Mithi Mukherjee bizarre view of the Law

One great advantage of having a wierd Turd World name, for an American academic, is that you can pretend that your own people have only now discovered that they had been fucked over by Whitey. So you get to write books and journal articles dripping with righteous indignation at the fact that Racists were highly racist in their behavior to your own bunch of particularly dim darkies. What's more, you can display stupidity and ignorance of a high order because, clearly, your people were always too stupid and ignorant to work out that they had been fucked over by Whitey even though Whitey spent centuries boasting about having done so. These farcical perorations have to be accepted as genuinely academic work because it would be racist to point out that nobody- not even Bengalis- could have been that stupid and unobservant.

By itself, the phenomenon is quite harmless and a good way to revenge yourself on bien pensant Whites. If patronizing assholes treat you like an imbecile, be the bigger imbecile. It is the Gandhian way. Bal, Pal and Lal, however, were pre-Gandhian. They weren't imbeciles at all. 

Yet, in an article on Tilak's sedition trial, Mithi Mukherjee writes- 

The discourse of political freedom that Tilak articulated so forcefully in this trial would be reiterated in 1922 in another famous sedition trial, this time by none other than Mahatma Gandhi.

Is this true? No. Tilak said he was innocent. Gandhi said he was guilty. Tilak denied there was a connection between his actions and the violence of the Revolutionaries. Gandhi affirmed his responsibility for all violent acts including those of the Moplahs or the mob at Chauri Chaura.

Gandhi said ' I wish to endorse all the blame that the learned Advocate-General has thrown on my shoulders in connection with the Bombay occurrences, Madras occurrences and the Chauri Chuara occurrences. Thinking over these things deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is quite right when he says, that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of this world, I should have known the consequences of every one of my acts. I know them. I knew that I was playing with fire. I ran the risk and if I was set free I would still do the same.

Gandhi's admission explains why he called off the Non-Cooperation Movement. He had thought India was ready for Independence. Then he discovered his error. His zeal for Independence remained. But he knew the thing would be a disaster. Thus the Government must lock him up otherwise more senseless violence would occur. 

This testimony of Gandhi's was very useful to the 'die-hard' Tory faction. They had alway said India could not become independent for many many years. Gandhi agreed. That is why, when Labour was elected, Olivier, not Wedgwood, was made Secretary of State for India. Egypt and Afghanistan and Ireland got independence but India, where Britain was even weaker, had unconditionally surrendered. 

Gandhi's legal analysis reveals that the British Government had a moral responsibility to jail Indian independence activists. Why? They could not stop themselves from sowing sedition even if, like Gandhi, they realized this would lead to great violence and anarchy. They may be medically sane, but, politically, they were insane and had to be incarcerated for the common good.  

Section 124 A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence.

Indeed, one is at liberty to blackguard others if one is impotent to harm their interests in any way. The thing may be reprehensible, but it isn't justiciable. 

But the section under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it; I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section. I have endeavored to give in their briefest outline the reasons for my disaffection. I have no personal ill-will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it to be a virtue to be disaffected towards a Government which in its totality has done more harm to India than any previous system.

But only because those previous systems had been so crap that a small far-away country was able to conquer India and extend its territorial domains and ability to project force in an unprecedented manner. Gandhi & Co may dream of something better for India but they could not say how that dream might turn into reality save by some magical force such that everybody became non-violent and altruistic.  

India is less manly under the British rule than she ever was before.

But that manliness was so derisory that Britain had easily established paramountcy over the entire region- save for the Gurkhas of Nepal with whom the Brits made friends and whom they continue to recruit for their armies.

Holding such a belief, I consider it to be a sin to have affection for the system.

But the guy also thought it was a sin to have sex with his own wife!

And it has been a precious privilege for me to be able to write what I have in the various articles tendered in evidence against me. In fact, I believe that I have rendered a service to India and England by showing in non-co-operation the way out of the unnatural state in which both are living.

Why then did Gandhi unilaterally call off Non-Cooperation? The answer was clear. He had miscalculated. The Brits must lock him up for his own good.  

In my opinion, non-co-operation with evil is as much a duty as is co-operation with good.

But, his opinion, was that Indians must stop Non-Cooperation.  

But in the past, non-co-operation has been deliberately expressed in violence to the evil-doer.

This is silly. We don't call a guy who is beating up a bad guy a 'non-cooperator'. We call him a vigilante.  

