rage mad. I know
exactly how many pieces I would cut this criminal into. And which piece Id begin
with. [ . . .] Dhananjoy Chatterjee will do everything he can to beat his sentence.
And if there is any justice in this world, any justice in this land, he will not
succeed. I want Dhananjoy Chatterjee to go to the gallows. I want him to swing
by the neck. Until he is well and truly dead. Perhaps then that 14-year-old girls
soul will rest in peace. Finally. And that would be justice served.
53
The naturalized shift here from personal revenge*where our author imagines
himself in a different subject-position (the girls father) but carries forward his
own emotion*to state violence as justice, summarizes the shift in post-
colonial biopolitics that always already assumes the state replacing the
subject-individual as the guardian of legitimate life as well as the avenger
against the dangerous/exceptional individual or group. This violence,
contrary to Mbembes contention, cannot take an extra-statist form*in fact,
19
BAIDIK BHATTACHARYA
such a theorization would completely ruin the thrust of the argument here*
as the Indian state is the portmanteau repository of legitimized violence
against exceptionality. This pure violence and its acceptance make sense only
when contextualized against the racial exceptionality I have discussed above.
The simulated text is important because of the way it captures the afterlife of
this colonial resolution and makes it worldly in a postcolonial context.
Media matter
There is an obvious conflict between the trajectories of (post)colonial
penology I have charted so far, in order to use it as a framing for our
reading, and the simulated text of media narratives. The frame and the
simulated content share a complex relationship of discontinuity and
inconsistency in creating the public text of Chatterjees death. It is through
the discontinuous space of the two, I would argue, that this simulated text
performed the crucial role of making the abstract and somewhat secular legal
codes worldly and situated them within their social contexts*contested
and contending social spaces*to attest their individuality for the community
of viewers and readers. It is also through discontinuity that the domain of
postcolonial biopolitics becomes operative and achieves its cohesion. To
understand the public text of postcolonial biopolitics that exists on the
crevices of this disjuncture I would suggest three broad threads that we
need to look at: narrative simulation and interrogation of exceptionality;
disjunctive justice that constructs legal codes in displacement; and public
performance of postcolonial biopolitics as it is enacted through local habits,
prejudices, and feelings.
To highlight these divergent sites it would be necessary to concentrate on
different narrative tropes and strategies that animated the text of public
penology. The central trope of exceptionality revolves around Chatterjee, the
criminal, and comprises at least three narrative strands: celebration of the
mundane and the quotidian from Chatterjees life; the auxiliary field where
criminology, criminal anthropology, psychiatry and several other branches of
modern science construct the individuality of the exceptional criminal; and
emotional public response to exceptionality. Such narrative strands, however,
become significant only in Chatterjees death, or when framed by the intensity
of an imminent execution, as they function as the hidden prelude to a public
hanging. A second narrative strategy extends this logic of social and
accessible death by portraying it as revenge on behalf of the deceased girl.
Death is not simply the backdrop here, but the frame of reference or even the
texture that animates these narratives.
The most striking feature of this public text is the emergence of neither
Chatterjee as an exceptional criminal nor the girl as yet-to-be-revenged
victim*it is rather the hangman, Nata Mullick, as the public hero. Indeed,
the hangman, who first appeared on the margins of this text and was a
peripheral interest for the media, became one of the decisive characters in
this public disport of postcolonial sovereignty. His gradual ascent into a
vindicator of justice in the public eye needs to be seen from at least two
20
PUBLIC PENOLOGY
perspectives. On the one hand, following from Foucaults suggestion of
contiguity, he is part of the violence of penal processes and of the additional
shame that justice is ashamed to impose on the condemned man. As such the
distance between Mullick and the power which authorizes him to execute is
crucial since it is this distance that secures the grandeur of the modern penal
process. The hangman in this view is merely a cog in the wheel, an impersonal
component of the huge postcolonial machinery of justice. On the other hand,
however, he appealed to the public imagination as part of the secret rituals
attending the death of the convicted man. In this narrative he exceeds his
marginal location, becomes part of the social narratives seeking to explain
legal conviction, and gradually personifies the postcolonial state in absentia.
