by Rohit De
Forthcoming in in The Legal Complex in Postcolonial Struggles for Political Freedom, ed. Terrence Halliday, Lucien Karpik, Malcolm Feeley (Cambridge: Cambridge University Press, 2011)
The paper focuses on a series of confrontations between the colonial judiciary and the colonial state in India in 1942... more
The paper focuses on a series of confrontations between the colonial judiciary and the colonial state in India in 1942 and 1944. By the summer of 1942, the Japanese were advancing towards British possessions in India, the Indian nationalist parties had launched a civil disobedience movement which was spiraling out of control and discontent was rising due to famine and severe rationing. The government was quick to retaliate, with demonstrators being fired upon and over a 100,000 people arrested. It was to suppress these nationalist activities in face of war, that the government fashioned special legal instruments, such as the Defence of India Act and its various rules which allowed the government to hold people without trial. In a well publicized series of judgments the Federal Court struck down these laws and ordinances. What was remarkable was that the court in question had been perceived as a weak court, set up by the colonial government and had been staffed by consciously selected pro-establishment judges. Ironically, almost identical repressive ordinances in Britain were upheld by British courts. I hope to use judicial response to the Quit India movement as a prism to open up a discussion of law, state and legal culture in colonial India.
The role played by the Federal Court pushes us to revisit the consensus on the "rule of law" in colonial India, particularly the belief that "law was far from autonomous in practice, its autonomy nothing more than legal fiction and its practice pure farce". Placing the Indian and British judicial experience in a same discursive framework helps focus our attention on the "rule of colonial difference" and question our understandings of judicial behavior. I hope to show that the emergence of the legal public sphere and self perceptions of the legal profession played a constitutive role in shaping both the colonial and the postcolonial states. Finally, since the Federal Court was the immediate predecessor to the Supreme Court of India and consisted of the same judges, this study hopes to excavate the foundations of judicial independence in South Asia.
Download (.pdf) 
