Colonial Law Research Articles

Stirring the Ashes

This article draws on participant observation in a legal battle at the Quebec Superior Court in 2022, where the Kanien’kehá:ka Kahnistensera (Mohawk Mothers) sought an injunction to halt excavation work around a hospital where Indigenous victims of medical experiments were allegedly buried. In response to a motion from the government of Quebec, the Mohawk Mothers refused to use a lawyer who would obey colonial law, arguing that it was their traditional duty as caretakers of the territory to speak for themselves and for their community without legal representation. This article examines their fight for self-determination through their specific understanding of the relationship between individual autonomy and social responsibility, notably by way of the Kanien’kehá:ka’s use of a single word to denote assemblies, fires, and families: Kahwá:tsire’. To reach a consensus, when it seems that everyone has come to an agreement, the Kanien’kehá:ka council must “stir the ashes” and ask everyone who has not spoken yet to voice their opinion and bring their unique perspective in the balance. As a result of this method, the author suggests that the Kanien’kehá:ka simultaneously take on the roles of legislators, executors, and judges all at once.

Reforming Post-Arrest Bail in Pakistan: Lessons from a Comparative Study with India

This research paper presents a comparative analysis of the legal frameworks governing post-arrest bail in India and Pakistan, with a focus on the statutory provisions, judicial interpretations, and procedural safeguards that are involved. Although both states share a common legal heritage which is rooted in British colonial law, however, they have diverged in their approaches to bail, which are influenced by their respective constitutional mandates, legislative developments, and sociopolitical landscapes. This comparison is essential in order to understand how these legal systems are balancing individual rights with societal security and how judicial discretion are shaping bail in each country. For this purpose, this paper examines constitutional provisions besides main statutory provisions of the Indian and Pakistani criminal procedural laws, the role of judicial discretion and evolving jurisprudence of the post-arrest bail. This study offers insights into potential legal reforms, with an aim to enhance fairness and consistency in bail practices, through juxtaposing these principles in India and Pakistan. This study concludes that Pakistan should consider restructuring its bail procedural laws and system, and it suggests reforms taking into account the benefits of India’s progressive legal framework, to ensure consistency, fairness, and the protection of individual rights. This research also recommends future studies on balancing bail and incarceration, through focusing on judicial discretion and the application of the principle of proportionality.

Adivasis as Ecological Warriors: Colonial Laws and Post-Colonial Adivasi Resistance in India’s Jharkhand

The growing divide between the capitalist mode of development promoted by the state and the participative development model suggested by the people has brought ecology, environment, and existence to the core of all contemporary debates. The Adivasi (indigenes) who constitute 8.6 percent of the entire population of India are engaged in a constant battle to save their ecology and landscape. Represented as communities whose existence is intertwined with ‘Jal, Jungle, Jameen’ (water, forest, and land), Adivasis are the most prominent communities facing dispossession and displacement from their roots to further the ideology of development in which they have no stake. The notion of Adivasis as ‘savage’, ‘primitive’, and ‘backward’ communities that are incompetent of ‘developing’ themselves, resulting in their ‘backwardness’ gets carried over from the colonial to the contemporary period. Exposed to the processes of mining and industrialisation, Adivasis and their ecological resources have been exploited since the colonial period to suit the development model of the state. The Adivasi notion of selfhood was overlooked in the process of making the areas inhabited by them zones of ‘exclusive governmentality’. The paper argues and analyses this transformation process of Adivasis into ecological warriors; a process in which they used their shared, remembered and lived past to assert their customary rights. Basing the study on three environmental movements of state of Jharkhand in Central India, namely the Koel-Karo movement of the 1980s, the Netarhat movement of the 1990s, and the Pathalgadi movement of 2017–18, the study underlines that the Adivasi of Jharkhand anchored on their customary rights as a weapon, to protect their ecology and landscape against various state-sponsored development schemes. Drawing on the methodology of field investigation, interaction with the NGOs, government reports and media reports, the article argues that these community struggles are rays of hope for a global ecological future.

New Provisions for Police Officers in BNSS

On July 1, 2024, three historic criminal laws—the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhinayam (BSA)—replaced three antiquated statutes from the British colonial era in India. The new laws aim to improve India's criminal justice system and offer a more effective framework for dealing with criminal activity. The main points of the BNS, which aims to replace the Indian Penal Code (IPC), which was created a century ago, will be covered in this article. The BNS worsens the retributive system by introducing wide and imprecisely defined offenses, upholding crimes with roots in outmoded moral principles, and continuing the growth of state and police authority. It is argued that the main goal of the legislation's drafting appears to be to provide the impression that colonial legacies—that is, obsolete colonial laws—have been abandoned, all the while advancing a nationalist agenda meant to instill a sense of patriotism in the general populace.