It is against such contradictory positioning of Mullick that we need to
place the text of public penology; let me quote two different aspects of the
text vis-a`-vis the hangman:
Mallick comes from a family of professional hangmen*his father, D. Mallick,
had hanged nearly 500 people. But the fierce controversy over the case made
Nata Mallick a celebrity. Newspapers, magazines and television channels fought
openly for an exclusive interview with the hangman. His pictures, and views on
hanging, appeared everywhere.
Mallick stated that he had no particular views on capital punishment but quickly
added that men like Dhananjoy should not be allowed to live. This made him a
hero. As his popularity went up, Mallick was asked to declare open a blood
donation camp. A local film producer announced a documentary on him and
Mallick was in great demand as a speaker in public functions. The cream came
when he was seated next to the Chief Ministers wife at a meeting where speakers
condemned any more mercy petitions on behalf of Dhananjoy.
54
This public persona of the hangman complicates our story. Mullick himself
tried to explain his public success as resulting from his duty (kartabya),
something he was obliged to perform. The invocation is quite important since
it not only places him within the ambit of the legal and state apparatuses, but
also indicates a larger order that stretches beyond the particular juridical
authority. He often described this duty as that of cleansing the society of its
unwanted or dangerous elements.
55
Along with this public euphoria there was a more localized side of the
hangman*as if to continue with local habits, prejudices, and feelings Mullick
emerged as an esoteric figure whose existence was circumscribed by the
mysterious rituals of death. In this avatar he existed as a supplementary
persona to his public self, but, nonetheless, managed to accentuate the
contradictory positioning of the hangman in the general schema of
postcolonial biopolitics. As one of the reports suggests, this esoteric ritual
even earned him a sizeable clientele:
The noose that hangman Nata Mullick tightens around a convicts neck every
time, is a collectors item*of the mystic variety. Or so it seems from what
Mullick does with the piece of rope after an execution. He dexterously executes
another plan on the few yards of rope, converting it into as many bits and pieces
21
BAIDIK BHATTACHARYA
as possible. [ . . .] These pieces of rope are then intricately embedded within
lockets and people make a beeline for the hangmans house to possess one. For
many, as strange faith would have it, having this locket on their bosom is an
assured guarantee against evil, bad luck and misfortune.
56
This contradictory situation must not be explained as a persistence of the pre-
modern within the ambit of the modern, an anachronistic narrative that
modernity somehow fails to exorcise or even account for. Rather, following
my suggestion of contiguity and affiliation, I propose this other narrative of
postcolonial justice as a necessary buffer zone that postcolonial biopolitics
produces as part of its everyday functioning. The persistence of this narrative
is a sure indication of the public discomfort with the mechanics of this regime,
and it is through such social narratives of habits, prejudices, and feelings that
the regime becomes worldly as well as acceptable.
The postcolonial state and its discontents
I must now recuperate the other half of this simulated text, the discourse of
human rights and the campaign by human rights and civil liberty workers as
this sordid event burst into the public domain. Saskia Sassen develops a
model of international human rights regime and state sovereignty in our
contemporary world where the partial deterritorialization of human rights
discourse (though the other part is firmly rooted in territorial states) allows it
to potentially contes[t] state sovereignty and devalu[e] citizenship. Though
Sassens model is designed to account for the complex flows and patterns of
international immigration in an age of globalization, it is useful even for our
story as she argues that one of the consequences of the ascendance of an
international human rights regime has been a partial shift within the concept
of nationality from a principle that reinforces state sovereignty and self-
determination [ . . .] to a concept emphasising that the state is accountable to
all its residents on the basis of international human rights law.
57
This shift in the states role was one of the central presuppositions behind
the effort by several human rights and civil liberty organizations
58
as they
sought to intervene in this blatant theatre of cruelty. Citing several UN
resolutions against the death penalty*most significantly the General
Assembly Resolution, 8 December 1977,
59
which in many ways inaugurated
the new accountable avatar of the state*they stressed the centrality of human
rights in modern penal practices and urged the Indian state to take measures
to progressively restrict incidents of capital punishment with the final goal of
complete abolition.
