Literary Review

Race and the colonial court

An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862-1947; Abhinav Chandrachud.  

The famous sedition trial of Bal Gangadhar Tilak in 1908 was one of the few important political cases tried before the Bombay High Court in the pre-independence days. The special jury that ruled in favour of the colonial government and convicted Tilak comprised seven Europeans and two Parsis. Yet, when Tilak, a Chitpavan Brahmin, applied for bail in another case, Justice Mahadeo Ranade — who was from the same sub-caste — rejected it. In fact, it was a Muslim judge, Justice Badruddin Tyabji, who released the nationalist leader on bail.

Racial, caste and communal identities of the judges serving on the Bombay High Court during colonial times have been brought into focus in lawyer and author Abhinav Chandrachud’s latest book,  An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862-1947. Essentially the author’s doctoral thesis at the Stanford Law School, this new addition to legal history explores whether and how these identities came into play in the routine dispensation of justice.

Comparing and contrasting the socio-economic lives of 83 Indian and British judges, the book’s quest centres around the question: Why did the British judicial system survive and transition smoothly into post-independent India?

Racism marked social interactions in colonial Bombay. Indian judges were barred from entering prestigious clubs, had their luggage thrown off trains and were sometimes frowned upon at dinner tables. However, the book finds that such racial friction was not the order of the day at court. Judges such as Tyabji and M.C. Chagla — later the first permanent Indian Chief Justice of the Bombay High Court in 1948 — shared warm relations with their British counterparts. In many cases, similarities in the socio-economic and educational backgrounds of Indian and British judges, and the ‘anglicised’ attitudes of the Indians, provided a common ground for the two and added a measure of equality to their professional and social interactions. Other factors — like the absence of racial bias in routine cases, barring a few exceptions; the backing of Ilbert Bill allowing Indians to exercise criminal jurisdiction over European British subjects in the interior areas; and Chief Justice Lawrence Jenkins’ championing of the Indian side — cemented the court’s credibility in Indian eyes. Thus, after taking over as CJ, Chagla “openly declared that the Bombay High Court would do well to maintain its old British traditions even in independent India.”

Some of the book’s telling aspects are the pointers it provides to the privileged social position of Indian judges here vis-à-vis the subordinate status of British judges in England. Hindu judges of the time were either Brahmins or upper caste. They came from relatively affluent homes, were sons of fathers engaged in service and had the access to Western education. In contrast, a large number of British judges belonged to the marginalised and so-called ‘Celtic fringe’ categorised with the middle-classes.

The book critically examines race in the legal profession at length, but stops short of putting the same critical lens to the role of caste. One reason could be that there were no Indian judges from the depressed castes. Chandrachud offers some insight into this: “... given that western-educated Indians in the Bombay Presidency were usually Brahmins, and the government there hesitated to make education very accessible to the lower castes fearing that it would upset the higher castes, who helped bolster the status quo.”

While the book throws some light on the racial and non-racial attitudes of the British — Bombay Governor Lord Willingdon wanted to do away with what he called the ‘damning racial exclusiveness’ of the clubs — it does not interrogate the caste-consciousness of the Indian judges. Justice Narayan Chandavarkar, a Gaud Saraswat Brahmin, was ‘an outspoken critic of the caste system’, but we are not told what his views were. If the book concludes that the court was not a site of racial discrimination, was it also not a site of caste discrimination?

The use of the white supremacist term, ‘natives’, by the Indian judges, their choice of Latin over Sanskrit for study shows that despite their occasional political positions against the imperialist government, they identified largely with their British counterparts.

Making a departure from the anecdotal approach of previous historians, Chandrachud’s scholarly work gives ample statistical data and research to support his analysis. Nevertheless, the section on ‘civilian’ judges, who were drawn from the Indian Civil Service, is strewn with hilarious tales from the courtroom and adds a welcome dose of comic relief. Praised by legal luminaries for its breadth of research, the book’s exploration of racial, caste, class and religious locations gives a deeper understanding of the colonial judiciary in Bombay.

An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862-1947 ; Abhinav Chandrachud, Oxford University Press, Rs.895.

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Printable version | Nov 23, 2020 2:18:55 PM | https://www.thehindu.com/books/literary-review/review-of-an-independent-colonial-judiciary/article7407557.ece

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