Colonial Constitutionalism and the Case of Bengal Vagrancy Act

National Law School Journal Volume 12 Issue 1 Article 17 7-1-2014 Colonial Constitutionalism and the Case of Bengal Vagrancy Act Avishek Ray Follow this and additional works at: https://repository.nls.ac.in/nlsj Recommended Citation Ray, Avishek (2014) "Colonial Constitutionalism and the Case of Bengal Vagrancy Act," National Law School Journal: Vol. 12: Iss. 1, Article 17. Available at: https://repository.nls.ac.in/nlsj/vol12/iss1/17 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in National Law School Journal by an authorized editor of Scholarship Repository. For more information, please contact library@nls.ac.in. COLONIAL CONSTITUTIONALISM AND THE CASE OF B ENGAL VAGRANCY ACT: UNRAVELLING H ISTORIES OF D ISCOURSE RECEPTION -Avishek Ray The deployment of the Bengal Vagrancy Act, also known as the Bengal Vagrancy Ordinance, is synchronous with the infamous 1943 famine in Bengal. Vagrancy as a social phenomenon did not begin with the famine, although the famine had given an unprecedented rise to it. In that case, it is necessary to (relexamine the historical' mpt"re between vagrancy being hitherto tolerated and now being forbidden by law'. This paper studies the correlative association between the famine and the Vagrancy Act. Instead of taking the 'vagrant' as a namralized co ncept, the paper looks into why the Act conceives the 'vagrant' in the way it does. More importantly, why was it necessary during the famine to round up certain people the Act classified as 'vagrants'? In other words, why only in a certain historico-political milieu did the welfare state feel the urge to discriminate between the 'vagrant' and the non-vagrant? Who were the chief proponents of this dividing practice? What was the rationale for at all implementing this dividing practice, given quasi-religious itinerancy had always been tolerated in 'pre-modern' India, since antiquity?' For details, su A. Ray, A Note on Pre-History of Vagabondage, (20 14) (Unpublished Ph.D dissenat ion . Trem University) (on file with author) and A. Ray, A Note on Pre- History of Vagabondage: The Birth of the Vagabond in Colonial Bengal, (2014) (Unpublished Ph.D dissertation,Trem University) (on file with author). In this chapter. the researcher addresses rhe paradox in the vagabond being tOlerated in rhe an cient tim es IrfManllsmriti, ArtbsbastraJ, revered as the ' holy Other' in the Middle Ages {cf Bhakti-Sufi literature!, encouraged by the Buddhist discourse [ef Samannaphalo.mtttlj and eve ntuall y marginalized in the 'modern.' The researcher argues that rh e vagabond/vagrant is not a unive rsalizable catego ry. and ins ists on the question of'cultural difference' that Jre)shapes the understandings of vagabondage/vagrancy, leading to it being perceived diAcrendy by different people in different times and places. 79 Vol. 12 National Law School Journal 20 14 T his paper argues that The Bengal Vagrancy Act had been put in effect by the colonial administrator in liaison with its 'Western' counterparts. Criminalizing the 'vagrant' is a typically Western phenomenon that had originated wi th the 1st Statute of Labourers, as early as the 14th Century Tudor society restricting movement oflandless-unemployed serfs fleeing the Black Plague, and continues to reflect in legislative archives at least till the Nineteenth centu ry. This paper, on the one hand, traces the genealogy of the inheritance of tlte Western paranoia and demonstrates how the Act was amenable to (ab)use by the 'welfare' state as a catch-all en route sanitizing the urban space of Calcutta from the massive influx from rural Bengal following the 1943 famine. As of methodology, this paper relies more on discourse analysis of the Act itself and the historicity of the events unfolding during the time than on legislative debates. With the famine, the conflictual urban-rural relations even worsened. The city had already become an expansionary force devouring the rura!'; now, the famine expedited the process. Agricultural and artisanal laborers from May1943 onwards started gathering to the city of Calcutta under the illus ion of buying rice at a controlledlrationed price. No sooner had the city pavements been thronged with the destitute, The Bengal Vtzgrancy Act, 1943, was brought into effect from July 31. This Act 'for dealing with vagrancy in Bengal' defines a 'vagrant' as: .. . a person found askingfor alms in any public place, or wandering about or remaining in any public place in such condition or manner as makes it likely that such person exists by asking for alms, but does not include a person collecting monty or asking for food or gifts for a proscribed purpose. and requires him/her to accompany 'any police officer authorized in this behalf by the Commissioner of Police in Calcutta and by the District Magistrate elsewhere and appear before a Special Magistrate' who: ... shall make a summary inquiry in the prescribed mallner into the circumstances and character of such person, and if, ofter hearing 2 Set gm~ralfy, R. Tagore, City and Villag( in ENGLISH WRITINGS OF RABI NDRANATH TAGORE 689-701 (Vol. 7, 2007). 