Rehearsing the Witness: The Bhawal Court Case [Testimony and Evidence]

From the album “Evidence in the Case of Ramendra Narayan Roy,” Photos courtesy the Alkazi Collection of Photography, New Delhi.
The Bhawal court case was a pre-Independence case that revolved around the identity of a sannyasi (or Hindu religious ascetic), rumored to be the heir of one of the last great zamindari estates in Dhaka (now modern Bangladesh). The Bhawal estate was the fifth largest estate in the district of Dhaka, and more crucially, one of the few properties still outside the domain of the British rule at the time. Ramendra Narayan Roy was one of three brothers who inherited the estate from their father. In 1909 he went to Darjeeling to seek treatment for syphilis but apparently died there at the age of twenty-five. Soon after his death, his two brothers also passed away, leaving the Bhawal estate in control of the British Imperial Court of Wards. In 1920, nearly a decade later, a sannyasi appeared in Dhaka, rumored to be the second kumar (prince) of Bhawal. Those who saw him were convinced he was the second kumar, even though he spoke Hindi, not Bengali, and despite his reluctance to confess to his identity as anything other than an ascetic. Arrangements were made for him to meet the kumar’s family in Joydepur. The second kumar’s wife, Bibhabati Debi, refused to meet this man, steadfastly maintaining her position that this was an impostor, and that the kumar was dead. Umar’s sister, Jyotirmayi Debi, became convinced that this man was, indeed, the second kumar. In 1921, the claimant arrived in Dhaka in the Bhawal house with two lawyers to meet the district magistrate and the collector to record his claim. A series of witnesses were systematically put together to establish that this was, in fact, Ramendra Narayan Roy. Unwilling to legally accept this impostor’s identity, the Court of Wards also began to gather evidence to suggest that this man was not the second kumar. Over the sixteen years in court, the man’s physical attributes, birthmarks, testimonies, witnesses, and memory were put together as forensic evidence to establish the identity of the man.
The case was in trial from 1930 to 1946 and was fought in the District Court in Dhaka, the High Court in Calcutta, and finally in the Privy Council in London. The battle finally ended in 1946 with a victory for the plaintiff, who died two days after the final verdict.
The Bhawal Album, part of the Alkazi Collection of Photography in New Delhi, is a set of 90 photographs that was used as evidence in the Bhawal court case—of this, a series of images are of Kumar Ramendra Narayan Roy (before his alleged death in Darjeeling) as well as of the plaintiff—the sannyasi—dressed to look like the kumar. These photographs, used during the original trial to establish likeness between the plaintiff and the kumar (and thereby confirm identity) given the plaintiff’s alleged loss of memory, were the basis for my project Rehearsing the Witness: The Bhawal Court Case.
The imposter as actor or the actor as imposter is the central focus, my access point into the Bhawal material, and from where the project has spiraled outward in terms of both its form and content with the rehearsal and the audition as key ideas.
An audition is typically an introduction during which an actor has to present a self-portrait as well as his technique and ability to become someone else. The representation is real and staged at the same time. A rehearsal is repetition—this means continual reproduction in order to represent reality. During a rehearsal, an actor is engaged in the production of a portrait, an image of a self. Both the rehearsal and the audition implicate the viewer into a position of judging—gauging how good the actor is—that is, how believable the actor is. Believability within the context of theater can be considered credibility in the context of the law.
Both law and performance assert productions of truth and reality; the construction of narratives; a historical frame of reference; and the creation of alternative conditions and visions of the present.
Late legal scholar Robert Cover proposed the world of law as a system of tension, which bridges concepts of reality to an imagined alternative. According to Cover, these polarities are maintained and moved forward through the device of the narrative. It is through narratives that we build and understand the relationship between our social constructs and our vision of potential futures. These narratives require a leap of imagination in order to connect not only “what is” and what “should be,” but also to what “might be.”
The third and ongoing iteration of Rehearsing the Witness is in the form of a retrial. Initially performed at the Dhaka Art Summit in 2018, the retrial focuses on how identity is written into history and played out in the domain of the law, as opposed to the actual complexity of real lived experiences and relationships. The State, that is the British Court of Wards, is one of the parties in the Bhawal case and we see, via the testimony of expert witnesses on the body as evidence (and as the site where identity is played out) and photographs (to establish likeness and thereby confirm identity), what the State considers and requires as identity and where the individual locates identity.
The retrial, staged with a director (myself), real lawyers, and a real judge, re-enacts sections from the original testimonies as well as produces new ones. The witnesses, contemporary experts in their own fields, speak from the original testimony as well as offering their own opinions as experts. The judgment is not pre-known.
Rehearsing the Witness represents the original Bhawal material and the historical event in order to examine and critique it—produce the possibility of an alternate past. But the retrial also deconstructs and reconstructs the archival material case to produce alternative possibilities of thinking about evidence and identity.
Theater is the space where things are real and not real at the same time, where we can observe ourselves from the outside while also being part of the performance. It is a paradox that creates situations and practices that are symbolic and actual at the same time. What sort of justice and judgment can we find in a theater? How can theater as theater reflect on what it means to be public? How can theater not only mirror society but also be a part of changing it? Rehearsing the Witness considers the relationship between re-enactment and retrial and whether the performance/retrial can facilitate a legal paradigmatic shift.

