Kolsky's work on colonial justice in India in the context of crime and violence by Europeans in India is an important intervention in scholarship on colonial legal history in India, an area of research neglected by both historians and lawyers. In highlighting the failure of legal equality and the role of race in the making of such law, the arguments made in this book differ from previous scholarship on legal history such as that of Radhika Singha (A Despotism of Law: Crime and Justice in Early Colonial India, New Delhi: Oxford University Press, 1998), who has emphasized the reflection of the moral and political dilemmas of the colonizers themselves in the making of colonial law. Kolsky's work also differs from more recent scholarship such as that of Mithi Mukherjee (India in the Shadows of Empire: A Legal and Political History 1774–1950, New Delhi: Oxford University Press, 1998), whose discursive history of justice as a category in India seeks to understand justice in the context of colonial institutions themselves.
The book begins with a description of the violence by non-official Europeans and the dilemmas of the colonial administration in regulating such violence. Kolsky asserts that the response to such violence was the codification of law that offered equal protection, but instead institutionalised racial inequality by delineating a number of race based privileges including juries with European majorities for Europeans, and Europeans not being subject to trial by Indian magistrates. Kolsky then investigates how conceptions of racial and cultural difference found its way into the codification of the law of evidence. The emphasis on scientific facts led to other forms of evidence such as oral evidence being treated as unimportant. Colonial stereotypes of Indians being dishonest and untrustworthy influenced the manner in which rules of evidence were framed i.e. the scope of admissibility being extremely wide (contrary to legal trends in England) in order to allow for all kinds of evidence. The appearance of an ethnographic “Indian” medical jurisprudence related the racial physiognomy, customs and practices of people in India to their predisposition and manner of carrying out crime. Stereotypes of the bodily weak Indian were reflected in court decisions exonerating Europeans from crimes against Indians on the ground that that the internal constitutions of Indians were weak.
In drawing the linkages between law, colonialism, and violence, Kolsky examines indentured labour in Assam and the consequences of the penal contract, which allowed British planters to levy criminal punishment on labourers for non-fulfilment of their contracts. In arguing that violence by Europeans was an everyday fact that often went unpunished, she provides us with various cases of violence against Indians involving Europeans from diverse backgrounds ranging from planters to British soldiers.
Despite the book being rich in historical detail, it does not go far enough in providing an explanation of the nature of colonial violence. Kolsky's argument is that the special nature of colonial violence lay in it being condoned and unpunished despite the establishment of the rule of law. Colonial law thus sustained and normalized certain forms of violence against the colonized. Kolsky, however, does not provide us with the basis for her presumption that equality is conceptually inherent in the rule of law. She fails to analyze the limits and conditions that allowed concepts such as equality and the rule of law to operate in colonial India. Her failure to analyze the same leave conflicting narratives, such as the colonial regime's efforts to legally regulate unruly Europeans, and the contestation of racial distinctions by colonial administrators such as Macaulay, unaccounted for. Her account of colonial violence becomes reduced to an account of violence itself, which is particularly apparent in her narration of the rape of a Burmese woman by a British army regiment and the inadequate legal action taken. Was not disregard for the rape victim's testimony related to legal frameworks on evidence? How was the British army regiment's action different from armed forces in occupied countries in the post-colonial world? What was the role of scientific fact when confronted with cultural stereotypes? What allows us to describe this incident or other incidents of violence as being “racist,” “sexist,” or culturally biased? These are questions that Kolsky requires to pursue in order to theorize colonial violence adequately. Despite its failure to address these questions, the book is highly recommended for its painstaking analysis of unfamiliar archival materials and texts which many historians, lawyers, and South Asian studies scholars will find useful.