80 Colonial Constitutionalism and the Case of Bengal Vagrancy Act: Unravelling Histories of Discourse Reception anything which such person may wish to sa)\ he is satisfied that such a person is a vagrant, he shall record a declaration to this e!fict, and the provisions of this Act relating to vagrants shall thereupon apply to such person. The Act is replete with inexplicably vague and ambiguous phrases - 'such condition or manner as makes it likely ... ,' 'proscribed purpose,' 'circumstances and character,' 'he is satisfied ... ' -that leave lacunae for it to be (ab}used as a catch-all. Inasmuch as the 1824 Vagrancy Act in Britain had been designed to exterminate the homeless underclass in the city, the 1943 Bengal Vagrancy Act had been implemented evidently to combat a similar human-resource crisis, that of non-consented diasporic migration . Now, if we cross-refer the phraseology of the 1943 Bengal v"grancy Act with that of its British counterpart, it is hard not to notice the incredible parallel berween the rwo. With a serene indifference to the question of 'cultural difference' and the 'Indian' hospitability toward all sortS of unessentializably diversified forms of travelling, the Bengal v"grancy Act mimicked the Western paranoia towards vagabondage. Famines had struck Bengal before, following which migration too presumably happened. Bur, preceded by the large-scale industrial urbanization, this time the migration was prominently noticeable as one from the country to the city. What needs paying attention to here is the stakes of the colonial legislators and the urban dwellers involved in this post-famine huge rural influx. Can this conceptual-semantic streamlining of the 'vagrant' be explained merely in terms of the 'vagrants' in reality being perceived as an economic burden on the productive 'tax payers' within the ambit of an already-exploitative colonial economy under the Raj? Curiously, still, was this the first endeavor of its kind? Historically speaking, this sort of an initiative towards ghettoizing the 'vagrant' was not entirely new. In fact, these attempts had, and so to speak in Bengal itself, always precedence of concerns expressed for the 'vagrant' since as early as late-eighteenth century. On 23 April, 1789, Mr.]. Price, marine Paymaster writes a letter to Mr. E. Hay, Secretary, Fort William, Calcutta: The English seamen who have come abroad in foreign ships, and those who run away from the Company" ships in all ports of India, flock down to Bengal as to the land ofpromise, but being generally the wom 81 Vol. 12 National Law School Journal 2014 sort ofseaforing people, whose interference prevents their long being employed by anybody, they become a charge to Government and a nuisance to the public.. . There are now a great many of them about the Town, and experience had repeatedly shown that money paid into their own hands serves only to make them more troublesome. get dru nk and lay about the streets. and ultimately die in the Hospital. And. on 24 April . 1789. apparently on the next day. a public notice is issued empowering the Town Major with the authority 'to apprehend and confine in Fort' the vagrant seamen 'on account of many irregularities which are daily committed in the Port of Calcutta by vagrant seamen and other low Europeans who appear to be without any honest or industrious means of subsistence.' That the notice is issued virtually overnight does not, however, mean it had solely been conceived as a reaction ro a single piece of Secretarial letter expressing concern for the 'vagrant'; rather, it has ro be understood that the perception of the 'vagrant' as a potential threat to the social order had already been in the air. Of further note, the phrase ' irregularities' (retrieved above) that appears in the very fi rst line of the notice has been in the original piece of document stricken off and replaced with 'disorders' on the top of it. With the post-edited piece now reading: 'Public notice is hereby given that on account of many disorders which are daily committed .. .', it is understandable that 'di50rders' actually stands for rowdiness or 'lack of orderliness'; albeit one cannot ignore, if and when juxtaposed with the reference to the 'hospital' in the receding letter, an obvious undertone towards pathologization of vagrancy. Add itionally, for a precautionary measure, the notice further stresses: With a view to the good ofthe police ofthis Town, and to prevent as much as possible in foture many Riots and Disorders which might arise as heretofore from irregularities ofsailors belonging tv the ships importing into this River, and from vagrant Europeans who stay in the Country without any License or permission whatever, is p leased to resolve that all Commanders ofships either from Europe or any port in India or from China shall on their arrival at this port deliver at the Police office a list ofEuropean sailors in their respective ships and the Countries ofwhich they are subjects, or they shall not be permitted to land their goods. 