1 EMASCULATING THE EXECUTIVE: THE FEDERAL COURT AND CIVIL LIBERTIES IN LATE COLONIAL INDIA: 1942-1944 Rohit De 1 On the 7 th of September, 1944 the Chief Secretary of Bengal wrote an agitated letter to Leo Amery, the Secretary of State for India, complaining that recent decisions of the Federal Court were bringing the governance of the province to a standstill. “In war conditions, such emasculation of the executive is intolerable”, he thundered 2 . It is the nature and the reasons for this “emasculation” that the paper hopes to uncover. This paper focuses on a series of confrontations that took place between the colonial state and the colonial judiciary during the years 1942 to 1944 when the newly established Federal Court struck down a number of emergency wartime legislations. The courts decisions were unexpected and took both the colonial officials and the Indian public by surprise, particularly because the courts in Britain had upheld the legality of identical legislation during the same period. The late colonial state in India provides an interesting site to test out the legal complex. Since the mid nineteenth century the British colonial state had sought legitimacy as a rule of law state. However, in practice colonial governance was based more on exceptions than on rules. Further, administrative and executive action had been put beyond the reach of the courts. By the 1940s, India had several popular movements for independence, the most influential represented by the Indian National Congress. The INC in the late 19 th century and early 20 th had acted as a classic legal complex identified by Karpik and Halliday. Largely composed of lawyers, the party had campaigned for legal and administrative reform, equality before law and had attempted to 1 I would like to thank Arudra Burra, Indivar Kamtekar, Kim Lane Scheppele, Julia Stephens and Nurfadzilah Yahya for their valuable comments. I am grateful to Paul Halliday for discussing his unpublished work with me and to Malcolm Feely and Terence Halliday for engaging with this paper. Thanks also to the Center for History and Economics, Harvard University, the Annual South Asia Conference at the University of Wisconsin-Madison, Law and Public Affairs Program at Princeton, the Universsity of Michigan Law School and the Law and Society Association for providing me the opportunity to present versions of this paper. 2 IOR/L/PJ/8/633/9