Revisiting Criminal Law Bills: An In-Depth Critical Analysis of Bharatiya Nyaya Sanhita Bill and Bharatiya Nagarik Suraksha Bill

Abstract In an attempt to revise the criminal laws, India has introduced three new criminal law bills in the Lok Sabha in August 2023, which later received a few recommendations from the parliamentary committee and recently got a nod from the President of India. These bills have been diligently formulated after consultation with the apex court, the high courts, some of the most renowned law universities in the country, and other experts in the field. However, there have been a lot of drafting errors in the new bills. Since the time it has been introduced, it has been highly criticized by all the scholars and lawyers across the nation. The idea of overhauling the criminal law acts was to go away from the colonial law provisions and frame the laws with Indian context. The IPC will be changed after around 163 years. However, the author believes that the colonial laws remain intact in the new bills. This article has seen all the changes that new bills are cringing providing special focus to the Bharatiya Nyaya Sahinta (BNS) and Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The author has mentioned all the changes brought in the BNS and BNSS and the critiques of the new bills.

The Telecommunications Act, 2023: Solidarity Between Democracy and Totalitarianism

ABSTRACT With the coming of a surveillance culture, even minute aspects of human life are being observed, collected, analyzed, and stored by institutions in charge of surveillance. On the other hand, the same does not apply to the institutions which are surveillant of the lives of individuals. Such phenomenon can be observed via various technologies of power prevalent in societies. One such technology of power is legislation passed by the State to access, control, analyze, disseminate, or store the personal information of citizens. This article analyses the Telecommunications Act, 2023 which has been hailed as a move towards decolonization by repealing the former colonial laws over telecom services. The article discusses various attributes of the 2023 Act to analyze the means through which the usage of biometric systems of identification leads to violation of the fundamental right to privacy, as envisaged by the apex court of India in the landmark judgment of Justice K S Puttaswamy (Retd) v Union of India and other judgments before and after. The article also argues how the works of Giorgio Agamben and Didier Bigo on a permanent state of emergency being materialized through surveillance of minute aspects of human life and consequently marks a shift towards totalitarian tendencies of governance.

Chinese cemeteries in Indonesian colonial and post-colonial urban areas: Resistance, urban expansion, nationalistic aspiration, and post-colonial governmentality

Chinese quarters played a significant role in numerous Southeast Asian port cities, with Chinese trading communities thriving for hundreds of years. The proof of the importance of these communities is evident in the presence of Chinatowns and Chinese cemeteries, serving as places for both living and death, in several coastal cities in Southeast Asia. This study investigates Chinese cemeteries in Semarang’s spatial city structure during the colonial period and the gradual transformation of these cemeteries in post-colonial Indonesia amidst turbulent urban development and political conditions. In post-colonial Southeast Asia, city development serves as a platform for nationalistic aspirations. This article explores the roles of Chinese cemeteries as an act of subversion against colonial laws and their gradual disappearance due to city expansion in post-colonial Indonesia. The exploration through the colonial policies concerning land and the placement of the Chinese community, followed by post-colonial policies and urban governmentality on city development and real urban growth practices, provides an opportunity to discuss the roles of Chinese cemeteries for the Indonesian Chinese community in Semarang and their fate in post-colonial urban areas of Indonesia.

Between Code and Custom: Middlemen as Agents of Legal Transformation in Early Anglo-Egyptian Colonial Sudan

Departing from narratives that simplify colonial law as a top-down imposition, this work reveals how middle-ranking British officials were pivotal in shaping a hybrid and strategically manipulative legal system within Sudan’s Anglo-Egyptian Condominium. Focusing on inspectors lacking formal legal training, the analysis highlights their crucial role in exercising wide legal discretion to selectively blend elements of British Penal Codes, customary law, and a distorted interpretation of Islamic law. This pragmatic approach, driven by the interests of colonial control, allowed for the selective application of certain Islamic legal principles, even within British criminal courts, by subsuming them under the vague term "Mohammedan Law." The case of Sir Harold MacMichael offers insights into this broader trajectory, illustrating how these middlemen, themselves shaped by the colonial system, wielded agency to transform legal frameworks. Ultimately, this article demonstrates how colonial legal systems were dynamic and contested sites where hybridity was a tool of control, shaped by the selective use of Islamic elements, extensive legal discretion, and a pragmatic focus on maintaining power.