82 Colonial Constitutionalism and the Case of Bengal Vagra ncy Act: Unravelling Histories of Discourse Reception This seems to be some SOrt of an immigration record, a precursor to the contemporary visa ptotocol being put in place, surprisingly, way before the birth of the nation-state. In order for the eighteenth-century territorial conttol across the vastly un-unified 'Indian' sub-continent to emerge as a monopolistic industrial-capitalist economy in the nineteenth century, it would cost the British producing: 'detailed and encyclopedic hisrories, surveys , studies, and censuses, ... [on] the conquered land and people." For the British, it was clear: the more they were on the top of this empirically systematized body of knowledge of the colony, the more equipped will they be to exploit its reso urces and govern its people. Even the subject's body was no exception; anatomo-bio-clinical penetration of the bodies would optimize demographic control.'(Foucault, 2012) .Therefore, the eighteenth century modaliry of punishing, reStricting, opposing the vagrant gradually changed to a more subtle surveillancemechanism in the nineteenth century. 'The Lieur. Governor has instructed the Commissioner of Police in Calcutta,' writes the Secretary to the Governor of Bengal in his letter dated 21 October, 1858, to the Secretary to the Government ofIndia, Home Department, 'ro obtain every information regarding the men on their arrival at this port [Calcutta], and to watch their movements, reporting anything remarkable or suspicious which may come to his knowledge.' And, on the flipside, the Consul and British agent at Jedda, on having to deport to Calcutta eighry-five destitute Indians who otherwise would 'almost inevitably perish(ed) of want,' requests the Secretary ro Government, Calcutta, in a letter dated 11 July, 1861: ' ... ro place some check on the emigration from India of those who have no money, such, for instance, that they should prove that they have sufficient money ro enable them ro return ro their own country.' Had the idea of the 'vagrant' always been shrouded with suspicion right across the colonial times, why do I chisel the 1943 Bengal Vagrancy Act' How does it then, if at all, stand out from its precursors? It reveals, when carefully examined, that the 18-190, century 'vagrant' is seldom the pilgrim in penury 3 See. GVAN PRAKASH , A NOTHER REAsON: SCIENCE AND THE IMAGINATION OF MODERN I NDlA3 (1999) 4 M. Foucault, OfOtha Spaw: Utopias and Hetaotopias in 1986). DIAC RITI CS 22-27 (Vol. 31, Vol. 12 National Law School Journal 2014 or the member of some criminal gangs, but mostly the low-profile European 'dissipated in promiscuous whoring and reckless drinking." Banerjee in his study of the attitudes and policies of the British administration towards prostitution in 18-19"' century India shows how the British administrators in the upper tier, ironically determined to project themselves among the 'natives' as the epitome of the exemplar in all respects whatsoever, were clearly embarrassed with the moral conduct prevailing among their subordinates.- ' Unlike the 'sahibs' of the 18'h-19"' century period,' he emphasizes, 'the white soldiers and sailors who arrived in India at that time were mostly drawn from lower-middle- and working-class homes .. .who were thought to lack the intellectual and moral resources required for continence.'? What seems prominent is that the idea of the 'vagrant' for the colonial administrators until 1943 is a handmaiden to the repertoire of explaining their own internal differences , a site to absorb all internally discriminated prof.mities and philistinism.' Also, the earlier legislations were technically not vagranry Am in the sense that those did not consider wandering per se as the crime; rather they alleged that the vagrants are culpable or more prone to committing 'criminal activities.' The 1943 Bengal Vagrancy Act not only mimicked the Western paranoia towards itinerancy, but also for the first time forged links with the very basic tenet of'internal discrimination.' 5 S. BANERJEE, UNDER THE RAJ: PROSTITUTION IN COLONIAL BENGAL 68 (I 998). From the experience ofhavinp worked at the National Archives, New Delhi. India, I find most of the alleged 'vagrams in 18~ 19th century documents are the low.