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Alastair McClure, "Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857-1922" (Cambridge UP, 2024)
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- [00:00]
Professor Alastair McClure
Hello, everybody.
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Marshall Po
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- [01:07]
Samya Dadu
Hello, my name is Samya Dadu and today we are in conversation with Professor Alastair McClure about his book Trials of Sovereignty, Mercy, Violence and the Making of Criminal Law in British India, 1857-1922, published first by the Cambridge University Press in 2024 with an Indian edition published by Yota Press earlier this year. Thank you so very much for joining us today, Alistair.
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Professor Alastair McClure
Thanks a lot for having me.
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Samya Dadu
Right, so let me dive right into the book by sharing a little bit about your main arguments and its structure. Trials of Sovereignty is the first legal history of mercy and discretion in colonial India. Bookended by the aftermath of the Indian uprising of 1857 and the Non Cooperation Movement in the 1920s, it focuses on a series of case studies to argue that discretion and mercy ought not to be understood as exceptional or moments of colonial benevolence, but rather as key techniques of violence through which the British Crown developed state legitimacy and asserted their sovereign power. So, Alistair, before we get into your main argument and cases, let me begin by asking you how this book came about. How did you become interested in the broader themes of law and colonialism and power that you tackle here? And also how did the process of archival research and writing ultimately give shape to the book?
- [02:32]
Professor Alastair McClure
Sure. Well, great. Thanks for the question. So I think, you know, as with most books, the book sort of journey was quite long and in places quite winding. But the book started really as a PhD thesis. I was always had sort of a long standing interest in questions of crime and colonialism. And when the PhD sort of, it was a PhD that was initially sort of, sort of thought about a time when the wider field was in South Asian history and histories of empire more broadly. We're really thinking much more thought carefully about the place of violence in empire and did some really important sort of corrective work in overturning, you know, pretty comfortable consensus in much of history that you could sort of get away without writing about empire, without taking seriously the sort of central place that violence has in that story. And when I, when I started my PhD, I had a sense that that question was being approached from sort of two relatively distinct angles. One was to think about everyday acts of violence and to sort of show how everyday violence was sort of pervasive in the kind of experience of colonial rule. And the other was to think about sort of the exceptional nature of state violence under empire, so exceptional legislation, periods of martial law and so forth. And my project sort of was initially an attempt to ask whether we could write a history of violence that could bridge both the exception and the everyday into one analytical framework. But as I was sort of working through that question, I was also, my PhD was in Cambridge in the UK and at that time, South Asian historians Chris Bailey and Shruti Kapila and others were really interested in intellectual history. So as my project was developing, I also started to think, well, is there a way in which we can also sort of bring together histories of violence with intellectual history? And so these are sort of some of the questions that were sort of key to the early stages of the project. But as I was doing that, I also started to get the sense that when we study histories of colonial sovereignty, only by looking at violence, we might be missing some quite interesting questions. And so it's the question of the archive really that helped me think about what we might be missing by only focusing on violence. And so the archive, it was sort of redundant questions, as I say, as a historian, but the archive was really, really crucial to what the book ultimately became. So many moments in the archive that I could sort of point to that sort of, I guess, directed the book in the direction it ended up going. But one of the key influences, or the key moments, I just give you one example, was by looking at case law for murder. And so methodologically, one of the Sort of influences of the book had also was Mir Sharafi's work. And so she argued by really important work in the Bombay High Court, that historians of South Asia really haven't been looking at case law as serious as they should have been, that this was a really untapped resource, resource for us to think about the development of law in the context of colonial rule. And one of the useful things about case law is that compared to archival work, immaterial. It's quite widely available. So lots of law libraries have the Indian law reports. And so I started quite early on looking at the question of murder, which was the most commonly capitally punished offence in India, to think about what were the politics that sort of directed it, who was being punished and why. And so I went to the law library and I started looking through the case law for murder. And when you look at the sort of trawl through these records, you find a number of recurring themes. So there's lots of cases of domestic violence, lots of disputes about property. But as you look through. As I look through the case law in the Indian law reports, I sort of found a sort of disproportionate amount of these cases were examples in which judges were finding the accused guilty of murder, but deciding not to punish the accused to death. Now, we all know this is not a period of time characterized by a merciful sort of empire. This was death sentences were going up year on year and executions were with them. And so I suddenly started to think, you know, in a period of, you know, of real violence, why was I finding examples of judges deciding against the death penalty? And so at that point I sort of realized that, you know, very reasonably, historians of South Asia had focused on the sovereign right to kill. But what if we also took seriously the other side of that coin, right? The right to let live and think about, you know, how discretion and mercy might be sort of woven into sort of acts of sovereign power. And so when I did that, I went back to the archive at that point to think about. About that question, and I started to find examples of general pardons and amnesties. I found sort of very serious debates around the progressive powers of pardon. And then of equal importance, which brings me back to the question of intellectual history. I saw some of the key nationalist figures at the time thinking about the politics of mercy very, very seriously. And I thought that this is sort of issues that really hadn't been studied in any depth. And so the. The book ultimately, over sort of many sort of versions and rounds of edits, started to sort of try to put a puzzle together. And that puzzle was, you know, what does mercy do in an otherwise violent and bloody penal order? And that's really where the book sort of came together, I hope.
