This article argues that the colonial government in India was shaped by changes in property law, race relations and other institutional interests that accompanied the political and economic restructuring of the colonial state. Therefore, the development of constitutionalism was the outcome of an interplay between institutional and professional interests and larger socio-economic and political forces. Against the backdrop of empire, constitutionalism in British India was defined by a specific form of allocation of powers between the executive (which also exercised legislative powers) and the high courts. The structure that developed as a result was a strong executive government, particularly in its exercise of power in local districts with formal judicial scrutiny introduced after 1861. The relationship between the executive and the judiciary in localities generated a series of conflicts and tensions, which were exacerbated by the expansion of the bureaucracy, the legal profession and gradual inclusion of Indians in the upper strata of governance. Taken together, these factors led to the development of a hybrid model of separation of powers in the Indian subcontinent, which seems to have stood the test of time in post-colonial countries of South Asia despite political elites having invested considerable resources on constitutional reform.

This paper argues the Government in Exile (GIE), the first government of independent Bangladesh, played an important role in framing the founding moment in legal terms. The GIE's constitutional warfare through its adherence to legalism, and subsequent internationalization of the conflict significantly shaped the independence movement of 1971. The GIE was composed of leaders who were lawyers, economists and other intellectuals who sought refuge in neighboring India. The agency of the founders and their allegiance to constitutional principles catalyzed the founding moment, oversaw the transition to an independent state and ultimately led to a swift adoption of a constitution that endures despite much instability. This national struggle of 1971 also played out in the international arena. In the process, lawyers from the so-called Third World articulated, reshaped, and generated new debates about international legal principles such as sovereignty, territoriality, and self-determination (and criterion for legitimacy of exiled governments)—most of which were considered to be well-settled at the time.

This article argues that legal agents from the Third World play an important role in facilitating and advancing subaltern claims by operating as “scholactivists”. The mediums they use for such advances necessarily require leveraging of the international legal discourse and various international forums. However, their success is constrained by the dynamics of the international legal field and the ability to assimilate within a global cosmopolitan class. Legal scholactivists are examined here from a place-based perspective, locating their praxis in the geographical Third World. In so doing, this article traces the life and work of Dr. Kamal Hossain, a celebrated Bangladeshi lawyer with many accolades at home and abroad. In his long and illustrious career, Hossain has voiced subaltern and Third World concerns on the global stage through a variety of mediums including domestic and international legal practice, advocacy, international organizations and various non-profit, non-governmental and civil society organizational efforts. Although the references to Bangladesh may be very specific and are used as an illustration, it is hoped that the claims made in this paper will be generalizable and applicable to similarly situated countries.

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