·profile European. to the extenr that there had been rehabilitations set up for the Europeans, needless to say. on Indian tax payers' money. The Friend-In-Need Sociecy is one 5 ch rehab established in Madras as early as 1812. A lener (1859) from me C hief Secretary to the Government, Fort Saint George. explaining the need to raise their budgetary allocation, dearly mentions: ' . .. [I]ts (the Sociery's) Obi' ect being me relief of indigm' Europtans and pmons a/European d(Icent. irrespective of re igious or any other distinctions' (italics mme). 6 7 8 Jd. ar 37-50. ld. at 37-50. ld. at 52. Here, Banerjee retrieves a touchy passage from MacMullen's U. MACMULLEN, C AMP AND BARRACK-ROOM, OR THE BRITISH AJJMY As IT Is 141 (1846)] autObiographical narrative to bear testimony to this fact: '[T]he British soldier is a neglected man. He is l o~:d on in every country as being a part of inferior speciesi as the pariah of the body poiluc; and thou~ to be almost incapable of moral or social improvement. His own officers despise him , and the public at large despise him . Surely then, when he finds himself treated with universal contemp t, it cannot be a matter of surprise that he loses all self-respect, and becomes the reckless and degraded being that he is ... ' Colonial Consliluliol1alism and Ihe Case of Bengal Vagrancy Act: Unravelling Histories of Discourse Reception Ian Hacking, though in context of France, shows how and ro what extent vagrancy had been medicalized within the domain of nineteenth century psychiatric systems ' Citing narratives of mentally-ill runaway travellers, the fogueurs, he examines how this 'symptom' in the late Nineteenth Century had become an issue of contestation berween taxonomizing it as 'epilepsy' and 'hysteria.' Hacking borrows the notion of 'ecological niche' in order ro explain how the medical rhetoric of studying the vagrants renders the 'disease,' in this case 'fugue' or 'dromomania,' an epidemic in France and Germany only at one hisrorical time but rotally absent elsewhere, which is not because of reasons entirely medical or 'scientific,' but rather due ro paradigmatic and epistemic shifts in social outlooks that began perceiving the vagrant as characteristic of eugenic degeneracy. Along the same lines, the Criminal Tribes Act 1871 in British India had labeled the nomadic tribes 'inherently criminal' and was fervently obsessed with 'scientifically' determining the correlation berween nomadicity and criminality. iORadhakrishna argues that in enforcing the 'hereditary criminals' ro take ro rehabilitative sedentariness, the British government intended ro (ab) use them as cheap labourers. I I This systemic restriction of itinerant mobilityas demonstrated by Singha 12 is sympromatic of the disciplinary reorientation of (potential) 'criminals' from the domain of what Foucault calls 'heterotopic spaces' to that of enumerated space, such that it optimizes surveilability on the one hand, and reinforces the social hierarchy on the other. The xenophobic colonizers had barricaded themselves from the colonized, the West from the non-West, through deictic categories 'we' and 'they.' 13 The idea 9 IAN HACKING , MAD TRAVELLERS: REFLECTIONS ON THE REALITY OF TRANSIENT MENTAL ILLNESS (I998). lOS. Nigam, Discip/ining and po/icing ,ht criminals ofbirrh' 131-64 in 'Parr [. Tht Making of a Cownial Stereotype - The Criminal Tribes and Castes ofNorth india', in INDIAN ECONOMIC & SOCIAL HISTORY REVIEW,VOL. 27(2) (I 990,). II 12 M. RAOHAKRISHNA , DI SHONOURED BY HISTORY: ' CRIMI N AL TRIBES' AND BRITISH COLONIAL POLICY (2008). R. Singh" Smle, Mobilize, Vtrifj: Idtnrifica,ion Prac,ices in Cokmia/ India, in 16(2) SWDIES 151-98 (2000) . IN H ISTORY, 13 EDWARD SAID, ORIENTALlSM (1978) and R.ANA]ITGUHA, RANAJIT. ELEMENTARY AsPECT OF PEASANT INSURGENCY IN COLONIAL INDIA 85 (1983). National Law School journal Vol. 12 2014 of village communes, polytheistic spirituality, blending of agricu lture with handicrafts of 'they' was far from the Eurocentric industrialized concept of 'modernity.' Hence, 'they' were 'inferior/ 'primitive' and 'savage.' 'Primitivity,' let alone what it means and to whom, is diachronically transient across colonies; yet, for the colonizers all-that-Europe-is-not is 'primitive.' As Said incisively puts It: fAJ group ofpeople living on Jew acres ofland will set up boundaries between their land and their immediate surroundings and the territory beyond, which they called ''the land of barbarians. " In other words, the universal practice of designating in one's mind a fo miliar space which is 'ours' and an unfomiliar beyond 'ours' which is 'theirs'is a way of making geographical distinctions that can be entirely arbitrary.J4 Now, Chatterjee lS has argued how the emerging nationalist discourse of the late nineteenth century led ro the formation of an 'inner domain' insulated from the overwhelmingly racist 'outer domain' still coping with the changing face of colonial 