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Author/s:
Bell, Lucinda Downes

Title:
The 1858 trial of the Mughal Emperor Bahadur Shah II Zafar for crimes against the state

Date:
2004-12

Citation:
Bell, L. D. (2004). The 1858 trial of the Mughal Emperor Bahadur Shah II Zafar for crimes
against the state, PhD thesis, Faculty of Law, The University of Melbourne.

Publication Status:
Unpublished

Persistent Link:
http://hdl.handle.net/11343/39304

File Description:
The 1858 trial of the Mughal Emperor Bahadur Shah II Zafar for crimes against the state

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ABSTRACT

In 1857, hostilities broke out against the 'rule' of the East India Company (EIC) in northern India.
Measures to suppress the hostilities, known as the 'Mutiny', 'Rebellion' or 'War' of 1857',
included legislation enacted by the EIC's Government of India criminalising 'rebellion' and
'waging war' and establishing temporary civil and military commissions. From 1857 to 1859, the
Government of India tried soldiers and civilians, including the last Mughal Emperor, the King of
Delhi Bahadur Shah II, for their conduct during the hostilities. The law and trials have not
previously been the subject of study.

This thesis assesses the validity, according to the international law of the time, of the trial by
military commission of the King of Delhi in 1858. The research and writing of this study is original
for no review of the trial according to international law has previously been attempted.

The central hypothesis is that the trial was in breach of the international law of the time.

The thesis demonstrates that the King of Delhi was a Sovereign recognised by Britain and under its
protection until he was deposed three months before the trial. The thesis contends that his status as
a recognised Sovereign, which according to the long-established rule of sovereign immunity
precluded prosecution in the courts of another State, should have been considered sufficient to
entitle him to immunity from prosecution. The criminal trial of a recognised Sovereign was
without precedent.

The thesis also contends that the apparent basis for the assertion of jurisdiction over the King or
Delhi, that he hec<lme a British national through the extension of protection to the Kingdom or
Delhi in I ~()J, was untenable in law. According to State practice of the time, protection of one
State hy another neither depri ved the protected State of sovereignty nor effected a change in
national it y.

The thesis suggests that sovereign immunity was deliberately overridden on the grounds of his
statLls as a protected king, the gravity of his crimes or on both grounds. Unprecedented in 1858,
these grounds formed the basis for later challenges to the doctrine of sovereign immunity by
plaintiffs in Britain. While neither ground found support in the law of the time, they signalled a
new appetite to pierce the shield of sovereign immunity.

The thesis concludes that the trial of the deposed and protected King of Delhi, Bahadur Shah, by a
British court-martial in 1858, was both invalid according to the international law of the time and
heralded an emerging international trend in favour of Head of State accountability.