Labour control and labour legislation in colonial India: a tale of two mid‐nineteenth century acts

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Notes

The spread took place despite the repeal of master and servant law in England in 1875 as a result of trade union pressure. See Douglas Hay and Paul Craven, ‘Master and Servant in England and the Empire: A Comparative Study’, in Labour/Le Travail, No.31 (Spring 1993), p.175. Hay and Craven further note, p.176, that master and servant laws as a form of contract law were ‘contested, undermined, and ultimately destroyed as a coherent body of law and practice, in ways that closely parallel the rise of nineteenth‐century classical notions of freedom of contract’. Just a few years before the 1875 repeal Marx wrote: ‘The provisions of the statutes of labourers as to contracts between master and workman, regarding giving notice and the like, which allow only a civil action against the master who breaks his contract, but permit, on the contrary, a criminal action against the worker who breaks his contract, are still in full force at this moment’. K. Marx, Capital, Vol.1 (New York: Vintage Books, repr., 1977), p.902.

‘Until the passing of the first Indian Factories Act in 1881, what little legislation there existed on the subject was confined to making breaches of certain contracts of service criminal offences’. Alan Gledhill, The Republic Of India. The Development Of Its Laws and Constitution (London: Stevens and Sons, 2nd ed., 1964), p.311. I am indebted to Michael Anderson for his generous assistance with source materials, access to his unpublished work, and for his advice. The first version of this paper was given at a workshop on ‘South Asian Labour: Linkages—Global and Local’ sponsored by the International Institute for Social History in Amsterdam, Oct. 1995. I am grateful to the organisers of that workshop for the support that made my attendance possible. A grant from the Social Science and Humanities Research Council (Canada) supported the research upon which this revised version is based.

Paul Craven and Douglas Hay, ‘The Criminalization Of “Free” Labour: Master and Servant in Comparative Perspective’, in Slavery & Abolition, Vol.15, no.2 (Aug. 1994), p.72.

M.R. Anderson, ‘Work Construed: Ideological Origins Of Labour Law in British India to 1918’, in Peter Robb (ed.), Dalit Movements and the Meanings Of Labour in India (Delhi: Oxford University Press, 1993), pp.110–11.

Ibid., p.111.

Ibid., p.112. A considerable body of legislation embodying master and servant characteristics was passed in the context of plantation (tea, etc.) labour.

Ian J. Kerr, Building the Railways Of the Raj 1850–1900 (Delhi: Oxford University Press, 1995), p.192 et passim. Put another way, the Acts discussed in this paper were enacted within an Indian context marked by intensified capitalist development—development fuelled by railway construction and operation.

‘Head‐link’ is a term proposed by O.H.K. Spate, ‘Factors in the Development Of Capital Cities’, in Geographical Review (1942), p.628. A good, recent study of Bombay in the period of early railway development is Mariam Dossal, Imperial Designs and Indian Realities. The Planning Of Bombay City 1845–1875 (Bombay: Oxford University Press, 1991).

James J. Berkley, Paper on the Thul Ghaut Railway Incline: Read at the Bombay Mechanics' Institution in the Town Hall, on Monday, December 10, 1860 (Bombay: Education Society's Press, 1861). General background on railway building in nineteenth century India and some specific discussion of the Ghat inclines, from which part of this section of this paper is closely drawn, can be found in Kerr, Building the Railways Of the Raj, esp. pp.162–6.

India Office Library and Records, British Library, London [hereafter IOR], L/PWD/3/251, Bombay Railway Letters, #11, 19 Mar. 1855, enclosures, item 464.

The annual reports of the GIPR Company under the general style Annual Report of the Company, for the Year 1858–59, to the Secretary Of State for India in Council (London: 1860), and so on can be found in IOR, L/PWD/2/107–109.

Maharashtrian State Archives [hereafter MSA], PWD (Railways) 1859, vol.25, compilation 206, ‘Bhor Ghat Incline. Surrender by Mr. Faviell Of His Contract’, E. Swan to Faviell, 3 Nov.1858.

James John Berkley, ‘On Indian Railways: With a Description Of the Great Indian Peninsula Railway’, in Minutes Of Proceedings Of the Institution Of Civil Engineers, Vol.XIX (1859–60), p.608.

MSA, PWD (Railways) 1859, vol.44, compilation 441; 1860, vol.55, compilation 224; and 1860, vol.26, compilation 332.

MSA, PWD (Railways) 1862, vol.6, compilation 317.

