Thursday, February 04, 2016

After the Raj: British Judges in Pakistan

Guest post by Douglas McDonald

As I have previously written, not all British judges left India after Independence; a small number of these judges ‘stayed on’, even remaining in service into the 1970s. Several British judges also remained in service in Pakistan after 1947. This blog post looks at the careers of several of these judges, and remarks briefly upon what their lives demonstrate about state formation in Pakistan.

After 1947, George Constantine and Dennis O’Sullivan continued to serve on the Sindh Chief Court (later the Sindh High Court). While O’Sullivan retired relatively soon after Independence (around 1949), Constantine, a former ICS officer, eventually rose to the post of Chief Justice. As Chief Justice, Constantine served briefly as Acting Governor of Sindh Province (from May to August 1953). Another judge, John Ortcheson (who had previously served as Legal Remembrancer to the Government of Punjab Province), was appointed to the Lahore High Court after Pakistan achieved independence.


During his tenure as Chief Justice of the Sindh High Court, Constantine played a significant role in the seminal case of Tamizuddin Khan v Federation of Pakistan.[1] Constantine (at first instance) ruled against Governor-General Ghulam Muhammad’s unilateral dissolution of Pakistan’s Constituent Assembly, a decision later overturned by the Federal Court of Pakistan. The rejection of Constantine’s decision in Tamizuddin Khan by the Federal Court is now remembered as an early capitulation by the judiciary to unbridled executive power in Pakistan, with Constantine praised as a dissenting supporter of democracy (even given that the then-Constituent Assembly had been selected by provincial assemblies elected nearly a decade before).

Following the establishment of West Pakistan in 1955, Constantine continued to serve on that province’s High Court, as did Ortcheson. Constantine retired in 1962, while Ortcheson retired in 1965 (as Senior Judge of the West Pakistan High Court).

Thomas Hobart Ellis, a former ICS officer and British judge in ‘East Pakistan’ (now Bangladesh), similarly held prominent legal and executive responsibilities. Prior to 1947, Ellis had been an acting judge of the Calcutta High Court; after independence, he ‘opted for Pakistan’ and became a judge of the High Court of East Bengal (also then known as the Dacca High Court). Another British judge, Eric Charles Ormond, also served on that Court until at least 1950.

As Chief Justice of the East Bengal High Court, Ellis led a notorious inquiry into police violence against civilians protesting against non-recognition of the Bengali language in 1952 (as part of the “Language Movement”); Ellis’s inquiry exonerated the actions of the police. The following year, Ellis was appointed as Chief Justice of the East Bengal High Court and briefly served (from September to December 1954) as Acting Governor of that province. Ellis retired from the bench in 1954.


Constantine, Ellis and Ortcheson’s continued service was mirrored by the surprising longevity of several British officials (often members of the former ICS) in independent Pakistan – and, indeed, by the remarkable continuity before and after 1947 in several administrative respects.[2] As Ralph Braibanti has written, ‘[i]n the early years of Pakistan the government legal establishment was not unaccustomed to having non-Muslims in its highest ranks’, with British officers serving in the nation’s courts as judges, registrars and legal remembrancers.[3] Sir Edward Snelson, a former ICS officer and district and sessions judge under the Raj, served as Secretary of Pakistan’s Ministry of Law until 1961 (when he was tried and convicted for contempt of court for criticising serving judges).


Snelson’s prominence may have been exceptional amongst British lawyers in Pakistan, but reflected the range of prominent roles held by British officials in Pakistani bureaucracy until the 1960s. 36 British officers of the Indian Civil Service ‘opted for Pakistan’ after Independence,[4] with ‘[t]he whole civil service structure [in Pakistan]… controlled from 1947 to 1961 by non-Muslim establishment secretaries’ (including several British officers from the former ICS).[5] (British governors also served in Punjab, the North-West Frontier Province and Balochistan until 1949; this eventually prompted significant controversy in Punjab, leading to the forced resignation of Sir Francis Mudie.) The fact that both Constantine and Ellis, British officials of the former ICS, served (briefly) as provincial governors in Pakistan in the 1950s is hence remarkable only because it occurred at such a late date.