I am endeavoring to show to my countrymen that violent non-co-operation only multiples evil,

but Gandhi admits that his nonviolent non-cooperation had the same effect. That is why he is pleading guilty and begging to be sent off to a nice jail cell.  

and that as evil can only be sustained by violence, withdrawal of support of evil requires complete abstention from violence. Non-violence implies voluntary submission to the penalty for non-co-operation with evil.

There is no such penalty. Gandhi may have wanted to pretend that he was being jailed for 'non-cooperation with evil'. But that was not the charge he pleaded guilty to. He was a seditionist. He was also a liar because just a couple of years previously he had said he wasn't any such thing. Now he was saying he had been a seditionist long ago. 

Of course, there is nothing unusual about a politician telling lies. But successful politicians can point to some great benefit that resulted thereby. Gandhi set back the cause of Indian independence. His contribution was to say 'India is not ready' at just the time when the British Parliament was having to accept that Egyptian and Irish Independence. Indeed, the Chief of the Imperial General Staff, at the end of 1921, had titled his farewell speech to the War College- 'The End of Empire'. Britain lacked the military capacity to keep the show on the road. Then Gandhi gave them a reprieve and 100,000 soldiers to garrison the MENA region.

I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is deliberate crime, and what appears to me to be the highest duty of a citizen.

Because, though mentally sane, he was politically insane. 

The only course open to you, the Judge and the assessors, is either to resign your posts and thus dissociate yourselves from evil, if you feel that the law you are called upon to administer is an evil, and that in reality I am innocent, or to inflict on me the severest penalty, if you believe that the system and the law you are assisting to administer are good for the people of this country, and that my activity is, therefore, injurious to the common weal.

Since Gandhi had taken responsibility for much violence, the fact that he did not intend it was merely a mitigating circumstance. He was lawfully sent to jail, though- no doubt- the Government could exercise clemency at some future date. 

Gandhi and Tilak believed British Rule was bad for India. Tilak thought India could do better without the Brits. Gandhi wasn't sure. He panicked and surrendered unilaterally. Morally, he had a duty to oppose the Brits because he was a moral imbecile. But, equally, he had a duty to go to jail because his actions had led to violence. India's lack of manliness was to blame. Probably, Indians had become eunuchs because they kept having sex with their wives. True men don't have sex even with their wives. If they did, they would become eunuchs.

In Tilak, the Brits had a dangerous enemy who might be ground down by harsh penal incarceration. With Gandhi, they had a nutcase who might need to be confined in a padded cell from time to time. 

Mithi takes a different view-

In this trial Gandhi as defendant would once again repudiate in no uncertain terms the claim of “impartial” justice, which had been the ideological ground of British colonial rule, and with it the “neutrality” of its judicial institutions and processes.

This is not the case. Gandhi says violence is evil. He does not say what sort of Government could do without it. Whatever it might be, India was incapable of providing such administration for itself. Please lock me up till I ask to be let out.  

 Declaring the British Indian Empire to be an “evil” that had done more harm to India than any previous government in its history,

Though those previous governments were so utterly crap they quickly succumbed to the valor of a few British soldiers 

Gandhi would openly advocate the boycott of British law courts

which failed completely 

and the deliberate breaking of British law through mass resistance movements,

which failed completely thanks to his disastrous leadership and which he called off before he was put in jail

thus heralding the dawn of India’s freedom from British rule

which came at the same time as Burma's and Indonesia's and so forth and thus wasn't really heralded by anything Gandhi did.

These are the plain facts of the matter. No doubt, politicians may have an interest in distorting those facts. Why would a Historian in American want to do so?

Perhaps, if Mithi chooses to be ignorant of Colonial history, the reason may be because she has a bizarre view of the Law.

She writes- 

In British jurisprudence, the subject’s obedience to the law was fundamentally predicated on a normative identification of the law with his liberty.

This is nonsense. A resident alien, incarcerated for any reason, is required to obey British law though that same law may deport him after he is released from jail or an internment camp. There is no link whatsoever between obedience and liberty.  

The law was ontologically grounded in and represented the liberty and consent of the governed.

No. The law was positive- i.e. pure 'command'. Consent was irrelevant. 

Its legitimacy was predicated either on its having come about through a rational legislative process

No. 'Due process' may not be 'rational' and need not be based on legislation. Law is 'artificial reason' and may be grounded, by a pure 'legal fiction', in supposedly immemorial custom or the deliberations of Greek speaking druids or Latin speaking leprechauns or whatever. 

in which the representatives of the people made the laws, or because it could be justified on the basis of universal principles and conventions acceptable to all (in the English case as embodied in the common law).