Performance still from video. Rehearsing the Witness: The Bhawal Court Case. Dhaka Art Summit, 2018.
I would like to call Percy Brown.
[Enter Rahaab Allana]
Deposition of Percy Brown, witness No. 8 for the defendants 1, 3, and 4, taken on solemn affirmation, on the 13th day of March 1935.
My name is Percy Brown. My age is 63 years. I reside at 23 King’s Court, Theatre Road, Calcutta. My occupation is Secretary and Curator, Victoria Memorial Hall, Calcutta.
I was trained as an artist at the Royal College of Arts in London and taught art and artistic anatomy in a number of institutions in England. I was principal for 10 years in the Government Mayo School of Art in Lahore, and for 18 years Principal of the Government School of Art in Calcutta. I have exhibited in London, Simla, and Bombay, and written several books on Indian art. I have been an enthusiastic amateur photographer since 1886. I have sculpted from photographs and know that sculpture helps considerably in studying resemblances in photographs.
[Shows photos]

[And photo ex. (48) (=LXV) and photo ex. (49) (=LXVI)]

I have studied and examined these photos. I have compared them. They are not the photos of the same person.

These are the photographs of the same person.

These are the photos of another person.
In my report, I refer to photos ex. (48) and ex. (49). They are these:
[shows photographs marked in this court, being Exhibits LXV and LXVI.]
I refer to these in my illustrations.
Refreshing your memory by your report, do you see any resemblance between the two people in the photographs?
No. Analyzed in detail, my opinion regarding head, forehead, and skull is—allowing for the difference in ages and the condition of the hair—that the foreheads are not alike. No. 49 is broader and the skull is higher and more domical than 48. The difference I illustrate, thus:
As to the eyebrows—the eyebrows of No. 49 are fairly horizontal, those of No. 48 have thin outer and are lower than the inner.
The eyes in No. 49 are oblique with the outer corners higher than the inner—those of 48 are horizontal. The eyes of 48 are not those of 49.
Passing of time or age would not make these differences in eyebrows and eyes. I have shown on ex. a (27) the differences in eyes and eyebrows.
Take the nose in 48 and 49. The nostrils are different. Those of No. 49 are narrower and more refined than those of 48. I have illustrated the nostrils and also made a drawing of the philtrum. The philtrum, i.e. the length from the end of the nose to the end of the upper lip, is shorter in 49 than in 48.
Is the lower lip of 49 symmetrical on each side of the axial line?
Not Exactly. (Witness looks at the photo 49.)
In 48 is the lower lip symmetrical?
I should say it is symmetrical.
The chin of 49 is fuller and rounder than 48. I have illustrated that in ex. a (28).