- [07:42]
Samya Dadu
Yeah, absolutely. And I think that something really interesting about your work is that you're recasting how we understand violence and its relationship to the colonial state. And very much in doing so, you're engaging with a v historiography. So can you tell us how examining mercy and discretion really shifts these debates that are ongoing and really gives us a fresh perspective on the colonial state itself?
- [08:11]
Professor Alastair McClure
Yeah, I mean, I hope that's sort of one of the sort of key arguments I try to make throughout the book, is that this is an opportunity for. I mean, I think there's quite a lot more work than this to be done in the question of discussion, particularly maybe for the purposes of the podcast. I'd make sort of three points about this. So the first is that one of the interesting things about the period that I study, which is the sort of mid and 19th century to the early 20th century, but if you go further, is that one of the sort of key features of colonial rule, unlike, say, in England at this time, or even if you compare it to a place like Australia, is that the violence of the state in terms of its punishment practices do not diminish in any case. Right. So if you look at England or Australia, the sort of peak of capital punishment has well, gone by the 19th century. But in India, under colonial rule, execution numbers will keep rising until independence, essentially. And so we know that violence was a consistent feature of its penal system. But if the sort of scale of violence was sort of relatively consistent, the question of how discretion should be exercised and where a very limited amount of mercy should be distributed, who should be eligible for it, is a very sort of consistent point of discussion and debate amongst colonial officials. It's sort of constantly informing the revision of law and its practice. And so I thought on one level, that raises an interesting question, right? Why was mercy and discretion being recognized as important? What work was it being tasked with achieving? And so as I sort of work through different case studies like capital punishment, corporal punishment, and other such sort of criminal offenses, I sort of end up arguing that discretion emerges as a really key technology of colonial rule that sort of allows judges and executive authorities to manage and accommodate social difference in strategic ways as they decide when, who, and how to punish. And so when you start to approach discretion and mercy in this way, as you start to read violence and mercy as Sort of related expressions of sovereign power, which I try to argue. And what you see is that colonial violence was very uneven, and that unevenness becomes regulated and entrenched more and more over time. It sort of allows us to see, for example, how questions of caste and class would become coded into the politics of punishment, especially around ideas of, you know, colonial languages, around respectability. And you find them sort of permeating judicial decisions around, for example, what constitutes grave and sudden provocation, what crimes might be worthy of corporal punishment and what would not be worthy of corporal punishment. And that sort of operates in all sorts of levels. It relates to sort of patriarchal ideas of the Indian male authority in the home and so forth. Right. And so I sort of start to sort of argue that it's only once you take seriously the unevenness of colonial violence that you see how not just race, but also colonial violence would sort of entrench and deepen questions of caste and class and gender. The second thing I would say is that it's also interesting to note that when you think about mercy and discretion, you start to think about the limits of state violence and you start to sort of be able to pinpoint the pressures, what pressures and in what circumstances a very bloody colonial state would be forced to recognize the limits of its own authority. And once you do that, you start to see that mercy was also operating from very early stage as a means of masking weakness. And then that leads us to, I'd say my final point is that mercy helps us think about intellectual history and the politics of resistance and anti colonial liberation in new ways. So if we don't think about mercy, what we miss is we miss a key development in anticolonial thinking. So it's by the 20th century that you see both revolutionary nationalists and from revolutionary nationalists to Gandhi, recognizing that you don't need to just embrace violence, but to embrace violence, you need to also recognize that British mercy, or accepting British mercy would be completely incompatible with the pursuit of post colonial freedom. And so in that sense, I think that it's a really important way of thinking about both the politics of state violence, but also the politics of anti colonial political thinking and ultimately the path towards what would be independence. So those sort of issues, I think, would be sort of really important.
- [12:12]
Samya Dadu
Right, thank you for that. That's really clarifying. So your work begins right after the Rebellion of 1857, and you first examine the trial of the last Mughal emperor, Bahadur Shah Zafar. You discuss how the state was confronted with all sorts of complicated questions about whether it had the power to adjudicate here. And how would it manage to actually sentence Bahadur Shah Zafar when he had become such a key figure for the rebellion itself? Why do you find this trial to be particularly important to understanding the emergent colonial political order?