60
The discourse of human rights in this case, broadly
speaking, is argued on the natural rights of the human as such; or, to retain
the moral inflection, in this case clemency for Chatterjee was pleaded because
[h]uman rights are [ . . .] moral rights which all persons equally have simply
because they are human.
61
Though in specific cases the exact emphasis
varies, the principles of natural and moral rights remain instrumental, and a
wide array of institutions and individuals*from the UN to the grass-roots
22
PUBLIC PENOLOGY
human rights worker*largely subscribe to these principles in their opposition
to the death penalty.
If phrased in such terms, however, the discourse of human rights in the
postcolonial world faces an inherent duality: on the one hand, there is a
need to uphold the common minimum denominator of human life, or what
Agamben calls bare life or zoe, as somewhat sacred. This is recognized within
the mechanics of postcolonial biopower. On the other hand, chiefly because
these rights ought to be articulated in concrete spatio-temporal contexts, there
is a supplementary challenge to qualify this bare life politically (Agambens
bios) so that it can be defended against possible violations such as capital
punishment. And here we move into the realm of sovereign power that confers
rights to individuals. Such a move, however, cancels out zoe or at least
acknowledges it as an inadequate and unsatisfactory category for the purpose
of defending human life. The following passage from Amnesty Internationals
appeal during the controversy more or less frames various arguments put
forward during the incident, and also exposes the duality I indicate:
Amnesty International opposes the death penalty in all cases as a violation of the
right to life and the right not to be subjected to cruel, inhuman or degrading
treatment, as proclaimed in the Universal Declaration of Human Rights. The
death penalty is an inherently unjust and arbitrary punishment, however heinous
the crime for which it is inflicted. Studies globally have shown that it is more
likely to be imposed on those who are poorer, less educated and from
marginalized segments of society. The death penalty is irrevocable, yet the risk
of error in its application is inescapable. Amnesty International recognizes the
need to combat violent crime, but there is no convincing evidence that the death
penalty deters crime more effectively than other punishments.
62
The argument here, opposing the rationales behind capital punishment*both
retributive and deterrent*puts forward the dual meanings of human life. The
first part of the argument proposes it as bios, which must not be subjected to
inhuman treatment and must not be violated mortally. The second half, while
accentuating the technical culpability of capital punishment, prioritizes zoe,
which must be preserved. Given the contiguous history of postcolonial
penology, this distinction achieves its peculiar character in our story. It does
not follow Agambens formulation where zoe is included in political life
through exception or as a zone of perennial exclusion. It does not, further,
simply expose the schism in modern governance between citizenship and what
Arendt calls the abstract nakedness of being human as exemplified by the
figure of the refugee.
63
What our story reveals is rather a postcolonial strategy
where zoe of the criminal continues to carry the racial resolution of colonial
governance in being exceptional, threatening, and therefore liable to remain
under the active control of the state. The bare life of Chatterjee*which
informed the appeals against his death*is claimed by the state as an exclusive
domain of possession.
Let us listen to two defining notions of the state on this issue. In one of the
paradigmatic cases in this regard, Bachan Singh v. State of Punjab (1980), the
Supreme Court of India maintained:
23
BAIDIK BHATTACHARYA
it cannot be said that the provision of the death penalty as an alternative
punishment for murder, in Section 302, Penal Code, is unreasonable and not in
the public interest.
The 35th Law Commission of India also declared that,
having regard to the conditions in India, to the variety of social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country,
to the vastness of the area, to the diversity of its population and to the
paramount need for maintaining law and order in the country at the present
juncture, India cannot risk the experiment of the abolition of capital punish-
ment.
64
The defining tone in both cases is to make room for the exceptional criminal
even when he has not been mentioned. It is not that these reports are not
aware of the abolitionist arguments, or that they remain closed to any other
possibility, but what makes them intriguing is their ability to implicitly
propose the deviant as dangerous and to justify capital punishment on that
ground. The second report is more interesting since it almost reproduces the
typical colonial logic of blaming the victim (diverse India) for harsh ruling.
The diversity is a veritable breeding ground for exceptional criminals, and it is
in the public interest that these exceptional individuals must be brought under
exceptional state control. The comparison with an abolitionist West (another
moment of contiguity) only reinforces this colonial mindset.