The continued pre-eminence of many British officers and judges during the 1950s coincided with a period in which Pakistan was ‘ruled by a cabal of senior civil servants’. Bureaucrats retained a substantial role in governance (as ‘the military’s willing junior partner’) into the 1960s, with the Civil Service of Pakistan (CSP) in particular retaining some of the elitism and exclusivity of the former Indian Civil Service during this period, having ‘fully imbibed the ICS ethos’. Indeed, in 1958 Khalid B. Sayeed observed that Pakistan’s civil servants ‘often play an even more powerful role than that of their imperial predecessors’. The extent of this institutional continuity, symbolised both by the continued presence of British officials (and judges) and by the high posts to which they rose, carried with it both considerable political power and contempt for others (including politicians) who would seek to challenge this bureaucratic dominance. Despite perceptions in the 1970s that the ‘enormous power and exceptional privilege’ of the civil service might be eroded through the reforms of Zulfikar Ali Bhutto (including the abolition of the CSP),[6] the authority of the civil service ‘[i]f anything… actually increased’ the authority of the bureaucracy (through the increase in state power brought about by nationalisation of industries). The power, professionalism and independence of the bureaucracy were, however, substantially diminished under the successive regimes of Zia, Bhutto, Sharif and Musharraf – even as traditions of unaccountability and the untrammeled exercise of power remained current in Pakistani governance.


This preservation of bureaucratic authority (and the traditions of imperial rule) in Pakistan (as compared to the greater subordination of civil servants to elected governments in India) has cast a long shadow. While the early preeminence of the Pakistani bureaucracy was in part the product of ineptitude and division among Pakistan’s politicians, this dominance ensured that the Pakistani state maintained in many respects a colonial relationship with its citizens (including the colonial state’s keenness to preserve and protect established interests within society, particularly those of landowners). Constantine, Ortcheson and Ellis (in their judicial and executive guises) ensured that not only were laws interpreted and enforced in much the same manner as they were under the British, but that many of the same officials (of the former colonial power) remained responsible for this. That is, the Pakistani state not only retained colonial practices and mindsets, but in many cases was administered and judged by nationals of the former colonial power.


As Constantine’s important example proves, the fact that these men came to Pakistan as imperial officials (and retained their British citizenship) does not mean that they were, in practice, blinkered opponents of democracy or supporters of the privileges of the state; they must not be, and are not, automatically condemned by virtue of their origins. However, the extent to which Pakistan inherited British officials from the former regime may have played an important role in ensuring that a colonial regime transitioned into a nominally-independent government that functioned, in many respects, like a colonial regime. The unbroken legacy of autocratic rule, detached from popular accountability or constraint and unduly driven by the protection of the state’s own power and privileges, has had a detrimental effect on citizen-state relations even in contemporary Pakistan – even during Pakistan’s periods of democratic rule.

(Douglas McDonald previously worked as a solicitor with Craddock Murray Neumann Lawyers, Sydney.)


[1] Maulvi Tamizuddin Khan v Federation of Pakistan and ors 1954 SHC 81.
[2] See e.g. Yaqoob Khan Bangash, ‘Constructing the state: Constitutional integration of the princely states of Pakistan’ in Long et al, State and Nation-Building in Pakistan (2015) 96-97; Akbar S. Ahmed, Journey into America (2010) 467-468.
[3] Ralph Braibanti, ‘Cornelius of Pakistan: Catholic Chief Justice of a Muslim state’ (1999) 10 Islam and Christian-Muslim Relations 117, 119.
[4] Ibid.
[5] Ibid.
[6] See e.g. Ziring and LaPorte, ‘The Pakistan Bureaucracy: Two Views’ (1974) 14(2) Asian Survey 1086.

Sunday, January 31, 2016

NEW ARRIVALS WITH REVIEWS

Gautam Bhatia's book is a fascinating exploration of the principles and issues involved in free speech jurisprudence.  While other books on the subject are content with giving instances, and lengthy citations from the judgments of the Supreme Court, Gautam dissects each judgment with his penetrating analysis of the principles, which I am sure, even some of the Judges who delivered them were not aware of, with comparative examples from foreign judgments.  A reader will be richly rewarded with the gains in scholarship and understanding.  Gautam has consented to be interviewed on his book here in the coming days.

The book has been reviewed by Arudra Burra at The Wire.

The book is available for purchase here.



T.N.Ninan's book is an unusual book written by a specialist for the purpose of a general reader, who wants to have at least a superficial understanding of Indian economy.

The questions that pose Ninan for himself at the outset are of interest to an ordinary reader: By what alchemy does growing inequality coexist successfully with surging aspiration?  What is the actual size of the emerging neo-middle class and how do you define it?  What are its implications for the economy and for politics? Is India in a position to put an end to absolute poverty?