'modernity.' The elites who always preceded the understanding of nationalist politics, and undisputedly accepted the colonizers ro be ushering all 'progressive' doctrines, needed a site at which this severe 'castration anxiety' could be negotiated with. In a desperate attemp t ro buttress the disempowerment, they virtually turned internal colonizers and sho red up, as the 'you,' the intermediary collaborarors in between 'we' and 'they.' Inasmuch as one needs the 'other' ro assert one's self-identity, 'you' casted its identity against 'they' in the same way 'we' did upon 'you.' It is the symbolic projection of this self-image, I argue, that has been forged links with when the 1943 Vagranry Act clinically sanitizes Calcutta, a port townturned-city, from the doubly subaltern: the 'unpolished,' 'uncultured' rural folks. The initiation of a geo-political territory into a 'ciry' is invariably accompanied by a sharp 'functional segregation' that splits the urban geogr phy into the more 'developed' politico-industrial urban centers of power and concentration of the 14 EDWARD SAID , supra no te 13, AT 54 (1978) 15 PAKIliA CHA1TERJEE, THE NxnON AND ITs FRAGMENTS: CoLONlALAND POSTCOLONlAL HISroRIES, (Oxford University Press, Delhi,1997) . 86 Colonial Constitu tiO/lQ/ism and the Case of Bengal Vagrancy A ct: Unravelling His/ories of Discourse Reception lurking underclass. 16 No soo ner had the East India Company of the eighteenth century graduated from a monopolistic trade-economy to a centralized political power in the N ineteenth Century, the same happened with Calcutta. Despite the 'segregation,' it is incumbent upon the vanguards of politico-administrative power to project the 'city' as a de-ontologized unified entity by dint of 'strategic' intervention: by territorial-mapping, say for example, the ciry-map, public transit and so on.17 The under-class ' ciry~walke,' ever epitomized by the figure of the indefatigable fianeur or the dandy. in contrast to the 'tourist,' is threatening precisely because of this: she/he represents a bottom-up view of the 'city' from the location of the 'segregated,' which transgressively or 'tactically' in Certeau's parlance, tears the seam off the unified perception of the 'city.' The 1943 Vagrancy Act saw the rural 'i mmigrants' as a 'blemish' to be got rid of from the city; lest the 'profane' blew apart the imaginative geography upon which the discursive hegemony of the we-you-they triangularity would function. Now, imagi ne Calcutta in the 1940s. As foreseen in the 1931 Indian Census, the pressing issue of the 1930s was population. This persisted in the 1940s, if not heightened. On top of that, during the famine 'unattended dead bodies co uld be found everywhere in the city - 3,363 had to be disposed of by relief organizations in October [of 1943] a1o ne.' 18 As the spectacle offamine unfolded in the backdrop of a visually impoverished topography of the ciry, there had been constant administrative disavowal 'of a continuum with the silent violence of malnutrition that precedes and conditions it [the famine], and with the mortaliry shadow of debilitation and disease that follows it' (Davis, 2002: 21).1' Though quite late in officially acknowledging it, the Governor of Bengal, on 2 July 1943, wro te a confessional letter to the Viceroy saying: 'I am sorry to have to trouble you with so dismal a picture, Bengal is rapidly approaching 16 17 E. H OBSBAWM , REvOLUTI ONARIES 18 AMARTYA SEN , POVERTY AND FAMIN ES: AN ESSAY ON E NTITLEMENT AND DEPRIVATION M. 261·78 (2007). DE CERTEAU, TH E PRACfICES OF EVERYDAY LIFE 91·110 (5. 1' Rendall, trans.,1988). 57 (I982). 19 MIKE DAVls , LATE COLONIAL H OLOCAUSTS: EL N INO FAM INES AND THE MAKIN G OF THE THIRD WORLD 21 (2002). Vol. 12 National Law School Journal 2014 starvation ."o It took exactly a year after this for the Famine Comm ission to convene at Delhi in July 1944 - 18 July to be precise. Headed by Sir John Woodhead as its Chairman and SV Ramamurry, ManlalNanavati, M Ahal Hussain and WR Ayktoyd as its members, the Commission then traveled widely actoss Bengal for about six weeks before proceeding to other famine-hit parts ofIndia (Famine Commission Report: iii) . According to the Inquiry Report: .. .fA] deliberate state policy with the objective of encouraging the practice ofbirth control among the masses (e.g., by the free distribution of contraceptive devices) is impracticable. For religious reasons, the public opinion is not prepared to accept such a policy. Further, the economic condition of the poorer classes and their lack of education, together with the foctor of expense, seem to make the widespread encouragement of birth control a practical impossibility. Besides citing a number of administrative, civil, rationing and military policy 'failures' as the cause of the 1943 famine, the Commission tllrns its attention to the