Indeed, in recent years the scope of the exceptional-as-criminal has been
widened to cover various other fields that also merit capital punishment*
offences relating to terrorism, drug trafficking, performance of Sat , and
death caused by illegal arms. It is this regularization of exceptional
criminality that forces one to see the postcolonial state at war with its own
population in order to nurture its protean ensemble of biopolitical mechanics
and critical sovereignty. And it is again this regularization that achieves the
everyday acceptance of state violence and hardly allows one to see the
postcolonial death-world as something extra-statist or as some kind of
transcendental environment that necessarily stretches beyond restrictive state
boundaries. The raucous celebration of Chatterjees death, however, missed
one vital point*if one admits that the postcolonial state is the only
repository of legitimate violence and if one subscribes to its unlimited
sovereign rights over its citizens death, both bios and zoe cease to be rightful
possessions and are made to rely on the states approval if not mercy.
Epilogue
Let me conclude by retrieving another report of a hanging from a different
moment in the contiguous histories of biopolitics and colonialism that haunts
my writing in the opening section of this essay. This event of capital
punishment, taking place in colonial Burma in 1931, was much less reported.
Indeed this is possibly the only account that ever survived of the sodden
morning that saw the hanging of an Indian convict*a puny wisp of a man,
24
PUBLIC PENOLOGY
with a shaven head and vague liquid eyes. Very little about death and penalty,
it would seem, has changed during the intervening years:
It was about forty yards to the gallows. I watched the bare brown back of the
prisoner marching in front of me. He walked clumsily with his bound arms, but
quite steadily, with that bobbing gait of the Indian who never straightens his
knees. At each step his muscles slid neatly into place, the lock of hair on his scalp
danced up and down, his feet printed themselves on the wet gravel. And once, in
spite of the men who gripped him by each shoulder, he stepped slightly aside to
avoid a puddle on the path.
It is curious, but till that moment I had never realized what it means to destroy a
healthy, conscious man. When I saw the prisoner step aside to avoid the puddle, I
saw the mystery, the unspeakable wrongness, of cutting a life short when it is in
full tide. This man was not dying, he was alive just as we were alive. All the
organs of his body were working*bowels digesting food, skin renewing itself,
nails growing, tissues forming*all toiling away in solemn foolery [ . . .] and in two
minutes, with a sudden snap, one of us would be gone*one mind less, one world
less.
65
Acknowledgements
I would like to thank Rajeswari Sunder Rajan for her comments and suggestions on various
stages of writing this essay. I have beneted from the comments of Neelam Srivastava and
Robert J C Young on an earlier draft. Earlier versions of this essay were presented during
seminars and conferences at the universities of Oxford and Nottingham Trent. I would like to
thank the participants of these meetings for their generous comments. And nally, special
thanks to Mallarika Sinha Roy for her comments and help.
Notes
1
These reports differ on ner details; in my re-creation above I have relied on the reports published in
Anandabazar Patrika (Calcutta), 15 August 2004.
2
Michel Foucault, Discipline and Punish: The Birth of the Prison, Alan Sheridan (trans), Harmondsworth:
Penguin, 1991, pp 910.
3
See Michel Foucault, Governmentality, in Graham Burchell et al (eds), The Foucault Effect: Studies in
Governmentality, Chicago: University of Chicago Press, 1991.
4
For an account, see Martha Kaplan, Panopticon in Poona: An Essay on Foucault and Colonialism,
Cultural Anthropology 10(1), 1995, pp 8598.
5
Report of the Committee on Prison-Discipline to the Governor General of India in Council, 8 January,
1838, Calcutta: Baptist Mission Press, 1838; for a similar comparative analysis, with special emphasis on
Australia, see Captain Maconochie, Thoughts on Convict Management and Other Subjects Connected
with the Australian Penal Colonies, Hobart Town: J C Macdougall, 1838; for an American example,
especially in its early years, see William C Sneed, A Report on the History and Mode of Management of
the Kentucky Penitentiary, from its Origin, in 1798, to March 1, 1860, Frankfort, KY: Yeoman Ofce,
1860.