Ninan sounds optimistic despite many failures and the many frustrations of living with their consequences.  India has held together quite well, and its record has been rather good, he says. There is no India-shining, (Remember 2004 election?), but country is well-positioned to reach for some of its long sought-after goals, like the slow-moving tortoise that at long last sees some end points in sight.   He is confident that India should make steady progress over the ground to be covered.

I found the section on 'The hunter hunted?' in the chapter on 'Cronyism in an Arbitrary  State' extremely interesting. His comment that the fusion of business and politics has given India its oligarchs, people who wield financial as well as political clout, is apt.  Ninan qualifies his certificate of free from scandal taint to the Narendra Modi Government at the Centre with his belief that unless the funding of political parties and elections becomes above board, problems will inevitably recur.

Ninan's aphorism on the state of judiciary is profound: "Reform of judicial processes has to be an essential element of broader reform, but judges who are trigger-happy when it comes to pronouncing obiter dicta from the bench are surprisingly blind to the fundamental problems of the justice delivery system."  The recent dismissal of SLP [Mathai @ Joby v.George] by the Supreme Court's constitution bench on 11 January wherein the Court had an opportunity to lay down guidelines to restrict number of SLPs in the  Court, is an instance of the Court being uninterested in reforming itself.

Ninan has an interesting explanation for the rising intolerance in the country.  Some of the points of conflict, he says, are the result of social churn that is linked to modernization.  Traditional hierarchies, boundaries and authority get challenged in a more freewheeling world where more women go to work, where youngsters mingle without concern for caste or community, and where old identities get fused into new ones that might seem deracinated.

The book has been reviewed here, here, and here.   It is available for purchase here.

Thursday, January 21, 2016

Republic Day event: Discussion of the Constituent Assembly Debates and CLPR's launch of the Constitution Assembly Debates website

To mark Republic Day this year, the Centre for Law and Policy Research, Bangalore is organising a discussion on 'The Constituent Assembly Debates in Contemporary Times' on Monday, January 26th at the Karnataka Judicial Academy, Bangalore.  The event features talks by two sitting judges of the Karnataka High Court and Professor Sudhir Krishnaswamy, Azim Premji University.  The event will also formally launch the CAD website that promises to be an important new resource for those interested in mining the Constituent Assembly Debates.

Further details about the event are available here.   

Wednesday, January 20, 2016

3rd WTI – CWS Jt. Academy on International Trade Law and Policy

[The following announcement is posted on behalf of the Centre for WTO Studies]

The Centre for WTO Studies, in partnership with the World Trade Institute, Berne is launching the 3rd WTI – CWS Joint Academy on International Trade Law and Policy in New Delhi, from May 23 – June 17, 2016.  Taught by distinguished academics and practitioners from India and abroad, the course will equip participants with theoretical and practical insights into various issues relating to international trade. Open to law students and legal professionals in India.
                                                                                                          
Financial benefits include refund of the course fees to student participants successfully completing the course. The Call for Application and the Application Form for the can be downloaded from http://wtocentre.iift.ac.in/JointAcademy.asp. Last date is March 15, 2016.


Friday, January 15, 2016

ONLINE SYMPOSIUM ON NJAC JUDGMENT-I

The Supreme Court's judgment in the NJAC case is a significant development in India's legal calendar in 2015. While the judgment has received extensive commentary in the media, its implications for Indian Constitutional law are yet to be fully unraveled. Even as the Government is yet to release the revised Memorandum of Procedure for Appointment of Judges, LAOT has thought it fit to initiate a symposium on the judgment, with two of our astute observers agreeing to join the discussion at this stage.

Sudhir Krishnaswamy (SK) is on the faculty of Azim Premji University and is well-known for his book, Democracy and Constitutionalism in India, published by OUP, in 2009. Currently, he is Dr.B.R.Ambedkar Visiting Professor of Indian Constitutional Law at Columbia Law School, U.S.  

Arghya Sengupta (AS) is the founder and Research Director at Vidhi Centre for Legal Policy, New Delhi, an independent think tank doing legal research and assisting government in making better laws. It is also active in organising frequent events on contemporary legal issues, with the aim of informing public debate.
. 

  1. To begin with, what are your general views on the NJAC judgment?


SK: The NJAC judgment is legally unremarkable. The Supreme Court simply reiterated its view on the basic structure doctrine and the status of independence of the judiciary as a basic feature of the constitution. If the court had decided otherwise it would have had to distinguish or nuance it’s prior precedents on this issue.


