Session 142: Law and Colonialism in Modern India

Organizer: Mithi Mukherjee, University of Colorado, Boulder

Chair and Discussant: Satadru Sen, Washington University, St. Louis

Keywords: law, colonialism, India, history, modern.

This panel will explore different dimensions of the complex historical relationship between colonial law, domination, and representation through a discussion of some important trials in nineteenth- and twentieth-century India. It will examine four major themes in the field of colonial law. Firstly, it will discuss the nature of colonial legal modernization and explore the limits of the colonial claims to a universal discourse of rights by looking at the domain of women’s rights, specifically the operation of rape law in the nineteenth century. Secondly, it will examine the nature of the colonial deployment of law as a political tactic to enforce colonial authority in the twentieth century by focusing on the use of the category of ‘sedition’ to control divergent forms of political nationalism. Thirdly, it will explore the use of the legal arena by the subject population in the historical construction of community identity in the twentieth century, focusing specifically on the Parsi community. Finally, it will look at the emergence of the colonial law court as a site of resistance for the colonized and explore the discourses of war, national identity and imperial sovereignty as they came to be articulated in the legal domain in the last years of colonial rule in India.

Sedition and Terror: Tilak, Gandhi, and Savarkar

Janaki Bakhle, Columbia University

Tilak, Gandhi, and Savarkar were three Indian nationalists who had very different notions about how India should obtain independence from colonial rule. Tilak was a conservative nationalist, Gandhi was a non-violent agitator, and Savarkar was a radical and violent revolutionary. However, in the course of their struggle against British colonialism in India, all three were tried, found guilty and sentenced to harsh prison terms under a common legal category, namely, "sedition." In this paper I will examine sedition as a preemptive and post-hoc legal mechanism as well as a catch-all category through which an early colonial understanding of what is today termed "terror" was enacted. Additionally, this paper will address what might be seen as the ideological commonality between Tilak, Gandhi, and Savarkar from a colonial, legal point of view.

"The Body Evidencing the Crime": The Law of Rape in Colonial India

Elizabeth Kolsky, Villanova University

In 1810, the Court of Nizamut Adaulut heard the case of Gobind v. Oodaiseen. Mahranee, the ten-year-old daughter of a sheep herder, alleged that her neighbor Oodaiseen had carried her into a neighboring field and raped her. Mahranee’s charge was corroborated by several witnesses who found her lying naked, bloody and unconscious on the ground and by the violence marking her body. Although the law officers of the Nizamut Adaulut declared that there was no full legal proof of guilt according to Islamic law, on the basis of the strong circumstantial evidence, they sentenced Oodaiseen to thirty stripes with a corah and seven years’ imprisonment.

Although the crime of rape in colonial India was an extremely compelling literary metaphor—representing both the conquest of India and the sexual threat posed by the wily Indian—the prosecution of actual rape cases never held much interest for colonial administrators. As various scholars have argued, the British in India attended with great vigilance to sensational, scandalous, and alien forms of gender violence such as sati and infanticide. However, the British colonizers were rather less intrigued by those crimes with which they were more familiar. Violence against women—and rape in particular—forms a case in point. In this paper, I will examine rape law and case law in colonial India to determine the impact of legal modernization and the phasing out of Islamic criminal law on victims of sexual violence.

The Parsi Identity Debates: Saklat vs. Bella (1914–25)

Mitra Sharafi, Princeton University

The case of Saklat vs. Bella (1914–25) sparked a decade-long debate over the question: "Who is a Parsi?" in colonial Rangoon, Bombay, and London. The Parsis, one of the most affluent and Anglicized of Indian communities, prided themselves on their Persian identity, having fled from the Arab Muslim conquest of Iran some 1,300 years earlier. Liberal Parsis advocated the acceptance of outsiders—European, Indian, and Burmese—into the community through intermarriage, conversion, and adoption. The orthodox utterly rejected it. Saklet vs. Bella offers the most in-depth investigation of these questions in a legal context. In 900-odd pages of previously unexamined court records, Parsi lawyers from Bombay and Rangoon cross-examined Zoroastrian industrialists, high priests, hereditary corpse bearers, and fire temple trustees. This testimony records Parsi views on race, religion, and history, making the legal arena the forum for the reevaluation of the community’s ethnic identity. The case began in 1914, when a young girl named Bella underwent her navjote or initiation ceremony into Zoroastrianism in Rangoon. The local priest refused to perform the ceremony, so a high priest from Bombay Presidency was hired. The problem was that Bella was the adopted child of a Parsi couple. The Parsi paternity rule dictated that only if one’s father was Zoroastrian could one be initiated into the faith. Bella’s biological mother may have been Parsi, but her biological father was a Christian Indian from Goa. Orthodox Bombay Parsis opposed Bella’s navjote, and the case was followed closely by Bombay newspapers, whose coverage in turn sparked two related libel suits. Most of the evidence for Bella’s case was collected on commission in Bombay, and the case was ultimately appealed to the Privy Council in London. Bella won access to Rangoon’s Parsi fire temple in the court at first instance and on the initial appeal. However, the Privy Council ruled against her in London. Her case offers a unique view of discussions of identity that would have remained hidden from public view among other Indian communities.

Freedom, War, and the Nation-State: The Indian National Army Trial of 1945

Mithi Mukherjee, University of Colorado, Boulder

Indian independence from British colonial rule and the foundation of the Indian nation-state have been interpreted in historiography predominantly as the result of a peaceful ‘transfer of power’ from the British administration to the Indian National Congress. While nationalist historiography has attributed this peaceful transfer to the triumph of Gandhian non-violence, imperial historiography has seen it as the inevitable culmination of the benevolent pedagogical project of the British empire. What has gone almost unnoticed in existing historiography are the implications of a competing discourse of freedom that led to the founding of an Indian ‘state in exile’ and the formation, under the leadership of Subhas Chandra Bose, of the Indian National Army that launched a war on the British colonial state, declaring it to be the only right path to national independence. In this paper, I will study the Indian National Army trial of 1945, one of the most consequential political trials in colonial India that was followed by widespread revolts in the Indian armed forces, particularly in the navy, making British military domination of India increasingly untenable. I will explore the discourses of freedom, war, nation-state, national identity, and imperial sovereignty as they came to be articulated in conflicting ways in this trial.