This talk examined the relationship between law and history and how legal processes parallel the craft of the historian. In doing so, it discussed the nature of evidence (whether in law or history), how it is sourced, how its quality can be assessed and why it is even necessary in the first place. The central point made by Alam was that evidence is not fixed, but is actively shaped by the narrative that we wish to further, as well as our moral imperative.

Alam took the example of the ongoing SIR (Special Intensive Revision) and raised the question of what evidence is good enough to claim the right to vote. The answer has changed through independent India’s history. Article 326 begins with the line “elections are based on adult suffrage” – citizenship comes in only in the third line of the Article. Alam said that in the early years after Independence, state officials went door-to-door asking for information for the electoral rolls. Thus the Indian state created evidence of citizenship through an intimate, participative and conversational process, which involved both the representative of the state (the BLO) and citizens (the head of the family) at the level of the household. The state staged evidence in a very easy manner even for orphans and homeless people through other such inclusive strategies. The primary reason for such a process was that the state’s moral imperative was to be all-inclusive. 

Today, the state’s moral imperative has changed. The imperative is national security, coming with the need to suspect people of being intruders and removing them, rather than including them. With the change in moral imperative, there has been a corresponding change in the nature of evidence. Earlier, words were enough; now, a long list of documents are required as evidence of citizenship.

Alam also took the example of some prisoners arrested under UAPA suddenly being disallowed from making phone calls to their family because they are “terrorists.” Alam shared her experience of one such case being taken to two different benches. The first bench upheld the police’s decision to disallow phone calls, while the other demonstrated that the police had no right to carry out this decision and ordered the resuming of calls. Though it was the same case with the same evidence, it was handled in two wildly different ways, because of different moral imperatives.

A similar thing can be seen with the definition of the word “terrorist.” The term refers to someone who enacts violence solely for the sake of it, being devoid of any political context and therefore, someone who cannot be engaged with. Thus in politics, films etc when we call someone a terrorist, we are saying that we don’t have to engage with them. Like the state’s moral imperatives, the use of the word “terrorist” has also undergone a shift according to Alam. She referred to the trial of Rajiv Gandhi’s assassin wherein the prosecution wished to label her a terrorist – the court denied the claim because the act was clearly politically motivated. It was then labelled as a political assassination rather than an act of terrorism.

Law, culture and history tell us there is good violence (for example, custodial interrogation is not seen as kidnapping) and bad violence (for example, terrorism). Now, the law says that dissenting is bad violence and can even be a terrorist act. Alam added that the courts’ general behaviour nowadays has changed the nature of defenses made as well – those charged under the UAPA tend to claim that, for example, they did not attempt to mobilise people at all, rather than asserting that they have the right to mobilise.

Alam traced this legal attitude of treating dissent as bad violence to colonial times, particularly to the East India Company’s response to rebellions in the mid-19th century. Rather than hearing the rebels’ reasons for peasant rebellions, the EIC (unlike Mughal-style faujdari courts) started seeing them as a law and order problem. An erstwhile judicial issue was transformed into an administrative one, because the moral imperative shifted from hearing grievances to maintaining law and order. Till date, this is how the Indian legal system treats sedition, preventive detention and several other issues. Another colonial hangover that manifests itself in contemporary times can be seen in the Sabrimala case, where the state argues that constitutional morality does not matter as much as public morality. 

Yet another example of the Indian legal system’s colonial roots can be seen in how we source evidence in India. There were many instances in Madras where British officials tortured Indians in order to extract revenue from them, which was considered normal and acceptable. Similarly, today, the police gather evidence by calling involved parties to the police station and often torturing them in custody. In most jurisdictions, however, people can be kept in jail for very short times – the lowest in Scotland, at just 6 hours – unless the police have evidence to charge them immediately. On the other hand, in India, the accused can be kept in jail for 180 days if it is a terrorist act. An independent investigation and an investigation which is carried out through arrest and torture would have a vast difference in the quality of evidence. In the former, it would probably be more neutral and of higher quality.

Exceptionalism is also built into the Indian legal system. When Indian criminal law was being drafted in the mid-19th century, administrator W.H. Sleeman insisted that thugs (certain unruly, inherently violent, cultish communities) are so dangerous that the rule of law should not apply to them. Earlier, these communities were criminal tribes, now they are the Muslims. Communities change but exceptionalism remains.

Alam then explored the question of why evidence is necessary in the first place. If it takes so much time to gather it and make a case, why not just do encounters? To answer this, she referred to Bahar Shah Zafar’s trial in which he was convicted despite the absence of proof. This demonstrates the necessity of evidence, which acts as protection when one is not on the side of power.

The talk was followed by an interaction with Aparna Vaidik. She discussed how in the 19th century, when history was starting out as a discipline, it was believed that facts already had a narrative and simply had to be documented. But now, history-writing has moved far beyond this and believes that facts don’t exist outside of the historian’s subjectivity, which Vaidik asserted are based on the historian’s moral imperative. She gave the example of E.P. Thompson’s The Making of the English Working Class which he wrote because of his moral imperative to include the working class in history not just as miscreants but as agents.

Vaidik and Alam then discussed how absence of evidence affects a narrative. Alam said that in contemporary times, there is a lot of scope for social and political prejudices to take the place of proof and legal terminology when there is an absence of evidence. Vaidik added that absence of evidence can be clearly seen in institutional archives where certain groups and individuals (such as revolutionaries, peasants etc) are not written about, except when they interact with the state in some way. Power wants them to be absent from the archive. 

In this scenario the historian may have to come up with new methods of doing history. Vaidik used Saidiya Hartman’s work about her mother’s journey as a slave – in the absence of direct evidence, Hartman used confabulations, somatic feelings, literature and ethnographic material to write the history. In a similar vein, there are new postcolonial archives being made in India such as oral history archives, queer archives, women’s archives and so on.

This report has been written by Lavanya Senthil, an undergraduate student pursuing history at the University of Delhi.