AS: The NJAC judgment is problematic in two respects: its treatment of checks and balances in the constitutional scheme and the basic structure doctrine. So while Sudhir is right that the Court reiterated its view that judicial independence is a basic feature of the Constitution, they also made it a feature which is so central to the basic structure that even if an amendment were to bolster another feature, it would be unconstitutional. This might lead to an appealing result but leads to bad constitutional law especially since the NJAC unlike the 42nd Amendment was not an egregious attack on the judiciary. In fact it espoused a checks and balances scheme in appointment of judges better than the previous collegium system. In failing to adequately appreciate this dimension, the Court failed in its fundamental task of balancing various strands of the basic structure.  


2. In your book, Democracy and Constitutionalism in India, you had pointed out that judicial intervention in the amending process is only likely in the most extreme cases.  Do you think NJAC is such an extreme case? Did the amendment and the law threaten to destroy or damage the Constitution?


SK Basic structure review is designed to have a different standard of scrutiny to fundamental rights review. A court will intervene if any fundamental right is ‘abridged or taken away’ but under basic structure review the basic features of the constitution should be ‘damaged or destroyed.’


The Supreme Court has applied this standard with care in most cases but there is an overzealousness that characterizes its willingness to protect the independence of the judiciary. In the last two decades it has intervened in the selection of district court judges, their conditions of service including payment of salaries as well as the selection and functioning of tribunal and regulators. Some critics allege that this is a case of institutional self-dealing where the court is protecting and advancing its own. I would agree if there was evidence that the Indian state invests heavily and pampers the court system. Unfortunately the courts and the legal system in a dismal state of disrepair and hence judicial intervention in this arena appears to be more benign.


AS: I agree entirely. To take Sudhir’s point further, I think the NJAC judgment dangerously lowers both the standard and intensity of basic structure review to such an extent that in the future most writ petitions, whether it be challenging statutes or constitutional amendments will have a pro forma prayer, much like the 14-19-21 challenge today, that the impugned law is violative of the basic structure.


3. It has been argued that judicial primacy is only a facet of judicial independence, and there are other facets.  This amendment only seeks to dilute judicial primacy, and therefore, it would not have brought down the edifice, as feared.  In Kuldip Nayar, the Court allowed the amendment on a similar ground, whereas in NJAC, the Court refused to do the same. Also, the contention that judicial independence or primacy were not listed as basic features initially in the Kesavananda Bharati judgment, but have been elevated by the judiciary as basic features.  Can derivatives be elevated as basic features?  If so,what will be the consequences?


SK Basic features of the constitution are constitutional principles that can play several roles in adjudication: they may in a few cases operate independently and offer reasons for decision; in most cases they will yield derivative norms that settle the case at hand; in a third set of cases they may help judges fill gaps or resolve ambiguity or indeterminacy in the interpretation of constitutional rules.


In the NJAC judgment the court is unclear what the basic feature at stake is: separation of powers; independence of the judiciary; primacy of the judiciary in the appointment of SC and HC judges. For reasons of elegance and consistency it may be best to state basic features of the constitution at the broadest level of generality: in this case separation of powers. The courts extensive recourse to independence of the judiciary and primacy of the judiciary is best seen as being about the derived norms that apply to the case at hand.


The catalogue of basic features in Kesavananda has never been treated as an exhaustive and final list. Basic features are isolated through common law adjudication by the criterion I elaborate on in the book.


In Kuldip Nayar the court applied the damage or destroy standard of review in a more predictable fashion. As I suggested earlier the judiciary cases in the last two decades have seen the court interfere more readily.


AS:  I would like to make two points. First, a close reading demonstrates that judicial primacy was not read in to the basic structure in this case as has been commonly assumed. What has instead, according to me, is mandatory consultation with the Chief Justice of India (understood as the collegium). As a result, a certain textual portion of Article 124 and 217 has been elevated to the status of a basic feature. This is contrary to Kesavananda Bharati which expressly allows any text anywhere in the Constitution to be amended, even in Part III. For more details, please refer my EPW piece.


Second, in order to resolve your question, the two-step approach followed by Justice Chelameswar is more appropriate. He understands the basic structure to comprise several basic features. When a law is challenged, one will have to first ask whether it relates to one of the basic features and adversely affects it. If it does, then the second question is whether it affects it in a manner that abrogates the basic structure itself. This two-step test allows for balancing variable impacts of a law on different facets of the basic structure and restores the caution with which the Courts have, and were expected to, approach basic structure review.


