The Shield That Outlived the Empire

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Two Hundred and Fifty Years of Executive Immunity in Indian Criminal Law — From Warren Hastings's Fused Magistracy to the Bharatiya Nagarik Suraksha Sanhita — and Why Punjab's Dead Have No Names

Kanwar Partap Singh Gill 03 Jul 2026 — long read


A note on method, continued from the companion essays this piece extends. Three registers of claim are held apart throughout: proved findings — facts fixed by statute, official commission, or judicial holding, cited to the instrument itself; documented allegations — claims serious and sourced but not adjudicated to the criminal standard; and doctrinal-analytical argument — this essay's own reasoning, laid across the record rather than substituted for it. This piece is longer in its statutory citation than its predecessors because its claim is structural: that a specific architectural feature of Indian criminal law has survived every major recodification for two hundred and fifty years, largely unchanged in function even where its language, its name, and its sovereign have all changed twice over. A claim that large requires the statute numbers, the case names, and the dates to be shown rather than gestured at.


I. The Paradox Stated Plainly

India has recodified its criminal law twice in living memory — once at Independence, adapting colonial codes to a republican constitution, and once in 2023, replacing the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act with the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam, in what the government explicitly framed as an act of decolonisation — the erasure of the last vestiges of a foreign vocabulary from the Republic's own law. Two constitutional foundings, two sets of codes, two different sovereigns claiming the authority to write them.

And through all of it, one specific mechanism has survived intact: the requirement that the government whose officer is accused must consent, in advance, before a court may even take cognisance of the charge. It appeared first in the Code of Criminal Procedure of 1898, under a colonial government answerable to no Indian electorate. It survived Independence into the 1973 Code as Section 197, upheld by the Supreme Court of a sovereign republic. It survives the 2023 "decolonisation" as Section 218 of the Bharatiya Nagarik Suraksha Sanhita, its core structure untouched, its only reform a 120-day timeline for the government to make up its mind. A mechanism built to protect Company and Crown servants from the people they governed has now outlived the Company, outlived the Crown, and outlived two separate acts of Indian sovereigns declaring their own law finally, truly Indian.

This essay traces that mechanism back further than 1898 — to the fused executive-judicial office the British created in 1772 and never fully un-fused — and forward through its specific, documented application to Punjab between 1984 and 1996, and to Delhi in November of 1984. The claim is not that India is uniquely lawless, or that this architecture was built with Sikhs specifically in mind — it was not; it long predates any Sikh insurgency and has been applied, with equally documented consequences, in Kashmir, in the Northeast, against Dalits, against Adivasis, against the urban poor in police lock-ups the length of the country. The claim is narrower and, this essay argues, more durable: that when this specific architecture met a specific historical moment — Punjab's counterinsurgency, and Delhi's November — it produced a specific, measurable, and thoroughly documented outcome, and that outcome is the correct evidentiary basis on which to evaluate whether the same architecture, in 2026, deserves to be trusted with anything the Panth cannot afford to lose twice.

II. The Fused Magistracy: 1772–1793

The office at the centre of this essay's concern — the District Magistrate elsewhere in India, the Deputy Commissioner in Punjab, Jammu and Kashmir, and the Northeastern states — was not created to protect anyone's rights. It was created to collect revenue.

In 1772, Warren Hastings, newly appointed Governor of Bengal, divided the Company's territories into districts and placed each under a Collector, an English servant of the East India Company charged with assessing and extracting land revenue. Within two years, the office had absorbed judicial functions as well: Hastings's Judicial Plan established the Collector as president of the Mofussil Diwani Adalat for civil matters, and, through the Mofussil Faujdari Adalat structure, gave the same officer authority to arrest, take evidence, and commit accused persons to trial in criminal matters — revenue collector, civil judge, and criminal magistrate, fused in one person, answerable upward to the Company and not meaningfully downward to anyone the office governed.

Lord Cornwallis, arriving as Governor-General in 1786, is conventionally credited with correcting this — and the correction is real, but partial in a way that matters enormously for what follows. The Cornwallis Code of 1793 did separate revenue collection from civil judicial authority, transferring civil adjudication to a newly created cadre of District Judges, on the express reasoning — Cornwallis's own — that a Collector sitting in judgment over disputes arising from his own revenue collection was a structural invitation to abuse. This is the moment Indian legal historiography usually cites as the birth of judicial independence in British India, and as far as civil justice is concerned, that citation is accurate.

