Podcast Summary: New Books Network

Episode Title: Alastair McClure, "Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857-1922"
Host: Samya Dadu
Guest: Professor Alastair McClure
Date: December 27, 2025

Overview

In this episode, host Samya Dadu sits down with Professor Alastair McClure to discuss his book Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922 (Cambridge UP, 2024). The conversation centers on the role of mercy and discretion in British Indian criminal law and how these "techniques" shaped both the legitimacy and violence of colonial rule. McClure explains how practices often understood as benevolent were in fact central tools of colonial power, structuring both the daily and exceptional face of state violence, and how these legacies persist and change into the postcolonial era.

Key Discussion Points & Insights

Origins and Development of the Book

[02:31]

• The book originated as a PhD project focused on crime and colonialism, evolving as McClure noticed how the field was re-examining violence’s centrality to empire.
• McClure sought to bridge everyday and exceptional state violence in a single analytical framework, drawing inspiration from work in intellectual history and from scholars like Mir Sharafi, who highlighted the importance of case law as an underused historical source.
• Archival discovery: While examining murder cases, McClure noted unexpected judicial leniency during an otherwise violent period, prompting a focus on the role of mercy ("the right to let live") as a key expression of sovereign power.
• Quote:
  “…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.” — Alastair McClure [07:26]

Recasting Mercy and Violence in Colonial Historiography

[08:10]

• Violence in colonial India did not diminish as it did in England or Australia; executions rose until independence.
• Mercy and discretion were “technologies of rule” — tools for managing colonial difference (race, caste, class, gender), not simply exceptions.
• Discretion helped encode hierarchies and provided “masking weakness” — at times, mercy signaled the state’s lack of legitimacy.
• Mercy became a site of anti-colonial contestation, as nationalists eventually refused to accept it, linking the rejection of mercy to the path toward independence.
• Quote:
  “...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.” — Alastair McClure [10:35]

The Trial of Bahadur Shah Zafar and Founding State Weakness

[12:52]

• The trial of the last Mughal emperor was a signature moment, emblematic of both colonial legal performance and anxieties about legitimacy.
• While the trial is often cited as a sham or “bare life” (after Agamben), McClure argues that the decision to spare Bahadur Shah Zafar’s life via mercy was not benevolence, but a strategy to mask the state’s inability to execute a figure recognized as sovereign by the masses.
• This foundational moment set a precedent: the politics of mercy as a mask for state weakness resurfaces when nationalists refuse mercy in the 20th century.
• Quote:
  “...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... mercy emerges as a sort of solution to a problem.” — Alastair McClure [13:58]

Queen’s Proclamation (1858) — Mercy as Post-Conflict Reconstruction

[17:42]

• The Queen’s Proclamation promised amnesty, but in practice this “unconditional” mercy required surrenderees to renounce political agency and internalize the colonial narrative that the rebellion was the fault of “misleaders.”
• Mercy was selective — broader for the many (thus depoliticizing rebellion), but vengeance for “ringleaders,” reinforcing social order and draining rebellion of legitimacy.
• Mercy operated in tandem with rewards for loyalists, enabling the colonial state to reconstruct hierarchy around concepts of loyalty and disloyalty.
• Quote:
  “...amnesty is about oblivion. It's about amnesia. And so what is it forgetting here? Popular politics...” — Alastair McClure [18:41]

Indian Penal Code (IPC, 1860) and the Institutionalization of Discretion

[22:55]

• The IPC’s final form was shaped by the violence of 1857: increased penalties for political crimes, embedding emergency legalities into “normal” law.
• Judicial discretion was not an oversight but deliberate, providing flexibility to accommodate colonial perceptions of difference — race or caste was rarely explicit in the law, but enacted through discretionary decisions (e.g., Whipping Act).
• Discretion allowed the law to be discriminatory without overtly stating it.
• Quote:
  “...discretion provides colonial officials with a really, really useful means of burying the discriminatory nature of their laws in languages that don't often explicitly explain that intent.” — Alastair McClure [28:38]

The Death Penalty and Social Hierarchies

[29:32]

• Judges had unusual discretion (distinct from England) to commute death sentences to transportation for life, leading to cases where social scripts determined leniency.
• Decisions regarding “grave and sudden provocation” — particularly in domestic violence — reinforced patriarchal and racialized ideas: Indian men, considered especially sensitive to dishonor, often received leniency, which in turn entrenched colonial stereotypes of "readiness" or lack thereof for self-rule.
• Mercy in this case was a double-edged sword, providing pathways to leniency for some while reinforcing the ideological underpinnings of colonial authority.
• Quote:
  “...even that mercy is double-edged...Indian men would be provided lenient sentences in recognition that they have a particular sensitivity around domestic authority, but only if they themselves tell the court narratives about themselves being thin-skinned and violent...” — Alastair McClure [32:23]