4. In your book, you have justified the recourse to referendum to alter the basic structure.  What if the Court strikes down even such amendments, notwithstanding that they were approved in a referendum, because they destroy or damage the basic structure? In a hypothetical case, let's say the NDA had promised NJAC, with all its features as it unfolded, in its manifesto, and its campaign speeches in the 2014 elections; should it not be considered as a referendum of sorts?  Should Constitution be amended to provide for the referendum route, or could it be implied in an electoral verdict, and Parliamentary support. 


SK  In my book I did show that there are obiter observations in the basic structure cases to support the view that it was a restraint against the existing constitutional modes of amendment. The facetious argument in court that the presence of a bipartisan majority and state ratification must lead to the non-application of basic structure review fundamentally misunderstands that it is precisely to these conditions that the doctrine responds. So its presence in the NDA manifesto makes no difference to its constitutional validity.


Previously I thought that basic structure review would leave open the possibility of extra-constitutional popular amendment: like referendums. As basic structure review gets entrenched in our constitutional practice I am more skeptical of this view today. I sense that basic structure review operates more as a form of judicial ratification of the amendment process much like the role played by the South African court in the Certification Judgments. I have not worked what the implications of this new understanding of the basic structure doctrine might be and hope to write more on this shortly.  


AS: There are two ways in which your question can be interpreted. First, can the Court strike down amendments pursuant to a referendum? Most certainly it can since the Court’s constitutional anti-majoritarian role is as significant against Parliament as it is against the majority of the population that Parliament represents. Whether this ought to be the proper role of basic structure review or not is an entirely different question.


And a minor quibble with Sudhir, no argument that the presence of a bipartisan majority and state ratification must lead to the non-application of basic structure review was made in Court. I was in Court on all 31 days of the main hearing and not a single counsel made this argument. The fact of a bipartisan majority was made to demonstrate that the Parliament in its unanimous wisdom felt that the time for a change of law had come, not that such wisdom could not be constitutionally reviewed.


The second, more interesting way in which your question can be interpreted is whether the Court will strike down an amendment through the process of Article 368 as it currently stands, which provides for a facet of the basic structure, say secularism, to be amended by referendum. I think there is a high probability given that limited amendability is part of the basic structure that such an amendment would fall foul of it. Alternately one could argue that such an amendment does not affect secularism itself but only provides for a way in which secularism could cease to be part of such basic structure. If anything, the referendum results (if yes) could be held violative of the basic structure.


5. Unlike in the Kesavananda Bharati Judgment, the initial response to the NJAC judgment has been mixed.  In the Kesavananda, those who were critical of it initially, later accepted its usefulness.  Do you think similar thing playing out in NJAC?  Is it a Kesavananda moment in India's Constitutional and political history?


SK   The Kesavananda judgment initially received mixed reviews. The NJAC judgment has received strong push back from the executive and some academic and policy commentators but has found support in some quarters. The longer term legitimacy of the NJAC may well turn on the ability of the court to reform the collegium process to make the higher judiciary more transparent and accountable to the people. If it achieves the ability to retain the trust of the people through direct participation, then it can emerge as a counter-democratic institution with higher trust than the executive and the legislature.


I don’t see how the Kesavananda and NJAC judgments are similar either in constitutional law terms or in their political impact. For me the comparison between the two decisions is hyperbolic and not substantive.


AS: Only time will tell and I’m no clairvoyant. But I agree with Sudhir that much will depend on how the collegium reforms itself. The initial signs are not promising with the much-vaunted consequence hearing to reform the collegium having become both chaotic and a damp squib at the same time. Nothing particularly reformative has been suggested by the Court in its latest order. Justice Chelameswar’s words might prove prophetic: ‘reform, that you may preserve’. If the Court doesn’t, then the initial negative reviews of the NJAC judgment might well be proved right.


In any event, since unlike Kesavananda, in NJAC the Court didn’t create new doctrine, there is no positive useful function that it might be seen to serve over time. Over time it could either be seen as a plain bad judgment (if the collegium continues to function in an opaque manner) or an inconsequential one (if a new appointments method is passed by Parliament), but certainly not a useful one.

