Arudra Burra
The introduction of the Bharatiya Nyaya Sanhitas has altered the landscape of criminal law in India. In this post I do not wish to comment on the substantive changes these new Acts make to Indian criminal law. Rather, I wish to address the claim that they mark an important step in ‘decolonising’ the law, since the criminal law regime they replace was put in place by the colonial state, with little by way of input by Indians. This is one of the grounds upon which the Sanhitas have been defended.
In response, critics have claimed that these laws are not genuine instances of decolonisation (see for instance here, here, here, here, and here). On these views, ‘real’ decolonisation involves a change in how the law relates the citizen to the state; by contrast, the new criminal laws strengthen rather than weaken the authority of the state vis-à-vis the citizen. These critics seem to agree that the charge of ‘colonial continuity’ should be taken seriously: however, they argue that the new criminal laws do not alter the colonial framework in any meaningful way.
I believe that both critics as well as defenders of the new criminal codes make a mistake when they frame discussions of the Nyay Sanhitas in terms of a distinction between ‘genuine’ and ‘spurious’ decolonisation. This is because the terms ‘colonial’/’decolonial’ are unhelpful categories of analysis for the purpose of legal reform.
Origins v Content
The primary reason to reject the discourse of (de)colonialism when discussing legal reform is that the term ‘colonial’ is itself a source of conceptual confusion. As a term of historical analysis the term may be a useful shorthand to indicate that a law was passed in the colonial era, or by colonial authorities [1]. But in this sense the status of a law as colonial is a fact about its origins, not about its substance or content. The fact that a law is colonial in this sense doesn’t tell us anything about whether it is a good or a bad law: as such, it is normatively neutral.
In ‘The Cobwebs of Imperial Rule’ (Seminar 2010), I illustrated this point using two familiar examples: the criminalisation of sedition (s. 124) and sexual intercourse “against the order of nature” (s. 377) by the Indian Penal Code, 1860. These laws have often been criticised on the grounds that they are ‘colonial impositions’ or ‘colonial vestiges’ (and thus, we might say, legitimate targets of ‘genuine’ decolonisation). Note however that s. 300 of the IPC criminalizes murder. In a historical, temporal sense it is as colonial as s. 377 or s. 124. But surely the fact that the IPC was a colonial-era legislation has no bearing on whether or not murder ought to be criminalized.
The genealogy of s. 377, rooted as it was in a Victorian moral code subsequently imposed onto a colonised country, may enter indirectly into an explanation for why it should be abandoned today. But the mere fact of its adoption by the colonial state doesn’t explain what’s wrong with it. There are more direct, fundamental explanations which are not genealogical in nature, appealing e.g. to the importance of protecting privacy or respecting consent.
One underlying criticism of the law of sedition as ‘colonial’, it seems to me, is that it is ‘authoritarian’ or ‘anti-democratic’. But sovereign nations such as ours are hardly strangers to such laws – indeed, as has been pointed out, the Bharatiya Nyaya Sanhita replaces the category of sedition with a much broader offence (s. 150), which criminalizes anyone who “encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India.” Normatively speaking, a ‘good’ genealogy cannot save a bad law, any more than a ‘bad’ genealogy can impugn a good one.
The trouble with the term ‘colonial’, then, is that it conflates a historical with a normative category, allowing for confusion at both ends: a confusion which allows governments to give the illusion of progress by a change of names. Proponents of decolonising law might say that ‘genuine’decolonisation is nothing other than democratisation. However, to avoid confusion, I think we should speak directly of democratising the law, rather than ‘decolonising’ it.
Colonial Continuity and Constitutional Transformation
In the Seminar article, I drew upon an historical example to illustrate this point. The example involved debates made in Parliament in 1951 during the discussion of the First Amendment to the Indian Constitution. The parliamentary debates revealed an additional problem with using the term ‘colonial’ as a term of normative criticism: both critics and supporters of the First Amendment argued that their opponents’ position embodied a problematic colonial continuity. While the Opposition argued that Nehru’s government showed colonial continuity by enacting repressive colonial-era laws, Nehru argued that it was the Opposition which showed continuity with the colonial past, because it did not trust in the ability of Indians to govern themselves in future Parliaments.
One exchange is particularly worth recalling in the context of the new criminal laws. The First Amendment was brought about to undo the effects of adverse High Court and Supreme Court decisions which prevented Government efforts at censorship, on the one hand, and zamindari abolition, on the other. At one point, Nehru criticised the judges involved as being wedded to ‘old ways of thinking,’ the implication being that, as colonial appointees, it was not surprising that they should have frustrated popular democratic legislation.
To this, Shyama Prasad Mookerjee responded as follows:
Here are a set of men who are selected by the Government. They are not foreigners coming from outside. They are our own chosen selected men holding office during their life, entrusted with the duty of seeing whether the country is being administered in the spirit of the Constitution.
