A colony like British India thus had a nationality law that did not address citizenship at all: the original Foreigners Act was intended to monitor the movement of people within the empire rather than to grant or deny anyone political privileges.

In independent India, the conflation between these categories has proved extremely contentious. It is one reason, for instance, that the National Register of Citizens exercise, first conducted in Assam in 1951, has been so controversial. There was no codified definition of an Indian citizen at the time—the Citizenship Act was only enacted in 1955—and the determination of nationality was precisely what was at stake. Were India and Pakistan one nation split between two states? Or were they separate nations, despite sharing language and culture across their various borders? The law cannot clarify what politics refuses to resolve.

The Foreigners Act further provides the legislative basis for Foreigners Tribunals, which have wreaked havoc in Assam in recent years. It puts the onus on alleged foreigners to prove that they are, in fact, Indian nationals (and, thus, by extension, Indian citizens). How this can be proved, with what documents, and with what certainty, is a matter on which the Indian judiciary is chronically incapable of making up its mind.

Such a reversal of the burden of proof is a routine feature of criminal law in contemporary India. But nationality was irrelevant to the case in Meghalaya, for the three refugees had never claimed to be Indian in the first place. The judge’s conundrum was more basic: could he simply take the BSF’s word that they had been caught crossing the border? Who was to say they weren’t simply taking a vacation in Dawki, a popular tourist town?

Could the state be given the benefit of doubt on the grounds that the Foreigners Act provides for the reversed burden of proof on one specific question, the determination of nationality? The prosecutor later told me that most judges would have accepted such a generalisation: it was to this judge’s credit that he held true to the foundational legal maxim that people are presumed innocent until proven guilty.

“Luckily for them,” the prosecutor observed wryly, “they were found in Dawki, not Karimganj.” He meant that if they had been discovered at the Assam border, they might well have been hauled before a Foreigners Tribunal, which would likely have interned them indefinitely in a detention camp.

This sweeping legislation was challenged by the communist leader A.K. Gopalan in the Supreme Court. Gopalan argued that preventive detention violated the constitutional rights of citizens to equality and liberty. This argument was rejected by the Supreme Court the following year in a judgement that the jurist K.G. Kannabiran called “the first Indian-made foreign judgement.” ^[4] Gopalan’s own indictment was blunter. His trial, he said, would “expose constitutionalism as a bourgeois tool of oppression.” ^[5]

In the decades after that judgement, preventive detention laws and their abuse proliferated. They were challenged before the courts only to be upheld, culminating in the Supreme Court’s Emergency-era capitulation in the ADM Jabalpur judgement. (In that case, the Supreme Court had been asked to exercise the writ of habeas corpus to release prisoners detained without trial under the infamous Maintenance of Internal Security Act.)

Most states have passed a preventive detention law, and several Union laws now allow for it. Moreover, crimes such as conspiracy, sedition, and unlawful association are so vaguely interpreted, and have such low evidentiary burdens, that such detentions are functionally similar to those permitted by preventive detention legislation.

Preventive Detention laws work through intimidation, uncertainty, and secrecy. As the scholars Shrimoyee Ghosh and Haley Duschinski have observed, “the terrifying violence of indefinite detentions lies in the everyday uncertainty of not knowing what may happen next, since law and paperwork can be crafted as required to trap a detainee interminably.” While their research focuses on brutality of the preventive detention regime in Kashmir, this insight into the routine violence of such detentions equally captures the fates of those accused under the Unlawful Activities Prevention Act in the Bhima Koregaon and Delhi Riots cases.

The UAPA is not formally a preventive detention law; it just behaves like one in its disregard for the fundamental norms of procedural justice. India, like most liberal democracies, justifies such violations by appealing to the rule of law. It is necessary, the logic runs, to occasionally bypass some norms to preserve the rule of law, the very cornerstone of our polity.

It was through the rule of law that the colonial state would civilise the mutinous millions of India. But there were several obstacles to overcome before a genuinely common law could be enforced across the territory. Personal law, for example, which regulated such things as marriage and succession, varied across communities.

Criminal law was considered more amenable to uniformity. It had been exhaustively codified by the late nineteenth century, resulting in a legal system that was seen as exemplary not merely for the colonies but even for the metropole. “To compare the Indian Penal Code with English criminal law,” Stephen proudly declared, “is like comparing cosmos with chaos.” ^[7]

It is certainly true that an uniform criminal law can be a useful technology for transforming a highly stratified society into a relatively egalitarian one. It is also true that in law as in life, substance inheres through process. The law doesn’t deliver justice simply by claiming it will, any more than a person becomes wise by asserting their own wisdom. A wise person is tested by time and by practice, by consistently doing and saying things that others recognise to be morally sound and practically useful. Similarly, the measure of justice for a modern legal system is whether it upholds, in practice, the values through which it justifies its potentially infinite capacity for coercion—values such as liberty, equity, certainty, and publicity.

A legal system that dispenses with the rules that govern a fair trial—which include things like the right to be heard and the presumption of innocence—defeats itself: without such rules, the law would simply cease to exist, on its own terms, as a valid social mechanism for regulating behaviour. This is doubly true for punitive laws. As Justice Khanna observed in his dissent in the ADM Jabalpur case, the “history of personal liberty is largely the history of insistence upon procedure.”

The law might be made by a select elite, according to rational and eternal principles that only a firm foreign hand, detached from the partisan squabbling of the subcontinent, could discern. But it would be interpreted and implemented equally and fairly, by an independent judiciary that was capable of speaking truth to power. This was the colonial rule of law.