untestrained growth in population, on top of which there had been a refugee influx from war-ravaged Burma. Though thorough ly critical of the administrative malfunctioning, the Commission rather posits the fam ine to be 'accidental,' as suggested by the word 'failure,' and thereby sets the administration free of all allegations that the famine was man-made. Revisionist claims like that of Sen's among others, however, do insist that the famine was man-made. Sen (1982: 61) retrieves official estimates of rice production in Bengal during the years 1938 and 1943 and dismisses the oft-cited logic of 'crop failure,' administrative 'failure' to deal with the warning thereof. inadequate surplus fro m previous year, etc., as important factors contributing to (he fami ne. 21 He reveals that the harvest was 8.474 million tons in 1938,7.922 in 1939, 8.223 in 1940,6.768 in 1941 , 9.296 in 1942 and 7.628 in 1943 and demonstrates that the 1943 yield, though low, was no( usually beyond the standard deviation of recorded average production. Together with Bengal's total wheat supply, 20 J. Mukherjee, 21 Sup ra no(e18 at 57. Hungry Bengal: War, Famine, Riocs, and (he End of Empirel939-1946 (20 II ) (PhD dissercacion, University of Michigan) Availabk at h[[p: lldeepblue.lib.umich. edu/birsrream/handle/2027.42/86383/j,muk_ l .pdf>,equence= I, (last vi, i(ed on Nov. 28, 2013. 88 I Colonial Constitutionalism and the Case of Bengal Vagrancy Act: Un ravelling Histories of Discourse Reception this would mean that per capita food grains supply in Bengal in 1943 was 109 units against 127 in 1938, 120 in 1939, 123 in 1940, 100 (taken as the base index) in 1941 and 130 in 1942. In other words, there was famine in 1943 when per capita supply of food grains was actually 9% more than that in 1941 when there was no famine. This riddle provokes Sen ro argue that in the year of the famine , people with greater purchasing power - presumably the urban folks - cashed in on the wartime inAation and had hoarded and consumed food crops ro an extent that it left too little for others." This explains why, although the production in 1943 exceeded that in 1941 , the supply offood crops in the market in 1943 was way less than in 1941. Sen's theory, however, fails to explain why all wartime inAations do not lead to famines. What needs asking then is: why did the 1943 inAation in particular lead to a famine? M. Mukherjee sets out to examine this problem.'3 Anchoring on Sen's thesis, Mukherjee goes one step further in questioning whether Churchill (and his associates) at all counted the lives ofIndians whom he declaredly hated as 'a beastly people with a beastly religion'24 worth saving. Despite appeals from Leo Amery, the then Secretary of State for India and Roosevelt, the President of the United States ro send in relief ro India, Churchill remained indifferent because more important to him, as claimed by Mukherjee, was ro ridiculously stock up food crops in the UK in the face of war-time crisis, on top of what already seemed like an adequately sufficient stockpile.'s As a result, while the condition of the famine back in the colony was fast worsening, relief dispatched for India by Canada and Australia was being steered into Britain, and Subhash Bose's offer to send rice from Burma had been turned down. Amidst all these, Churchill and his advisor Frederick Alexander Lindemann (Lo rd Cherwell) stayed firm in their Malthusean belief: sending food crops, (even) in the form of relief, would mean Indians already 'breeding like rabbits' would breed even 22 23 Supra note 18 at 54. M. MUKHERJEE , CHURCHill'S S ECRET WAR: THE BRITISH EMP IRE AN D THE RAVAGING OF I NDIA DURING WORLD WAR II (2011 ). 24 25 !d. at 78. !d. at 209. National Law SchoolJournal Vol. 12 2014 more. 26 The irony of the situation has been captured poignantly by Mukherjee in the following passage: In his memo to Churchill, Lord Cherwell suggested that the Bengal famine arose from crop failure and high birth-rate. He omitted to mention that the calamity also derived from Indias role ofsupplier to the Allied war effort; that the colony was not being pemlitted to spend its sterling reserves or to employ its own ships in importing sufficient food; and that by his Malthusian logic, Britain should have been the first to starve - but was being sustained by food imports that were six times larger than the one-and-a-halfmillion tons that the Government ofIndia had requested for the coming year. 27 What I want to maw attention to is the way in which the colonial administrators verbalized the population crisis in an idiom that made the fum ine appear as ifbeing caused by over-fecundity, and over-consumption of resourO!S arising thereof, of the Indians. This paranoia was mimicked by the urban elite bourgeois who feared that the rural influx into the city from outside during the afrermath