JOURNAL: Law and History Review XLI (2023), No. 2

 

(image source: CUP)

Law, Courts, and Constitutions in Twentieth-Century South Asia (Saumya Saxena & Alastair McClure)
DOI 10.1017/S0738248023000093 (OPEN ACCESS)
Abstract:

This special issue brings together scholars from multiple disciplines and with varied research and geographic expertise to study the historical role played by the law in governing the political, social, and cultural life of twentieth-century South Asia. These articles have not emerged in a vacuum, but rather build on an exciting turn in South Asian history that is placing new focus on the legal and constitutional work that accompanied the post-colonial moment. This introduction examines some of the important historiographical and methodological interventions made by scholars working in this field, before outlining the specific themes connecting the articles in this issue.

The Drafting of the Constitution of the Union of Burma in 1947: Dominion Status, Indo–Burmese Relations, and the Irish Example (Donal K. Coffey)
DOI 10.1017/S0738248022000487 (OPEN ACCESS)
Abstract:

This paper aims to consider four elements of Burmese constitutional history between 1946 and 1948. The first section considers the negotiations between Burma and the United Kingdom and argues that the debate about whether Burma wanted Dominion status has overlooked the crucial transitional government period. The second section gives a brief overview of the drafting process, paying particular attention to the links between the Indian Constituent Assembly in Delhi and Rangoon. The third section outlines the comparative influences on the Burmese Constitution using the digital humanities and illustrates that the biggest foreign influence was the Irish Constitution of 1937. The final section looks at the Burmese political leadership after World War II along two dimensions—at a nationalist level and at an elite level—and traces some of the links between Burma and Ireland.

Nepal's Constitutional Foundations between Revolution and Cold War (1950–60) (Mara Malagodi)
DOI 10.1017/S0738248022000724 (OPEN ACCESS)
Abstract:

The 1950s represent a foundational decade in Nepal's constitutional history. In the wake of decolonization in British India, the “year 7 revolution” (1950–51) grew out of the alliance between King Tribhuvan Shah and Nepal's democratic political parties created in India against the Rana autocratic regime in Kathmandu. Eventually the pro-democracy forces prevailed, and a crucial political transition began. Two constitutions were promulgated, the 1951 Interim Constitution and the 1959 Constitution. Both short lived and only partially implemented, these documents, however, laid the foundations of Nepal's constitutional edifice for years to come. Constitution building became a marker of sovereignty understood in terms of independence and an assertion of popular sovereignty. However, in the fraught Cold War context, the preoccupation with securing political stability by constitutional means that centered around the Shah monarchy prevailed, even at the expense of democracy. As such, the shift from a traditional notion of sovereignty from above to a modern concept of sovereignty from below remained incomplete. These aspirations, however, were not extinguished even by 30 years of royal autocracy under the Panchayat regime (1960–90) and lived on to this day to inform demands for constitutional reform, democratization, and inclusion. The present analysis is based on Nepali primary legal sources, archival material from the United Kingdom and United States National Archives, and the Ivor Jennings Private Papers. 

Constitutions and Modernity in Post-Colonial Afghanistan: Ethnolinguistic Nationalism and the Making of an Afghan Nation-State (Elisabeth Leake) 
DOI 10.1017/S0738248022000530 (OPEN ACCESS)
Abstract:

In recent decades, the rule of law has not been commonly associated with Afghanistan. Instead, its politics have been more likely to be framed in terms of lawlessness and ungovernability. But this trope does not do justice to Afghanistan's longer history of statehood or experiences of constitution-making. Over the course of the twentieth century, Afghan leaders drafted seven constitutions (in 1923, 1931, 1964, 1976, 1980, 1987, and 1990). These constitutions represented leaders’ attempts to assert their legitimacy and enforce their vision of an Afghan nation-state. This article sheds fresh light on Afghan elites’ top-down framing of Afghan national identity through ethnolinguism, exploring the legalization of Pashto as both an official and national language in Afghanistan's constitutions. Reformers intended Pashto to transgress community, kinship, and regional boundaries and act as a source of unity (though one in which ethnolinguistic minorities had little say). Tracing Afghanistan's constitutional history from 1923–90, this article reveals language as a constitutional arena for debating Afghan modernity and identity. As such, this article integrates Afghanistan into legal histories of South Asia while emphasizing how Afghan constitutionalists engaged in the process of law-making as a means of expressing Afghanistan's own independence and ideas of modernity.

Negotiating Nationhood: Constitutional Warfare, International Law, and the Birth of Bangladesh (Cynthia Farid) (OPEN ACCESS)
DOI 10.1017/S073824802300007X
Abstract:

This paper argues the Government in Exile (GIE), the first government of independent Bangladesh, played an important role in framing the founding moment in legal terms. The GIE's constitutional warfare through its adherence to legalism, and subsequent internationalization of the conflict significantly shaped the independence movement of 1971. The GIE was composed of leaders who were lawyers, economists and other intellectuals who sought refuge in neighboring India. The agency of the founders and their allegiance to constitutional principles catalyzed the founding moment, oversaw the transition to an independent state and ultimately led to a swift adoption of a constitution that endures despite much instability. This national struggle of 1971 also played out in the international arena. In the process, lawyers from the so-called Third World articulated, reshaped, and generated new debates about international legal principles such as sovereignty, territoriality, and self-determination (and criterion for legitimacy of exiled governments)—most of which were considered to be well-settled at the time.