6
For a general review, see, for example, various essays on England in Norval Morris and David
J Rothman (eds), The Oxford History of the Prison: The Practice of Punishment in Western Society, New
York: Oxford University Press, 1995.
7
John Stuart Mill, Memorandum of the Improvements in the Administration of India during the Last
Thirty Years, in Writings on India, London: Routledge, 1990, pp 116117.
25
BAIDIK BHATTACHARYA
8
The Imperial Gazetteer of India: The Indian Empire, Vol. IV, Administrative, Oxford: Clarendon, 1909,
p 399.
9
See, for example, Steven Pierce and Anupama Rao (eds) Discipline and the Other Body: Correction,
Corporeality, Colonialism, Durham, NC: Duke University Press, 2006; Radhika Singha, A Despotism of
Law: Crime and Justice in Early Colonial India, Delhi: Oxford University Press, 2000; Vicente L Rafael
(ed) Figures of Criminality in Indonesia, the Philippines, and Colonial Vietnam, Ithaca, NY: Southeast
Asia Program Publications, 1999; Anand A Yang (ed) Crime and Criminality in British India, Tucson:
University of Arizona Press, 1985.
10
See David Arnold, Colonizing the Body: State Medicine and Epidemic Disease in Nineteenth-Century
India, Berkeley: University of California Press, 1993, pp 61115 and passim; Yang, Crime and
Criminality in British India.
11
Singha, A Despotism of Law, pp 239245.
12
Singha, A Despotism of Law, p viii. It is important to note how early colonial histories often couched the
problem of crime within larger issues of governance and management. As one such document argues,
[I]ntimately connected with the education and religion of a people is the state of crime in the country.
[ . . .] Ofcial gures [ . . .] demonstrate the improved condition of the people and the benecent nature of
their government: for assuredly whatever elevates a nation in morality and temporal happiness, well
deserves the appellation of benecent. The report then goes on to compare gures of recorded crime
brought before the Court of Nizamut Adawlut of Bengal and those in England to argue that overall
good governance, and not mere emphasis on harsh punishment, would bring the desired result of
controlling crime in the colony. Robert Montgomery Martin, History of the Colonies of the British
Empire in the West Indies, South America, North America, Asia, Austral-Asia, Africa, and Europe &c:
From the Ofcial Records of the Colonial Ofce, London: W H Allen and George Routledge, 1843,
pp 310311.
13
See, for example, various Crime and Gaols sections in Martin, History of the Colonies of the British
Empire.
14
For an early statistical review of such changes, see Frederic J Mouat, On Prison Discipline and Statistics
in Lower Bengal, Journal of the Statistical Society of London 30(1), 1867; and John Mulvany, Bengal
Jails in Early Days, Calcutta Review 6(292), 1918.
15
The Penny Cyclopaedia of the Society for the Diffusion of Useful Knowledge, Vol. XXV, London: Charles
Knight, 1843, p 156; it would be interesting to note how this rhetoric of local habit, prejudice, and feeling
surfaces at different junctures of our story.
16
There were exceptions to this resolution, and they can be described as colonial exceptions: for example,
the anti-insurgency reprisals after 1857 or the 1919 Punjab disturbances when extra-legal and public
brutality was made to be a legal necessity.
17
See Ujjwal Kumar Singh, Political Prisoners in India, Delhi: Oxford University Press, 1998; for a
gendered reading of Indian prison experience, see Mallarika Sinha Roy, Bare and Vulnerable Behind
the Bars: Women in Need of Psychiatric Care, Feminism and Psychology 14(2), 2004.
18
My suggestion of simulation here is indebted to Jean Baudrillards powerful use. As will be evident,
though, my use of it is much more restricted and does not invoke the familiar notion of the autonomy of
the simulacrum. See Jean Baudrillard, Selected Writings, Mark Poster (ed), Stanford, CA: Stanford
University Press, 1998, pp 166184.
19
For an updated review of such arguments, though with particular focus on the US, see Hugo Bedau and
Paul Cassell (eds) Debating the Death Penalty: Should America Have Capital Punishment? The Experts
from Both Sides Make their Case, New York: Oxford University Press, 2004.