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Professor Alastair McClure
Yeah, I mean, alongside the case law I mentioned at the beginning, reading the trial of Bahadur Jasafat II was like a really sort of really signally important moment in the sort of genesis of the book. He's a figure that I sort of start with, and I think his experience with the state in some sense, sort of is a conceptual sort of marker that floats through the book until the end, although not always expressly sort of articulated. In that sense, the trial is really interesting. I mean, there has been sort of important work about his trial before, and lots of that work had looked at various issues. So there are. If you look at AD Narani's work, for example, and others, there's a lot of work that uses the trial as sort of further evidence of the sort of hypocrisy of British claims of governing by rule of law. Even in the 1850s, under international law, it's clear that the British don't have jurisdiction to punish a sovereign as a subject of the company, and certainly not in his own fort, his own palace. Right. So there's been a lot of work that looks at sort of the injustices and illegality of the trial. Others have started to look at the trial as using sort of more sort of recent conceptual ideas of largely drawing on Giorgio Agembin's work on states of exception and their life. And that work was intriguing to me, and it made some sort of very interesting arguments. But one of the arguments that was often sort of brought up was that we can think about Bahadur Shah Zadafi II as someone who had been turned into bare life in a state of exception. But what interested me quite quickly about this trial was that if. If you take seriously the sort of politics of legal procedure and the politics of colonial official decision making, then actually it seemed to me that the opposite was true. If we think about bare life as the figure that can be killed by anyone, but sacrificed by none, the reason that the state decides to put on this trial, but decides against killing Bar Safar II is not because they are instinctively merciful or benevolent. It's not because they want to necessarily hold the promise to Bahadur Shah. When he surrenders to the British, he surrenders on the promise that his life will be spared. There's no actual commitment to that promise, but there is, I think, an acknowledgement that Bahadusha II is a figure recognized by the people as a legitimate sovereign. And because of that, the killing of him would be recognized as a political act and a sacrifice. And so in this founding moment, you see a figure who the state decides to create this incredibly spectacular trial where the trial itself, because they aren't going to execute him, the trial is not given the right to punish, just the right to decide whether he's innocent or guilty. It's a show trial, so of course he'll be guilty. And then after that there's a huge sort of question of what to do with him afterwards. And they end up sending him, as the book explains all reasons, to Burma. And so what you have in this moment is a figure when mercy merges as a sort of solution to a problem, right? You say we are being merciful, we will not kill. But what you're actually masking is a sort of founding weakness. A figure who recognized an autocratic state that doesn't have popular legitimacy struggles to deal with a figure that does. And instead of killing, they use mercy as a mask around that weakness. Now that's important because as the book will sort of explain as you go on, that will be the exact threshold that the anti colonial movement will have to perform its politics. Right. Once revolutionaries and people like Gandhi say that we will die for this cause, but we won't accept mercy, the colonial state will once again find itself in that same problem, and this time they won't have a solution to it. And so that's why the book is sort of interested in Bahadur Shastra's contrala's sort of founding moment that sort of founds the state, but also sort of marks a weakness that would ultimately become key to anti colonial politics in the subsequent century.
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Samya Dadu
Yeah, that's very interesting and I think incisive about how it's not just simply a sham trial that we can dismiss, but really the fact that the state had to kind of have this garb of legality around it is kind of part of the question here. So I think that's illuminating. Yeah. So you write about two other key interventions that take place in the period following 1857 that are essential for the British Crown's legal and political apparatus. First, the Queen's Proclamation of 1858, and second, the Indian Penal Code of 1860. And I find the way that you approach the Queen's proclamation as a document of, quote, post conflict reconciliation and reconstruction, rather than a charter that gives us a sense of the Crown's ideology really intriguing. So can you tell us about the political work that this Proclamation was doing, especially in promising mercy to rebels? And then how was this mercy actually meted out in practice?
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Professor Alastair McClure
Yeah, I mean, like you say, you know, the Queen's Proclamation, again is such an important document that is widely recognized as this sort of key charter of a shift to a new sort of imperial ideology, indirect rule. But what I was interested in was what practical work was the Proclamation doing on the ground to rebuild political order in the aftermath of this period of violence. And so I sort of read the Queen's Proclamation alongside the trial of Barhadosha Basilafa II as these sort of founding moments. And in both cases, mercy plays a really critical role. Now, the amnesty in the Queen's Proclamation, the first thing I would say about it is that the amnesty is described as unconditional, but that in practice wasn't the case. Now, the first condition of the Queen's mercy was that rebels not only lay down their arms, but what I sort of suggested, they also sort of, they are demanded to relinquish their political agency. And what I mean by that is that the amnesty itself sort of first offers a sense of historical narrative about what the violence that had just occurred, how that violence had happened. And that is the sort of violence, the sort of narrative that is provided is that rebels had been, the majority of rebels had been tricked or misled by the phrases that are used in the documents are instigators, leaders or ambitious men. And so if you think about that, alongside the trial of Bartol Shah, Bar Shah is also held as this singular responsible leader for this. But the mercy sort of widens that to a smaller group of instigators and leaders. And every time a rebel surrenders, they have to accept that they have been truly strict by that small group of people. And as they do so, what Mercy is doing is sort of ring fencing political agency and responsibility to that small group and then sort of draining the popular movement of its legitimacy. So mercy on the sort of, on a sort of founding level is sort of a way of, sort of burying or forgetting. Amnesty is about oblivion. It's about amnesia. And so what is it forgetting here? Well, here is it's forgetting popular politics and it's reinscribing this moment of violence as a sort of moment in which the popular masses, the masses have been tricked and misled. Now that's very useful for a state that's about to argue that that democracy and representative institutions are not possible in India because the people aren't ready for them. Because they've been example here is that they've been tricked into this sort of violence. So there's this sort of discursive legitimacy that the Mursi helps provide by sort of under the threat of the terror punishment, rebels are forced to accept this new narrative of violence. Now, how on the ground it's sort of meted out is also really useful for the Kanye state, because what it does is that mercy, again, it's not just unconditional, but it was also sort of graded and it was sort of dependent on various factors. So some rebels would not be punished explicitly, but they would lose their property, others would lose their pensions and so forth. Right. And mercy then would also operate alongside a series of rewards for the loyal. And so what the POP Commission provided the state was an opportunity to sort of work out the precise degrees of loyalty or disloyalty that that each individual was responsible for during this period of violence, and then to sort of replace them in a social order depending on that sense of loyalty, disloyalty, exactly, through that sovereign power, of the power to punish or to be merciful. And so you see a sort of restructuring of the social order around loyalty, disloyalty, both around punishing them, but also about rewarding with property and land and so forth during this process. So in some sense, it's a sort of intensive process of rebuilding state authority in a way that the state hopes would avoid future acts of violence. Now, the final thing to note is that mercy was restricted, right? So those ringleaders and instigators I talked about and those that were sort of deemed to have participated in the birth of British subjects, coded very clearly as white subjects in this amnesty, would be punished and they would be excluded from the possibilities that were mercy. And so what that means is that this founding of women, you see mercy available for the majority, which sort of drains, as I said, popular legitimacy from the movement. And then terror is legitimized towards those that can be deemed a small group that can be deemed as responsible for acts of political violence. And so that early stage, we see how terror and mercy operate strategically to sort of reinforce, in this case, rebuild colonial order. And that happens constantly in both everyday and exceptional. The book sort of takes that Forward into the 1920s.
