Legaleagle86 at en.wikipedia.org
This is the second post in an infrequent series on colonial continuity in the Indian judiciary. The first post can be found here. In November, I posted what was, in retrospect, an embarrassingly effusive paean to the Indian Constitution, as delivered to the Indian Consulate in Sydney to mark Constitution Day. I said it (in front of a crowd, no less!); I can hardly take it back, or delete the post. But it deserves qualification and explanation. Starting from first principles: India cannot serve as a blank canvas for Western imaginings, idealisations or demonisation, whether now or in the past. Indian law cannot solely serve as a spur to progressive developments elsewhere (as a lofty ideal of socially-conscious jurisprudence) or even as a dystopian warning against departure from the black-letter path; it is a legal system that needs to function from day to day and should be treated as such, rather than judged purely on the level of principle. Even treating either India itself or Indian law on the level of ideals – that is, as exemplars in one respect or another – one must reject caricature or oversimplification. (And I am conscious that my speech at the Consulate could be characterised as either.) But nonetheless, stories are important. One cannot, of course, subsist on narratives alone, and a legal system (or a polity) fed and sustained by principles expressed at a very high level of generality without regard for their coherent coexistence, logical development or practical application cannot provide for just, predictable outcomes (or hence live up to those same lofty ideals). But even if India falls short of its own narratives of pluralism – of a nation not wedded to one particular mode of being or speaking or worshipping – the fact that India has, traditionally, told that narrative about itself, regardless of its hypocrisy or failings along the way, remains significant and worth defending. Even if national narratives cannot prevent bad policy choices or even hypocrisy, they can at least play a role in shaping the range and extent of policy alternatives on offer. In an age in which pluralist, multicultural ideals of the nation are under threat around the world – in the United States, Europe, Australia and in India itself – the stories India has told itself since Independence about why the nation exists in the way that it does, and how many ways one can be ‘Indian’, are worth studying and still, fallbacks and hypocrisy and challenges aside, worth fighting for. This all links into Jon Wilson’s India Conquered: Britain’s Raj and the Chaos of Empire (2016) (“Wilson”), an excellent recent take on the gulf between the narratives spun by the British regarding the nature and structure of their imperial project in India and its tawdry reality – a self-perpetuating exercise of power directed principally towards its own preservation (Wilson 6), ‘ruled by individual self-interest, by a desire for glory and a mood of fear, by deeply ingrained habits of command and rarely any grand public reason’ (Wilson 9). The book is not perfect; on a stylistic level, while the book’s prose is generally laudable it contains occasional stretches of repetition or didacticism (including a distracting number of mistakes that ought to have been caught in proofreading, including misstatement of the start of the Quit India movement). It is, nonetheless, an impressively comprehensive take on more than 300 years of Britain’s relationship with India, marshalling substantial evidence in support of its key contentions regarding the role of imperial anxiety, a mentality of ‘conquest’ and segregation of the state (and British officials) from both popular voices and indeed lived reality (outside frightened white enclaves) itself. Wilson’s book dovetails with my own research interest in the British judges who remained in India after Independence, particularly Justice William Broome – the ‘last British judge in independent India’. Wilson notes that J. W. Orr was the last British member of the Indian Civil Service to remain in service in India, retiring at 45 in 1955 (Wilson 493). (This presumably excludes Broome, a former ICS officer in judicial service at that time.) Orr was, of course, not the last British subject to remain in India after Independence; as discussed at length by Hugh Purcell in After the Raj (see Outlook’s review), 28,000 British citizens remained in India in 1951. Nonetheless, why some British people chose to stay – how they viewed the new India and how they were in turn viewed by state and citizenry – still seems to me to shed light both upon the nature of the British colonial regime in India and, in turn, the self-conception and prevailing narratives of the new state. Wilson bluntly links the mass exodus of the British in the period surrounding 1947 (and the ‘tiny’ number of officials who chose to stay under the new regimes) to the