This is sheer fantasy. England is not a 'civil law' jurisdiction. Judges make the law though elected parliaments may also legislate or codify laws. No 'universal principles' or 'conventions acceptable to all' arise in the determination of whether an action is lawful or unlawful. It is true that there is a Utilitarian school of jurisprudence, but Judges are free to accept or reject its strictures. Regina v Shivpuri is an example of a Utilitarian doctrine being used to justify the incarceration of an Indian man who hadn't smuggled drugs on the grounds that he probably wanted to smuggle drugs and so prison was the best place for him. 

Insofar as elected representation in legislative councils in colonial India had been consistently denied to Indians, the colonial strategy for the last century had been to encourage the colonized to approach the question of law judicially while creating institutional barriers for them to do so legislatively.

The British Courts offered a Service- for a price. The thing was a profit center. But then, the Law has always been a profit center for the 'stationary bandit'. But Empires don't depend on Courts. The rely on Armies and Navies and a Revenue extraction machinery.  

The colonized subject’s relationship to the law was mediated by the law courts, which they approached for adjudication of disputes, and for articulating their grievances in the language of jurisprudence.

Nonsense! People's relationship to the law is mediated by policemen and jailors and bailiffs empowered to take away your property. 'Articulating grievances' won't help you any unless you have deep pockets and your lawyer can identify a justiciable tort or crime you have suffered.  

In England, the establishment of utilitarianism as the dominant political philosophy by the early twentieth century

This is sheer nonsense! Bentham and Austin had a pure 'command' theory of Law. Utilitarianism, a Classical theory, was dying off in the Eighteen Sixties because of the marginal revolution. On the other hand, Socialist ideas were on the rise. Alfred Marshall was a keen student of Marx, Lasalle etc. John Stuart Mill's psychologism was killed off by Frege, Russell etc. The maths had moved on.  

had meant a conceptual linking of lawmaking with ideas such as the “greatest good of the greatest number” and the people’s will expressed by elected representatives, and the institutional subordination of the judiciary to the legislature.

The English judiciary has always been subordinate to the Crown in Parliament.  The Star Chamber was done away with in the mid Seventeenth Century. Judge Jeffreys cheated the hangman by dying in the Tower. 

 In contrast in colonial India,

the local Utilitarians- Raja Ram Mohan & Co- clamoured for British settlers to come and rob the natives, thus providing the cowardly Hindu with a bulwark against the Muslim bully. 

England was a rich, powerful, country ruled by its own sons. It is foolish to pretend its institutional arrangements and political life had anything in common with a poor, weak, landmass much of which was ruled by hereditary potentates who claimed divine rights.  Gandhi would later tell the Hindus of East Bengal that the Princes his father and grandfather had served were serial rapists. If their henchmen heard you had some gold or a pretty daughter or wife, they would break down your door and abduct the girl and help themselves to the gold. Gandhi's message was clear. Why suffer the trouble and expense of relocation to India to be raped when you can stay at home and be raped? 

the denial of legislative representation meant

nothing. A survey conducted before the Great War by a newly minted M.A from Aberdeen showed that the great mass of Indian people had no idea that the country was ruled by foreigners. They had grievances in plenty. Not having M.Ps wasn't one of them because they didn't know what an M.P was or how such a creature should be cooked and eaten.  

that the idea of consent was limited to customary law and the colonizer’s law as determined in non-representative councils and practiced in the law courts.

There was no notion of 'consent'. There was a duty of loyalty and a condign punishment for sedition.  

Turning a blind eye to the non-representative status of colonial legislation, the judiciary itself functioned on the premise of the implicit consent of the governed,

This is nonsense! British judges were aware that the 'governed' hadn't 'consented' to anything. One may as well say 'turning a blind eye to the anally intrusive nature of colonial legislation, the judiciary itself functioned on the premise of the implicit begging for buggery of the governed'.  

and aimed at projecting the law as certain and universal, and as proceeding, not from the will of the King, Judge or colonial administrators, but from the “nature of things.”

 It being in the 'nature of things' that brown people should be ruled by white people. 

Judicial procedure in the British law courts embodied the abstract normativity of the law,

Law as command has no 'abstract normativity'. The fact is, by the 1850s, it was obvious that English law was wholly dysfunctional. The Courts were handing down plenty of death sentences for poaching and buggery and so forth but nobody was hanged. The plain fact was that the Law could not be enforced in a manner the people objected to. If it were, Juries would refuse to convict. Thus there was a pragmatic accommodation. Sentence was passed but not implemented. Command is circumscribed by what orders are actually obeyed.  

particularly through doctrines such as “stare decisis,” by which every new judgment was related to precedents of past judgments that were contained in the law reports, so that the law appeared not as an arbitrary decision deriving from the will of the King or Judge, but as a natural and just order of things handed down through the ages as common law.