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Samya Dadu
Right? So let's turn now to your analysis of the Indian penal code, or IPC, that was enacted in 1860. Now, the IPC was not something that newly emerged with the British Crown, but had a much longer, fairly arduous past of deliberations in India. And in Britain. It was also enacted in a period when codification itself was becoming commonplace across the world, as you note, from the Americas to the Ottoman Empire, smaller states like Nepal and Thailand. So what is particular about the enaction of this code in 1860 in British India? And how was judicial discretion really made part of the Code itself?
- [22:55]
Professor Alastair McClure
Yeah, I mean, the code sort of in the book, I sort of used the code to sort of finish this period of sort of rebuilding. Right. So the trial, the proclamation and the code in 1860 and the enactment of the code in 1860 is sort of important for sort of several reasons. Now, as you mentioned. Right. It was first written and drafted by Thomas McCallough in the 1830s. And in the next decade or so it would be sort of periodically revised and then forgotten about for periods of time. And so when it's passed in 1860, it's obviously the sort of immediate context is the aftermath of 1857 and a sort of much wider period of post violence institutional and political reordering. And most of that is about centralizing state power and sort of again avoiding future such events. So you see sort of the police is reorganized, the army is reorganized, you have the Government of India act of 1858, the Queen's proclamation. Of course, all sorts of things are happening now. I sort of suggest that the IPC and the CrPC together are some of, if not the most important during this time. Now, it's well known that the violence of 1857 provided the sort of context that enabled the codes to be passed into law. But one of the things I sort of suggest in the book is that we shouldn't just approach the uprising as the impetus that leads to the implementation of the codes, but rather that we should think about the violence as directly impacting what the final shape of the Code would be. And it does so in quite important ways. I at least suggest, to give you sort of two examples of that. The first would be political crimes. So if you compare the punishment of political crimes in the original draft to what would ultimately be the final draft in 60, what you'll find is that political crimes are punished much more severely in a later draft. So they're punishable by death, but they're also punishable with the forfeiture of property. Now that was not in the first code. And so the question would be, well, where does that come from? Why is that there? Well, if you look for example, at the emergency ordinances and acts that are passed during the uprising and rebellion, that punishment is in those emergency acts. And so we See here is in a way in which sort of emergency legality during a period of martial law can be reinserted into everyday law afterwards, once peace is declared. Now, the second question, which I think is also probably even more important is the question of the practicality of the code and its jurisdiction. So it's sort of easy to forget that Macaulay wrote the code in the context of company rule. And that meant there was considerable legal and political uncertainties about the scope and nature of that the code could realistically actually enjoy. So McCawley himself writes about it and says that I'm essentially writing, drafting what's supposed to be an all encompassing code under two masters. And so the code at that point doesn't really fully know who would fall under its jurisdiction, what subjects, what offenses could they use, and so forth. And so it's only with the establishment of direct Crown rule in 1858 that many of those problems, those legal, political issues are sort of swept away and resolved. And so the IPC takes on an authority as sort of expansive jurisdiction far beyond what Macaulay had ever imagined before this period of violence. And so I sort of say that one of the arguments, I would say about 1860 is that, yes, yes, that the rebellion sort of helped the code come into being, but it also markedly changes its sort of final nature, the question of discretion. Again, it's super important and it's really important in the context of codification itself because for McCawley and those that are sort of supporters of codification, the promise of codes was always the promise of standardized, consistent and scientific decision making. Something that we was a shift away from the arbitraness of judicial discretion. Now, McCawley himself was expressly points out Hindu law as a reason for the need for codification. So he says that Hindu law is, he calls it a complete lottery. He says it's arbitrary and capricious. And so he says this is why we need to sort of reform and codify. Now there's been some really. Radhika Singh has this wonderful article on the CRPC and she says that what's interesting about these codes is they don't exercise this question any way from the criminal law. Instead they sort of sort of widen it and they structure it better. Now if you take that argument and you look at the ipc, especially when you look at acts like the Whipping act, you see that discretion is wide. It is extraordinarily wide in so many key parts of the law. It was absolutely essential to capital punishment, it was absolutely essential to corporal punishment. I mean Corporal punishment was a complete discretionary punishment. And it was also, as I talk about in other parts of the book, it was was questions of sedition. There's a huge amount of discretion about how you punish in these really, really important offences. And that all is, that's compounded even more so by the sort of lack of a serious jury in India. And so judges become hugely powerful figures that enjoy a huge amount of discretion in their decision making process. Now, I sort of argue in the book that it's really important that we don't think about the space of discretion in these laws as sort of accidents that weren't supposed to be there. There were sort of mistakes of lawmakers that didn't quite do their job properly. If you look at the writings from those involved in this process from the 1850s onwards, you see that lawmakers were very, very aware and articulated quite clearly that discretion should be retained because it allows judges to accommodate difference, whether that be cultural, racial or social, into their decision making process. And so in some sense, what I sort of say is that actually discretion provides colonial officials with a really, really useful means, means of burying the discriminatory nature of their laws in languages that don't often sort of explicitly explain that intent. So just to give you one brief example, if you look at the Whipping act, which is passed in 1864 and then it's revised again and again in the century, you will never see in those acts the letter of the law, caste or race written into it. But this is a discretionary punishment. And the way the law was intended to be enacted, the types of Punic crimes that it was applicable to were always ordered around groups that were seen to be sort of from marginal backgrounds and always to protect Europeans and Brahmins and those from sort of upwardly mobile caste groups and classes. And so the law discretion provides this very effective technology of being discriminatory, but never in a way that in the early 19th century you'll see quite often race will be particularly is written into the law that falls out to some degree, but it's sort of replaced with discretion. And so that's from the very beginning of the ipc that's there, that's a part of it.