MSA, PWD (Railways) 1859, vol.25, compilation 206, Appleby to Fowler, 31 Oct. 1858. The rains halted work each year for some four months except in the tunnels where it went on year round.

MSA, PWD (Railways) 1862, vol.36, compilation 227, ‘Robberies in the Vicinity Of the Railway Works on the Ghats’.

An affray at Khandalla in January 1863 testified to the continuation of unrest. See, respectively, MSA, PWD (Railways) 1859, vol.25, compilation 206, Appleby to Fowler, 31 Oct. 1858; and Times Of India (4 Mar. 1863), p.2.

Report to the Shareholders Of the Great Indian Peninsula Railway Company, pp.22–4.

MSA, PWD (Railways) 1859, vol.25, compilation 206, ‘Bhor Ghat Incline. Surrender by Mr. Faviell Of His Contract’, esp. Berkley to William Langdon, sec., GIPR, 7 Aug. 1857.

IOR, Mss. Eur. C. 401, Fowler to Leather, 2 May 1851. An employee of Faviell, Godfrey Oates Mann, who was in Bombay at the same time, wrote accounts of his employer that generally confirm Fowler's statements. See the letters in IOR, Photo. Eur. 197.

Some of what follows regarding this disturbance is drawn from Ian J. Kerr, ‘Working Class Protest in 19th Century India. Example Of Railway Workers’, in Economic and Political Weekly, Vol.20, no.4 (26 Jan. 1985), p.35. Also see Kerr, Building the Railways Of the Raj, pp.176–7.

MSA, PWD (Railways) 1859, vol.25, compilation 215: ‘Bhor Ghat. Disturbances Among the Workmen’.

IOR, P/407/25, Bombay govt., judicial progs., 6 Apr. 1859, no.1873.

MSA, PWD (Railways) 1858, vol.18, compilation 294, ‘Complaints. Misconduct Of Certain Europeans in the Service Of the Railway Contractor at Khandalla’.

MSA, PWD (Railways) 1859, vol.25, compilation 215, ‘Bhor Ghat. Disturbances Among the Workmen’.

IOR, P/407/25, Bombay govt., judicial progs., 6 Apr. 1859, nos.1879–1880.

Proceedings Of the Legislative Council Of India for January to December 1859, Vol.V (Calcutta: 1859), p.217. The bill was introduced by Phillip William LeGeyt, a senior civil servant who filled the Bombay seat on the imperial Legislative Council. See The East India Register and Army List for 1860 (London: W.H. Allen and Co., 2nd ed. corrected to 12 May 1860, 1860), pp.3–4; and The Bombay Almanack and Book Of Direction for 1859 (Bombay: The ‘Bombay Gazette’ Press, 1859), p.347.

Proceedings Of the Legislative Council…1859, pp.293–5; and Proceedings Of the Legislative Council Of India for January to December 1860, Vol.VI (Calcutta: 1860), pp.175–7. Act IX of 1860 was retitled ‘The Employers and Workmen (Disputes) Act, 1860’ in 1897. See F.G. Wigley, Chronological Tables Of The Indian Statutes (Calcutta: Superintendent Govt. Printing, 1909), p.141.

All the material on the Act in this paragraph is drawn from William Theobold, The Legislative Acts Of the Governor General Of India in Council, from 1834 to the End Of 1867, Vol.III, 1859–1861, (Calcutta: Thacker, Spink and Co., 1868), pp.342–4.

Hay and Craven, ‘Master and Servant’, p.180.

Craven and Hay, ‘Criminalization’, p.97.

Ibid., pp.80, 97.

Their motivation was intensified by the fact that construction of the Madras Railway in Salem District in the Madras Presidency had also experienced work stoppages brought on by European oppression of the Indian workforce. IOR, P/407/25, Bombay govt., judicial progs., 6 Apr. 1859, nos.2170–2171.

Proceedings Of the Legislative Council…1859, p.217.

Ibid., p.294.

Proceedings Of the Legislative Council Of India for January to December 1858, Vol.IV (Calcutta: 1858), p.304.

See Theobald, Legislative Acts, pp.261–3 for the text of Act XIII of 1859. The original title of the act, ‘Presidency Towns—Masters and Workmen’, was changed by Act XIV of 1897 to ‘The Workman's Breach of Contract Act, 1859’. See Wigley, Chronological Tables, p.139.

As such, it clearly belonged to the law of master and servant. Anderson, ‘Work Construed’ p.111, states the Act was based on the English statute, 4 Geo IV cap. 34 (1823).

