Law, Courts, and Constitutions in Twentieth-Century South Asia
Keywords:
twentieth-century South Asia, legal history, law and society, political life, social life, cultural life, South Asian history, interdisciplinary scholarshipAbstract
This special issue brings together scholars from multiple disciplines and with varied
research and geographic expertise to study the historical role played by the law in governing the political, social, and cultural life of twentieth-century South Asia. These articles have not emerged in a vacuum, but rather build on an exciting turn in South Asian
history that is placing new focus on the legal and constitutional work that accompanied
the post-colonial moment. This introduction examines some of the important historiographical and methodological interventions made by scholars working in this field,
before outlining the specific themes connecting the articles in this issue.
References
1
Saxena, Saumya, Divorce and Democracy: A History of Personal Law in Post-Independence India (Cambridge: Cambridge University Press, 2022)CrossRefGoogle Scholar.
2
Newbigin, Eleanor, The Hindu Family and the Emergence of Modern India: Law Citizenship and Community (Cambridge: Cambridge University Press, 2013)CrossRefGoogle Scholar.
3
Mookherjee, Nayanika, The Spectral Wound: Sexual Violence, Public Memories, and the Bangladesh War of 1971 (Durham: Duke University Press, 2015)Google Scholar.
4
For important recent scholarship see Bhatia, Gautham, The Transformative Constitution: A Radical Biography in Nine Acts, (New Delhi: HarperCollins, 2019)Google Scholar; Chetan, Achyut, Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution (New Delhi: Cambridge University Press, 2023)Google Scholar; Khosla, Madhav, India's Founding Moment: The Constitution of a Most Surprising Democracy (Cambridge, MA: Harvard University Press, 2020)Google Scholar; Elangovan, Arvind, Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-1950 (New Delhi: Oxford University Press, 2019)CrossRefGoogle Scholar; Mukherjee, Mithi, India in the Shadows of Empire: A Legal and Political History (New Delhi: Oxford University Press, 2009)CrossRefGoogle Scholar; Tan, Kevin Y.L. and Hoque, Ridwanul, Constitutional Foundings in South Asia (Oxford: Hart Publishing, 2021)CrossRefGoogle Scholar; and Kumarasingham, H., Constitution-Making in Asia: Decolonisation and State-Building in the Aftermath of the British Empire (Oxon: Routledge, 2016)CrossRefGoogle Scholar.
5
For an overview of the field see Mitra Sharafi, "South Asian Legal History," Annual Review of Law and Social Science 11 (2015): 309–336.
6
Oral histories have been particularly important for histories of partition see for instance Vasira Fazila-Yacoobali Zamindar, The Long Partition and the Making of Modern South Asia (New York: Columbia University Press, 2010). For the use of unpublished case-law and new approaches to legal archives in South Asia, see Mitra Sharafi, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge: Cambridge University Press, 2014); Kalyani Ramnath, "Intertwined Itineraries: Debt, Decolonization, and International Law in Post-World War II South Asia," Law and History Review 8, no. 1 (2020): 1–24; Elizabeth Lhost, Everyday Islamic Law and the Making of Modern South Asia (Chapel Hill: University of North Carolina Press, 2022); Julia Stephens, Governing Islam: Law, Empire, and Secularism in Modern South Asia (Cambridge: Cambridge University Press, 2018).
7
For an early example of this see Ranajit Guha "Chandra's Death," in Subaltern Studies V: Writings on South Asian History and Society, ed. Ranajit Guha (New Delhi: Oxford University Press, 1987), 135–165.
8
B.R. Ambedkar, Constituent Assembly Debates, Vol. VII, 4th November 1948.
9
Sudipta Kaviraj “Languages of Secularity,” Secularism in Comparative Perspective 23 (2023): 25–55.
10
C.A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire (Cambridge: Cambridge University Press, 2012); and Shruti Kapila, Indian Political Thought in the Global Age (Princeton: Princeton University Press, 2021).
11
Humaira Chowdhury, “The Life and Times of Begum Qudsia Aizaz Rasul: An Exploration of Muslim Women's Self-Fashioning in Post-Colonial India,” South Asia: Journal of South Asian Studies 44 (2021): 264–81; Arvind Elangovan, “Constitutionalism as Discipline: Benegal Shiva Rao and the Forgotten Histories of the Indian Constitution,” South Asia: Journal of South Asian Studies 41 (2019): 605–20; Adeel Hussain, “Muhammad Iqbal's Constitutionalism,” Indian Law Review 2, no. 2 (2018): 135–58; and Saagar Tewari, “Framing the Fifth Schedule: Tribal Agency and the Making of the Indian Constitution (1937-1950),” Modern Asian Studies 56 (2022): 1556–94. See also Uttara Shahani, “Language without a Land: Partition, Sindhi Refugees, and the Eighth Schedule of the Indian Constitution,” Asian Affairs 53 (2022): 336–62.
12
Karuna Mantena, “On Gandhi's Critique of the State: Sources, Contexts, Conjunctures,” Modern Intellectual History 9 (2012): 535–63.