Note that Mookerjee’s point applies just as much to colonial-era laws as it did to colonial-era judicial appointees. The constitution mentions the colonial legal regime explicitly in two places. The first arises in the chapter on fundamental rights:
Art. 13(1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
One important consequence of Art. 13(1), I would argue, is that the colonial legal regime was already significantly transformed by the 1950 Constitution, even when the text of the law in question has been left untouched. It is a commonplace, after all, that the law can change without changes to the legislative text. The fact is that, after the Constitution came into force, the criminal codes were now valid only to the extent that they were consistent with Part III rights. This marks a profound discontinuity with the colonial regime, which is obscured by our focus on things like the identity of the legislative text or nomenclature.
Of course, Art. 13(1) doesn’t make any affirmative claims about the status of colonial-era law. This is left to Art. 372(1):
[S]ubject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
As a matter of constitutional law, it seems to me clear that the constitution does not contemplate any difference in status for colonial-era law, subject to the proviso of Art. 13(1). Just as the judges of the first Supreme Court of India (who had earlier been appointed to the colonial-era Federal Court), were, in Mookerjee’s words ‘our own chosen men’, the laws of colonial India became, for the makers of the Constitution, ‘our own chosen laws’ after the Constitution came into force [2].
Now it is quite possible to argue that Art. 372(1) was a mistake, and indeed one might do so as part of a larger critique of the 1950 Constitution as itself insufficiently ‘decolonial’. But at the very least it is not possible to maintain this position while simultaneously venerating the Constitution as a ‘holy’ or ‘unalterable text’ – which seems to be the dominant view today, across the political spectrum.
Thus if we take the Constitution seriously, then I think we must take Art. 372(1) seriously, notwithstanding its location in Part XXI, ‘Temporary, Transitional and Special Provisions’. Otherwise we would have to argue for its separability from the rest of the Constitutional text. I simply don’t see how such an argument would proceed.
In fact, the combination of of Arts 13(1) and 372(1) seems to me an eminently sensible solution to the problem of what to do with colonial-era laws, criminal or otherwise. Drafting a new criminal or commercial code is clearly a legislative exercise, ideally involving a great deal of consultation and deliberation. It is certainly not a job for a Constituent Assembly tasked with drawing up the basic outlines of a new legal and political order.
Rethinking our Relationship to Colonial Law
These claims about the constitutional status of colonial-era laws are neutral with respect to the substance of the colonial criminal law regime. The rhetoric of decolonisation does tend, however, to a default suspicion of colonial-era law. I now wish to point out that there are aspects of colonial-era criminal law which have also been seen as worthy of respect, even in the post-Independence era. I offer three examples to illustrate this point.
The first is a speech in the Constituent Assembly by Lakshmi Kant Maitra, regarding the right of appeal to the Supreme Court in death penalty cases:
Sir, we have been nurtured in the British Criminal Law of Jurisprudence. We have been reared up in its spirit, which had always taught us that a dozen scoundrels may go scot-free but one innocent man must not be sacrificed…The whole conception of the law of benefit of doubt is based on that. When the circumstances are evenly balanced, and the case for and against the accused is evenly balanced, then we give him the benefit of doubt. When the scales of justice hang anything like even, they should be titled in favour of accused; the Judge should throw a few grains of mercy. That has been the cardinal principle of Criminal Jurisprudence which has held the field for one hundred years in the country.
The terms which Maitra uses to describe his relationship to British criminal law jurisprudence – “nurtured,” “reared” – are striking because they do not carry our contemporary baggage of suspicion; they might seem to some contemporary ‘decolonisers’ as evidence of a ‘colonised’ mindset. Yet Maitra was hardly someone who saw British rule as an unmixed blessing; indeed he argued in the Constituent Assembly for making Sanskrit the official language of India. But he could do so while at the same time appealing to the principles of colonial criminal jurisprudence as a normative standard from which to criticise proposals for the new Indian constitution. The point to note is that one’s anti-colonial politics need not entail an antipathy to colonial law.
In addition to the notion of ‘benefit of doubt’, consider the idea of due process of law, which was constitutionalised in 1950 as Art. 21, which stated “No person shall be deprived of his life or personal liberty except according to procedure established by law.” In A K Gopalan vs State of Madras (1950 AIR 27), the first constitutional case before the Supreme Court in 1950, the question arose whether the idea of due process as a constraint upon preventive detention statutes was exhausted by Articles 21 and 22 (which constitutionalised some protections against preventive detention) .
The Court rejected a due process challenge to the Preventive Detention Act of 1950 on the grounds that Art. 21 explicitly exempted deprivations of personal liberty which took place according to “procedure established by law.” Since the Preventive Detention Act was a valid act of the Indian Parliament, preventive detention did not, according to the Court, fall afoul of Art. 21.