A reviewer of this article noted interesting comparisons between Act XIII of 1859 and other legislation of the same period such as Act X of 1859, The Bengal Rent Act. The latter provided some ryots (those who had lived and worked in the same village for twelve years) secure occupancy status and limited the size and frequency of rent increases to which they could be subjected. These and other acts, noted the reviewer, can be seen as legislated expressions of the Britain‐derived ‘templates’ the colonial regime sought to impose on India to define, inter alia, the boundaries of class. Certainly my exploration of master and servant labour legislation can be placed within a line of analysis that examines the origins, modifications, and applications of British ideologies and practices—rough templates if you will—to India. It is a theme with a long lineage. I immediately think of Eric Stokes, The English Utilitarians and India (Oxford: Oxford University Press at the Clarendon Press, 1959); and Ranajit Guha, A Rule Of Property for Bengal. An Essay in the Idea Of Permanent Settlement (Hyderabad: Orient Longman Ltd., 2nd ed., 1982).

If an advance was taken and the work not performed without good reason fraudulent, hence criminal, behavior could be assumed.

Proceedings Of the Legislative Council…1859, pp.298–300.

IOR, P/407/32, Bombay govt., judicial progs., 11 Oct. 1859, pt.1, nos.5007–5010; and IOR, L/P&J/3/935, judicial and legislative letters received from Bombay 1859–1879, no.28 of 1859 dated 10 Oct. 1859.

De facto control on the ground remained a complicated activity despite the new law. Management of the workforce is one of the central issues examined in Kerr, Building the Railways Of the Raj.

IOR, P/407/29, Bombay govt., judicial progs., 22 June 1859, no.4009.

Similar attitudes are explored in the Southeast Asian context in Syed Hussein Alatas, The Myth Of the Lazy Native (London: Frank Cass, 1977).

Edward W. Said, Culture and Imperialism (New York: Alfred A. Knopf, 1993), p.52 et passim.

This is not an issue to be pursued here but see Alan Hunt, Explorations in Law and Society. Toward a Constitutive Theory Of Law (New York: Routledge, 1993) as one starting point. A useful survey of some of the complexities involved in making legal history more social and social history more aware of law is found in David Sugarman and G.R. Rubin, ‘Towards a New History Of Law and Material Society in England, 1750–1914’, in G.R. Rubin and David Sugarman (eds), Law, Economy and Society, 1750–1914: Essays in the History Of English Law (Abingdon: Professional Books Ltd., 1984), pp.1–123, i–lxiii. Such an interaction is neo‐natal among historians of colonial India among whom the history of law (or rather history with a substantial law component) is both underdeveloped and inadequately theorised.

For example, its jurisdiction was extended to the Punjab by Notification No.269 dated 9 May 1860. H.A.B. Rattigan, The Bengal Regulations, The Acts Of the Governor‐General in Council, and the Frontier Regulations, Made Under the Thirty‐Third Of Victoria, Chapter Three, Applicable to the Punjab with Notes and an Index, Vol.I: Containing Bengal Regulations and Acts from 1853 to End Of 1872 (Lahore: Civil and Military Gazette Press, 5th ed., 1895), p.xxxv.

Michael Anderson, unpublished typescript. My own reading of annual reports on the administration of criminal justice in the Punjab (see below), Oudh (Awadh) and Bombay confirm Anderson's view.

The Punjab Record or Reference Book for Civil Officers, Part II—Executive, Vol.L, 1915 (Lahore: ‘Civil and Military Gazette’ Press, 1915), pp.24–5.

The repeal of Act XIII of 1859 generated a substantial and informative file covering the history of the Act, its uses, and the reasons for its repeal. See IOR file L/E/7/1339/1142. I am grateful to Michael Anderson for bringing this file to my attention. Material in L/E/7/1339/1142 indicates a low ratio of convictions to prosecutions begun under Act XIII of 1859. However, the threat of prosecution presumably had an intimidating effect on workers.

Report on the Administration Of Criminal Justice in the Punjab and Its Dependencies During the Year 1914 (Lahore: Superintendent Govt. Printing, Punjab, 1916), p.5.

Royal Commission on Labour in India, Evidence, Vol VIII, pt.1: Railways. Written Evidence (London: HMSO, 1931), p.177.

Royal Commission on Labour in India, Report (London: HMSO, 1931), p.337.

Ibid..

Rajani Kanta Das, History Of Indian Labour Legislation (Calcutta: University of Calcutta, 1941), p.258. Minor amendments to Act IX of 1860 had been made earlier, e.g., repeal in part by Act IX of 1871.