This may have been argued by one or two people who didn't mind being ridiculed for telling such stupid lies. 'Stare decisis' is useful because one Judgment clarifies a host of other similar dilemmas. But, 'harmonious construction' of a radical type is always possible for a 'Judge Hercules'.  

 According to the discourse of jurisprudence, it was not persons, authorities and administrators that ruled, but the law itself.

But such discourse was ignored by everybody. Plenty of Members of Parliament were lawyers. They'd have looked a fool saying anything so silly. The fact is, the English were aware that their Legal system was shite. They reformed it and have continued to do so during my own life-time. That's why British law is an 'invisible' export on the Balance of Payments. The thing pays for itself. Why? The essence of the law is defeasibility of an economic type. Commands which are not obeyed are laws which have fallen into desuetude. The Judges back away from such areas. Clearly some 'political question' is involved. That is the business of the Crown in Parliament.  

Governors ruled only in so far as they followed the norm.

Quite false. Governors ruled till removed from office. Mill tried to prosecute Governor Eyre. Eyre prevailed and the Government covered his expenses and gave him a fat pension. The Jamaicans lost their Parliament and became a Crown Colony with a nominated legislative council. But then worse things had happened in Ireland. Which of its Governors was sacked for not following norms?

In so far as the system was logically coherent, any interference by external forces for reasons of political existence was seen as invalid.

Because England was powerful. It wasn't ruled by foreigners. 

By unmasking the non-representative status of law,

in other words, by pointing out that the Viceroy was White and wore a Top Hat not a Turban 

Tilak’s strategy was to expose the hollowness of the colonial law’s claims to normative validity.

Very true! Previously, perfidious Albion had befooled uneducated desis by pretending to be Indian. Lord Ripon was always chewing paan. Curzon was always dancing bharatnatyam. Tilak unmasked all those rascals! 

His insistence, that a man’s intentions could not be deductively derived from legal fictions and analyzed in isolation from the concrete political context in which they were embedded, but ought to be seen in conjunction with his motives, was a move to breach the closed self-referential discursive system of British law.

Sadly, Tilak probably thought he was being smart. But, the fact is the Jury had to make a determination of fact- was Tilak's conduct, as considered by a reasonable man, seditious? The answer, for a European majority jury, was, d'uh, obviously Tilak was a seditionist. 

The purpose of the Law was to give the Europeans a sense of security. Revolutionaries had killed one or two White people. The Jury ensured that Tilak paid a price. The result was that the European population felt safer and continued to go about its business. The Raj needed those Europeans to stay. They would use both extra-judicial as well as judicial methods to smash the Revolutionaries. No doubt, they might release one or two 'big fish' so as to spy on them and thus roll up their networks. But that was a job for Strickland and Tegart not 'discursive' bullshit. 

 The prosecutor, in seeking to preempt the jury from focusing on the larger political context in which the articles were written, had asserted that “the Indian Penal Code does not say anything about motive, it does not enter into it. You may enter into a crime with a very high motive but you will be punished all the same.”

The test is that of the 'reasonable man'. What motive would you, as a reasonable man, ascribe to the actions of the defendant? In other words, if you had done as he has done, what would your motive have been? For the European member of the Jury, Tilak's motive was to get rid of Whitey. The Jury didn't want their own throat slit or their property looted and so they found Tilak guilty. 

 Tilak challenged this claim contending that the court could not arrive at a valid judgment without considering not just the intention but also the motive behind an act.

Since these can never be known, Courts should cease to exist.  

For only if intention was inferred not from a legal fiction – “man intends the natural consequences of his acts” – but from actual social and political circumstances of which motive was a part, could a verdict be just.

Whether the verdict was just or unjust was irrelevant. It was lawful. The fact is Tilak, in his defence, pointed to inflammatory articles in the Anglo-Indian Press and justified himself as merely responding in kind. But, the Anglo-Indians were necessary for British Rule. Tilak was not. He and his ilk could be hanged, shot or transported without any deleterious effect on British rule. Gandhi confirmed this view. In the end, Independent India did a deal with Britain such that it kept its investments and was enabled to rise up once again as a 'hard currency' nation. Britons and Indians parted on the best of terms. By contrast, millions of brown people died or were displaced during partition.  