But the Cornwallis Code left the criminal magisterial function where it was. The Collector — under Cornwallis's own 1787 and 1790 reforms, formalised in the 1793 Code — remained the District Magistrate: the officer who issued warrants, took cognisance of criminal complaints, supervised the police force the same Code created beneath him (the Darogah and the Kotwal, both appointed by and answerable to the Magistrate), and controlled the machinery by which a death, a disappearance, or a complaint of custodial abuse would or would not become a documented fact. Cornwallis separated the executive from the civil judiciary. He did not separate the executive from the machinery that decides, at the first and most consequential moment, whether a crime committed by the state's own agents will ever become a case at all. That fusion — revenue officer and criminal magistrate in one person, appointed by and answerable to the same government whose police he supervised — is the direct institutional ancestor of the modern District Magistrate, and, under the name this essay's companion pieces have used throughout, of the Deputy Commissioner of Amritsar District between 1984 and 1996.

This is proved history, not analogy. The office this archive's prior work has traced across three named tenures in Amritsar — the officer statutorily positioned to receive police reports of suspicious death under what would become Section 174 of the Criminal Procedure Code, and to order magisterial inquiry under what would become Section 176 — is the same office, structurally unaltered in its essential fusion of revenue, executive, and criminal-magisterial authority, that Warren Hastings built to collect taxes in 1772.

III. Codification Without Accountability: 1860–1898

The mid-nineteenth century gave British India its first modern, systematised criminal law — and it did so in direct response to a crisis of imperial control, not a crisis of Indian rights.

The Indian Penal Code, substantially the work of Thomas Babington Macaulay's Law Commission, was enacted in 1860, in the immediate aftermath of the 1857 rebellion and the transfer of governance from the East India Company to the Crown. The Code of Criminal Procedure followed in 1861 and was substantially revised in 1898. It is in the 1898 Code — not before, and not merely by implication — that the specific provision this essay is built around first appears in recognisable form: a requirement that no court take cognisance of an offence alleged against a magistrate or public servant, committed while acting or purporting to act in the discharge of official duty, without the prior sanction of the government that employed him. Contemporary Indian legal commentary confirms this dating without qualification: the provision "first appeared in the Code of Criminal Procedure, 1898," drafted into a legal architecture being built, in the direct aftermath of an uprising the British read as a catastrophic failure of control, to ensure that the officers charged with re-establishing that control would never again face prosecution at the whim of the population they had just finished suppressing.

The same 1898 Code, not coincidentally, is where the inquest architecture this whole controversy turns on takes its modern form — the requirement that police report an unnatural or suspicious death to the nearest magistrate, and that a magistrate may, in defined circumstances, hold an inquiry independent of and in addition to the police investigation. Sections 174 and 176, descended through the 1973 Code and now reconstituted in the Bharatiya Nagarik Suraksha Sanhita, 2023, are the specific statutory hinge on which every claim this archive has made about the 2,097 Amritsar cremations depends: a body that dies in circumstances the law calls suspicious is supposed to generate paper — a police report, a magisterial record, a documented chain from death to disposal. The 1898 Code built that documentation duty and the sanction shield that could neutralise its enforcement into the same volume of law, administered through the same fused office, in the same historical moment. The right to be recorded and the shield protecting whoever failed to record you were born together.

IV. Independence Without Rupture: 1947–1973

The transfer of sovereignty in 1947 is, in the specific architecture this essay traces, considerably less consequential than the national mythology of a clean break suggests.

The Constitution of 1950 gave India Article 21 — no person shall be deprived of life or personal liberty except according to procedure established by law — and Article 22's procedural protections against arrest and detention. These are real, substantial constitutional commitments, and this essay does not diminish them. But the ordinary criminal procedure through which those commitments were to be made operational was not rewritten from first principles. It was re-enacted, first as a continuation of the 1898 Code with amendments, then comprehensively as the Code of Criminal Procedure, 1973 — and Section 197's sanction requirement survived that comprehensive re-enactment in substantially its 1898 form: prior government sanction before a court may take cognisance of an offence alleged against a public servant acting or purporting to act in the discharge of official duty.