- [29:33]
Samya Dadu
Right. And the working of judicial discretion becomes really quite clear in the middle chapters of your book. I actually think that one of the key critical interventions of Trials of Sovereignty is its in depth analysis of the history of the death penalty under colonial rule. As you point out, early on, 400 to 600 death sentences were passed each year in the late 19th and early 20th century, and this figure only seems to have grown. So how was the death penalty structured in this period? And in what ways did the sentence reproduce social and cultural hierarchies?
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Professor Alastair McClure
There's the book sort of goes through the death penalty process, from the court all the way through to the appeal process, pardons and executions. But maybe for the purpose of simplicity, I have to just stick to the IPC and sort of. One of the sort of key features of the IPC and I sort of mentioned in the previous answer around the code and discretion is that murder in India in this time is punishable by the death sentence and transportation for life. Now, murder is basically the most punishable, most capitally punishable offence at this time in India, and it's one that will. Will be regularly punished with death right up until the end of my period of study and into the 1940s. Now, what's interesting about the structure, the construction of murder at this time is that the discretion that judges are given to decide someone is guilty of murder, but punish them for transportation for life and not the death sentence, is a discretionary authority that did not exist in England at the time. And so in England, if you committed an act of murder, the judge would have to sentence you to death and then mercy would have to come after the trial was over. And so at that point, what you see is that there is a discretionary power which will be, over time, regulated and worked through to decide what type of people were deserving of the judge's sympathy and leniency and on what terms and on what grounds. And so there are ways in which you see, mainly through the production of case law, that certain scripts and certain sort of narratives about who is deserving of this discretion, of this leniency, who is deserving of it and who is not deserving of it. And that takes you to the question of social and cultural hierarchies, because the book sort of looks. For example, one example might be the idea of what constitutes gravenside and provocation in India as compared to elsewhere at this time. Now, one of the sort of case studies that I look at is domestic violence. And what you see, one of the interesting things you see in this period is that in England, scholars like Martin Rena have shown that the scope for a husband, for example, to commit an act of murderous violence and blame the suspicion of adultery as a provocation is reducing at this time in the century. There's a sense that respectful men should not be so violent. They should sort of hold their nerve and they should have thicker skin and they should be sort of able to sort of avoid lashing out in that reform. Now, in India, the judges are very aware of these sort of tightening rules around sudden gray provocation in the metropole, but make the sort of the opposite argument. And they argue that in India, well, the female chastity and honour is especially critical to the Indian family and to Indian men, and that there should be a sort of wider acceptance of that form of violence. So you see husbands, and over time, the sudden gray provocation for suspected acts of adultery, for example, example is extended to other family members, brothers, fathers, so forth. And so at a moment in which you see a sort of a tightening of a form of leniency in the metropole, you seem to be seeing it expanding in this very specific area in India at the same time where the state is very, very comfortable with violence. Now, what's sort of interesting about that, and this is that it's not that just the state is being lenient or merciful, but that even that mercy is double edged. So while I sort of, I lean on sort of work by scholars like Tina Liu and others who have talked about what she calls savage mercy in other colonies. And so what we, what she sort of helps us understand is that in this case, you know, Indian men would be provided lenient sentences in recognition that they have a particular sensitivity around the domestic authority, but only if they themselves tell the court narratives about themselves being thin skinned and violent in a way that reproduce the notion that, that Indian men are not politically not ready for modern political life as their counterparts in the metropole are. And so you sort of see through the sort of management of discretion in these small cases how sort of, on one level, patriarchal authority is being entrenched in home. At the same time, Indian men, the sort of racial difference between Indian and European men is being entrenched in the wider sort of political structure of colonial rule. And so sort of destructive death penalty sort of encourages that narrative to be sort of repeated, right? So there's an appeal process. So Indian men are sort of encouraged to tell specific stories about themselves, about their family as a way of sort of, you know, possibly avoiding a penal order that is very comfortable sending people's death. And at the same time, colonial rule is getting the narratives it wants in its courts to sort of just legitimise an autocratic sort of formal political rule. And so that is sort of one of the ways that I sort of see how death sentence is structured and, and how it sort of works to reproduce social and cultural hierarchies during a period of time where the con of state is sort of largely managing its being a lot of through. Through terror and violence.