It is quite true that if there had been a spontaneous uprising where lots of White people had their throats slit then the Raj would have collapsed. But, in that case, Congress could not have claimed power as the legal successor to the Raj. Power would have gone back to hereditary potentates and some daring 'social bandits' with a few, ex-Army, warlords thrown into the mix. The Brits wanted to avoid this outcome so, once America pulled the plug on the Empire racket, they played ball with whoever was in good enough shape to accept a transfer of power on terms advantageous to the British exchequer. In Burma, this strategy failed because Aung San was killed. In most other places, the Brits got a nice golden handshake and the pretence of Commonwealth solidarity. Whites didn't get their throats slit. They got paid their pensions and sold up on a rising market.

Mithi refuses to accept the obvious. The Revolutionaries were killing White people in the hope of scaring them out of the country. Sadly, the Police proved more adept at penetrating their networks than the Revolutionaries were in securing foreign assistance. Thus the Brits were able to crush, first the Revolutionaries, then, after Gandhi's unilateral surrender, the Congress/Khilafat combine, and then, adding insult to injury, lift the Rowlatt Act. This was despite the Empire's military weakness at that time. Later, after the Financial Crash, India had one more chance to dictate the terms on which it would govern itself. Once again, Gandhi made a hash of things. So the Brits stayed on their own terms and borrowed so much money from India for the War effort that India was obliged to give its former masters a golden handshake by way of leave-taking. 

Mithi ignores the elephant in the room- viz. the dependence of the Raj on White people being willing to live in India- in order to write portentous nonsense-

It was not a coincidence that Tilak’s trial centrally engaged the crucial issue that lay at the foundation of British rule in India –

viz the desire of natives to kill and loot Whitey and the Raj's ability to kill or incarcerate them if they tried 

the relation between law and violence.

Wherever the law exists, it punishes such violence as it deems unlawful. Otherwise, it doesn't exist at all- or can't get paid, which is just as bad. 

In trying to identify the “cause” of the bomb, Tilak had contended in his editorial articles that “the bomb party had come into existence in consequence of the oppression practiced by the official class, the harassment inflicted by them and their obstinacy in treating public opinion with recklessness.”

So, Tilak is saying 'Whitey is getting killed' coz the Administration is shitty. Thus, killing Whitey is a good and salutary thing because it will cause the Administration to reform itself.' The prosecution contended that beating, killing or just jailing people like Tilak would cause Whitey not to be killed. The Jury, which was majority European, agreed heartily. The thing was bleeding obvious. If the Govt. kills terrorists, we can all sleep peacefully in our beds.  

He had argued that the constitutional modes of protest (swadeshi and boycott) that the Bengali youth had resorted to in their struggle against the Partition of Bengal in 1905 had been met with violence and acts of terror by the British authorities. It was in response to these acts, that these youth had adopted a similar path of violence. “As you sow, so you reap” Tilak had asserted in one article, arguing that “calm and thoughtful philosophers will weigh both these acts of violence (those inflicted by the British authorities and the bombs exploded by the young men) in the same scale and put the same value on both.”

The problem was that the British prevailed. They killed the Revolutionaries and thus Whitey stopped getting blown up. We put a very different value on violence which succeeds in its aim as opposed to violence which fucks up only its own side.  

By equating the two kinds of violence – that perpetrated by the state for the preservation of order, and that inflicted by the revolutionaries for transformation in the system of rule – Tilak fundamentally challenged the normative claim of the colonial state to a monopoly of sanctioned violence.

I may fundamentally challenge Mike Tyson to a boxing match but if I get my head knocked off then the only normative claim that I have put in question is the notion that I don't got shit for brains.  

The theory of positive law is grounded on the notion that

law is command. If that command fails, the law does not exist.  

only the legal violence that the state perpetrates to preserve order is sanctioned

Nonsense! Any violence is sanctioned which does not attract prosecution, or where such prosecution fails, for one reason or another.  

since it is a means to the ends of state,

Legal violence may not be a means 'to the ends of the state'. Even ultra vires actions may be covered by retrospective Acts of indemnity.  

which are legal in that they aim at the promotion of the interest of mankind in the person of every individual.

This is nonsense. Aiming to promote the interest of mankind does not make an action legal. It may however be a mitigating factor affecting the quantum of punishment.

All acts of violence outside this domain of sanctioned violence in this theory are criminal acts.