Peter Robb, ‘Labour in India 1860–1920: Typologies, Change and Regulation’, in Journal Of the Royal Asiatic Society, series 3, Vol.4, pt.1 (Apr. 1994), p.63, reminds us that regulation of labour was a major initiative in later nineteenth century India but that in the official literature one finds consistent attempts ‘to balance the two contradictory criteria—the universal principle [of abstract rights pertaining to contracts] on the one hand and the Indian special case on the other’.

IOR, L/E/7/1339/1142 contains many submissions to this effect. The agent of the Bengal–Nagpur Railway, for example, stated the Act had to be retained because the railway as a direct employer of construction labour and as an indirect employer through contractors needed protection ‘against the vagaries and irresponsible disregard for contractual obligations normally displayed by Indian labour’. Agent to sec. to govt. of Bengal, judicial dept., 20 Feb. 1922.

The framework used here is that of Douglass C. North, Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990), pp.32–5, et passim. Advances became and remained a central feature of the mobilisation of circulating and migrating labour in India. Statements to this effect are found in IOR, L/E/7/1339/1142. See also Kerr, Building the Railways Of the Raj.

Harendra Chandra Sinha and Pramode Chandra Dutt, The Workman's Breach Of Contract Act Being Act XIII Of 1859, with Copious Notes Of Decisions, Forms Of Agreement and Of Register Of Labourers and a Full Index (Calcutta: Sanyal and Co., 1899), preface. This compendium had the employers of coolie labour in Assam as its particular target market. Varumal Chelaram Mirchandani, The Workman's Breach Of Contract Act, Act XIII Of 1859 with all the Latest Decisions Of the English and Indian Courts Including the Judicial Commissioner's Court, Sind and Commentaries on Sections 490. 491 and 492 I.P.C. (Hyderabad, Sind: Premier Press, 1909), p.1, refers to the Act as important and in force in many parts of British India, and, although short, an act that ‘affects the bulk of the wealthier portion of the public’. I have found no compendium devoted to Act IX of 1860; indeed, I have found no reference to case law relating to Act IX of 1860 in large digests of Indian law such as T.V. Sanjiva Row et al., The All India Digest 1836–1910, 2 vols. (Madras: The Law Printing House, 1910–11), although Act XIII of 1859 has a prominent presence. I do not claim my search of the digests has been exhaustive but what I have done has drawn a blank for Act IX of 1860.

IOR, L/E/7/1339/1142. It was sometimes deployed in other contexts. The district magistrate of Amritsar reported in 1915 that the Act was used against the city's industrial employees. See Report on the Administration Of Criminal Justice in the Punjab and Its Dependencies During the Year 1915 (Lahore: Superintendent Govt. Printing, Punjab, 1916), p.4.

On the application of the Act and related acts to plantation labour in south India read Barbara Evans, ‘From Agricultural Bondage to Plantation Contract: A Continuity Of Experience in Southern India, 1860–1947’, in South Asia, Vol.XIII, no.2 (Dec. 1990), esp. pp.51–6; and Paul E. Baak, ‘Enslaved Ex‐Slaves, Uncaptured Contract Coolies and Unfree Freedmen: “Free” and “Unfree” Labour in the Context Of Plantation Development in Southwest India’, in Paul Brass and Marcel van der Linden (eds), Free and Unfree Labour. The Debate Continues (Bern: Peter Lang, 1997), pp.427–55. Rana P. Behal and Prabhu P. Mohapatra, ‘‘‘Tea and Money Versus Human Life”: The Rise and Fall Of the Indenture System in the Assam Tea Plantations 1880–1908’, in Journal Of Peasant Studies, Vol.19, nos.3–4 (April/July 1992), pp.142–72, discuss the application of Act XIII of 1859 to Assam. A recent work of possible relevance came to my attention too late for use in this paper: Ali Amjad, Labour Legislation and Trade Unions in India and Pakistan (Karachi: Oxford University Press, 2001).

Act V of 1861, section 14. Later railway records refer to this Police Act and not to Act IX of 1860 in proceedings related to the maintenance of peace and order at construction sites. See, for example, IOR, P/2286, PWD progs., Railway Establishment, Mar. 1884, nos.27–28

Indian capitalists and non‐Indian capitalists alike benefited from this tendency. For police actions favouring the largely Indian textile mill owners of Bombay see Rajnarayan Chandavarkar, The Origins Of Industrial Capitalism in India. Business Strategies and the Working Classes in Bombay, 1900–1940 (Cambridge: Cambridge University Press, 1994), p.409.