Extending the formal state: the case of Pakistan's Frontier Crimes Regulation

AbstractWhy do modern states allow parts of their territory to be governed by non‐state actors? We study this question using the Frontier Crimes Regulation (FCR) in Pakistan, a British Colonial law abrogated only in 2018, which left governance to pre‐colonial tribal councils in large parts of modern day Pakistan. In areas where the FCR did not apply, the British and then Pakistani state built modern political and bureaucratic institutions. Using primary legal documents, we build a dataset of when and where the FCR applied between 1901 and 2012. The territorial extent of the formal state is both cleanly demarcated by this law and varies substantially over time, permitting an empirical examination of the determinants of state control. The data reveal that the Green Revolution's potential to transform agriculture played a major role in extending the formal state. The law was repealed first from areas where agricultural productivity benefited the most from the Green Revolution. This is consistent with a model in which technological changes that shift the returns to control influence where states choose to govern.

The Rev. John Stainsby and the ‘diffusion of Gospel truth’ in Early Nineteenth-Century Jamaica

First dispatched to Jamaica in 1818 by The Conversion Society, the Rev. John Stainsby became a prominent figure on the island. This article examines his intense involvement in Anglican missionary affairs to reveal how dishonesties and concealment of belief were used to expand Anglican missions in the Caribbean. Firstly, this article examines two key sites of contention between missionaries and the plantocracy – Sunday markets and baptism – where Stainsby used deception to reconcile his religious duties and colonial law. Secondly, it considers the motivations and actions of The Conversion Society and the Church Missionary Society more generally, including the heavily censored material used for religious instruction. Finally, it examines Stainsby as an enslaver, and considers the religious justifications used to support enslavement by many resident Anglican clergymen in the early nineteenth century.

Colonial-Imposed Slavery and African Abolitionism: The Early Twentieth- Century Lagos Elites’ Campaign Against the Native House Rule Ordinance

ABSTRACT This article examines the efforts of early-twentieth-century abolitionists in Lagos, Nigeria who campaigned against the Native House Rule Ordinance/Proclamation, a colonial law perceived as perpetuating indigenous slavery in the Niger Delta region. The study enriches the corpus of African abolitionist literature by revealing how a network of Lagos elites employed a strategic top-down approach to advocate for the law's repeal, which they believed sustained a form of slavery instituted by British colonialism. The research utilizes an extensive range of primary sources, including local Nigerian newspaper publications, correspondence, petitions, and archival documents from both Nigerian and British repositories. The paper contextualizes the Native House Rule system, explores the Lagos campaigners’ strategies and arguments against the ordinance, and discusses the law's amendment and eventual repeal. Through detailed case studies and the examination of African-led initiatives, the study acknowledges the previously understated contributions of African activists, thereby rectifying a significant oversight in historical literature. This paper underscores the importance of recognizing indigenous agency in historical narratives, particularly in the context of abolition and resistance to colonial policies.

On the Origins of Invalidation of British Colonial Legislation by Colonial Courts: The Van Diemen’s Land Dog Act Controversy of the 1840s – Part One

ABSTRACT By 1865 British Imperial governments had accepted that colonial courts had the authority to invalidate colonial statutes which contravened the relevant colony’s constitution. This situation arose notwithstanding the lack of any express grant of such jurisdiction to colonial courts in Imperial or colonial legislation. This paper evaluates the first instance of a colonial court asserting that jurisdiction, during the Dog Act crisis in Van Diemen’s Land (Tasmania) in the 1840s. Part one of the paper charts the background to, conduct of and judgment in the relevant litigation. The second part, which will appear in a future issue of this journal, explores the consequential attempts of the colony’s Governor to remove the judges from office and to re-enact the invalidated colonial law. The suggestion made is that the Dog Act controversy provides considerable insight into how, despite the absence of any explicit statutory grant of such jurisdiction, the power of judicial review of colonial legislation by colonial courts became established as an orthodox element of British colonial constitutional law in the latter nineteenth century.

News media coverage of LGBT identities over 10 years in a 400-million-word corpus.