No such theory obtains. Some acts of violence are justiciable. A subset of such actions may be 'sanctioned'. But that is decidable only by a buck-stopped, protocol bound, juristic process which is the reverse of 'discursive'.  

But the legitimacy of this legal claim of the state to a monopoly of sanctioned violence

There is no such claim. You can kill another in self-defence.  

is crucially dependent on a series of identifications between the rulers and the ruled, the governed and the governing and the subject and object of state authority.

This is not true. International treaties have the force of law. They are not dependent on any such 'series of identifications'. No doubt, some polities may speak in such terms. But that is mere 'bullshit'. It is meaningless.  

In generating public discourse on the question of violence in his newspaper Kesari, Tilak’s discursive strategy had been to

say Whitey be fucking us over. Get rid of Whitey! 

fundamentally question the monopoly of legitimate violence that was at the foundation of the colonial legal order,

How stupid is Mithi Mukherjee? Does she not get that Britain's 'monopoly of legitimate violence' arose from the ability of the British Indian Army to defeat any challenger? Who, among those Tilak wrote for, wasn't aware that the Brits had defeated the Marathas? Since then, technology had improved. The Brits could machine-gun and howitzer any combination of gallant Maratha cavaliers waving talwars.  

by arguing that such a series of identifications did not, in fact, exist between the colonial state and the colonized people of India.

Because few Indians knew that Curzon was not really a Madrasi lady dancing bharatnatyam all the time. Kitchener was not a supari vendor from Meerut. Rumor had it that even the Duke of Connaught was not cooking dhokla though, no doubt, happily married to a Gujarati bania. 

A conflict has arisen between the national character of India and the institutions of Government and the time is approaching for action being taken to bring about a harmony – an act of revolution. The means of recognizing this are … acts of violence … like the bomb outrages.This time of revolution has not yet begun in India but it is to begin hereafter.

Tilak asserted in his article “The Country’s Misfortune” published on 12 May, 1908 in the Kesari that the bomb throwers of Calcutta were in the same league as the nihilists of Russia and the revolutionaries in Europe.

This was a reasonable view at the time. The Revolutionaries had attracted some very daring and capable people. The Kaiser was keen to help. However, the Imperial Police quickly developed a Counter Intelligence capacity of great sophistication. Czech patriots in Hapsburg employ helped the Brits defuse the 'Indo-German' conspiracy. Tegart's success opened the door to Gandhian politics. But Gandhi surrendered too quickly in 1922 when the Empire was at its weakest militarily. 

It is known that the mutinies and revolts of Nihilists that frequently occur even in Russia take place for this reason … the same state of things which has been brought about in Russia by the oppression practiced by the … officers of that country, has now been inaugurated in India is consequence of the oppressive practices by alien officers.

The Bolshevik Revolution was a game changer. The Indian propertied classes realized that their fate might be the same as that of the White Russians if the Brits ran away. The safer course was to claim a seat at the table, for when the Brits were ready to leave, by lining up to go to jail periodically.  

Thus, the violence that was intrinsic to revolutionary movements and aimed at a transformation of the existing order based on tyranny was justified for it aimed at legitimate ends, even though it opposed existing positive law.

The positive law was that Whites were superior to Indians. The Indians didn't like this but they had to bide their time because they also didn't like each other very much.  

“The bomb affair of Calcutta is a disquieting but acute symptom showing how intolerable the defects in the existing political system … have become to the people.”

 To well educated young Hindus of mettle- yes. What of the Muslims of Bengal? How about the Dalits? 

 Such acts of violence were not mere criminal acts to be judged in terms of the existing laws of the state but performative acts of violence that aimed at founding a new political order.

But they failed and thus weren't 'performative' at all.  

In so far as its purpose was not to infringe law but to establish new law, this violence had a lawmaking character

The same could be said of Hitler's invasion of Poland or the terrorist outrages of Al Qaeda and ISIS. 

Tilak was by no means a fool. He was using his trial to address a wider audience. Mithi does not seem to understand this. She appears unaware that Judges decide what Law applies and direct the Jury accordingly. Juries make determinations of fact on the basis of a 'reasonable man' test. 

Mithi quotes Tilak's defence speech-

Judges are bound down by precedent. The judge ignores the importance of the matter and follows the precedent in order to keep up the current of the decisions of predecessors; and they maintain these decisions because they say uniformity of practice must be maintained. They say it is the law of the land; we cannot change it.

Tilak had a law degree. He knew the rule in Bushel's case. A Jury, making a determination of fact at great variance with what the law requires, is nevertheless indemnified against contempt charges. 