‘In India, as elsewhere, the paramount desideratum is that the law should be certain’. Sir Benjamin Lindsay, ‘Law’, in L.S.S. O’Malley (ed.), Modern India and the West (London: Oxford University Press, 1941), p.114.

The role of the advance leads to the debate on free and unfree labour, indeed to the very meaning of the terms free and unfree in the evolving labour markets of colonial India. See some of the contributions in Free and Unfree Labour. The Debate Continues, including Ian J. Kerr, ‘Free or Unfree? Railway Construction Labour in Nineteenth‐Century India’, pp.405–26. In my contribution I argue, inter alia, that what unfree and free labour experience under capitalism, namely exploitation and coercion, is more important than that which, in the classical definition, distinguishes unfree from free labour, namely extra economic versus economic coercion. Marx's use of the term ‘free labour’ was deliberately ironic.

Act IX of 1860, section I.

Racist attitudes across the British Empire are surveyed in Christine Bolt, Victorian Attitudes to Race (London: Routledge & Kegan Paul, 1971). However while similarities with other oppressive contexts exist, in India, paternal, racial, class and colonial attitudes (e.g., concerns for the security of colonial rule; concern to make Britain benefit from the India connection) became intermingled in ways more complex than the world of Southern US slavery depicted in Eugene Genovese, Roll Jordan Roll. The World the Slaves Made (New York: Vintage Books, Random House, 1976) or in the England described in E.P. Thompson, The Making Of the English Working Class (Harmondsworth: Penguin Books, 1968). In colonial India one may have to enter the little world of the district officer and ma‐baapism, to find the less punitive elements of English paternalism (maternalism?), namely the obligations of masters towards their servants. I find precious little concern among most nineteenth century employers in India (Indian or European) for their employees. The concerns of the colonial authorities sprang from more pragmatic considerations (e.g., law and order and getting work completed) or from a more abstract paternalism, the civilising mission. Moreover, if the construction workers had a moral economy it was inside the gang, not between the gang and their employees.

See Thompson, The Making Of the English Working Class, esp. pp.594–6 for the changes in England.

Proceedings Of the Legislative Council…1859, pp.298–300.

Ibid., p.300.

Anderson, ‘Work Construed’, pp.107–13.

For a mid‐nineteenth century example of the debate in the context of indigo cultivation, see Notes on a Contract Law for India, with an Appendix (London: Her Majesty's Stationery Office, 1863).

The extent to which laws, regulations and policies designed to assist the rural proletariat in late twentieth century Gujarat were evaded or poorly enforced is discussed in Jan Bremen, Wage Hunters and Gatherers (Delhi: Oxford University Press, 1994), ch. 4, ‘State Protection for the Rural Proletariat’.

A good recent exposition of the British emphasis on security is Douglas M. Peers, Between Mars and Mammon. Colonial Armies and the Garrison State in India 1819–1835 (London: IB Tauris, 1995).

David Washbrook, ‘Progress and Problems: South Asian Social and Economic History, c. 1720–1860’, in Modern Asian Studies, Vol.22, no.1 (1988), p.91.

Ibid.

Charles A. Myers and Subbiah Kannappan, Industrial Relations in India (London: Asia Publishing House, 2nd ed., 1970), p.304.

Craven and Hay, ‘Criminalization’, p.96.

Ibid.

For the readers of South Asia no partial bibliography (a full set of citations would be rather long) of the works of these scholars is needed. However, some readers might find the following survey of three approaches (legal history, the sociology of law and cultural history) to India's legal past useful: Pamela G. Price, ‘The “Popularity” Of the Imperial Courts Of Law: Three Views Of the Anglo‐Indian Encounter’, in W.J. Mommsen and J.A. De Moor (eds), European Expansion and Law. The Encounter Of European and Indigenous Law in 19th‐ and 20th‐Century Africa and Asia (Oxford and New York: Berg, 1992), pp.179–200.

Michael Anderson, a lawyer, has been an important exception. More broad‐based, comparative works such as M.B. Hooker, Legal Pluralism. An Introduction to Colonial and Neo‐Colonial Laws (Oxford: Clarendon Press, 1975) and Lauren Benton, Law and Colonial Cultures. Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002) are interesting. However, their authors have goals, subject matters and levels of abstraction that take them well away from the agenda I would like to see historians of India pursue.