There remained a limit to this evangelical discourse: the necessity of conquest. It was challenging, then as now, to reconcile the authoritarian reality of military occupation with liberal prescriptions for an accountable and responsive government. This, too, Stephen realised. The choice, he wrote, was not about “government by law and government without law.” The effort had to be “to unite by law all authority in one hand, to give by law wide individual discretion.” ^[8]

Even as he crafted the new criminal codes of procedure and evidence, Stephen helped draft two laws that would ensure certain places and people remained beyond their ambit: the Criminal Tribes Act 1870 and the Scheduled Districts Act 1874. Both laws codified existing practices for managing recalcitrant populations, especially in newly conquered provinces or frontier areas (which included most of what is now Rajasthan, Punjab, and Telangana).

In Assam, meanwhile, a local zamindar challenged the revenue boundary of the Garo Hills. He argued that his claim to land in the hills had been ignored when the border was legally established by Regulation X of 1822, which had also excluded the Garo Hills from the laws of Bengal Presidency. The Calcutta High Court held in favour of the zamindar in 1868. This ruling prompted the passage of the Garo Hills Act of 1869.

This law reinstated the boundary that had been struck down by the court, and further isolated the Garo Hills by depriving the criminal and civil courts of their jurisdiction over disputes in the district.

The law also provided for the possibility of expanded application, a power that was immediately exercised by the Lieutenant Governor of Bengal to include the neighbouring Khasi and Jaintia Hills District. When this decision was challenged, the Calcutta High Court struck down the enabling provision. The colonial government responded with even more stifling legislation: the Scheduled Districts Act.

Under the 1869 Garo Hills Act, criminal justice was governed exclusively by rules notified under the Act. The final authority was the Deputy Commissioner, whose decisions could be challenged politically by those sufficiently powerful to appeal to superior officers in the colonial bureaucracy. They could not be challenged legally: there was no right to appeal.

These rules had originally been drafted to operate in another part of what is now Meghalaya, the Jaintia Hills, following an uprising there a few years earlier. They were subsequently adopted under the Scheduled Districts Act. They remain the template for the administration of justice in most of Meghalaya today, though later amendments have restored the appellate jurisdiction of various high courts.

In the decades leading up to the Garo Hills Act, this part of Assam had given colonial dignitaries considerable anxiety. This was largely because of their inability to control corrupt local functionaries. The profligate excesses of one such petty tyrant, Henry Inglis, provoked three official enquiries in ten years.

Inglis had been appointed as a magistrate as a reward for tricking several chieftains into surrendering during the Anglo-Khasi wars. The English heir to the regional limestone mafia, he used his office to intimidate rival businessmen. When that failed, he directed his henchmen to sink his rivals’ boat and attack their men. When they protested to his superior officer—who happened to be Inglis’ father-in-law—he sued them for libel.

A decade later, the Constituent Assembly decided to retain the special status of the hill districts because of their alleged backwardness. The Sixth Schedule of the Indian Constitution, drafted specifically in relation to the hill districts of Assam, continues to give sweeping powers to the state Governor. Procedural codes, meanwhile, still do not fully apply to disputes in the “tribal areas” specified by the Sixth Schedule.

The legal geography this creates is bewildering. Depending on who commits which crime and where, they might be tried in any one of three courts. The first is the court run by the local Autonomous District Council, an elected institution created by the Sixth Schedule to protect tribal interests.

In Meghalaya, there are three such district councils, one for each of the primary tribes. The Khasi Hills ADC, or KHADC, has jurisdiction over Shillong. It is empowered to try criminal cases between Khasi people assuming that the crimes are charged exclusively under the Indian Penal Code, rather than under one of the many special statutes that have criminal provisions (such as the UAPA).

The second criterion is that the crimes being prosecuted by an ADC court must occur outside Shillong municipality, the borders of which remain highly contested. Crimes that occur within Shillong municipality are tried before the ordinary criminal courts, while those that implicate non-tribals (or, say, a Garo person on KHADC turf) are tried by the deputy commissioner of the concerned district or executive magistrates who report to him.

Non-IPC crimes are also tried by executive magistrates, who are often simultaneously judges and bureaucrats. The case of the three refugees, for instance, was technically being tried before the Additional Deputy Commissioner (Judicial), an executive posting, rather than the Sessions Judge of Shillong, the most senior trial judge in the district.

As often happens in such situations, the same person has been appointed to both posts. The judge in the Dawki case chose to follow the Criminal Procedure Code despite not being required to do so. This, while laudable, also makes his dismissal order in the case vulnerable. This slippage between the executive and the judiciary is why forum shopping is an established part of the life of criminal litigation in Meghalaya. If the purpose of this giant baffling mess was to make criminal justice more accessible to people, suffice it to say, it has roundly failed.

The only people in this institutional setup formally bound to follow criminal procedure are the magistrates and judges of the ordinary courts. Everyone else is only bound by “the spirit of the law” and a set of rules drafted to quell the Jaintia uprising in the middle of the nineteenth century.

The Supreme Court did not agree. “Written law is nothing more than a control of discretion,” the judgement helpfully observes. The court upheld the old rules, reasoning that “the more there is of law, the less there is of discretion. In this area, it is considered necessary that discretion should have greater play than technical rules.” The judgement then goes on to argue that “the removal of technicalities leads to the advancement of justice in these backward tracts.” ^[12]

Even more astonishing was the court’s observation that “we must not forget that the Scheduled Districts Act was passed because the backward tracts were never brought under general Acts and regulations.” ^[13] That the court could assert this a few paragraphs after citing a case in which the Calcutta High Court angrily protested the removal of such tracts from the colonial rule of law a century earlier demonstrates the historical erasure at work. The court’s memory, at once fallible and expedient, reveals the priorities of the postcolonial state it served.