Reflections on “Empires of Law in Colonial South Asia Workshop” hosted by the Rutgers British Studies Center, October 12, 2020

 

Nick Sprenger
Department of History Rutgers University
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LE PICIf there has ever been a time for academics to demonstrate that they do not exist in an ivory tower, to do more than assert the social value of their knowledge, it is now. After a summer of protests in the name of racial justice and social equality; after months of heated discourse about the dangers of a militarized police force; after a spate of racist tirades across the nation made so-called “Karens” into the new darling of the meme world, America seems to be at a moment of reckoning with the injustice and discrimination woven into its social fabric. In this context, many are asking: “How did this come about?” Academics are well situated to help provide answers. In this spirit, the Rutgers British Studies Center—with co-sponsorship from the South Asian Studies Program—hosted a recent workshop titled “Empires of Law in Colonial South Asia.”

 

The event’s two speakers, Tanya Agathocleous and Mitra Sharafi, each demonstrated how unequal legal practices in the colonial context reproduced and reified racial difference. Prof. Sharafi’s talk, titled “Imperial Truth Mechanics: Law and Forensic Science in Colonial India,” focused on how British courts dealt with the perceived problem of “native mendacity”—colonial distrust of native Indians and belief that they were incapable of telling the truth. The colonial state proclaimed over and over that “good government” through the “rule of law” was foundational to British rule in India via the civilizing mission. Building upon this foundation, Sharafi then pinpointed how this political project depended on a uniform and fair court system, which the fear of native mendacity imperiled. As an antidote for this “problem” generated by the culture’s own racism, British judges turned to Western science. The pinnacle of rational, impartial, and verifiable decision making, Western science theoretically brought incontrovertible truths to British courts and, therefore, stability to British India. At the top of the legal-scientific apparatus of truthful fact finding was the chemical examiner, practitioner in the burgeoning field of forensic science. Decisions rendered about bodily fluids (blood, semen), poisons, and other evidence attained the status of canon within the court system because of the supposed certainty of results generated through scientific experimentation in the forensics lab. In the colonial court, however, the results were not this cut and dry. Sharafi explained that, despite the apparent British quest for tried and proven scientific evidence, chemical examiners were exempt from physically appearing at trials and providing testimony. Instead, they submitted written reports that could be dubious, unclear, or downright unhelpful for a particular court case. Though the official line for this exception hinged on distance (there were very few labs spread across a large swath of territory), Sharafi drew another, more compelling conclusion. In her formulation, British courts exempted chemical examiners from appearing in court to protect them, and the science of forensics generally, from critique. Because the chemical examiners represented the legitimacy of Western science as an epistemology, they were insulated from rigorous examination of their findings and methods that would occur in a court of law. To Sharafi, destabilizing Western science by calling into question the reliability of scientific experts and their specialized knowledge in turn threatened the overall legitimacy of British rule in India. Ambiguous legal practice, then, resulted in a special kind of science reserved for colonial space that was protected, myopic, and uncontested.

Agathocleous approached the problem of legal ambiguity from a different angle, in a talk focusing on the mutual influence of journals produced in India and in England. “Disaffected: Emotion, Sedition, and Colonial Law in the Anglosphere,” traced the effects of the deliberately vague Section 124a of the Indian Penal Code. From 1870 forward, Section 124a replaced “sedition” with “disaffection” as the grounds for legal punishment. A significant expansion of the language and sentiments that violated the law, the change provided an important tool for silencing criticism of the British government. The result was a law that legitimated the bifurcation and racialization of print culture: white writing from the metropole was part of the robust civil discourse of a liberal society, while native writing was incendiary, disruptive, and subject to criminal action. By identifying affect as the object of disciplinary power as well as an instrument of anti-colonial critique, British law produced a divided public sphere that undermined some of the basic tenets of liberal rule and freedom of expression. At the same time, it paradoxically brought Indian and British writing closer together. In an interesting move, Agathocleous explored how the native print culture that developed made deliberate use of the paradigm of white writing to escape censorship. For example, the South Asian journal Indian World borrowed from and indeed “mimicked” the form and content of the British journal, The Review of Reviews, edited by the imperialist and proponent of a racially marked white Greater Britain, W.T. Stead. In emulating Stead’s periodical, Indian World looked not for a journalistic model or some version of paternalistic tutelage, but for a disguise that enabled it to fly under the radar of British censorship. However, this did not always work. The prosecution of Indian World under article 124a of the Indian Penal Code for reprinting material in the Review of Reviews revealed the double standard at the heart of the term “disaffection.” By centering emotion as the key component legal invocation, article 124a authorized the racialization of language and ensconced fear as a valid principle of legal discrimination. Even an avowed white supremacist and imperialist hardliner like Stead deemed such censorship grossly unjust. He came to fear that these practices would jeopardize the principles of the empire that he so cherished. In this way, the legal terminology of Section 124a shaped the form of public discussion in and about India at the level of intimacy.

These two presentations have significant implications for understanding the role of law in colonial spaces. Both speakers demonstrated how law functioned to divide and separate; law worked differently depending on one’s circumstances. It was clear from both talks, furthermore, that such bias was not a failure of the law, but constitutive of colonial law itself—it was how colonial law was meant to work. In other words, baked into the British system of law in South Asia were fundamental race-based assumptions about the people they governed, their innate abilities and attributes, their relationship to the British, and their irreconcilable difference.

I was also interested in the underlying question that animated both studies: What happens when law is, from the moment of its inception, suffused with affect? Fear, prejudice, anxiety, panic… such emotions saturate the history in these two studies. As a historian who works on “outrage” in the British Empire, I am fascinated about how affect worked at a structural level within the empire: how it shaped legal practices; how it directed imperial imperatives; how it generated violence; how it dictated the norms of policing. In Ireland, for example, “outrage” had a particular emotional resonance even as it denoted certain forms of agrarian crime. A constable in 1836 investigating the maiming of farm animals in the small Irish town of Mulloughmore found two horses wounded by what appeared to be a pitchfork. He deemed this vicious attack an “inhuman Outrage,” thus blurring the lines between crime and sensation. By positioning this “outrage” on the border between human and inhuman, this constable called into question who and what is bestial. This rhetoric worked to justify extreme police action while also reinforcing stereotypes about the barbarous and uncivilized Irish. Emotion, then, performed important work for empire.

In South Asia, British law became the specter that it sought to exorcise—irrational and unequal, lacking consistency and stability. Emotion became the logic of British rule, exceptional treatment was the norm. The development of this dynamic imparts important lessons for Americans reeling from similar tensions within their own legal system.