The Supreme Court had already, under the new constitutional order, been asked whether this colonial-era shield could survive contact with a written constitution promising equality before the law. In Matajog Dobey v. H.C. Bhari (1955), the Court upheld Section 197's constitutional validity, reasoning — in terms that would have been equally at home in 1898 — that public servants require protection from legal action that might otherwise arise unfairly out of the honest discharge of official duties. This is a defensible principle in the abstract, and this essay does not argue that public officials should face prosecution on a private citizen's bare word. The point is narrower: a sovereign, democratic republic, drafting its own constitution and reviewing its own inherited law through its own highest court, chose continuity over rupture on precisely this question, at precisely the moment it had the clearest opportunity to choose otherwise.

V. The Punjab Laboratory: Layering Emergency Onto the Shield

What happened in Punjab between the early 1980s and the mid-1990s cannot be understood as Section 197 alone. It has to be understood as Section 197 layered beneath a stack of emergency-era statutes that Parliament and the Punjab Assembly built specifically for the counterinsurgency period, each adding its own insulation to an architecture that was already, by design, resistant to holding the executive to account for its own conduct.

The Punjab Disturbed Areas Act and the Armed Forces (Punjab and Chandigarh) Special Powers Act gave police and paramilitary forces sweeping powers of arrest, search, and use of force, and — in the pattern this essay has already traced to 1898 — paired those powers with insulation from ordinary prosecution for their exercise. The Terrorist and Disruptive Activities (Prevention) Act, 1987, layered further procedural advantages onto the prosecution and further disadvantages onto anyone challenging police conduct, including provisions making a confession recorded by a sufficiently senior police officer admissible against the accused — a direct inversion of the safeguard against coerced confession that ordinary criminal procedure had maintained since the colonial evidence codes of the nineteenth century.

Layered onto Section 197's pre-existing sanction requirement, this combination did precisely what this architecture has done at every point in its 250-year history: it made the documentation duty — the inquest, the record, the paper trail Sections 174 and 176 existed to create — dischargeable in theory and evadable in practice, with the evasion itself protected from consequence. Human Rights Watch and Physicians for Human Rights' joint 1994 investigation, Dead Silence: The Legacy of Human Rights Abuses in Punjab, documented the resulting pattern directly: systemic torture, extrajudicial execution, and enforced disappearance by Punjab police through the early 1990s, with the report stating plainly that there was no indication the government at either state or federal level had made any effort to investigate these abuses or prosecute the perpetrators, even where the perpetrators' identities were well documented. Amnesty International's contemporaneous and later reporting reached the same structural conclusion from a different angle, identifying Section 197 by name as the mechanism that "did not merely protect individual officers" but made "accountability dependent on the prior permission of the very executive structure whose own conduct was under question" — and recording, in the same body of reporting, that women held in custody in Punjab and India's other counterinsurgency-affected states were, in the human rights community's own documented finding, "frequently raped in detention."

VI. What the Record Shows When the State Is Made to Investigate Itself

The Punjab mass cremations case supplies, in unusual and precisely dated detail, a direct answer to the question of what this architecture produces when it is finally, after years of activist pressure, forced to turn its attention on itself.

In November 1995, following Jaswant Singh Khalra's abduction by Punjab police after he had publicly released official cremation-ground registers documenting the disposal of Sikh bodies, the Supreme Court ordered the CBI to investigate both his disappearance and the underlying allegations. The CBI's final report, filed before the Court on 9 December 1996, confirmed 2,097 illegal cremations at three cremation grounds in Amritsar district alone — 585 fully identified, 274 partially identified, 1,238 never identified at all. On 12 December 1996, in Paramjit Kaur v. State of Punjab, the Supreme Court found this disclosed a "flagrant violation of human rights on a mass scale" and referred the matter to the National Human Rights Commission, invoking its own Article 32 authority to direct the Commission to determine all outstanding issues and award compensation.