20
Jacques Derrida and Elisabeth Roudinesco, For What Tomorrow . . .: A Dialogue, Jeff Fort (trans),
Stanford, CA: Stanford University Press, 2004; see ch 8, Death Penalties.
21
Amnesty International, Death Sentences and Executions in 2004, April 2005, AI Index: ACT 50/005/
2005.
22
A recent discovery by the Peoples Union for Democratic Rights (PUDR), for example, of the contents
of Appendix XXXIVof the 1967 Report on Capital Punishment of the Law Commission of India brings
forward revealing facts. It has been claimed that this document alone records 1,422 executions in India
between 1953 and 1963. See Bikram Jeet Batra, Silent and Secret Executions, Seminar 551, July, 2005.
23
Roger Hood, The Death Penalty: A Worldwide Perspective, Oxford: Oxford University Press, 2002, p 50.
For a general discussion on the subject, see Subhash C Gupta, Capital Punishment in India, New Delhi:
Deep & Deep Publications, 1986; and for a comprehensive account in Bengali, see Sujato Bhadra,
Mrityudanda: Itihas, Naitikata, Bitarka [Death Penalty: History, Ethics, Debate], Calcutta: Camp, 2005.
24
Achille Mbembe, Necropolitics, Public Culture 15(1), 2003, p 12.
26
PUBLIC PENOLOGY
25
For a related argument on extra-statist sovereignty in contemporary Africa, see Achille Mbembe, At the
Edge of the World: Boundaries, Territoriality, and Sovereignty in Africa, in Arjun Appadurai (ed),
Globalization, Durham, NC: Duke University Press, 2001.
26
Michel Foucault, Society Must be Defended: Lectures at the Colle`ge de France, 19751976, David
Macey (trans), New York: Picador, 2003, p 39.
27
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Daniel Heller-Roazen (trans), Stanford,
CA: Stanford University Press, 1998, p 9.
28
While proposing this gap I am not aligning this division with Hardt and Negris notions of people and
multitude (see Michael Hardt and Antonio Negri, Empire, Cambridge, MA: Harvard University Press,
2000, pp 94113). What I have in mind is rather a political gap that Partha Chatterjee argues forms the
base of contemporary postcolonial politics; see Partha Chatterjee, The Politics of the Governed:
Reections on Popular Politics in Most of the World, New York: Columbia University Press, 2004,
pp 136138.
29
Mbembe, Necropolitics, p 39.
30
Mbembe, Necropolitics, p 23.
31
Mbembe, Necropolitics, p 17.
32
Foucault, Society Must be Defended, p 258.
33
Foucault, Society Must be Defended, p 258.
34
Foucault, Society Must be Defended, p 257.
35
Hannah Arendt, The Origins of Totalitarianism, London: George Allen and Unwin, 1967, pp 158221.
36
Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia, Robert Hurley et al
(trans), London: Athlone Press, 2000 (1977), p 170.
37
Agamben, Homo Sacer.
38
Foucault, Society Must be Defended, p 258. Paul Gilroy has recently drawn our attention to the
centrality of racism in Foucaults description of biopower. Gilroys reading, however, is based on
Foucaults History of Sexuality. See Paul Gilroy, Against Race: Imagining Political Culture Beyond the
Color Line, Cambridge, MA: Harvard University Press, 2001, p 67 and passim.
39
Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia, Brian Massumi
(trans), London: Continuum, 2004 (1980), p 472 and passim.
40
Karl Marx, The Eighteenth Brumaire of Louis Bonaparte, in Terell Carver (ed), Marx: Later Political
Writings, Cambridge: Cambridge University Press, 1996, p 34.
41
See Gayatri Chakravorty Spivak, Can the Subaltern Speak? in Cary Nelson and Lawrence Grossberg
(eds), Marxism and the Interpretation of Culture, Urbana: University of Illinois Press, 1988, p 291. For
more recent reappraisals of Foucaults work for postcolonial studies, see Ann Laura Stoler, Race and the
Education of Desire: Foucaults History of Sexuality and the Colonial Order of Things, Durham, NC:
Duke University Press, 1995; Paul Gilroy, Against Race; Robert J C Young, Postcolonialism: An
Historical Introduction, Oxford: Blackwell, 2001, pp 395410.