Gopalan has been widely criticised, but Justice Fazl Ali’s impassioned dissent in favour of personal liberty deserves to be more widely known. One of his arguments was that the phrase “procedure established by law” should be taken to include the principles of natural justice, because these were part of the colonial inheritance, and hence incorporated into Indian law because of Art. 372:
The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well-recognized in all modern civilized systems of law and which Halsbury puts on a par with well-recognized fundamental rights cannot be regarded as part of the law of this country. I must confess that I find it difficult to give a negative answer to this question. The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long time and is also deeply rooted in our ancient history, being the basis of the panchayat system from the earliest times. The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasi-administrative measures such as are contemplated in sections 107, 108, 109, 110 and 145, is based upon the foundation of this principle, and it is difficult to see that it has not become part of the “law of the land” and does not inhere in our system of law. If that is so, then “procedure established by law” must include this principle, whatever else it may or may not include. (Gopalan, para 99)
An even more famous example is provided by what is perhaps the most celebrated dissenting opinion in Indian constitutional history, that of Justice H. R. Khanna in ADM Jabalpur vs Shivkant Shukla (1976 AIR 1207). One of the constitutional questions at issue was whether the right to habeas corpus could be suspended in an Emergency. The majority argued that it could, on the grounds that the writ of habeas corpus was made available in Part III of the Constitution as one of the rights to constitutional remedies (Art. 32(2)), and that Article 359 empowered the President to suspend this right during an Emergency proclaimed under Art. 352.
Part of Justice Khanna’s dissent included the claim that the habeas corpus right was also a colonial inheritance, not located in Art. 32 (and hence untouched by Art. 359):
[T]he principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution…it existed and was in force before the coming into force of the Constitution .... Such laws continued to remain in force in view of Article 372 after the coming into force of the Constitution…The position thus seems to be firmly established that at the time the Constitution came into force, the legal position was that no one could be deprived of his life or personal liberty without the authority of law. (paras 528 and 535).
The decolonial frame makes it difficult to appreciate the sensibility expressed by Maitra, Fazl Ali, and Khanna. It is a sensibility which allows them to recognise the colonial origins of these laws, but nevertheless claim them, without embarrassment, as ours. The reason they do so is in part because they believe that some aspects of the colonial criminal regime are worthy of respect. I fear that our default suspicion of colonial criminal law may lead us to an impoverished view of its content, and the ways in which we may relate to it as citizens of a free and sovereign country.
Conclusion
My main aim has been to make a limited point about the language in which to discuss legal reform in connection with laws passed in the colonial era. I believe that the language of decolonisation is unhelpful and misleading as a shorthand for the criticism of specific laws; and that such criticism should always be made in purely normative terms, which do not refer to historical origins.
It is possible to have a much more expansive idea of ‘decolonising law’ which refers not to particular legal enactments such as the criminal codes, but to the entire edifice of the modern state. The arguments presented here do not touch this more expansive notion. There are many ways in which the terms ‘colonial’ and ‘decolonial’ may be applied and understood, and some of these are no doubt genuinely illuminating. But to use them as they have been used in debates around the Nyaya Sanhitas is only to court confusion.
End-Notes
[1] Note that even here we should note important complexities: for instance, as Neeti Nair has pointed out, some laws such as s. 295A of the Indian Penal Code (penalizing deliberate insults to religious sentiments) were passed by the colonial state in response to pressure from Indians. To take another example, as Manoj Mitta documents in Caste Pride: Battles for Equality in Hindu India, the Government of India Act, 1935 empowered elected Provincial Governments to enact a substantial body of anti-caste legislation, even in the colonial era. The examples remind us that (some) Indians exercised non-trivial forms of political agency during the colonial period, with legislative effect. Efforts to decolonize law must take this fact into account. Should these even be counted as ‘colonial’ laws to begin with?
[2] Thus, I disagree with the view that the presumption of constitutionality does not apply to pre-Independence laws. For discussion and citations to case law, see Tarunabh Khaitan, 'On the presumption of constitutionality for pre-constitutional laws' (IndConLawPhil, 11 July 2018).
Further Reading
Arudra Burra, 'What is "Colonial" About Colonial Laws?' (2016) 31(2) American University International Law Review 137. The ‘Illiterate’ podcast with Aman Kumar has a discussion of this article in connection with the new criminal laws (episode 6).
Arudra Burra, 'Freedom of Speech in the Early Constitution: A Study of the Constitution (First Amendment) Bill, 1951' in Udit Bhatia (ed), Deliberations on Democracy: The Indian Constituent Assembly Debates (Routledge 2017).
Acknowledgments
Thanks to the editors of the Socio-Legal Review Forum for their invitation to contribute to this series, for their patience in waiting while this piece was written, and for incisive comments on an earlier draft.
Arudra Burra teaches at the Department of Humanities and Social Sciences, IIT Delhi. His interests are in moral and political philosophy, the philosophy of law, and Indian constitutional history.
Feature Image: View of Lok Sabha chamber in the New Parliament building, New Delhi. Source: Wikimedia Commons.
This post is part of a series on 'Decolonisation and the Law'. Read the other posts here.
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