Rishika Sahgal
In light of the recently enacted substantive, procedural, and evidentiary criminal laws (the Bharatiya Nyaya Sanhita 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) and Bharatiya Sakshya Adhiniyam 2023 (BSA)), it is apt to revisit anticolonial and postcolonial theory to interrogate whether these statutes are truly an exercise in decolonising criminal laws in India. It has been widely argued that these statutes are not anticolonial. Prior to the drafting and introduction of these statutes, when the Committee for Reforms in Criminal Laws was set up in 2020, I argued in this opinion piece and this chapter that the criminal reform exercise was not anticolonial. In this blog post, I revisit some of those arguments, particularly (1) that the term decolonisation has been ‘hijacked’ or misappropriated by Hindutva groups to mask Hindu nationalist goals in seemingly progressive language; (2) that in the context of the criminal law reforms, the language of decolonisation is at best empty rhetoric, and at worst, a means to mask the continuation of colonial structures of oppression and domination within and through criminal laws; and (3) anticolonial theory (particularly recent work by Folúkẹ́ Adébísí) indicates that decolonisation is a critical praxis. As a critical theory, anticolonial theory does not tell us what decolonial criminal laws should look like, rather it provides an epistemic tool to spotlight how criminal laws are shaped by coloniality. As critical praxis, this provides the foundation for action to dismantle coloniality in criminal laws.
The Misappropriation of Decolonisation
In India, the terminology of decolonisation has been weaponized to achieve the vision of the Hindu Right – that of a ‘Hindu’ India, which is seen as having been colonised by Muslim rulers and the British and which must now be ‘decolonised’ to revert to a mythical, essentialized ‘Hindu’ past.
The language of ‘decolonisation’ is sometimes adopted in opposition to the ‘West’ and in favour of ‘Indian culture and tradition’, involving an essentialization of Indian culture. It does not interrogate whether things ascribed to the ‘West’, such as subaltern sexuality, are equally native to India (Nandy 2022) or whether there really is a stark division between the ‘West’ and ‘Indian culture’. After the colonial encounter and in the interconnected world in which we live today, the search for a ‘pure’ or ‘authentic’ Indian culture may be futile (Prakash 1990). Nor does it ask whether aspects of Indian culture and tradition involve the oppression and domination of people on grounds of gender, caste, indigeneity, and religion. Moreover, essentialist views of culture are often framed exclusively in Hindu terms, emphasizing a Hindu past in a subcontinent that has been multireligious, multilingual and multicultural for centuries; and where ‘Hinduism’ is seen in totalitarian terms, glossing over the many different and often conflicting beliefs and practices within the wide ocean that is ‘Hinduism’ (Nandy 1988; Prakash 1990).
The danger is that the language of decolonisation will be deployed by the Hindu Right to pursue Hindu nationalist goals while couching those goals in seemingly progressive language. At the same time, there is also the danger of painting the past as a time of liberation to which we must now revert, when this was not the case. This should make us pause to consider whether we should continue to use the language of decolonisation in the Indian context, including in the context of Indian criminal law. We may want to consider using alternate vocabularies to undo the continuing legacy of coloniality in our criminal laws and elsewhere, and the intersection of coloniality with other systems of oppression and domination (such as caste or patriarchy).
Decolonisation as Critical Praxis
Decolonisation is a critical praxis that involves interrogating and actively dismantling colonialism/coloniality in all parts of life, including all parts of the criminal justice system – criminal laws, processes, and penal institutions. Decolonisation is critical in that it is historically and socially contextualised (see Iris Marion Young, p 5). It does not attempt to understand what ‘colonialism’ or ‘coloniality’ could mean in the abstract. Its starting point is the world as we find it, and its aim is to understand how this world came to be shaped by colonialism/coloniality. It is not only theory, although it includes critical (and not abstract) theory. It is praxis (see Paolo Friere) – action based on reflection – that aims to dismantle coloniality in, for example, all parts of the criminal justice system.
Folúkẹ́ Adébísí reminds us that decolonisation is a refusal of coloniality/colonialism. To understand what decolonisation requires, we need to pay attention to the form(s) that colonialism has taken in each part of the world, and in the making of worlds. In the criminal justice context, for example, it requires us to understand how colonialism shaped criminal laws, processes, and penal institutions in India; and thereafter to actively dismantle coloniality.
Like Adébísí, we can differentiate between colonisation and coloniality/colonialism. Colonisation refers to the fact of administrative control of a territory, for example when India was under British rule. Colonialism/coloniality refers to the structures of oppression and domination that enabled and survived colonisation. This distinction is useful in helping us to identify what decolonisation is about – not just the end of a particular form of colonisation (such as the end of British rule in India); but the dismantling of the structures of oppression and domination that enabled and survived British rule.