What followed over the next decade is the proved record this essay asks a sceptical reader to sit with. The NHRC, notwithstanding the Supreme Court's own language describing a mass violation, narrowed its inquiry by its own October 1998 order to only those cremations already documented by the CBI in Amritsar — despite receiving some 3,500 separate claims of illegal cremation, despite Khalra's own contemporaneous estimate that the true Amritsar figure exceeded 6,000, and despite credible evidence that cremation-ground workers routinely burned multiple bodies using firewood allocated for one. Of the 2,097 cremations the CBI itself had confirmed, the agency registered only thirty regular criminal cases for investigation; by its own 1999 submission to the NHRC, twelve of those thirty had been finalised and eighteen remained pending. The Commission did not, at any point in this process, undertake to determine which officers — police or civil — bore responsibility for the deaths themselves; it confined its eventual November 2004 order to awarding interim compensation of up to 2.5 lakh rupees to the 109 families in whose specific cases the police had admitted custody immediately before death, without assigning individual responsibility for what happened in that custody. A further order in October 2006 extended compensation to 1,245 victims' families and appointed a retired High Court judge, Justice K.S. Bhalla, to spend a further eight months attempting to establish the identities of those still unaccounted for — a decade after the CBI's own report had already been filed.

Set against this record, the singular narrow exception proves the rule rather than qualifying it. Accountability for the entire architecture of Amritsar's disposals passed, in the end, through exactly one channel that the system could not simply absorb: the abduction and murder of Khalra himself, prosecuted because Khalra had become, by the act of his own killing, an unignorable individual victim rather than one name inside an "unidentified" cremation-ground register. Six police officers were convicted by the trial court; the Punjab and Haryana High Court handed down life sentences to five of them in 2007, acquitting the sixth; the Supreme Court upheld those convictions in November 2011 — sixteen years after Khalra's abduction. The civil-magisterial chain — the Deputy Commissioners whose statutory duty under Sections 174 and 176 should have generated a documented inquest for every one of the 2,097 confirmed dead, not merely the handful whose disappearance happened to produce a martyr capable of forcing the system's hand — was never separately called to account for that duty at all. This is not an inference stretched thin. It is what the CBI's own thirty-case registration against 2,097 confirmed cremations, and the NHRC's own decade of jurisdictional narrowing, directly show.

VII. Delhi, November 1984: The Same Architecture, a Different Instrument

This archive's companion essay, "Return to Whom?", has already set out the Delhi record in detail — the PUCL-PUDR inquiry's finding of organised complicity, the Marwah Commission wound up after gathering evidence against the police, the Kusum Mittal and Jain-Aggarwal committees' combined indictment of 147 police personnel with no meaningful prosecution, the Nanavati Commission's own finding of complicity converted into departmental exoneration, Inspector Shoorvir Singh Tyagi's suspension followed by reinstatement and promotion, and Sajjan Kumar's conviction arriving only in December 2018, thirty-four years after the killings. This essay adds only the structural point that record was building toward: none of this is a separate phenomenon from what happened in Amritsar a decade later. It is the same architecture — the sanction requirement first codified in 1898, the fused executive discretion over what gets documented and what does not — operating on a different set of victims, in a different city, under a different set of proximate political actors, and producing, with almost mechanical consistency, the same eventual shape: commission, indictment, departmental exoneration, and, in the rare case that could not be absorbed, a conviction that arrived a generation late.

VIII. The Decolonisation That Wasn't: 2023

In 2023, Parliament repealed the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act, replacing them with the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam. The government's own stated framing for this exercise was decolonisation: the removal of a colonial vocabulary and colonial legal inheritance from a Republic that, on this account, had waited too long to write law in its own name rather than the Crown's.

Measured against that stated purpose, the treatment of the sanction requirement is the clearest available test of whether the 2023 recodification changed the architecture this essay has traced or merely renamed it. Section 218 of the Bharatiya Nagarik Suraksha Sanhita is the direct successor to Section 197 of the 1973 Code, which was itself the direct successor to the provision first enacted in 1898. Its core requirement is unchanged: no court shall take cognisance of an offence alleged against a judge, magistrate, or protected public servant, committed while acting or purporting to act in the discharge of official duty, without the previous sanction of the appropriate government. The one genuine reform — a 120-day deemed-sanction provision, intended to prevent a government from indefinitely sitting on a sanction request and thereby freezing a prosecution forever — is worth crediting honestly; it addresses a real, documented abuse of the pre-2023 provision, in which sanction requests could and did simply vanish into administrative silence for years. But it leaves the requirement itself, the core architecture inherited from 1898, entirely intact: the government whose officer stands accused retains the power to decide, in the first instance, whether that officer may be prosecuted at all.