Friday, January 08, 2016

Announcement: One year LL.M in Law and Development launched by Azim Premji University

The School of Policy and Governance at the Azim Premji University, where I now teach, is launching a new, one-year LL.M in Law and Development for the academic year 2016-17.  Details about the programme are below:

Azim Premji University was established by the Azim Premji Foundation in 2010. It was foundedwith a clear social purpose, as part of a larger strategy to contribute to the education and development sectors in the country. Our vision is “education for social change, to contribute to the realization of a just, equitable, humane and sustainable society”. We offer undergraduate, postgraduate and continuing education programmes that aim to prepare students with great competence, integrity and social commitment. Our research programmes also further the development of knowledge and education in the same fields.

Azim Premji University announces a one-year postgraduate programme in Law and Development for the academic year 2016-17. The LL.M. in Law and Development integrates a rigorous philosophical and conceptual analysis of legal doctrine with a social scientific enquiry into law and society in India. The programme mandates a professional clinical engagement with legal and social problems as well as advanced legal research and writing through a dissertation. This programme is designed for a small cohort of students to ensure an immersive and intensive educational experience.

The programme includes mandatory courses on Law and Development, Law and Justice, Comparative Public Law and Legal Research Methods. Students may elect to do courses in a wide variety of fields (private and commercial law, human rights, tax law, livelihoods, environment and sustainability) and across a wide range of disciplines (economics, anthropology, political science, sociology, history and philosophy) offered at Azim Premji University. This programme is designed for students who seek to make a mark in the legal system, government, civil society, academia and the world of ideas.

Eligibility: Azim Premji University invites applications from bright, motivated students interested in a legal education and career engaged with the problems of law and development in India. Students must possess a Bachelor of Laws degree from a recognised University in India or abroad. Candidates with relevant work experience, of any age, are strongly encouraged to apply. Students will be selected through a National Entrance Test (followed by an interview for shortlisted candidates) conducted by Azim Premji University on February 14, 2016 at various locations in India.

The last date for submission of applications is January 28, 2016.

Financial Assistance: The tuition fees for the programme is INR 60,000 per year. Limited accommodation facilities are available and the charges for accommodation and dining are approximately INR 92,000 per year. There are no other charges applicable.

Azim Premji University has an explicit commitment towards supporting disadvantaged students by providing extensive financial assistance and facilitating educational loans. In exceptional circumstances, working professionals may be provided additional assistance.

For more details about the LL.M, please visit:
http://www.azimpremjiuniversity.edu.in/SitePages/spg-LL.M-overview.aspx
or
Email: llm@apu.edu.in| admissions@apu.edu.in | Call 1800 843 2001

For more details on Azim Premji University, please visit:
Admissions Website: http://www.azimpremjiuniversity.edu.in/admissions
https://www.facebook.com/azimpremjiuniversity
https://www.youtube.com/user/AzimPremjiUniversity

If you are interested in finding about the School and its Faculty, please visit the following links:
SPG: http://www.azimpremjiuniversity.edu.in/SitePages/school-of-policy-governance-overview2.aspx

Sunday, December 27, 2015

Jan 20 event, New Delhi: South Asian Constitutionalism

The South Asia Institute, Harvard University, and the Centre for Policy Research, New Delhi, will be holding a seminar on South Asian constitutionalism on January 20, at the Centre for Policy Research, New Delhi. The event will discuss the recent publication of Mark Tushnet and Madhav Khosla, Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press 2015). It will involve legal scholars and political scientists focusing on some of the themes covered in this book, in particular the ongoing political tensions and their legal manifestation across South Asia.

No registration or invitation is required. The event is open to all.

The following is the schedule as it currently stands (minor changes might occur):

Session I: 3.00 – 4.30 PM

Opening Remarks and Moderator: Mark Tushnet, Harvard Law School

(1) Upendra Baxi, University of Warwick

(2) Niraja Gopal Jayal, Jawaharlal Nehru University

(3) Gilles Verniers, Ashoka University

Coffee: 4.30 – 5.00

Session II: 5.00 – 7.00 PM

Moderator: Madhav Khosla, Harvard University

(1) Prashant Jha, The Hindustan Times

(2) Arun K. Thiruvengadam, Azim Premji University, Bangalore

(3) Aparna Chandra, National Law University, Delhi

Closing Remarks: Pratap Bhanu Mehta, Centre for Policy Research




Thursday, December 24, 2015

Raju Ramachandran's talk on the NJAC Case

Senior Advocate Raju Ramachandran delivered DAKSH's fourth Constitution Day Lecture on November 28 in Bangalore. The topic was Judicial Independence and the Appointment of Judges. The full transcript is available on the DAKSH Blog. The focus, understandably, was the Supreme Court's judgment in the NJAC case.