self-interested character of British rule: ‘British officers and soldiers were in India to maintain British sovereignty. Once that had gone there was no point staying on’ (Wilson 493). This view is a refreshing corrective to the mythology of ICS veterans themselves; Charles Allen’s Plain Tales from the Raj (cited here as perhaps the furthest possible contemporary counterpoint to Wilson) quotes David Symington (a member of the ICS and secretary to the Governor of Bombay) as observing that ‘much larger numbers’ of British ICS members would have stayed on after Independence had it not been for disillusionment among the ranks (‘disillusioned by all the political failure’), the attraction of compensation upon retirement, and perceptions of the communal nature of the new dispensation:
‘[M]ost important of all was the fact that you either had to serve a Hindu Government or a Mohammedan Government, and you had either to be pro-Mohammedan or pro-Hindu accordingly, and that was contrary to everything that we thought right or possible.’This supposed ideal of the objectivity of the Raj is linked to its segregation from popular reality or choice (the ideal, following Ranajit Guha, of the ‘absolute externality’) – the self-conception of a regime whose ‘engagement with the complex reality of Indian life was limited and brief’ (Wilson 6), and which correspondingly viewed its responsibilities in limited terms (the preservation of imperial hegemony, as an end in itself with, Wilson argues, ‘little practical use to Britain itself’: Wilson 390). What Symington portrays as isolation from majoritarian tyranny is, in Wilson’s compelling account, a mythologised take on a regime in fact isolated by fear of the majority, by an inability to exert its will save through classification, bureaucracy and massive, impersonal infrastructure projects, and by the constant frustration of efforts (like that of Sayyid Mahmood, retold by Wilson at 306-317) at some kind of ‘Anglo-Indian political order’ through the reiteration of colonial difference and the paranoid reaffirmation of British political and racial authority, its ‘insisten[ce] on formal submission to the image of British authority’ even at the expense of the exercise of power (Wilson 481). Furthermore, Symington’s view as quoted is, of course, at odds with Nehru’s ‘refusal to reduce India or ‘Indianness’ to a dominant religious or linguistic ethos’, his rejection of the notion of India as a ‘Hindu Pakistan’ – indeed, as paraphrased by Ramachandra Guha, as a defender of the notion that ‘India, if it was anything at all, was emphatically not Pakistan’. Wilson’s book regrettably only briefly draws connections between his account of the nature of imperial rule and contemporary state practice in South Asia, which primarily focuses on continued inequality and the embrace of popular sovereignty (at 486-489). Pluralism, both as a lived reality and as a political ideal, is predominantly discussed in the context of the events of 1857-1858 and Partition, rather than the postcolonial dispensation. As I have previously noted, the fact that the Indian state made use of, and was willing to recognise as fellow nationals, some of the British who remained in India is a telling point of discontinuity: that from a history defined by racial intolerance and hierarchy and by imperial attempts at static classifications, the new Indian state chose to define itself neither by ignoring or eliminating difference but instead in conscious acknowledgment of the many national, cultural and religious histories of its peoples and by seeking to make use of their talents – including representatives of the former intolerant, classifying power itself. This goal has not been universally shared. It certainly has not been universally met. Its contours and meaning in practice have been fiercely contested, as indeed has been whether it is a worthwhile goal at all. But the fact that this goal was set – and that it is not merely the goal of one era or one political dispensation or one man, but that its legacy and its defenders can be identified throughout modern Indian political history – and that it has been achieved in any measure at all, is an extraordinary rebuke to those, in India and America and Australia, who would challenge the idea that nations can escape history’s gravity in this fashion.  Allowing for considerable debate about who, exactly, ‘India’ is for these purposes.  This figure appears confined either to people born in Britain or who would be considered ‘domiciled Europeans’. According to S. Muthiah and Harry MacLure’s The Anglo-Indians, three Anglo-Indians, Ralph Stracey, Hector Brown and Leslie Johnson continued careers in public service after independence: S. Muthiah and Harry MacLure, The Anglo-Indians: A 500-Year History (2013) 129-130.  Charles Allen (ed), Plain Tales from the Raj (2nd ed 1976) 258.  Ramachandra Guha, Patriots & Partisans (2012) 139-140.