Elizabeth Kolsky's, Colonial Justice in British India: White Violence and the Rule of Law recently published by Cambridge University Press is a significant intervention into understanding how criminal law comes to operate in India. Kolsky challenges the central justification of British governance, the promise of the rule of law as opposed to the rule of men. The British strove to justify their imperial project, and differentiate themselves from 'personal and arbitrary rule of the Oriental despot' and the 'cruelty and bigotry' of rival empires like the Spanish by appealing to the idea of the rule of law.
Kolsky specifically focuses on cases of white violence i.e. violence committed by Europeans (often planters and soldiers) upon natives to demonstrate that despite a rhetorical stance of legal equality, legal practice and conventions placed most Europeans in India above the law and, in effect, tolerated and condoned widespread physical assault and abuse. She argues that 'This violated the theory of equal protection that undergirded the rule of law and made law complicit in acts of racial violence rather than a guard against them'.
Her book offers much of interest to lawyers. particularly those who are interested in the codification of Indian criminal law. She traces the tensions between Utilitarian attempts at crafting a 'universal criminal law' and the specifics of the colonial context. For instance the first Code of Criminal Procedure secured the legal superiority of “European-born British subjects” by reserving to them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments.
While there have been some challenges made to the colonial nature of our criminal law (most notably in the Naz Foundation case, and in the case of sedition), there has been little attempt to think through the context in which the Indian criminal codes were developed. Kolsky argues that the colonial context, and the 'notion of difference' between Europeans and Indians was central to the project of codificaiton.
It is interesting to note the differences that emerge between Indian criminal law and the law of crimes in Britain. For instance, the Penal Code's treatment of The Code’s treatment of interpersonal violence differed profoundly from that in English criminal law. As Jordana Bailkin points out,
As soon as the fact of killing was proved against a prisoner in England, the law assumed such malice on his part as to make the charge murder; the defense had to prove the facts extenuating the charge. In India, the burden was on the prosecution to show that the accused had had intention to kill.Vernacular newspapers suggested that this ease of defence created a culture of impunity for whites in India.
The Penal Code also provided ways to read down the murder charges. The right of self-defense was expressed in wider terms in India than in England because of Macaulay’s concern about native laziness and passivity regarding physical attacks. A wide latitude on self defence was to help rouse 'manly spirit' amongst Indians. Culpable homicide was not murder if the offender was a public servant who had caused death by an act that he believed to be necessary for the discharge of his duties. If the accused committed the fatal act under grave provocation, then the charge was reduced. As Bailkin notes elsewhere, “Provocation” was not limited to the threat of physical force, but included such acts as failing to work in a speedy manner and using insulting language".
In contrast to English law, the law relating to provocation in India considered the 'relative physical strength of the participants and the ethnic and temperamental traits of the accused'. Indian law also allowed a lapse of time between the provocation and the retaliatory act. Overall, defendants could plead provocation much
more easily in India than in England.
Equally fascinating is Elizabeth Kolsky's engagement with early medical jurisprudence. She examines how a variation of the 'eggshell skull' defence emerged in colonial India, suggesting that native Indians often had enlarged spleens which would be ruptured even when faced with mild force. Thus, exonerating several Europeans who beat their servants to death.
Elizabeth Kolsky has been working on questions on race, violence and criminal law in colonial India for several years now. Her Phd thesis at Columbia University titled 'The Body Evidencing the Crime: Gender, Law and Medicine in Colonial India' examines through rape trials in India, the codification of criminal procedure, the development of medical jurisprudence and the admission of expert testimony in criminal trials. Comparing caselaw of the Bengal Nizamat Adalats and the Indian High Court's Kolsky made the striking discovery that as the colonial legal system became more 'rational and systematic' convictions of rape cases went down.
In her recent article in Gender and History, Kolsky persuasively challenges the narrative of British claims of legal reform that aimed at 'saving Indian women' through the analysis of rape law which "concludes that the modernisation of law and the development of a new medico-legal understanding of rape introduced evidentiary standards that placed a heavy burden on Indian women seeking judicial remedy in colonial courts. The fear imported from Britain of false charges combined with colonial views about Indian culture to make native female complainants doubly dubious." She contends that it is this colonial jurisprudence that has survived to devastating effect in postcolonial India and Pakistan in ways that are explored and explained by the author.
Kolsky's current research project examines criminal law in the North West Frontier Province and engages with ideas of tribe, frontier and Islam and the role they play in the constitution of criminal law.