A code renamed to declare its independence from empire has kept, unaltered in function across two hundred and twenty-five years of prior existence and now embedded in an avowedly indigenous statute, the exact mechanism that let the 1898 Code's own drafters sleep at night. This is not offered as a claim that the 2023 recodification was undertaken in bad faith, or that Parliament was obliged to abolish sanction requirements as such — legitimate governments, including many with far better human-rights records than Punjab's counterinsurgency period produced, retain some analogous protection for good-faith official conduct. It is offered as a precise, documented answer to a precise question: has anything about the machinery that produced Amritsar's 2,097 cremations and Delhi's thirty-four-year wait for a single conviction actually changed? On the specific evidence of Section 218, the honest answer, as of July 2026, is no.

IX. Why This Is Not Abstract for the Panth

This archive's companion essays, "Sevadar Codified" and "Return to Whom?", have already argued that Sidhu's citizen's draft leaves Section 9's documentation requirement permissive rather than mandatory, and that the Panth has specific, evidenced reasons to distrust any legislature — Punjab's or a hypothetical Union Parliament's — with the ultimate authorship of Satkar. This essay's contribution is to show that those two conclusions rest on the same underlying architecture, traced now to its origin rather than merely to its outcome.

The reason a permissive documentation clause in a 2026 sacrilege statute is dangerous is not a generalised anxiety about bureaucratic sloppiness. It is that the specific legal environment into which that clause would be enacted — Section 218 BNSS, structurally unchanged from 1898 — already contains the exact mechanism that turned a statutory inquest duty into 2,097 undocumented cremations the first time an accountable record threatened to expose the officers responsible for its absence. A Section 9 that says evidence "may" be gathered, inside a legal system whose sanction architecture has survived two constitutional foundings without functional alteration, is not a safeguard. It is an invitation extended into a room this state's own institutional history shows has been walked into before, by exactly this kind of permissive language, with exactly this outcome.

And the reason a hukamnama-based Panthic protocol is not merely a sentimental alternative but a structurally superior one is now visible with more precision than this archive's prior essays could offer. Sri Akal Takht Sahib's authority over Satkar does not pass through Section 218, because it is not a criminal prosecution of anyone; it does not require the sanction of any government, because it does not ask any government's court to take cognisance of anything. It operates entirely outside the architecture this essay has traced from Warren Hastings to the Bharatiya Nagarik Suraksha Sanhita, which is precisely why it can do the one thing that architecture, on its own 250-year record, cannot reliably be trusted to do: generate accountability for the reverential and evidentiary minimum the Panth requires, without first asking the same fused executive office — descended in an unbroken institutional line from the Collector Warren Hastings built to collect taxes — for permission to be held to it.

X. Rebuttal Architecture

Every functioning government protects its officials from vexatious prosecution to some degree; is this not simply ordinary criminal procedure design, found in most legal systems, rather than evidence of anything specific to India or to Sikhs? This is true as a general proposition and this essay does not dispute it. The argument here is not that sanction requirements are inherently illegitimate. It is that this specific architecture — traceable to a specific 1772 fusion of revenue and magisterial power, hardened into a specific 1898 sanction provision in the direct aftermath of an anti-colonial uprising, layered with specific Punjab-era emergency statutes in the 1980s, and tested against a specific, precisely documented outcome in Amritsar and Delhi — has a evidentiary record this essay has laid out in dates, case names, and statutory citations rather than asserted by analogy to other countries' criminal procedure philosophy generally.

Doesn't crediting the 120-day deemed-sanction reform in BNSS Section 218 undercut the thesis that nothing has changed? No; it disciplines the thesis rather than undercutting it. The 120-day rule is a real, specific, creditable improvement, addressing a real documented abuse — indefinite non-response — of the pre-2023 provision. Crediting it precisely is what allows the larger claim to be trusted: that the core requirement of prior government consent, the feature this essay's entire historical argument concerns, survives that reform untouched.