of the fumine would not only mean further scarcity of resourO!S, but also an additional burden on the more 'economically-productive' citizens. In other words, the fervent desire ro define and segregate the 'vagrant,' as expressed in the Bengal litgranryAct, was but a measure ro quarantine the city-dweller and reinforce the urban-rural hierarchy. C onsequently, 'in the interest of the destitutes themselves, as well as of the citizens ofCalcutta,'28 while the city dweller took it upon himself to ' rehabilitate' the 'vagrant,' The Bengal Vagranry Act thereby deemed: ... any officer authorized by Government to apprehend any person who, in the opinion ofsuch officer. is a destitute, and detain him or her in a place providedfor the purpose until the person is repatriated 29 In congruence with the repatriation project, destitute ho mes started mushrooming in rapid succession. In no time, the intake capacity of the 27 !d. at 205. !d. 28 Policy of Repatriation of Destitutes, THE 29 K. C. 26 GH OS H , FAMIN ES IN BENGAL, STATESMAN, 6 November 1943. 1770- 1943, 123(1944 ). 90 Colonial Constitutionalism and the Case of Bengal Vagrancy Act: Unravelling Histories of Discourse Reception destitute homes, in fact, far exceeded the number of repatriation-seekers.' · In October 1943, '(t)he number of starving destitutes in Calcutta was estimated to be at least 100,000.31 In an early November Statesman reportage, the figure has been estimated to be 150,000.32 In the face of'continuous tides of population' still pouring in from the villages and the 'tumultuous sea of human heads''' that had already gathered in the city, the government managed to 'repatriate' only 3000 destitutes to what it has in the official documents often referred to as temporary 'homes."4,'5 On 6 November, The Statesman reporred that, lest the setting up of these 'homes' would appear counter-productive, the government stressed on the need for faster repattiation. Relief Commissioner O.M. Marrin, however, had a very different explanation to this dismay. According to his version: ' [Pleople did not want to go into shelters [even if) they got two good meals a day and also gOt clothes - they kept running away'. 36 'The wandering habit amongst the children,' Marrin emphatically complained: 30 31 32 33 34 Supra note 2B. Supra nme18. Supra note 2B. E. A. Poe. Th( Man Oflh( CrowainCoMPLETE STORIES AND POEMS OF EDGAR ALLEN POE 215-16 (1960). "fhe nomenclature of these shelters as 'homes' is very evocative. Implicit in calling the:: shelters 'homes' was the idea [hat people should scay at hom( at their places of habirual/originary residence. thus making the homeless people, that is the rural immigrants and refugees, appear deviants. That said. it is also [Q be remembered in this context mat the idea of'home/house' itselfis very amorphous and yielded diverse perceptions. The unsus unmofGovt. of India brieRy traces the evolution of the concept: 'The term 'house' in India covers the greatest diversity of dwellings. In 1872, a house was defined as "any permanent StruCture which, on land, serves or would serve for the accommodation of human beings, or of animals, or goods of any description , provided always that it could not he struck and removed bodily like a tent or a mud hut." An attempt was also made to classify the houses as of me 'better sort' and of 'inferior SOrt. ' In rhe census of 188 1, 'house' was defined as the dwelling place of one or more families with their [sic] servants, having a separate principal entrance from the public way. The same definition with slight modification continued till 1951 . In 1961 c~n s us , 'House' was defined as a structure or part of a Structure inhabited or vacant, or a dwelling, a shop, a shop-cum-dwelling or a place of business, workshop, school, etc., with a separate main entrance. In 1971 census, 'House' was defined 'as a building or part of a building having a separate main entrance from the road or common courtyard or staircase, etc., used or recognised as a separate unit. It may be inhabited or vacant. It may be used for a residential or non-residential purpose or both.' (online) 35 R<patriating Calcutta D" tirum, THE STATESMAN , (Nov. 1,1943). 36 Nanavati Papers, Testimonies Submitted To The Famine Commission Inquiry, National Archives ofindia, New Delhi. 