Case Law as Source and Strategy

[36:10]

• Case law — both published and unpublished — illuminates the stories judges valued and thus the logic of discretionary mercy. It provides evolving insight into colonial legal "common sense” and helps explain how people navigated a violent legal regime.
• Unpublished case files convey the everyday violence and disorder behind formal legal decisions, revealing a much more chaotic, rapid, and sometimes violent judicial process than published reports suggest.
• The thin legitimacy of the courts depended on the perception that mercy and appeals were possible for those with the right resources.
• Quote:
  “If there was no possibility of an appeal working or there was no possibility of leniency being provided, then...there would be no point of approaching these courts. But there is...” — Alastair McClure [37:40]

Anti-Colonial Rejection of Mercy: Tilak and Gandhi

[42:09]

• Criminal law shaped nationalist politics; leaders like Tilak and Gandhi recognized that claims to political rights were criminalized under British law.
• Tilak repeatedly petitioned for release without ever admitting guilt or seeking mercy, making the act of refusing the mercy plea itself a form of resistance:
  “to do so would be to live as a dead man.” — Alastair McClure quoting Tilak [45:56]
• Gandhi elevated this to mass strategy: by refusing to engage in mercy after sentencing, he forced the colonial state into a paradox, undermining its authority and legitimacy.
• After Gandhi’s 1922 trial, public trials of nationalist leaders dwindled, and extrajudicial or private detentions became more common, signaling a collapse in the legitimacy of the colonial legal façade.
• Quote:
  “Gandhi...refuses the court its discretion. He says, I am either completely guilty and I will be punished...or I'm completely innocent and I should be let go...that leads the judge in an impossible situation.” — Alastair McClure [47:01]

Postcolonial Legacies & Contemporary Resonances

[49:50]

• Much of India’s criminal legal framework remains colonial in origin, but there are also important ruptures alongside continuities.
• McClure draws historical parallels between colonial justifications for punitive expansion (e.g., Whipping Act for women’s safety) and contemporary expansions of the death penalty in response to sexual violence — both serving primarily to reinforce state violence and social hierarchies, with questionable efficacy for actual safety or justice.
• Quote:
  “...history helps us think in more nuanced ways about how the law develops over time...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.” — Alastair McClure [50:53]

Notable Quotes & Memorable Moments

• “Mercy is not simply exceptional; it is a key technique of violence through which the British Crown developed state legitimacy.”
  — Samya Dadu summarizing the thesis [01:34]
• “If we only study the sovereign right to kill, we miss the sovereign right to let live, and how that right configures colonial authority.”
  — Alastair McClure [05:40]
• “Mercy operated as a mask around weakness. The state, in lacking real legitimacy, could not kill with impunity — so it used mercy as a performance of strength.”
  — Alastair McClure [14:46]
• “To do so [accept mercy for political offenses] would be to live as a dead man.”
  — B.G. Tilak, quoted by McClure [45:56]
• “Once nationalists refused to legitimate the state through mercy, colonial legal authority quickly unraveled.”
  — Alastair McClure [47:35]

Timestamps for Major Segments

• Introduction to Book and Thesis – [01:34]
• Origins & Research Journey – [02:31–07:42]
• Recasting Violence and Discretion – [08:10–12:12]
• Trial of Bahadur Shah Zafar – [12:52–16:34]
• Queen’s Proclamation and Mercy – [17:42–22:13]
• Indian Penal Code and Judicial Discretion – [22:55–29:32]
• The Death Penalty & Social Hierarchies – [29:32–35:21]
• Case Law as Source – [36:10–41:14]
• Anti-Colonial Nationalism, Tilak & Gandhi – [42:09–49:04]
• Postcolonial Legacies & Present-Day Resonances – [49:50–54:45]

Conclusion

This episode offers a richly-detailed, critical account of how mercy and discretion were not merely footnotes, but foundational to colonial legal rule in British India and instrumental in both the management of violence and the emergence of anti-colonial resistance. Professor McClure demonstrates how the legal and political technologies of empire continue to shape — and sometimes haunt — postcolonial criminal justice. For listeners interested in legal history, colonialism, or contemporary debates about justice and violence, this conversation is both illuminating and urgent.