Policing Sati: Law, Order, and Spectacle in Postcolonial India (Saumya Saxena)
DOI  10.1017/S0738248022000591 (OPEN ACCESS)
Abstract:

This article explores the response of the postcolonial state to the question of widow immolation – sati. It demonstrates that the conversation on the practice of sati at the high point of Hindu law reform in the 1950s reflected the simultaneous pressures on the new democracy to establish rule of law while also accommodating the renewed reverence for tradition and religious custom in an independent nation state. Distinct from the colonial response to sati that treated women as either “helpless and pathetic” or “brave and valiant,” post-independence police records describe women committing sati mostly as “insane” or “not in their senses,” and yet chiefly responsible for their actions. The article contrasts administrative and parliamentary narratives of the crime. Local belief in miracles surrounding the performance of sati not only obscured the experience of the woman's suffering but also made collection of evidence in such a case particularly difficult. This rendered convictions of the abettors of such “painless suicide by insane women” weaker. Legal interventions in sati eventually prompted administrative responses to shift from emphasizing the “uncontrollability” of the spectacle to deeming the spectacle a necessary precondition in distinguishing a sati from suicide.

Killing in the Name Of? Capital Punishment in Colonial and Postcolonial India (Alastair McClure)
DOI 10.1017/S0738248022000335 (OPEN ACCESS)
Abstract:

Unlike whipping, which was quickly abolished following independence, India has continued to hold tightly to the noose’s rope and remains a retentionist country to our present day. Notably, though the number of executions would fall dramatically in the first decades of India’s postcolonial history, the list of crimes made punishable by death has grown ever longer in recent years. Rather than positing the continued presence of the death penalty as an anachronism ill-suited for a modern democracy, this article takes seriously the legal and discursive developments that allowed the most infamous of penal institutions to travel safely across India’s twentieth century. From something that begun as a distilled expression of racialised colonial state power, like many other state institutions during this period, the death penalty would undergo a series of changes to remain relevant amidst new organizing political principles of representative democracy and popular will. Moving from the first formal efforts at abolition in the 1920s, through constitutional assembly debates in the 1940s, and Supreme Court judgements between 1967-83, the article positions capital punishment as a product of both deep colonial inheritances, and a particular process of postcolonial translation. Becoming fully couched in the language of popular sentiment by the culmination of this legal transformation, this violence would become well-positioned to grow within a national political culture increasingly organised around majoritarian expressions of national belonging.

Mergers and Legal Fictions: Coverture and Intermarried Women in India (Leilah Vevaina)
DOI 10.1017/S0738248023000068 (OPEN ACCESS)
Abstract:

Within India's system of plural personal laws, the rights of women in matters of marriage, divorce, and inheritance are solely based on their natal communal identity. While we see many examples of women appealing to courts to secure or improve their rights vis-à-vis personal laws, marriage outside the community has often occluded these rights completely. Marital property, inheritance, and even access to sacred space are in a gray zone of differentiated rights between natal and marital community customs. One intermarried woman, Goolrukh Gupta, sued the trust that managed the town's sacred space in the High Court to confirm her rights to enter sacred space. The Court ruled that she was removed from her natal community even though she had married under the Special Marriage Act of 1954, as she had “merged personality with her husband.” While British women's property was held under coverture through the nineteenth century, these laws were never transferred over to the Indian colony. Through the legal appeals of intermarried women, this article explores the shifting and unstable rights of intermarried women in India.

Courts and Constitutions in South Asia and the Global South: A View from the Middle East (Faiz Ahmed)
DOI 10.1017/S073824802200058X 
Abstract:

Not long ago, the study of comparative law in U.S. law schools was dominated by North American and European constitutional systems. Thanks to the contributions of a new generation of legal historians, including those canvassed in this special issue, the landscape is changing. In this special issue, scholars of courts and constitutions in twentieth century Afghanistan, Bangladesh, Burma, India, and Nepal have come together to share novel sources, perspectives, and analyses of significant constitutional experiments in the Global South, specifically twentieth century South Asia. This afterword reflects on these important scholarly contributions by highlighting common threads and divergences in the case studies presented in this volume—from the perspective of a legal historian of the late Ottoman Empire and modern Middle East. Ultimately, the author concludes that the articles in this special issue persuasively stamp modern South Asian legal history “on the map” not only for specialists of this large and populous region, but for students and scholars of comparative constitutionalism and global legal history more broadly.

Read the whole issue here.