This study is the first to analyze LGBT portrayals in a news media dataset over a decade (2010-2020). We selected Singapore as a country of interest, emblematic of a nation grappling with state-encouraged heteronormativity and a remnant colonial law against homosexuality (377A), fraught with calls for its repeal that was only enacted in 2022. Our study is interested in this period bookended by challenge and change, particularly in newspaper portrayals of LGBT narratives. Newspapers are an important source of current information and have the power to shape societal perceptions. We lay the groundwork and provide a framework to analyze news media narratives of other Commonwealth nations with colonial pasts and inherited laws criminalizing LGBT communities. This study analyzes LGBT portrayals in a 400-million-word news media dataset over a decade (2010-2020). First, we aimed to track the volume of LGBT media coverage over time and elucidate differences in coverage of different identity markers. Second, we aimed to track sentiments on LGBT portrayals. Third, we aimed to track salient narratives circulated about LGBT stories. The study leveraged a 400-million-word corpus from news media in Singapore, identifying the following target keywords: LGBT, Lesbian, Gay, Bisexual, Transgender, Pink Dot (a local Pride event), 377A. First, coverage volume was tracked using annual changes in keyword mentions per million, elucidating differences in coverage of different sub-groups. Second, sentiment analysis on a valence scale was conducted on LGBT collocates. Third, we distilled salient narratives about LGBT identities using thematic labelling of top-frequency collocates. First, overall coverage of LGBT steadily increased over the decade, though Gay identities evidenced asymmetrical coverage-outstripping 'Bisexual' keywords by seven times, 'Lesbian' by four, 'Transgender' by two. Second, sentiment scores for Pink Dot (a local pride event) were most positive; Lesbian, Gay, LGBT, Transgender were neutral; Bisexual and 377A dipped slightly negative. Third, topics differed across the four identities: uniquely, 'Lesbian' collocates related to sensationalized cinema; 'Gay' about hate crimes; 'Bisexual' about population surveys; 'Transgender' about challenges (transitioning, alienation, suicide). Practically, we presented a decade-long barometer of LGBT sentiments and themes on a national level, providing a framework to analyze media for more effective communication strategies-applicable to Commonwealth countries with similar inherited colonial laws. Salient repetition through media association may unwittingly frame certain issues negatively; caution is prudent in representing each sub-group adequately, rather than portraying the LGBT identity as monolithic.

Colonial laws, postcolonial infrastructures: Land acquisition, urban informality, and politics of infrastructural development in Pakistan

This article traces (dis)continuities in colonial logics across disjunctures of decolonisation and democratisation through a large infrastructure project in contemporary Lahore, Pakistan. Analysing Lahore’s Orange Line Metro Train, a project constructed under China Pakistan Economic Corridor (CPEC), the article shows how colonial extractive and racial logics can limit the redistributive potential of typically inclusive infrastructures like mass transit by continuing to shape the conditions of their development and (re)producing precarious configurations of citizenship in the postcolony. It finds that Pakistan’s colonial-era land acquisition law erased a range of land relations and rights from recognition and thus compensation by the state. In an instance of informal policy making, the state eventually created an ad hoc ‘grant-in-aid’ scheme to compensate landowners in informal settlements. However, the scheme continued the property centric politics of recognition embedded in the expropriation law by only compensating people with long-term land claims. The public script of the scheme invoked welfare obligations of the state but structured these through moral-legal norms of property. The postcolonial state thus bypassed the transition from colonial subjects to citizens and instead repositioned people as humanitarian subjects. The article thus highlights the contradictions of developing subsidized public infrastructure in postcolonial cities, where construction becomes another conduit of imposing land commodification and disciplining pro-poor self-built neighbourhoods that have escaped the rigidity of private property.

Traveling Outside of Time: Speculative Futurism and Environmental Justice

Subash Limbu’s recent science fiction film Ningwasum (2022) interrogates the contours of memory and futurity in relation to pressing concerns of climate change and indigenous rights. The experimental mode of the film provides a platform to question the linearity of time and its association with a teleological model of history that leads to a seemingly inevitable future. What happens, the film asks, when different ways of imagining the future lead to alternative trajectories. In this paper, I am interested in how the film responds to some of the foundational principles of colonial law and governance. For example, I examine how using the Limbu language in the film challenges Thomas Macaulay’s claims in his “Minute on Indian Education” that the English language is uniquely capable of conveying ideas of science and modernity. At the same time, I also consider the film’s representation of the Adivasi (first people) Yakthung community and its relationship to the postcolonial state. Drawing on theories of Afrofuturism that Limbu identifies as providing inspiration for the film, I frame the film’s political, artistic, and legal interventions within a global movement to interrupt predictable futurities.