13
For new histories of princely states and twentieth century law, see Priyasha Saksena, “Building the Nation: Sovereignty and International Law in the Decolonisation of South Asia,” Journal of the History of International Law 23 (2021): 52–79; Devika Shankar, “A Slippery Sovereignty: International Law and the Development of British Cochin,” Comparative Studies in Society and History 64 (2022): 820–44; and Sarath Pillai, "Fragmenting the Nation: Divisible Sovereignty and Travancore's Quest for Federal Independence," Law and History Review 34 (2016): 743–82.
14
Ornit Shani, “The People and the Making of India's Constitution,” The Historical Journal 65 (2022): 1102–23.
15
Rohit De, The People's Constitution: The Everyday Life of Law in the Indian Republic (Princeton: Princeton University Press, 2018).
16
Saxena, Divorce and Democracy; and Ajantha Subramanian, Shorelines: Space and Rights in South India (Stanford: Stanford University Press, 2009).
17
See for instance, Arvind Elangovan, “The Making of the Indian Constitution: A Case for a Non-Nationalist Approach,” History Compass 12 (2014): 1–10.
18
Faiz Ahmed, Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires (Cambridge, MA: Harvard University Press, 2017).
19
Joya Chatterji, “South Asian Histories of Citizenship, 1946-1970,” The Historical Journal 55 (2012): 1049–71; and Uditi Sen, Citizen Refugee: Forging the Indian Nation after Partition (Cambridge: Cambridge University Press, 2018).
20
Ornit Shani, How India Became Democratic: Citizenship and the Making of the Universal Franchise (Cambridge: Cambridge University Press, 2017).
21
Nira Wickramasinghe, Sri Lanka in the Modern Age: A History (Oxford: Oxford University Press, 2014), 179.
22
Malini Sur, Jungle Passports: Fences, Mobility, and Citizenship at the Northeast India-Bangladesh Border (Philadelphia: University of Pennsylvania Press, 2021).
23
Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010).
24
Mithi Mukherjee, “Sedition, Law and the British Empire in India: The Trial of Tilak (1908),” Law, Culture and the Humanities 16 (2020): 454–76.
25
Mara Malagodi, “New Frontiers of Gender Constitutionalism in Asia (2): Gender Identity and Sexuality,” i-CONnect, The Blog of the International Journal of Constitutional Law, July 14, 2021. http://www.iconnectblog.com/2021/07/new-frontiers-of-gender-constitutionalism-in-asia-2-gender-identity-and-sexuality/ (January 16, 2022).
26
Navtej Singh Johar v. Union of India, All India Reporter, 2018, Supreme Court 4321; Siobhan Mullally, “‘As Nearly as May Be’: Debating Women's Human Rights in Pakistan,” Social & Legal Studies 14 (2005): 341–58.
27
Scholars have examined the staggered nature of this political process from a number of angles. Recently, this has included the transitional period of dominion rule, and the alternate story of decolonization from the perspective of French and Portuguese imperialism in South Asia. Harshan Kumarasingham, “The Tropical Dominions: The Appeal of Dominion Status in the Decolonisation of India, Pakistan and Ceylon," Transactions of the RHS 23 (2013): 223–45; Jessica Namakkal, Unsettling Utopia: The Making and Unmaking of French India (New York: Columbia University Press, 2021); and Pamila Gupta, Portuguese Decolonization in the Indian Ocean World: History and Ethnography (London: Bloomsbury Academic, 2018).
28
Rahela Khorakiwala, From the Colonial to the Contemporary Images, Iconography, Memories, and Performances of Law in India's High Courts, (Oxford: Hart, 2019); Pratiksha Baxi, “Law, Emasculation, and Sexual Violence in India,” Current Anthropology 62 (2021): 146; and Upendra Baxi, “Postcolonial Legality: A Postscript from India,” Law and Politics in Africa, Asia and Latin America 45 (2012): 192. See also recent investigations into legacy of colonial jail codes from the colonial period and its implication for caste and jail labor in contemporary India: Sukanya Shanta, “From Segregation to Labour, Manu's Caste Law Governs the Indian Prison System,” The Wire, n.d. https://thewire.in/caste/india-prisons-caste-labour-segregation (January 16, 2023).
29
For recent histories that have written in new ways about “British India” and “South Asia,” see Matthew Willis, “Making Yemen Indian: Rewriting the Boundaries of Imperial Arabia,” International Journal of Middle East Studies 41 (2009): 23–38; Jonathan Saha, “Is it in India? Colonial Burma as a ‘Problem’ in South Asian History,” South Asian History and Culture 7 (2016): 23–29; Bérénice Guyot-Réchard, “Tangled Lands: Burma and India's Unfinished Separation, 1937-1948,” The Journal of Asian Studies80, no. 2 (2021): 293–315; and Christoph Emmrich, Joseph McQuade, Sana Aiyar, and Thibaut d'Hubert, “Towards a Burma-Inclusive South Asian Studies: A Roundtable,” Modern Asian Studies 57, no. 1 (2023): 283–320.