Critiques of the criminal law statutes have focussed on political domination – how these statutes continue to treat the people of India as subjects rather than citizens through, for example, sedition-like provisions (see Section 152 BNS; for an example of this argument, see here). In this blog post, however, I focus on racialisation, de-humanisation and exploitation as elements of the structures of oppression and domination that make up coloniality.
Applying the Theory: Coloniality and the Criminalisation of Adivasis
Research indicates that colonialism has shaped both national and international criminal and anti-terror laws, processes, and penal institutions. A prominent example is the criminalisation of Adivasis through the Criminal Tribes Act 1924 and its predecessor statutes enacted by the British administration in India. Under these statutes, entire tribes were notified as criminal if they were considered to be “addicted to the systematic commission of non-bailable offences” (Criminal Tribes Act 1871, s 2). They were forced to live in settlements and subjected to a system of surveillance and control (Brown 2001; Radhakrishna 2001; Singh 2010).
The racialisation of human beings was an integral part of colonialism. This involved imbuing human bodies with social meaning. Human bodies were placed in a hierarchy. Physical attributes (skin colour being a prominent example) were used to determine whether a body and a peoples would fall lower or higher in the hierarchy (see Adébísí). The Criminal Tribes statutes were based on this racialised view of human beings. The cultural practices (these were itinerant or nomadic tribes, for example) and physical attributes of the Adivasis were seen as evidence of their criminality (Bhukya 2010; Radhakrishna 2001). Of course, another system of oppression or domination – caste – also had a role to play. And so, systems of power (here, colonialism and caste) intersected in complex ways to enable the oppression and domination of the Adivasis.
The de-humanisation/objectification and exploitation of human beings was another integral part of colonialism. Slavery is the starkest example, where human beings were reduced to things that could be owned, bought, sold, and used in myriad ways. The enslavement of Africans, along with the dispossession (if not eradication) of Indigenous peoples was an integral part of the colonisation of the Americas. Europeans used enslaved Africans to exploit and profit from natural resources taken from dispossessed Indigenous peoples, for example in cotton plantations. The Criminal Tribes statutes can be viewed in light of this continuum, wherein Adivasis deemed criminal were forced to live in settlements wherein their labour could be exploited for the benefit of the British administration.
The criminalisation of Adivasi communities has continued in independent India. Although the Criminal Tribes Act was repealed in 1952, and Adivasi communities notified as criminal under the Criminal Tribes Act were officially ‘de-notified’, Vimukta communities continue to be treated as criminal, both by society and under the law. Arrests without warrant, long periods of detention, recording of photographs and fingerprints for surveillance, and custodial torture of members of de-notified tribes continue to be the norm (Vishwanathan 2002). Other criminal provisions, such as habitual offender provisions provide the means for their continued criminalisation (Satish 2011). Moreover, Adivasi sources of livelihood and cultural practices continue to be criminalised, such as the prohibition on the production of country liquor under excise laws (see here). The Criminal Justice and Police Accountability Project has documented that 1/6th of all arrests in Madhya Pradesh are made under the state excise law; and this overwhelmingly targets Vimukta and Dalit women (Pradhan et al. 2021). This report indicates that the construction of criminality in this context is shaped by colonialism and the caste system; and criminal laws, processes, and penal institutions continue the oppression and domination of Adivasis and Dalits.
Conclusion
In these ways, coloniality survives the end of British rule. Decolonisation requires us to interrogate how coloniality shaped these criminal laws, processes, and institutions; and how this continues to survive in independent India. As a critical praxis, it requires more than study; it requires action based on reflection to dismantle these structures. This is the work that needs to be done by any exercise that purports to be ‘decolonising’ criminal laws in India. There is nothing in the public domain that indicates that this work has been done when introducing and enacting the BNS, BNSS and BSA. The language of decolonisation in the context of the BNS, BNSS and BSA is therefore at best empty and rhetorical; and worse still, a means to mask the continuation of coloniality in our criminal laws.
Rishika Sahgal (she/her) is an Assistant Professor in Law at the University of Birmingham. She completed her DPhil in Law at the University of Oxford in 2022 as a Rhodes Scholar, exploring issues of displacement and resistance in India and South Africa. Her research and teaching interests span constitutional law, human rights law and criminal justice issues from comparative Global South and anticolonial perspectives.
Feature Image: Photograph of the Central Jail at Junagadh in Gujarat, taken by F. Nelson in the 1890s from the Lee-Warner Collection. Source: Wikimedia Commons.
This post is part of a series on 'Decolonisation and the Law'. Read the other posts here.
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