This post is the fourth in a loosely-linked set of posts on colonial continuity in the Indian judiciary. Previous posts can be found here, here and here.

In my previous post on India’s ‘British judges’ after Independence, I noted that the assumption of a rigid racial dichotomy between coloniser and colonised replicates colonial assumptions of an irreconcilable colonial difference and belies the greater complexity of racial and national identity in colonial and postcolonial India. An interesting example of complexities of identity in this regard is Edmund Elmar Mack, Judge of the Madras High Court. (Mack’s career has frequently been mentioned and chronicled by S. Muthiah of The Hindu, whose columns were a pivotal source for this post.)

This post sets out the key points of Mack’s career in India, before briefly examining what his life and career says about the difficulty of articulating clear divides between coloniser and colonised and between colonial and postcolonial dispensations.

The Life of Edmund Elmar Mack

Mack was born in 1896. Both his parents were members of longstanding Dutch Burgher families. The Macks had first arrived in Sri Lanka with Johannes Pieter Mack (1750-1810); Edmund’s mother, Ethel Sophia Loos, could trace her family’s ancestry in Sri Lanka back to Jacob Pietersz Loos (1655-1702). Muthiah describes Mack as ‘a heavily built Burgher (the Ceylon equivalent of the Anglo-Indian) [who] came from a well-known family in Ceylon’. These genealogical records are kept by the Dutch Burgher Union. The sadness and absurdity of the Union, and the intense policing of social and racial divides within the Burgher community (of Dutch and Portuguese Burghers and upon perceived purity of racial and cultural identity), is examined in Riccardo Orizio’s Lost White Tribes (2000). That these records are kept with such precision is itself a political act – as Rosita Henry argues, genealogy, and pride in precision of connection to the Netherlands, was not just a way of maintaining divisions in a colonial society with an acute consciousness of race, but an attempt to reconstruct and build a precise Burgher identity and history, a ‘chosen past’ that would legitimise contemporary standing.[1]

Mack reportedly finished first in his junior Cambridge examination (although another source reports that he graduated from Wadham College, Oxford). He was called to the Bar from Gray’s Inn before joining the ICS in 1919.

Mack’s early career has fortuitously been recorded through his involvement as plaintiff in Mack v Madras and Southern Mahratta Railway Co Ltd.[2] According to the case, Mack had been stationed in Nellore in 1921; while searching for a urinal by night at Nellore Station, he fell off the platform, a sheer drop of six feet. This rendered him ‘a cripple for two months and a partial cripple for many months more’. Trotter J of the Madras High Court awarded Mack 3005rs in damages.

Mack served in the Revenue Department before his appointment as a District Judge; one source suggests that he served as a District Judge for 20 years, while another suggests that he was only seconded to the judiciary in 1936. As a Special Judge, Mack conducted the trial of C G K Reddy and others on charges of “waging war against the King” in 1943; four were hanged.

Mack served as a Judge of the Madras High Court from 1949 to 1956. He was not the only judge of European ancestry to serve on the Madras High Court after 1947; Arthur Comyn Happell remained on the Court until 1948,[3] while Lionel Clifford Horwill and James Alan Bell both remained on the court until 1950.  Mack does, however, appear to have been the only judge of European ancestry to have been appointed to the Madras High Court after Independence. (Interestingly, even though Sri Lanka received dominion status in 1948, Ceylon’s Chief Justice from 1952 to 1956 was Alan Rose, an English veteran of the Colonial Legal Service.)

Muthiah quotes an unidentified observer’s description of Mack’s judicial style:

Of him it was said, “Mr. Mack often behaved in court as if he was on the golf course, intensely human every minute of his life.” Informal in court almost to a fault, his sympathies always lay with those he thought had been charged wrongfully or were not wilfully guilty of the crime charged with. For lawyers he suspected of being helped by touts, he had little time. On the other hand, lawyers he respected would often find him debating with them on the finer points of law.”

During his term on the Madras High Court, Mack also served as presiding judge of a special Industrial Tribunal to adjudicate on disputes between workers and management of various specified industrial concerns. In 1954 he instituted contempt proceedings against Govind Swaminadhan (then a State Prosecutor, subsequently Advocate-General of Tamil Nadu) in response to Swaminadhan’s persistent submissions that the Tribunal (having issued an award in the controversy for which it was established) lacked any continuing authority or jurisdiction, including power to punish for contempt.[4] Mack’s conviction of Swaminadhan for contempt (in his capacity as a High Court judge) was rejected on jurisdictional grounds by a Full Bench of the Madras High Court and substantively (summarily) by the Supreme Court. (See Suchindan BN’s full account.)

In 1956, the year he left the bench, Mack published a book, Mainly Scripts and Touts. He retired to England, although his siblings continued to reside in what was then Ceylon. An unknown controversy (potentially the proceedings against Swaminadhan) preceding his retirement delayed the installation of his portrait in the Madras High Court. I could not confirm Mack’s date of death from available sources.

Uncertain Borders

Edmund Elmar Mack’s life demonstrates the difficulties of applying rigid categories of race or nationality to lived experiences under colonialism – for all that British rule in India was built upon and sought to entrench this process of classification and categorisation and boundary formation. (Indeed, the notion of ‘Burgher’ identity has itself been shaped by this colonial urge to treat Sri Lanka’s heterogenous population of partial European descent as a homogenous category for ease of understanding and governance, regardless of complexities on the ground.)

Born in what is now Sri Lanka to a family that traced its roots to the Netherlands, Mack enjoyed opportunities for service and promotion under the British, moving between colonial domains and enjoying offices once monopolised by colonisers, while at the same time belonging to a racial and cultural community defined and divided by imperialism’s classifying urge (with classification, in turn, proving to be a manifestation of British colonial power over subject populations). Having already served as a judge under the British (and having presided over politically-charged trials), he was appointed to the Madras High Court after Independence (but before the commencement of the Constitution), only to retire to the former colonising power upon retirement.

Mack challenges the notion of the irreconcilable ‘Other’ so fundamental to colonial thought, while at the same time problematising the idea of a clear divide between colonial and free India. Mack was part of a Sri Lankan community, an agent of the colonial state in India, a judge under both British and republican constitutions and a retiree in the UK. His experiences defy the Orientalist impulse to believe that human reality can be discretely and infallibly defined into rigid, essentialist categories.

[1] Rosita Henry, ‘A Tulip in Lotus Land’: The Rise and Decline of Dutch Burgher Ethnicity in Sri Lanka’, pp 78-91.

[2] E. E. Mack v Madras and Southern Mahratta Railway Co Ltd (1923) 45 MLJ 424.

[3] Interestingly, Happell appears to have remained on the Court for a brief period after Independence despite his staunch belief in Indians’ inability to govern themselves: Geoffrey Carnall, Gandhi’s Interpreter: A Life of Horace Alexander (2010), p 73.

[4] See In re Hayles AIR 1955 Mad 1.