- [35:21]
Samya Dadu
VRBO makes it easy to claim your dream summer spot with early booking deals, from homes with pools to poolside loungers. When you book a vrbo, you don't have to reserve any loungers. They're all yours. Get that early booking deal@vrbo.com right. And I think that what's really allowing you to show all of this in your work, and it's something that you touched on earlier, is your use of case law. And you mentioned that you particularly draw on published and unpublished cases of the Allahabad High Court, which is something you've written about elsewhere as well. So I'm curious about how you use case law as an archival source and what these cases, particularly the ones you choose, are helpful in understanding the politics of discretionary mercy.
- [36:11]
Professor Alastair McClure
Yeah, I think, you know, we sort of mentioned it earlier, but the case law is, it's still, there's, you know, there's more and more work being done on it, but it's still such an area, it's such an important area of the history of criminal law in colonial India that this really is deserving of much more work. I think where one of the things, I think case law, I mean, case law, one, you know, the. There's, you know, one of the things that it helps you understand is historians have talked about the courts as places where stories are told. And you have to tell the right stories to be sort of heard in a certain way in a courtroom by a judge or a jury. And so case law helps you understand what stories, what are the quote unquote, right stories to be told and what are the wrong stories to be told. And scholars have worked about on these questions of right and wrong stories in various contexts, but case stories, I think the best way of working through the.
- [37:05]
Samya Dadu
That.
- [37:06]
Professor Alastair McClure
And so the published case law in particular is one way of thinking about how sort of standard ideas, colonial legal ideas, come to pass, how they sort of change over time in small ways, how they develop because they're not. I mean, the interesting thing about case law is they've evolved, right? And so if you follow case law from 1870s through to the 1920s, you see an evolving set of judicial logics and ideas and discourses that sort of change and develop and sometimes expand, sometimes they shrink over time. And so that's sort of a useful sort of way of thinking about the sort of changing nature of colonial legal ideas of Common sense. I think what's also useful about case law is you can start to work out how, at least I think you can start to work out in a context like colonial India how important the possibility of a reduced sentence or some degree of leniency can be to legitimize states and courts that were so reliant on violence. Because it's really easy to sort of, sort of brush over the fact that, you know, if this is such a violent place, how, how, how did they have any form of, you know, building legitimacy? Why would people approach these places? You know, one of the questions people legal historians often ask is, you know, why do people approach courts? What, what do they expect in return? And if there was no possibility of an appeal working or there was no possibility of leniency being provided, then it would be, you know, there would be no point of approaching these force. But there is if you have, you know, access to a lawyer, if you have access to some sort of social capital, if you are able to be told what stories be told in these courts, there were options and sort of pathways away from the death sentence for some people. And so that's really helpful because it helps us. You know, one of the things I sort of argue in the book that there was, there was this thin layer of legitimacy that was built around people approaching institutions. And that's where Gandhi recognizes. Right, Gandhi. The whole point of the non corporation movement is that, you know, as soon as you remove the idea that we should be approaching these institutions, you stop conferring them legitimacy. And that's why the colonial states legitimacy collapses so quickly, because it was always very thin and it was always sort of contingent on small groups of people approaching them. So case law helps you understand how those processes worked. The unpublished case law is sort of different, and I think you know yourself from the sort of struggles of trying to access them. What case law does, at least in my case work, it helped me sort of confirm and sort of expand upon narratives that I was seeing in the published case law. Because, you know, published case law will choose, you know, the law reporter will produce, will decide what cases are worthy of publishing and they'll. And they will just publish those, right? But as we all know, and this is what Mr. Shafi talked about a long time ago, is that, you know that this is only a tiny sliver of what actually is happening in the courtroom. And so when you go to the courtroom and you see the unpublished cases, case law, or at least you see some of it, I mean, what's been left, you Just see these bundles and bundles and bundles of paper. And when you start to see some of the narratives that were being sort of published, found in published case law reappearing again and again in some of the unpublished paperwork, you start to get a sense of how those sort of common sense ideas about the right and wrong stories to tell were sort of filtering down into the everyday practice of the courtroom. And so that was quite useful. And the other thing about the unpublished case law, I think is it gives you a really like sort of granular sense of what happens in the court. You know, it's the published case law can be quite, not sanitized, the wrong word, but it's so organized and it's so ordered. And it gives you a sense, I think, gives you a sort of unrealistic or sort of a sort of sense of the order of law. And then when you go into the courtroom and you see the papers in a certain form, it feels more chaotic and it feels more violent. It feels more, you know, especially when you're dealing with criminal law, you feel, feel the sort of quickness of decisions that are determining lives. And so I think that sort of helped me think about law in a different way. And so those are some ways in which I think case law can be helpful. The unpublished case law is just really difficult to get access to and it's limited.