As to the ears—the ears of 48 could never be those of 49. The lobe of 49 is pendant. The lobe of 48 sticks out. I have illustrated that. As to the jaws, the jaw in 49 is narrower than in 48. As to the general shape of the face, front view, I consider that in No. 49: the skull is wider than the lower part of the face, and No. 48 is the reverse of this face. I have illustrated that in ex. a (28).
The points that I have mentioned in your report—the points of difference—are they fundamental or accidental?
Fundamental.
What do you mean by fundamental?
It means that putting all the details together, the details of one are different from the details of the other—the whole producing a fundamental difference. By fundamental difference I mean it produces a difference of appearance.
Can the difference of light and shade account for these fundamental differences?
No.
Thank you.
Your witness, Mr. Barua.
Cross-examination
Please state your name.
My name is Rahaab Allana.
And your occupation.
I am the curator at the Alkazi Foundation for the Arts, and the photographs used in this particular case, as it was a historical case, are from the archive that I work for, based in New Delhi.
Well, two photographs taken of the same man, at two different ages, say a difference of 10 to 20 years, would they not be two statistical moments in a history which is continuously dynamic?
The photograph, according to me, is about an arrested moment in time. Now, how does one compare what happens from one point in time to another point in time given that there are several changes that occur. There might be physiological changes; there might be behavioral changes, and so yes, it is constantly dynamic. But perhaps the greater question is whether there is a philosophical task at hand—in how you actually measure the distance to your origins, and does a photograph actually justifiably create that journey explicitly for anyone, especially if that point of origin is constantly changing? That means the photograph taken at one point in time might be vastly different from another.
As you talked about changes, if a man is shown two photographs of the same stranger at two different periods in his life, would that particular individual be able to identify the same person?
Likely that he would.
Well, in your deposition as Percy Brown, you were told that the photographs are of the same man, weren’t you?
Yes, historically it was proven that they were photographs of the same man but that they are the same man is something I don’t necessarily agree with.
Why don’t you agree with that?
Well, there are several differences that occur. For me, the way in which the photograph was taken, the mise en scène, for instance, has been broken. There are two different photographers who have been working on these images for over a period of time. And so the iconographic trace has been broken by time. I find that creates difficulty in the opinion making.
Let me come to a different conclusion: you know that Percy Brown was curator of Victoria Memorial Hall, Calcutta, and you have a similar background in art history and education. Is it because of the educational and professional background of both of you that you are influenced by Mr. Brown’s opinion regarding the photographs?
Well, we had somewhat similar experiences in our education, but he was vastly more prolific in book writing for sure. And I found that art history at that point in time was about a certain kind of sentimentality, which perhaps inspired in an individual a sense of morality. I think his opinion has been brought down to a mathematical equation, comparing one with the other or as a one-to-one relationship, perhaps, and I found this curious. But it is more curious, that in addition to the performativity of the individual at hand, that there’s also the performativity of the camera itself. Media itself is manifesting to an extent how we make an opinion of that individual. It’s not only about the performance of the man, it’s also about the performance that the camera, as an apparatus, imposes.
So, you’re trying to say, photographs can also be deceiving, like appearances, aren’t you?
They can be, to an extent. Especially in this case because as we see in the case of the kumar, the earlier photographs that were taken, were taken by his inviting the photographer into his midst. That means there was an environment of consent. He asked that individual to come and take a photograph of an event. In the second case, the State had actually sent a photographer to shoot him performing the role of someone he is meant to portray. To an extent there is an environment of coercion, and I think these two environments also create different kinds of contexts for the interpretive value of that image.
Let me come to the context of the trial. The photographs played a vital role as a form of reliable evidence in the original trial as is the case in the present time, as well. I am assuming that you understand the role of evidence in litigation. You said you are not convinced that the photographs presented in the case represent the same person, whereas the court in the original trial has accepted them to be the same. Not only the trial court. Three different courts have settled that they represent the same person. You must have strong reasons to contradict with the opinion of the court. Are there any?