There was a long history of Juries making nonsensical determinations of fact such that obnoxious laws were unenforceable. But that was in England. Would a Bombay Jury, with an European majority, show patriotism towards India or would it act in its own racial self-interest? 

As a matter of fact, the Anglo-Indians- unlike many Anglo-Irish- refused to show any loyalty to the land where they resided. This meant keeping them happy was the true foundation of British Rule. But this also meant that Native opinion- at least in Bombay and, more so, Calcutta would constantly be outraged by the racism of the Anglo-Indian press and thus remain bastions of Nationalist zeal.

In this colonial context, Tilak argued, it was not the judge, but the jury, embodying the will of the people of India in the law court,

because the majority of Indians were actually White! 

who alone had the right to decide on the appropriateness of his acts as a representative of the people. Insofar as the people of India were not mere recipients of justice, but had the right to challenge the law if it did not represent their well-being, their will, present in the courtroom as the will of the jury, was to be the law. “Don’t think that you have not the power,” Tilak told the jury.

There were 'up-country' Indians who had never experienced British racism. Tilak is drawing their attention to the fact that the majority of Anglo-Indians- who lived in the big cities- were thoroughly racist and considered India a shithole were they were obliged to reside simply so as to save enough money to return home and live happily. 

We often speak of a Judge-made law but there is also the Jury-made law, though that distinction is not yet to be found in law books … Juries have frequently to refuse to take a particular view of the case in spite of the Judge’s charge to the contrary. Juries have an independent position,and they have certain prescribed rights, and they must exercise them. They will fail in their duty if they do not do so and deprive the subjects of the protection against the arbitrary use of power. Juries are the bulwark of our liberty.

In other words, Tilak is giving a veiled warning to the Anglo-Indian community. That was the smart thing to do precisely because they would get enraged and start using highly abusive language in their 'free press'. This would bolster the Nationalist cause in the boondocks.  

While Tilak was fully aware that the jury was in fact constituted by a majority of Europeans, he used his speech to conceptually create a discursive position for the people of India within the courtroom as sovereign legislators of the nation.

Tilak was certainly addressing a wider Indian audience. But, he was also focusing attention on what Otto Trevelyan had described as the 'Anglo-Saxon' or 'settler' party- i.e. those with commercial, not official, positions in India. Gandhi, focusing on the European indigo planters, did something similar. Both were advertising to the Indians in the boondocks- whose own experience of the Brits may have been benign- that the Raj was a commercial enterprise from which a small class of White people unjustly enriched themselves. Despite protestations of goodwill by Viceroys, the fact remained that the Raj had to keep Whitey happy and if the Natives didn't like it- hard cheese to them.  

There is nothing 'exceptional' about Tilak's 'discursive' position. This was Naoroji's drain theory given a human face- that of the European juror eager to punish one of India's greatest sons.

What is exceptional about Tilak’s speech to the jury is that, along with the constitution of the enunciative position of the legislator in the law court,

There was no 'constitution of enunciative' bullshit. Tilak was saying 'Guys, you know you'd rather have me than Gokhale representing you. I'm the 'legislator' the Viceroy should be talking to.'  

it also sought to radically reconstitute the enunciative position of the people of India in the space of the law court.

Nonsense! Indians of Tilak's stripe wanted Whitey gone bag, baggage, Law Courts and all. One step towards that might be Parliamentary representation. But just bombing the fuckers to death would be quicker and cleaner. 

In the imperial discourse of justice the people had

not 

been constituted

by anything. This is because Justice isn't Foucauldian shite. It is a service industry. You pay your money and get a hearing. But you may not like what you hear. 

not as lawmakers but as “supplicants for justice,”

The administration had non judicial avenues of redress. The District Collector received plenty of 'supplicants for justice' which he could settle without the courts getting involved. But then most commercial enterprises have a Complaints Dept. It is in their own mercenary interest to establish a good reputation for setting right any wrongs their employees may have done. 

whose unity was predicated on the possibility of their judicial representation in the law court by the persona of the lawyer.

This is sheer nonsense. No 'unity' was predicated. Some British subjects, by reason of Royal or semi-royal status, were immune from judicial proceedings. On the other hand, some Hindu deities had judicial personality and could be represented in Court.  

In contrast, in Tilak’s speeches, the people emerged for the first time as the subjects of history.

This is meaningless. People are the subject of History. On the other hand, what Mithi does is not Historiography. It is bullshit.  