- [41:14]
Samya Dadu
Great, thank you. That was really enlightening. And I'll turn now to the final section of your book where you move from kind of showing us how mercy and discretion come to be encoded and enacted by the colonial state to really how they start to be considered as tools that anti colonial nationalists deploy as a form of resistance. And you do this first through looking at Bal Gangadhar Tilak's two sedition trials in 1897 and in 1908, and then through the explicit effort to reject Morsi during the non cooperation movement between 1920 and 1922. So how had the encounters with criminal law shaped the way in which nationalist figures understood colonial rule? And then what was its place in the anti colonial struggle?
- [42:09]
Professor Alastair McClure
Yeah, so the sort of final chapters of the book, as you say, they turn towards sort of the history or the recognition of mercy as a serious political problem amongst anticonial leaders and things thinkers. And it's not a new thing to say that criminal law played an important role in nationalist thinking. I mean, so many of just key texts of South Asian politics were written in prisons. Right. And so we sort of have a very clear sense that criminal law was always the sort of front line that sort of managed the possibility of politics under colonialism. And so that's why what figures like Tilak and Gandhi ultimately sort of come to recognize, right? The only path to freedom and politics is through criminality. So Gandhi himself would say he writes openly, I'm a hardened criminal, right? Sort of. Not really. I mean, tongue in cheek, but not really tongue in cheek. Right. And so the book sort of focuses primarily on how. How sort of the experience of the relationship between terror and mercy was sort of used and wielded to sort of terrify colonial subjects into accepting colonial narratives and legitimizing narratives about why they were not ready for politics. And what Tilak and Gandhi do, sort of one after the other, is recognize this and then sort of remake that into a tool of sort of anticonial politics and resistance. So Tilak, what I look at him with Tilak, I sort of argue that Tilak, like, through his first two trials and particularly his second trial, he sort of tests the limits of politics through a sort of very careful sort of trial trial, sort of, sort of, he manages the trial. And it's really, really sort of fantastic way to sort of ask the question of the jury, but also really of the sort of listening public. You know, if I make. If I'm. My argument is based on the claim that India deserves popular sovereignty. Will that by definition be criminal? And so he says I'm innocent because he makes this sort of very interesting argument and decides a bit on Mitimika's work here. But he makes this interesting argument that. And he writes this sort of fantastic sort of very liberal history of English history of sort of constitutional reform and political protections and says, you know, in England, because this is a place where, you know, democracy is possible and this is. Liberalism has flourished, that it's not criminal act. It's not a criminal act to sort of. To make your politics about constitutional reform and a path towards some sort of some democratic and representative institutions. And so he's. I'm innocent because I believe under empire we are all imperial subjects and we all have the right to make that argument. And so as he makes him. As he. As he is sort of time and again found guilty, what he sort of demonstrates to the public is that the argument that you can have politics in colonial rule will by definition become criminal. And then when he's in prison, he then starts to test this argument through, you know, a really. And so this is where that chapter, I think, sort of hopefully makes a contribution that hasn't been made before, is that he sort of Uses, uses his incarceration and the appeal process and the petition process as a means of sort of testing out every decision making authority he has available to him. And he sends petition after petition after petition. Now, what's very different to Tilak's petitions, as say, for example, Savaka's petitions, is that he at no point accepts the possibility of his guilt or apologizes for his actions. And what he does instead is says that I'm innocent, this is an injustice. And, and as a subject of empire, I expect a merciful sovereign. When courts become sites of terror and injustice, we expect a merciful sovereign to come in and save us and to sort of show us that this is a just sort of political order. And when he doesn't, over time, he's sort of told, well, the only way out of jail for you is to accept a mercy plea. That mercy plea will be dependent on accepting political conditions. You will not participate in some forms of political life. And it's at that point Tilak makes this really sort of, I think, very, very important. Important. He has this line where he says, to do so would be to live as a dead man. Right? And so he makes. It's the first time, I think, as far as I understand, it's the first time that a colonial subject expressly ties the possibility of political life in India or the impossibility of political life in India to accepting mercy. And so that's what Tilak does. This and he stays. And because of that, he sort of recognizes how terror is wielded to force people to accept mercy and to accept restrictions on politics. He doesn't accept it and he stayed for the full sentence of his six years time. Now, what happens next is that Gandhi, Tilak is able to do that as an individual level. Gandhi sort of transforms by thinking about mercy. He says, Gandhi's politics, as we all know, is that the state will always be more violent. But actually everyone has the power to reject its mercy so we can embrace its violence and we can do so by rejecting its mercy. And so he sort of makes the claim that by doing so his courtroom performance is again sort of spectacular and sort of fascinating. But he refuses the court its discretion. He says, I am either completely guilty and I will be punished as much as I want the severest punishment, or I'm completely innocent and I should be let go now. And so of course that leads the judge in an impossible situation. And then after that, he sort of refuses to get engaged in the mercy politics in any form, petitioning and pardoning. And so he Transforms the sort of individual right to reject mercy into a sort of popularly available form of anticonial sovereignty. And that's where I think, you know, once he does that, he sort of asks everyone, you know, we have to accept the possibility of death but never accept the possibility of mercy. Once he does that, the state back to that sort of Bahadur Shastava other sort of conundrum has no way of understanding or sort of, or dealing with that problem. How do you sort of create legitimacy and obedience when people are no longer terrified by your violence? And at that point they realize that they have no way of resolving this issue properly. And so you don't see, it's interesting that after Gandhi is never put on trial again and after that, you see very few nationalist leaders put on public trial. And mostly often they're either sentenced in private or they are just sent straight to. Just detained immediately. And so this is when you see the facade of this rule of law the last 20 years, as Debagoja talked about and others. You know, the facade of the rule of law just completely disintegrates in the last 20 years, where you see a state just using violence and sort of trying to manage, you know, constant anti colonial politics. And so I sort of used the Khan Gandhi as a way of thinking about it, saying that mercy was actually really, really important to the crumbling legitimacy of colonial rule in a way that, you know, as I said at the beginning is, you know, you don't get that if you only look at a relationship to violence.