Well, I suppose, the photograph has been talked about earlier with its fidelity to reality, which is highly contestable. I am always looking at the image as to what it can perhaps represent and not what it does represent. You’re looking at images for what they do outside the frame and not only what they are doing within the frame. So, I feel to that extent, my opinion is based on that kind of conjecture, certainly.
Are you trying to say that a photograph in a passport is not good enough to identify a person?
The question is how you break down an individual. How you fragment that individual from his face, his nose, down to his legs, knees, and so forth, and whether the sum of all those parts makes them represent the whole. When we look at an individual close up, it might be one thing and when we look at him from afar it might be quite the other. So, the question is which truth is more valid. I don’t think in this case there is consensus on this.
So, you’re trying to contradict the modern identification process of indexing biometric data and are also saying that the DNA analysis of an individual would produce incomplete conclusions about the identity of who the person says he is. Is that what you are trying to say?
I am trying to suggest, perhaps, that the biological trace that an individual has is not the only identity that he is going to inhabit over a period of time. In an environment of data transfer and data starvation, overall, you can also assume that there is also a lot of theft around data. So, his identity might have been taken by someone else who just wired that information into the system and out of the system. But, certainly, for me the case with images is always this: you can never actually pinpoint what is going on with the person within the frame. Even though that is a point of evidence, it does not create his or her entire identity.
So, what you have just said in your cross examination can be interpreted in two different ways. I am trying to say that your opinion is, itself, ambiguous. So, why should I listen to your opinion as an expert?
Well, I suppose I have been brought in here because of the comparative readings that I can give as an art historian. That is something that I have been doing for a while. Comparing the relationship of one image to another, looking at the differences and looking at the similarities. But the fact that there’s subjectivity in question is perhaps going to always be the case, which might also be the case for entities larger than myself because if you arrive at something like a scenario like this, are we trying to find a common denominator of an opinion? Are we trying to come to a collective consensus about the common reality or an individual one? And it is possible that these would always be at loggerheads with one another.
Thank you, Mr. Allana. Your Honor, I’m done with the witness.
I would like to call John Winterton.
[Enter Shahidul Alam]
Deposition of John Lawrence Winterton, witness No. 788 for the plaintiff, taken on solemn affirmation, on the 7th day of August 1934, before Sub-Judge, 5th Court of Dacca.
My name is John Lawrence Winterton. I am 60. I live at 20 Park Street, Calcutta. I am an artist and a photographer. The name of my firm is Edna Lorenz, Calcutta. The firm was started in 1913. I have been in India for over 35 years. I was an assistant and, later, Manager of Messrs. Bourne & Shepherd in Bombay and Simla. I have been with this firm since 1900. Before coming to India, I was trained as an artist and a photographer and I worked in London, Munich, Paris, Dresden, and Berlin.
Could we put the first slide on, please? Please lower the lights.
The photograph on the left, photograph (LX), I took myself from life. The photograph on the right (LXI), I copied from another photograph. To me, these photographs appear to be of the same person taken at different periods of their life. I have studied and compared the features very carefully. I have looked at the shape of the forehead, the nose, the mouth, the eyelids, the nostrils, the lobe of the ears. They are the same in the photographs taken by me as the one taken some years ago. Because of the age, in the photograph on the left, there’s less hair but the kinks of the hair, the curliness, is still the same in both photographs. The particular characteristic of the earlobes is also identical. They do appear to be more prominent in the photograph on the left because of the fat cheeks pushing the ear farther back. Another characteristic is on the right of the lower lip; it appears to be a bit fatter than it would otherwise be in most faces, as it is slightly pushed toward the right, making the lower lip look thicker than the left side. I am absolutely convinced that my conclusion is correct. As the cheeks have gotten fat, the lobes of the ears stand out, otherwise they would hang down.
For my own satisfaction, I enlarged the above two photos. Can we go to the photographs, please?

