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To cite this Article Bhattacharya, Baidik(2009)'Public penology: postcolonial biopolitics and a death in Alipur Central Jail,
Calcutta',Postcolonial Studies,12:1,7 — 28
To link to this Article: DOI: 10.1080/13688790802616225
URL: http://dx.doi.org/10.1080/13688790802616225
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Postcolonial Studies, Vol. 12, No. 1, pp. 728, 2009
Prologue
On 14 August 2004, just the night before India’s fifty-seventh anniversary of
decolonization, the Alipur neighbourhood of Calcutta, and the Central Jail
(recently renamed samśodhanāgār 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.
ISSN 1368-8790 print/ISSN 1466-1888 online/09/01000722 # 2009 The Institute of Postcolonial Studies
DOI: 10.1080/13688790802616225
PUBLIC PENOLOGY
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
convict’s 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 convict’s acute sleeping disorder or insomnia*in spite of
their best efforts, the prison officials were unable to get him to sleep.
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At around 3.20 in the morning, after the ritual bath, he sat on the floor and
opened his copy of Śrı̄mad Bhagvad Gı̄tā. 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 Gı̄tā 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 convict’s 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 convict’s 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.
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 Chatterjee’s 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 Chatterjee’s life in a dingy cell; produced television pro-
grammes graphically detailing the methods of hanging, with technical input
from Mullick; and extensively covered Chatterjee’s 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
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its colonies. That is to say, the evolution in Europe, in Foucault’s 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
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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 Committee’s 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 Sleeman’s campaign and the empire’s
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
PUBLIC PENOLOGY
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 Chatterjee’s death.
Even in an age of reality TV, docusoap, and cinéma-vérité, 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 convict’s 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
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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.
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 Foucault’s theory vis-à-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 Mbembe’s
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
Mbembe’s 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 Mbembe’s 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 Foucault’s 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 (zoē), 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 Agamben’s account.
13
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
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establish its biopolitical authority. Indeed, the criminal’s 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.
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
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
Chatterjee’s 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
Chatterjee’s 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
BAIDIK BHATTACHARYA
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
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The naturalized shift here from personal revenge*where our author imagines
himself in a different subject-position (the girl’s 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 Mbembe’s contention, cannot take an extra-statist form*in fact,
19
PUBLIC PENOLOGY
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
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place the text of public penology; let me quote two different aspects of the
text vis-à-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 Minister’s 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 convict’s neck every
time, is a collector’s 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
PUBLIC PENOLOGY
22
BAIDIK BHATTACHARYA
The defining tone in both cases is to make room for the exceptional criminal
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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 Satı̄, 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 Chatterjee’s 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 zoē cease to be rightful
possessions and are made to rely on the state’s 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
BAIDIK BHATTACHARYA
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
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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 benefited 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 finally, special
thanks to Mallarika Sinha Roy for her comments and help.
Notes
1
These reports differ on finer 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 Office,
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
PUBLIC PENOLOGY
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.
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[. . .] Official figures [ . . .] demonstrate the improved condition of the people and the beneficent nature of
their government: for assuredly whatever elevates a nation in morality and temporal happiness, well
deserves the appellation of beneficent.’ The report then goes on to compare figures 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 Official Records of the Colonial Office, 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 Baudrillard’s 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 People’s Union for Democratic Rights (PUDR), for example, of the contents
of Appendix XXXIV of 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
BAIDIK BHATTACHARYA
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 Collège 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 Negri’s 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:
Reflections 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.
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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 Foucault’s description of biopower. Gilroy’s reading, however, is based on
Foucault’s 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 Foucault’s work for postcolonial studies, see Ann Laura Stoler, Race and the
Education of Desire: Foucault’s 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 Chatterjee’s fate was sealed on the basis of circumstantial
evidence, and it is ratified 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, ‘Āmrā Dhananjayder chini, tāi Hetālder
banchate chāi’ [We know the Dhananjays too well, and that’s 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 Advani’s proposal on similar grounds. See ‘Govt Favours Rape Death Penalty,
27
PUBLIC PENOLOGY
Women Don’t’, The Telegraph (Calcutta), 27 November 2002. For a recent review of the impact of the
women’s movement on the Indian legal system, see Usha Ramanathan, ‘Crime and Punishment’,
Seminar 557, January, 2006.
51
See Jean Drèze 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;
Agamben’s 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
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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 Justification and Applications, Chicago: Chicago University
Press, 1982, p 1.
62
For the full text of this appeal, visit Amnesty International’s 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