Saturday, December 19, 2015

William Broome, Race and Nationalism in Nehru’s India


Guest post by Douglas McDonald

In light of the recent passing of Benedict Anderson, this post reflects on the resonance of his work with the life and career of a remarkable Indian: William Broome, the last British judge to remain on an Indian High Court (serving on the Allahabad High Court until 1972), who came to India as an Indian Civil Service (ICS) officer, took Indian citizenship and assimilated to a remarkable degree into Indian life and society. (For more details about Broome, please see my article about him, ‘Becoming Indian’, in the Indian Historical Review.) This post briefly considers Broome, and the significance of Nehru’s insistence that Broome be permitted to become an Indian citizen, in light of Anderson’s seminal Imagined Communities.

Broome was not the only British judge to have remained in service in India after Independence,[1] nor even the only one among these judges to have displayed a lasting fascination with Indian law, history and culture. (Indeed, such an interest need not invariably be the product of any genuine love for independent India itself (outside the colonial project), but may merely be a manifestation of colonialism’s pursuit of ‘a totali[s]ing classifactory grid’ regarding its subjects.[2]) Broome was unique both through his actions after Independence (not only ‘staying on’, but forsaking his British nationality and taking Indian citizenship) and through his personal conduct even prior to the end of the Raj: marrying an Indian woman, raising his children as Hindus and immersing himself in Indian languages (including Urdu, Sanskrit, Bengali, Tamil and Malayalam) and culture. In supporting Broome’s efforts to seek Indian citizenship, Jawaharlal Nehru declared that ‘I have seldom known any Englishman who has so Indianized himself in various ways as he has’:
“He is…a good linguist in Indian languages. He has married an Indian wife. In fact, he is as much as Indian as anybody can be who is not borne in India and indeed probably more so than many people born in India.”[3]

Even in the final years of the Raj (in which a majority of serving ICS officers were of Indian descent), the governance of India was characterised by strict racial and cultural hierarchies – with even Anglicised local elites ‘barred from the uppermost peaks of the Raj’, forbidden (by virtue of the stark divide between the British ‘nation’ and the broader Empire governed by and for that nation) from governing themselves or Imperial realms outside India.[4] Broome, a ‘middle-class metropolitan’[5] (English-born, educated at English schools and Cambridge, admitted to Lincoln’s Inn), enjoyed privileges under the Raj that Anglicised Indian subjects (or even Anglo-Indians) could never attain. (These barriers arose because of racial prejudice[6] and because, again, of the ‘discrepancy between nation and dynastic realm’,[7] and the imperatives of marshalling popular support in the emerging ‘nation’/metropole behind the Imperial project and its rulers.[8] This task would have been impossible had Britain, or England, itself been perceived as being at risk of rule by colonised subjects.) It is in this context of (to some extent inflexible and unyielding) hierarchy that Broome’s initial attempts to adopt and absorb certain aspects of Indian cultural identity, and his subsequent literal renunciation of British nationality (a necessary precondition to taking Indian citizenship), gain such significance.

Broome’s decision to seek Indian citizenship, and the nation’s willingness to accept his fealty and continued service (indeed, the decision of the serving Prime Minister to intervene on his behalf), illuminates interesting aspects of ‘citizenship’ and ‘nationalism’ in the young Indian republic. Even given India’s substantial racial and religious diversity, it is significant that the imagined ‘India’ of the 1950s was perceived as being so potentially broad in its scope as to encompass even nationals of the former occupying power. Nehru’s vision of the ‘Indian’ civic community was not defined even in terms of place of birth (much less race or religion) or by virtue of consistent, unflagging support for the Indian national project. Although Broome was by no means the only British national to reside in India after Independence,[9] the novelty of his circumstances is demonstrated by the fact that Broome’s desire for Indian citizenship exposed an awkward omission in Indian citizenship laws at the time – that Broome could not immediately transfer from British to Indian citizenship (losing the former in the process), but was required to first renounce his British nationality before progressing (from a brief interval of statelessness) to Indian nationality.[10] The fact that this lacuna existed (at the time) is less important as a marker of contemporary political attitudes than the efforts taken by Nehru to barrack for Broome’s claims and to assert his right to Indian nationality should he so choose.[11]