Is tracing this architecture back to 1772 not simply historical colour, disconnected from the actual, contemporary legal question of who should author a 2026 sacrilege statute? The connection is functional, not decorative. The office whose documentary discretion this essay has traced from the Collector of 1772 through the Deputy Commissioner of Amritsar 1984–1996 is, under its Punjab-specific title, the same category of office a repaired Punjab statute would still rely on to discharge Section 9's evidentiary duties in 2026. A reader is entitled to know, in assessing how much discretion that office should be trusted with, exactly how long that specific discretion has existed, exactly what shield has protected its exercise, and exactly what that combination has already produced when tested.

XI. Conclusion

Two hundred and fifty-four years separate Warren Hastings's Judicial Plan of 1772 from the Bharatiya Nagarik Suraksha Sanhita's entry into force. Two constitutional foundings, two complete recodifications of the criminal law, two separate sovereigns — the Crown and the Republic — have each had the opportunity to ask whether the government whose officer stands accused should retain the power to decide, in advance, whether that officer may be prosecuted at all. Both, when the question arrived at the moment of clearest opportunity to answer differently, chose continuity.

This is the record — not sentiment, not inherited grievance recited without an evidentiary floor, but statute numbers, case names, and dates — against which this archive's companion essays have asked whether the Punjab Assembly or a hypothetical Union Parliament deserves the Panth's trust with the authorship of Satkar. The answer this essay supplies is not a claim that reform is impossible, or that every officer who has ever held the fused authority this essay has traced is presumptively guilty of anything. It is a narrower, and for that reason a more durable, claim: that the specific architecture asked to hold the Panth's trust in 2026 is the same architecture, materially unaltered across two hundred and fifty years and two declared re-foundings, that produced 2,097 undocumented cremations in Amritsar and a thirty-four-year wait for a single conviction in Delhi — and that a Panth asking what has changed about that architecture is entitled to an answer built from the same discipline this essay has tried to supply, rather than from the promise, made before, that this time will be different.


Sourcing note: The account of the Judicial Plans of 1772, 1774, 1780, 1787, and 1790, and the Cornwallis Code of 1793, draws on standard Indian legal historiography, including the summary treatments at Lawctopus's Academike, the Libertatem Magazine account of the Cornwallis Code, and the PubAdmin.Institute survey of the District Collector's office, cross-checked for consistency on the central and undisputed point: that criminal-magisterial authority remained fused with the executive Collector even after 1793 separated civil judicial functions. The dating of the sanction provision's first appearance to the Code of Criminal Procedure, 1898, and the account of BNSS Section 218's 120-day deemed-sanction reform, are drawn from contemporary legal commentary including LawChakra's analysis of Section 197 CrPC and Section 218 BNSS (2025) and the Criminal Law Blog (NLUJ) analysis of Section 197. The constitutional validity of the sanction requirement is reported in Matajog Dobey v. H.C. Bhari, 1955 SCR (2) 925. The account of the Punjab mass cremations case is drawn from the Supreme Court's order in Paramjit Kaur v. State of Punjab (December 1996); the CBI's final report filed 9 December 1996; Human Rights Watch, "Protecting the Killers: A Policy of Impunity in Punjab, India" (October 2007); Human Rights Watch's 2005 letter to the National Human Rights Commission; the NHRC's own orders of October 1998, November 2004, and October 2006; and Ensaaf's documentation of the Bhalla Commission process. The account of Punjab custodial practice 1984–1996 draws on Human Rights Watch/Asia and Physicians for Human Rights, "Dead Silence: The Legacy of Human Rights Abuses in Punjab" (1994), and Amnesty International's reporting on torture, rape, and impunity in Punjab, including "Break the Cycle of Impunity and Torture in Punjab" (2003). The account of the November 1984 violence in Delhi and its accountability record extends this archive's companion essay, "Sevadar Codified — Addendum: Return to Whom?" (3 July 2026), which carries its own full sourcing for that material. The doctrinal argument in Part IX extends this archive's companion essays "Sevadar, Not Sovereign" and "Sevadar Codified."


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