- [49:04]
Samya Dadu
Thank you. That's really, really helpful. So I'll come to our final question for today. You note that postcolonial India has really sustained much of the criminal legal apparatus that was established by the British. And interestingly, in your epilogue, you also draw attention to another case that took place at the tail end of colonial rule, which suggests that recent history isn't simply linear either. We haven't just moved from that colonial past straight into our contemporary, contemporary predicament. So I'm curious about how you are drawing this link between the late 19th, early 20th century past and the present moment.
- [49:50]
Professor Alastair McClure
Yeah, I mean, I think historians are sort of inclined to try to make a case that their work has some contemporary relevance, but they are also equally sort of anxious about making the case too strongly. And so I think. But I think, you know, I do think it's one of the things that the book does at the end, and I think that I sort of would quite strongly argue for is that I think for anyone who is interested in understanding injustice and how it's developed and the relationship that injustice has with penalty and criminal law. The study of history is just so critical. And I think when we look at these histories, it does help us understand in sort of very stark ways how how the state's violence has contributed to the sort of harm that many different groups have experienced. It sort of helps us at times often it helps us sort of locate the historical origins of ongoing patterns of discrimination and sort of unequal experiences of the state's sort of coercive apparatus. But I think the sort of point you mentioned, I think was also really, really, really useful is that it helps us consider the continuities, but also the ruptures that might exist between colonial and the colony and the post colony. Some of these things go back a long way. Some of them are relatively recent innovations. Some of them are sort of a sort of troubling combination of colonial logics and sort of new post colonial developments. So I think history helps us think in more nuanced ways about how the law develops over time. I think, you know, probably for me at least, the most useful. One of the most useful things about history or looking at this history critically from our current vantage point is that I think it helps us approach what is often articulated in contemporary discourse as sort of common sense penal responses to contemporary issues with a lot of healthy skepticism. And so the art, the sort of, the sort of example that I've sort of given in the past past is if we compare the justification for the retention of the Whipping act by the colonial state in say, 1900 with the more recent expansion of capital league punishable offenses imposed colonial Indian in sort of the last 10, 15 years. Now, if you look at how the colonial state tried to justify the retention of corporal punishment in 1900, one of the key arguments that the officials make is that it's necessary because it provides extra, quote, sort of quote, extra protection for women in from the crime of rape. And so the Whipping act remains. And so the question you then ask is, well, what happened to in the following years? Well, if you look at what happens to Whipping act, you will find that, you know, whip is continued to be almost singularly used to punish those from caste backgrounds defined by colonial orthographers as not respectable. But conviction rates for rape remain extremely low. And the whip is almost never used in this case to punish for the of effects offense. Instead, the whip is used to punish largely for property offenses and theft offenses Manage in this case, we would think it sort of tells us about how class is preserved under Sort of a bloody penal order, class and caste. Now, in recent times, if we sort of turn to the more present example, as we all know, there's an ongoing crisis of sexual violence in post colonial India, and that has been used again as a justification for extending the death penalty penalty. Now, if we ask the same question, what has been the result of the expanding nature of death penalty in postcode India? I think it would be quite hard to make a case that that extension has done anything practically to improve the sort of safety and security of women in India. But what it has done is if you look at, for example, the population of the death row, you see an expanding population of the death row in postgraduate India. And death row is predominantly composed of people from marginalized backgrounds and those from economically weak backgrounds. And so you see in both cases how particular narratives can be leveraged for the state to expand its right to commit violence. But in practical terms, it's very hard to see the evidence that that expansion has actually produced the sort of safety that the state has used for justification in the first place. And so the argument that you would make. Right, and this is not my argument, this is an argument that people have been making for many years. Or is that a much more equitable system of justice would require us to really approach those arguments very critically and think about what sort of other options would be available. Sort of much more radical sort of rethinking of our criminal justice system. Unfortunately, there doesn't seem to be much appetite for that presently. So I think in those ways, history is useful.
- [54:46]
Samya Dadu
All right, then. Thank you so much, Alastair, for taking the time to speak with me today. This has been a really thoughtful and engaging conversation. I encourage our listeners to pick up the book and you'll find the details in the podcast description. Thank you for joining in.
- [55:03]
Professor Alastair McClure
Thanks a lot for having me.