In its controversial 2003 decision in Lawrence v. Texas, the U.S. Supreme Court struck down state sodomy laws as unconstitutional violations of the rights of consenting adults to have sex in private. These laws, still in existence in thirteen states at the time of Lawrence, were infrequently enforced in the late twentieth and early twenty-first centuries but were often used to justify and legitimate sexual discrimination in employment, immigration, marriage, the military, and other arenas of “private” and “public” life. In this sense, they functioned like state laws against adultery, cohabitation, and fornication. Rarely utilized and widely flouted, these prohibitions remained on the books, available for use in struggles over sex and sexuality and in debates about the parameters of sexual citizenship.

In 1813, James Stephen, Jr., a twenty-four-year-old lawyer, was appointed part-time by the British Colonial Office to write legal opinions on the validity of colonial laws. In 1825, he began working full-time as legal advisor to the Colonial Office and held this position until 1836 when he was promoted to the top-ranking post of permanent under-secretary of the Colonial Office, which he held until 1847. During these years, Stephen frequently played a key role in influencing the direction taken by policies and reforms initiated through the Colonial Office. In particular, his important role in shaping Colonial Office “native policy” after the mid-1830s has been documented by several historians, and much has been written about his connection—through his anti-slavery father, Stephen, Sr., and his uncle William Wilberforce—to the famous Evangelical “Clapham Sect” that took a leading role in promoting a number of different humanitarian and social reform causes in the first half of the nineteenth century.

The impeachment trial of Warren Hastings has long been considered one of the key political trials in the history of the British empire. It was the first major public discursive event of its kind in England, and arguably in Europe as a whole, in which the colonial ambitions and practices of European powers in the east stood exposed to a close and comprehensive critique. In addition, the legal and moral legitimacy of colonialism itself was thrown into question before the highest judicial body in Britain, the House of Lords. The fact that the prosecution was led by Edmund Burke, one of the most articulate and prescient political statesman of modern Europe, has only added to the trial's enduring significance as a moment of critical reflection on colonial practices. Indeed, it could be argued that it was on this occasion, and in this act of defending the rights of an alien population against coercive colonial rule, that some of Burke's long-held political and ethical convictions found their clearest expression.

On July 10, 1833, an aspiring young English lawyer named Thomas Babington Macaulay stood before the Parliament and presented an impassioned argument about the future role of British governance in India. Whereas in Europe, as Macaulay saw it, “The people are everywhere perfectly competent to hold some share, not in every country an equal share, but some share of political power,” in India, Macaulay asserted, “you cannot have representative institutions.” Thus the role of the British colonizers was “to give good government to a people to whom we cannot give a free government.” At the core of Macaulay's good but not free government stood what he saw as one of England's greatest gifts to the people of India: a rule of law.

Within the truly prodigious outpouring of self-consciously “post-colonial” scholarship on colonial India since 1980, it is little exaggeration to state that the ontology of colonialism has been figured as difference: its production, its management, its transgression, and its obtrusion. This is the case whether the scholar's disciplinary affiliation has been anthropology, history, literary studies, politics, or sociology and whether or not the scholar has been formally associated with the now-famous Subaltern Studies series. This is also the case whether the specific subject at hand has been caste or gender, nationalism or communalism, peasants or workers, state or non-state practices, elite or non-elite discourses, formal or informal knowledges, histories or memories.

In his comments Kunal Parker has framed my article within what he calls the “ontology of colonialism as difference.” He argues that my article “fits squarely” within a “self-consciously postcolonial scholarship” that in recent decades has been centrally concerned with “the rendering of colonialism as difference.” My research in this article, however, was neither inspired nor guided by the historiography of difference. Indeed Parker's framing of my article in these terms prevents him from seeing the most important claims in it. If I were to characterize the nature of my essay in terms of a genre of historiography, I would place it in the genre of the history of the present. My aim in this article, which is part of a larger project, was to make the postcolonial political formation in India intelligible in the light of its pre-independence historical origins. While most historians of modern India terminate their research at 1947, the year of India's independence, assuming postcolonial political development to be inaccessible to historical research, most studies by political scientists have taken 1947 as their point of departure, as if the postcolonial political formation had emerged fully formed without any history. My larger project seeks to break through this historiographical barrier and make postcolonial India accessible to historical research.

In his commentary, “The Historiography of Difference,” Kunal Parker hits on two crucial and interrelated themes that form the framework for debates in modern South Asian history: colonialism and subaltern agency. In this short response to Parker's comment, I address both of these issues and also offer some insights about methodological obstacles in the writing of Indian legal history.