91 Vol. 12 National Law School Journal 20 14 ... was difficult to be stopped Famine orphanages had to have prison rooms. Children - skin and bone - had got into the habit offeeding like dogs. You tried to give them a decent meal but they would break away and start wandering about and eatfilth. You had to lock them up in a special room ... they [hadJ developed the mentality ofwandering. Th is desire to curb the 'wandering habit' manifests itself in the fo rm of 'the city-dweller's burden' fe rvently resolved to 'rescue' the vagrant. As per 'the citydweller's burden ,' and as expressed in Martin's testimony, the act of wandering was a delinquent mental state of being that required disciplinary intervention. Martin's testimony is symbolic ofwhat is at stake in how societies of disciplinary control perceive 'vagrancy.' Foucault, while explicating the idea of'heterotopia,' stresses the extent to which space in societies of control are organized, if not monitored, in order to achieve desired outcome." The 'retreat' to vagrancy is at odds with utilitarianization of (urban) space. Onate, the seats at the airportS across everywhere are being increasingly fitted with armrests. M ost public parks nowadays, paradoxically though, have strict admission hours, beyond which they remain inaccessible. Born out of this regulatory intent is a desire ro territorialize 'social' space into what Lefevbre"ca lls 'differential space' - a (re) organization of the coordinates of space and movement based pon the dialectics of (in)admissibility, that disenfranchises and expels those that are unwanted without having to deploy coercive forces. Likewise, the rationalization of the cleansing project implicit in 'repatriation' following the fa mine was evidently being couched in a rhetoric of delinquency. in the Foucauldian'9sense of the term, whereby 'the technical considerations of imperialistic efficiency and rationality [would) supersede the traditional standards of profitability and general welfare." · In other words, the imaginative articulation of the 'vagrant' was being conceived from a highly contingent process of political partisanship, 37 M . Foucault, OrOth" Spaus: Utopias and HUtrotopias, in 31 DIACRlTICS(1 986). 38 H. LEFEBVRE, THE PRODUCTION OF SPACE (199\). 39 M. FO UCAULT, DISCIPLI NE AND PUNISH 257-92 (1995). 40 H . Marcuse. Some social implications of modern technology. in 1 TECHNOLOGY, WAR AN D FASCISM: COLLECTED PAPERS OF HERBERT MARcusE 45 (Keliller, D. (ed.) 1998). 92 Colonial Constitutionalism and the Case of Bengal Vagrancy Act: Unravelling Histories of Discourse Reception struggles over rights to citizenship, imperial ideologies of utilitarianization of urban space, laced with notions of social elitism and class conftontation. Dr. Maitreyee Bose of the All-India Women's Conference Relief Committee brought up a poignant narrative in her testimony to the Famine Enquiry Commission, which is reRective of how the 'rescue mission' in reality turned into a 'forced repatriation' project. Dr. Bose" records: A maid servants daughter in my sisters fomily was sitting on the doorstep waiting for her mother to finish her job. A lorry came and took her forcibly in sight ofthe mother, thinking her to be (1 destitute child. No one would listen that she was not a destitute child. The testimony conforms to what Sen" has drawn Out attention to: the very fact 'that 'repatriation' was rather more firmly achieved than ' relief' in many 'destitute homes' and 'camps' set up outside Calcutta' {italics mine}.The use of force, more often than not constituting a public display, persuasive of rendering 'protection' in the face of clear denial by the 'vagrant' to receive it, was but a pervasive technique of exerting disciplinary control that unfolded as iflike 'the spectacle of the scaffold. ' Foucault" threateningly bringing forth a message loud and clear for the public: mobility in the urban space outside of 'instrumental rationality' was immediately incarcerable. This phenomenon and what it impacted have been succinctly summed up in Janam Mukherjee's" observation: In the context offomine, establishing a ''right'' to remain in Calcutta often meant the diffirence between life and death. A right to Calcutta meant a territorial claim. The round-up and removal of "sick destitutes" ftom the streets was, in this sense, only a more stark and authoritarian means of establishing "priority. " The question of who "belonged" in [sic.] Calcutta and who did not, who was to be granted residence and who removed, who was ''essential'' and who disposable - all [sic.} these had been central to patrolling the space ofCalcutta . .. 41 Supra note 36 at 783. 42 Supra notd8. 43 Supra note 39 at 32-71 44 Supra note 20 at 209-10. 93 Vol. 12 National lAw School Journal 2014 It is evident how the issue concerning vagrancy virtually becomes a contention over territoriality between the urban Calcuttans and their r ral co-citizens. In fact, the Vagrancy Act makes little distinction between the 'vagrant' and the 'refugee.' What I insist on , in conclusion, is that the modus operandi of the Act was founded upon an axiom of internal discrimination: its target was rather to fence off the 'modern(izing)' cityscape of Calcutta ftom a certain section of colonially un(der)exposed population the ruling elites deemed as a blemish. And, this concern for sanitizing Calcutta was but a &llout of colonial modernity. 94