A special issue on "Law and Legality in Modern Indian History" has come out in Comparative Studies of South Asia, Africa and the Middle East (2018) 38:3. It is edited by Alastair McClure (University of Chicago) and Saumya Saxena (Law Commission of India/University of Cambridge).
- Alastair McClure and Saumya Saxena, "Introduction: Law and Legality in Modern Indian History": This introduction offers a critical survey of existing literature on law in modern India and presents an overview of the four essays in the special section, which illustrates new directions in the field of Indian legal history.
- Upendra Baxi, " 'Touch It Not, If You Are Not a Historian.' Toward a New Historiography of Colonial Indian Law: Recrafting Clio": This conversation is largely about the ways of doing and writing histories: whether legal/juridical or social histories of law. The difference between the two genres is briefly explored in Baxi’s essay, but obviously more collaborative work is needed. As concerns histories of human rights, it would seem the mainstream and the varying dissident crafts of writing history have largely ignored the micro stories of cruelties in state and civil society. How periodization poses many a challenge to the craft of writing histories of law is explored, as are the interplays in writing history between subjection and resistance in colonial and postcolonial times. The text highlights the need for a new (and ongoing) debate about the viability of subaltern studies of history and history writing.
- Alastair McClure, "Sovereignty, Law, and the Politics of Forgiveness in Colonial India, 1858-1903": The Queen’s Proclamation in 1858, her first gesture as the sovereign figurehead of India, offered amnesty to large numbers of those involved in the rebellion. From this point, the royal figure would be invoked at jubilee celebrations and royal durbars, offering royal pardon to prisoners. On these occasions, up to 10 percent of prisoners were released. Indicative of the broader refashioning of colonial rule that occurred after the rebellion, this essay examines these rare but spectacular events by positioning the history of pardon within the wider structure of colonial law and sovereignty. It attempts to do this by drawing out a symbiotic relationship tying together the employment and nonemployment of physical violence, placing the sovereign right to punish and kill within the same analytical lens as the ensnaring promise of forgiveness.
- Leigh Denault, "Little Republics or Petty Republics?: The Panchayat, Imperial Sovereignty, and Discourses of Self-Government in British India, ca. 1870-1917": Alternately seen as a local-level court of arbitration, a union or committee, or village or municipal council, the concept of the South Asian panchayat was a sociopolitical and legal palimpsest. Retaining traces of meaning accrued from multiple incarnations, contestations, and appropriations, it would become a touchstone for early Indian liberals, radicals, and nationalists, as well as for imperialists concerned with the local devolution of sovereignty. Colonial definitions and redefinitions, however, obscure as much as they reveal about the multiple and shifting meanings of the panchayat for colonized subjects. The panchayat has been seen as primarily a product of Orientalist imagining—ultimately adopted, in an act of strategic essentialism, by Indian nationalists at the end of the nineteenth century. But it was never solely a product of the colonial imagination. Rather, colonial experimentation with older discourses on the panchayat in the context of drives for local governance sparked a more substantive set of reassessments that would transform discourses of law, state, and society in colonial and postcolonial India.
- Saumya Saxena, "Commissions, Committees, and Custodians of Muslim Personal Law in Postindependence India": Shah Bano was sixty-three years old when her husband divorced her in 1978. He refused to pay maintenance to her beyond a period of three months (iddat), claiming his obligation extended no further than three menstrual cycles of his wife’s. While the court decided in favor of granting maintenance to Shah Bano in 1985, Parliament subsequently overturned the judgment through the Muslim Women’s Act, 1986, to create alternate provisions. The case triggered a tremendous wave of protests simultaneously, against unfair provisions of Muslim law and against the state’s interference in matters of religion. This essay documents the prehistory of this iconic case to demonstrate that neither the controversy nor the judgment was novel, as scholarship has repeatedly claimed. Family law had historically been a contentious arena that enabled conversations between the state and religion, courts and Parliament, and diverse social movements and coreligionists, engaging all institutions central to Indian democracy.
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