Material modernities: Tracing Janbai’s gendered mobilities across the Indian Ocean

AbstractThis article uses techniques of microhistory to explore how Janbai, the third wife of Sir Tharia Topan, exerted economic, religious, and social influence in Indian Ocean networks. An Ismaili woman from a Gujarati trading family who lived in East Africa, Janbai lies outside of the social worlds that have dominated studies of Muslim modernity in South Asia, which centre on Sunni male professionals from North India. Janbai was illiterate and largely disconnected from textual debates about modernity. In fact, she was just the sort of woman that reformers castigated for their supposed attachment to religious superstitions and customary practices. In contrast, studying Janbai through an alternative frame of ‘material modernity’ reveals the complex biography of a women who neither conformed to the idealized ‘new’ woman, nor simply reproduced inherited practices. Instead, she navigated rapid social mobility, shifting geographies, and new technologies and institutions, particularly colonial law courts, in ways that echoed and departed from how women had long exercised agency. The article argues that scholars, by foregrounding textual archives and discursive analysis, have tended to reproduce the marginalization of women like Janbai. In contrast, looking to sources such as jewellery and photographs, and reading textual archives with greater attention to gendered patterns of consumption and investment, brings Janbai from the margins to the centre of our understanding of modernity. In addition to enriching our understanding of the lives of women, increased attention to materiality and visuality opens up critical new avenues for writing a more variegated history of Muslim modernity.

The Epistemology of Land in an Adat Perspective: Philosophical Aspects of Human Relations With Land in the View of Mohammad Koesnoe

AbstractThe spirit of agrarian law reform in Indonesia has been proposed since 2001, but to date it has not been realized. On the one hand, the existence of adat law as the basis for the formation of national agrarian law as stated in the UUPA needs to be questioned again, whether it actually uses adat law as its raw material, or whether it still uses colonial law. The discussion in this article aims to contribute ideas related to the reform of agrarian law in Indonesia which is based on customary law regarding land. The direction of this reform is based more on the views of adat law expert, Mohammad Koesnoe. The type of research in this article is legal research using a conceptual approach and also a statute approach, and analyzed using historical, systematic and grammatical interpretation methods. The research results show that customary law is still relevant to use as a basis for legal reform in Indonesia while still referring to the rechtsidee of the Indonesian nation as stated in Pancasila. Therefore, agrarian reform in Indonesia should refer to the original law of the Indonesian people, namely adat law.Keywords: Adat Land Law; Agrarian Law Reform; Soil Epistemology.

Comparing Early Modern Colonial Laws

Thearticle presents the research group CoCoLaw (Comparing Early Modern ColonialLaws) to the general academic public. In short, the article will present anoutline of the activities,  research interests (especially thoserelated to the matter of this journal’s issue), and the objectives of CoCoLaw.The article is divided into three sections. The first section presents thegroup and its research, whereas the second explains the connection betweenstudies on “police” or “police regulation,” and the proposal to study “coloniallaw” in early modernity. The third section offers a view of the next steps ofdigitalization and the creation of a database.

Jurisprudential Analysis of the Right to Life and Dignity: A South African Perspective

The purpose of the study is to analyse the jurisprudence of the right to life and dignity as fundamentally protected rights in a South African perspective since the dawn of democracy and Constitution of 1996 hereafter referred to as the Constitution. This paper argues that South Africa as a state in applying the Bill of Rights and the Constitution might have encroached or applied laws that may have compromised justice in so far as the impact from the decisions of the courts are concerned. This paper will therefore examine how the courts have interpreted the law and the protection of the non derogable rights of life and dignity post constitutional democracy. The democratic government has a duty to reverse apartheid policies that stemmed from colonial laws. Apartheid laws segregated people and rights were clustered, and selectively applied along racial lines with a tiny majority of European-Africans as sole beneficiaries of rights while the African majority wallow in rightlessness. The authors will examine how the state interprets these fundamental principles of the constitution since the dawn of democracy. The authors hope that the arguments presented in this paper would assist in understanding the moral justification of the decisions in human rights cases in South Africa as the courts battle their way into the realisation of especially non derogable rights as set out in the Bill of Rights.

Unpacking Early Modern Colonial Law: A Brief Overview of the Literature of the Last Twenty Years

Unpacking Early Modern Colonial Law: A Brief Overview of the Literature of the Last Twenty Years