Mithi concludes thus-

Tilak’s trial marked a culmination of the growing estrangement that large segments of the Indian population had begun to feel with the imperial discourse of justice.

No. The Indians had previously come to feel loathing and contempt for British law courts which served only to enrich crooked barristers. But then the Brits themselves had long ago admitted that Indian law courts were based on bare faced perjury by all concerned parties. To this day, Indians don't trust the Courts. A senior advocate who tweets that the Bench is corrupt and out to throttle freedom is fined just one Rupee because, to be frank, it is impossible to calumny a notorious prostitute. 

Mithi, for some Foucauldian reason, has to pretend that the simple and naive Native believed Viceroys were actually representative of themselves and that the British Courts were presided over by Raja Harischandra.  

As the London Times remarked on July 23, 1908, the “conviction of Mr. Bal Gangadhar Tilak,in the Bombay High Court yesterday, marks the close of the most important trial for sedition held in India for some years.”

More importantly, it marked the gearing up of Counter Intelligence in India and increased surveillance of Indians abroad. A clandestine war had begun and, despite the valor and brilliance of many of the Revolutionaries, it was a war which the Brits decisively won.  

His conviction by the court provoked the largest workers’ strikes and public demonstrations that India had seen in her history, symbolizing the final emergence of Indian anticolonial politics from the domain of the law court on to the streets.

There had been no 'anti-colonial' politics in the law courts. What there had been was preachers and publications pushing forward the demand for a popular uprising against the foreign master.

The streets had already seen plenty of violent agitation. Swadesi boycotts had bite. Lord Hardinge reversed the partition of Bengal in 1911.  

Strikingly, around the same time as Tilak’s sedition trial, another anticolonial activist across the sea in South Africa had begun to attract global attention for advocating open popular resistance against the British Empire.

Nonsense! He was resisting the Boer claim to supreme authority there. Gandhi was as loyal as bow-and-agree Bhownagree. 

Within a decade Gandhi would take the reins of political leadership in India and radically accelerate this discourse of struggle,conflict, and freedom in his nonviolent mass movement against British rule. Significantly,Gandhi began the Non-Violent Non-Cooperation movement in India in 1920 with a call to all lawyers and Indians to boycott the institution of the British law court that, he argued, had been primarily responsible for the preservation of empire in India.

But unlike Sinn Fein, the Indians didn't manage to create a parallel legal system. In 1922, just when Ireland and Egypt and Afghanistan gained independence, Gandhi unilaterally surrendered. He explained, while pleading guilty, that India could neither feed nor defend itself. Yet, as an Indian, he could not help but bite the hand that fed and protected India. Please send me to jail till I get over this madness.

The Brits happily obliged and then, to add insult to injury, repealed the Rowlatt Act as no longer needful. 

The rejection of the British law court and its discourse of justice by Gandhi could not but have brought back vivid memories of Tilak’s sedition trial of 1908 and the political eruption in its wake.

Jail had tamed Tilak as it would tame Gandhi & Co. What the failure to set up a parallel legal system showed was that India needed the Brits. True, they would become rabid from time to time and try to bite the Viceregal hand, but a spell of porridge would make everything better. Two Viceroys found it worthwhile to talk to Gandhi. But he made such a mess of things in 1922 and then again in 1932 that future Viceroys would simply jail the silly fellow and get on with turning a profit on India for the Crown in Parliament. 

The plain fact is that 'Justice' is merely a service industry. It has no 'legitimating' function. Either the thing works well and pays for itself- or, as in India, it is a pile of shite and gets disintermediated or just kept around for nuisance value. 

Mithi's Foucauldian bullshit may take in very stupid American undergrads but no Indian can be fooled. Still, to earn a living in some moribund branch of Academia they may write similar shite.  

Freedom from British rule and self-determination were now only a matter of time for the people of India.

This was also true for all the other vast territories ruled by Europe. Why? The thing consumed too much blood and treasure. If you stayed in the Empire game you would become as poor as Portugal. Anyway, the terms of trade were moving against primary producers. Intra-industry trade was the key to becoming an affluent society. As for wogs of various types, if too stupid to do STEM subjects, they might as well teach History or Literary Theory of a farcical sort to credential seeking cretins doomed to minimum wage employment while crushed under student debt. 

Freedom from this Academic Ponzi scheme will come sooner or later because once genetically engineered parrots take over the running of such Departments they will fly around the lecture hall pooping on the heads of students in so sexist, or racist, a manner that the entire availability cascade can be suppressed under Title IX.