I enlarged the two photos to make it easier to compare. And in the photograph on the left which I took earlier from life, I added the hair, I obliterated the line above the eyes, the lines above the eyebrows. Otherwise, the eyes were not really touched.
Can we go to the next slide, please?
These are the two enlargements, LXII and LXIII. As you can see, the resemblance is striking. Can we go to the next pictures?
Could the alterations you have made produce this result if the two photos were not of the same person?
Not at all. No way.
Suppose you take any photograph of any other person and removed the lines and pouch, as you said, and added the hair, would the resemblance result?
Impossible.
Thank you.
Cross-examination
Your witness, Mr. Barua.
Please, state your name.
I am Shahidul Alam.
What do you do?
I am a photographer and writer.
After examining the photographs, what is your opinion as an expert regarding the plaintiff?
I am absolutely convinced that they are photographs of two different people.
Your Honour, I would like to declare Mr. Alam a hostile witness as he has deposed against the plaintiff.
Ms. Chaudhari?
Yes. Please do consider him as a hostile witness.
Mr. Alam, how have you come to the conclusion that the photographs are of two different persons?
I could have used many methods that are available to me, including facial recognition. But in this particular case, I had a much simpler solution. Could we have the scans please?


What I did was draw the outline of the two images and compare the length of the ears, the relative ratios of the two earlobes on photograph LXV with the ratio of the left to the right ear of photograph LXVI. According to my measurements, there’s a 16 percent difference between the two images. In the photograph on the left, the ratios of the left to right is 16 percent larger than the photograph on the right. It’s simply inconceivable that such a change could have taken place in an adult over such a short span of time. The biological growth that would be required is simply impossible.
Mr. Alam, you are more of an artist than a forensic expert. Why do you feel you are qualified to be here as an expert witness?
As a photographer, I study faces. I look at people. Looking at faces is my job. I make a living that way. I look at facial characteristics. I look at what light does to it, what the lens does to it. It’s precisely my job to understand faces.
But the expert analysis here doesn’t necessarily need an artist to do all these measurements and all that. Any ordinary person can do that. Isn’t that right?
This is a unique situation. While what I said is true, in this case, I have photographs that are ideal for the measurements I made. They both look square on. Both eyes and ears are visible, which is not often the case. It has a simple background. And the measurements that I was able to make are measurements that a child could have made and are perfectly valid.
So, you’re trying to say that a person can be reduced to measurements. Correct?
It’s true that photography is complicated. But in this particular case, as in the case of passport photographs, very strict instructions are given: you have a person standing in front of a plain background. They are made to look square on. They don’t wear glasses, they don’t wear things, they are not meant to smile, or have any other facial characteristics. This is a very special situation where, despite the fact that photographs can be problematic, measurements are and can be used, which is why I used them.
So, the circumstances you are talking about are measurements that a State uses to verify a person but doesn’t necessarily really identify that particular person. Wouldn’t you agree that a passport of an individual cannot be safely regarded as a form of identification in the document?
Faces in the context of identifying people can be used in many ways. You have the State—the establishment—using things like surveillance photographs, which are taken in poor lighting conditions, of people in motion, wearing different clothes, and in complex situations. There, surveillance is used to identify people, and I find that problematic because I think there is a lot of room for different analysis to come up and errors to be made. Here, I find I have all the tools necessary for a very precise measurement, and that’s what I have utilized.
So, as a photographer, why do you think photography is still used as vital evidence to identify a person, particularly when you have, yourself, admitted that it is only valid under certain circumstances?
A photographer is a primary witness. That is why there is a perceived veracity of photography. A photographer is at a place where a scene is meant to have occurred. Therefore, they present evidence as a witness. However, as a photographer I know how photographs will be taken. I take pictures to make people look attractive. I take pictures to make people look the way they want to. I play with light. I play with features. I know how to make a thin face fatter or a long face short. All of these are available to me.
So, you’re trying to say that photographs can sometimes lie?
Photographs do lie. Photographs have lied forever. Lewis Hine in 1905 had this famous statement where he said, “While photographs may not lie, liars may take photographs.”
In that case, what is the use of the photograph then?
Well, when I said that a photograph lies, it’s true that a President might lie, a revolutionary might lie, advertising people lie constantly. That is precisely the reason why the average citizen, why the disenfranchised require photography, and that is why, in fact, I practice photography, because I think that a person needs to be told that they need to combat this tool which I consider to be a tool of expression.
If I take your opinion here, in this case you are answering from a point of view of a citizen and not an artist. Am I right?
I am an artist, but it is the position of the citizen and the disenfranchised that I consider to be very important because they are the ones who do not have access to many situations. When you have the State or the establishment using documents to deprive people of their rights, it is photography that they must resort to as a form of evidence.
So, aren’t you speaking from a position of privilege?
Extremely. But I want to talk from the position of the disenfranchised because they do not have this privilege and therefore they are the ones who require the evidence that we take.
In your cross examination, you have clearly given two contradictory opinions which goes in favor of the plaintiff. Don’t you think so?
Not at all. What I have done is given the entire scenario; I have talked about how photographs can be deceptive, how they might lie. I’ve also mentioned in this specific case where photography can be used as documentary evidence, and I have done it through very clear, precise measurements.
Thank you, Mr. Alam. Your Honour, I am done with the witness.
Thank you.
Notes
Credits Direction and Dramaturgy: Zuleikha Chaudhari. Additional texts in the script: Heiner Muller and Prayas Abhinav. Petition: Nauriin Ahmed and Umer Aiman Khan. Commissioned and produced by the Samdani Art Foundation. Additional support from the Alkazi Foundation of Photography and Brown University. Photographs courtesy: The Alkazi Collection of Photography, New Delhi.