42
Foucault, Society Must be Defended, p 254.
43
Deleuze and Guattari, Anti-Oedipus, pp 240261.
44
Hardt and Negri, Empire, p 95.
45
See Michel Foucault, The Political Technology of Individuals, in Luther H Martin et al (eds),
Technologies of the Self: A Seminar with Michel Foucault, Amherst: University of Massachusetts Press,
1988, p 160 and passim.
46
For an early review of such developments during the colonial period, see Yang, Crime and Criminality in
British India.
47
The decolonized Indian state continued with various colonial legacies unaltered*the bureaucracy, the
armed forces, the police, the judiciary, the civil and criminal law and so forth. It is hardly a wonder, then,
that some of the basic structures governing criminal law in contemporary India, which were also pressed
into service for this particular case I am narrating, still retain their colonial genealogies almost
unaffected*most notably the Indian Penal Code (IPC) of 1860, and the Indian Evidence Act of 1872.
This is particularly important for our case as Chatterjees fate was sealed on the basis of circumstantial
evidence, and it is ratied by both such legal provisions.
48
For the full text of judgment, see www.scjudgments.com/ (retrieved 14 August 2007).
49
The point is made eloquently in Madhumita Chakrabarty, A

mra Dhananjayder chini, tai Hetalder


banchate chai [We know the Dhananjays too well, and thats why we want to save [future] Hetals],
Anandabazar Patrika (Calcutta), 8 July 2004.
50
In 2002 the Home Minister of India and a prominent member of the right-wing Bharatiya Janata Party,
L K Advani, gave a new impetus to this debate by renewing the plea of death penalty for rape. Various
feminist groups opposed Advanis proposal on similar grounds. See Govt Favours Rape Death Penalty,
27
BAIDIK BHATTACHARYA
Women Dont, The Telegraph (Calcutta), 27 November 2002. For a recent review of the impact of the
womens movement on the Indian legal system, see Usha Ramanathan, Crime and Punishment,
Seminar 557, January, 2006.
51
See Jean Dre`ze and Amartya Sen, India: Development and Participation, Delhi: Oxford University Press,
2002, pp 229274; see also Rajeswari Sunder Rajan, The Scandal of the State: Women, Law, and
Citizenship in Postcolonial India, Durham, NC: Duke University Press, 2003.
52
Giorgio Agamben, State of Exception, Kevin Attell (trans), Chicago: University of Chicago Press, 2005;
Agambens case can be seen as a legacy of what I call colonial exception.
53
Anish Trivedi, Justice Denied, Mid-Day (Mumbai), 8 August 2004.
54
V Gangadhar, Celebrity Hangman, The Hindu (Chennai), 3 October 2004.
55
Anandabazar Patrika (Calcutta), 15 August 2004.
56
The Statesman (Calcutta), 5 August 2004.
57
Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization, New York: Columbia University
Press, 1996, pp 89, 97.
58
Most prominently, the National Coalition to Abolish the Death Penalty, the Asian Human Rights
Commission, the Association for Protection of Democratic Rights, Manab Adhikar Suraksha Manch,
and the Indian chapter of Amnesty International.
59
For the details of this resolution, see United Nations, United Nations Action in the Field of Capital
Punishment, United Nations Crime Prevention and Criminal Justice Newsletter 12 and 13, 1986, pp 24.
60
For an overview of the abolitionist movement initiated by the UN, see Hood, The Death Penalty,
pp 922.
61
Alan Gewirth, Human Rights: Essays on Justication and Applications, Chicago: Chicago University
Press, 1982, p 1.
62
For the full text of this appeal, visit Amnesty Internationals website: www.amnesty.org/en/library/info/
ASA20/008/2004 (accessed 14 August 2007).
63
Arendt, The Origins of Totalitarianism, p 299.
64
Both quotations are from Hood, The Death Penalty, pp 4950.
65
George Orwell, A Hanging, The Orwell Reader: Fiction, Essays, and Reportage, Orlando, FL: Harcourt
Brace, 1984, pp 1011.
28
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