Admittedly, Nehru (and India’s) willingness to accept Broome as a citizen does not demonstrate a wholly ‘political’ conception of citizenship – as Nehru’s testimony (extracted above) to Broome’s ‘Indianisation’ demonstrates. (Interestingly, Broome’s efforts to raise his children as Hindus did not extend to his own creed; Broome, like Nehru, was not personally religious.) However, even the extent of Nehru’s indifference to Broome’s personal history (as an Englishman and ICS officer) attests to Chatterjee’s notion that the ‘dominant elements of [Indian nationalism’s] self-definition’ (distinguishing itself from the prior order’s ‘rule of colonial difference’) were drawn from liberal-democratic ideology (regardless, for the moment, of the contradictions inherent in how these applied in practice).[12] This bears upon the extent (and potential boundaries) of the prospective Indian community – where the ‘deep, horizontal comradeship’ inherent in the national community[13]  may exist on the level of shared affinity for a present political dispensation (that is, the contemporary nation-state itself) rather than solely by reference to antiquity of residence in a particular place, or resulting cultural, religious or linguistic heritage (that is, departing from traditional principles of ‘collective belonging’ in other nations). Broome serves as an illustration (at the outlying edge) of this principle, applied to differing degrees throughout the Indian national project (and its toleration and accommodation of difference) – what Varshney describes as a nationalism defined in terms of ‘a common future or a common purpose’, as distinct from ‘a common past or from common origins’.[14] His life hence exemplifies a certain strand of Nehruvian ideology.

Ideals of universalism, tolerance and religious pluralism are currently under attack – in the Middle East, in India, in Europe and in the United States. The notion that a national community can transcend religious, linguistic and racial divides (and can instead derive from shared commitment to that nation) faces rhetorical scorn from conservative politicians and pundits and violent reprisals from an intolerant fringe. At this historical moment, there is value in acknowledging that nations are not fixed, ahistorical constructs, and ethno-sectarian models of community are not an inevitable or uncontested model; there are other viable (even admirable) sources around which such communities may be imagined and constructed. Broome’s life demonstrates that the Indian national community can be broad enough, and inclusive enough, to transcend even the divide that the Empire attempted to construct between coloniser and colonised; his own life, and the intellectual climate that accommodated him, demonstrates the possibility of an ‘alternative modernity’, a spirit of tolerance and respect drawing upon both ‘western modern and indigenous traditional cultural systems’.[15] This inclusive spirit (extending at one reach to encompass the inclusion of Broome within the Indian nation, but also allowing the national community to transcend other divides of race, culture and religion) must be defended and preserved.

Douglas McDonald previously worked as a solicitor with Craddock Murray Neumann Lawyers, Sydney. He is grateful to the editors of Law and Other Things for the opportunity to publish this post.


[1] A full list of these judges is provided in Appendix I of Becoming Indian.
[2] Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (revised ed, 2006) (“Imagined Communities”), p.184. The use of such classification as a means of control is further explored in the work of Bernard Cohn.
[3] Jawaharlal Nehru, ‘Grant of Indian Citizenship to William Broome’, Note to Secretary General, MEA and Finance Secretary, New Delhi, 30 March 1958.
[4] Imagined Communities, p.92.
[5] Ibid.
[6] With the status of Anglo-Indians, in particular, mirroring Anderson’s ‘irredeemabl[e]… creole[s]’ in the Spanish Americas, barred from vertical ascent or horizontal transfer within the Empire: ibid, p.58.
[7] Ibid, pp.60, 110.
[8] Ibid, p.111.
[9] See e.g. Ramachandra Guha, ‘The Other Side of the Raj’ in An Anthropologist Among the Marxists and Other Essays (2001), pp.126-137; Geoffrey Moorhouse, Calcutta (revised ed, 1998), pp.262-263.
[10] Jawaharlal Nehru, ‘Grant of Indian Citizenship to William Broome’, Note to Secretary General, MEA and Finance Secretary, New Delhi, 30 March 1958. For more details, read Becoming Indian.
[11] Ibid; Jawaharlal Nehru, ‘Citizenship for William Broome’, Note to Home Ministry, New Delhi, 16 May 1958.
[12] Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (1993), p.10.
[13] Imagined Communities, p.7.
[14] Ashutosh Varshney, ‘Contested Meanings’ in Battles Half Won: India’s Improbable Democracy (2013), pp.105-107.
[15] Rajeev Bhargava, ‘Liberal, Secular Democracy, and Explanations of Hindu Nationalism’ in The Promise of India’s Secular Democracy (2010) p.259.