On the occasion of India’s 72nd Independence Day, we look back at the way the British Colonial rule continues to influence our laws and our legal system.
Given the long years spent under the thumb of the erstwhile British Empire, it is not surprising that the effects of colonial rule continue to persist in India in various ways to this day.
Here are some areas which, for better or worse, continue to bear the mark of the English colonial legacy.
Sex against the Will of God
The Indian Penal Code (IPC), 1860 was introduced during English colonial rule on the recommendations of a Law Commission headed by Thomas Babbington Macaulay.
Although the Code has undergone several changes over the years, a provision which stands out for controversy is Section 377, which penalises unnatural sex or sexual activities against the order of nature.
The term “unnatural sex” itself has not been defined in Indian law.
However, given that the provision was modelled on the English Buggery Act of 1553, the provision has been understood to penalise sodomy and any form of sexual activity which would not ordinarily result in procreation.
This is because the Buggery Act penalised unnatural sex against the will of God and man, at a time when Christian teachings dictated the norm.
In effect, homosexual acts, bestiality and any other form of non-vaginal-penal intercourse are weighed on the same criminal pedestal. If found guilty, the offender can be punished with life imprisonment or imprisonment extending to ten years, in addition to a fine.
The Supreme Court is currently considering whether or not such criminalisation of homosexuality is Constitutional.
While opinion is divided on whether homosexuality should be decriminalised in India, England, the country which introduced it as a statutory offence, has since decriminalised it.
Rationalising Obscenity law
Sections 294-296 of the IPC penalise obscene words or acts done in public. As per these provisions, words or acts would be obscene if it is lascivious, or appeals to the prurient interest or tends to deprave or corrupt a person encountering such words or acts.
However, the debate concerning what would be lascivious etc. still finds its way into Courts. Over the years, the Court has laid down various tests to rationalise the meaning of offensive obscenity with evolving societal standards – from the Hicklin test (now redundant) to the contemporary standards test.
Nevertheless, it cannot be said that the ambiguity in interpreting criminal obscenity has been resolved, and the Court’s interpretation of this grey area has not always been without criticism.
Take the 2015 judgment in Devidas Ramachandra Tuljapurkar v State of Maharashtra. In this case, the Supreme Court culled out a special status for “historically respected figures” such as Mahatma Gandhi, in respect of whom it was held that the community standards test for obscenity applied to a greater degree. This judgment does not define “historically respected figures”, nor does it furnish any Constitutional basis for introducing this new classification.
On the other hand, the case raises concerns that such a vague standard may serve as a gateway for innumerable future claims made on behalf of other “historically respected figures.”
Judge-centric Death Penalty
The death penalty is yet another concept which found its way to the formal Indian legal system by way of the British-drafted IPC. And as with homosexuality, England has since changed its stance on the issue.
In 1998, the United Kingdom passed a law abolishing the death penalty, except during wartime. In 2003, it acceded to the 13th protocol of the European Convention on Human Rights to abolish the death penalty in toto.
In India, the jurisprudence on the death penalty has expanded considerably over the years through judicial interpretation. Following Supreme Court precedent, the death penalty is awarded for serious criminal offences only in the rarest of rare cases.
What amounts to “rarest of rare” has not been objectively defined. Instead, the Supreme Court has laid down factors to be considered by a judge in deciding whether an offender deserves the death penalty on a case to case basis. Thereby, whether or not the death sentence is imposed is ultimately left to the wisdom of the presiding judge.
In 2007, India vetoed a United Nations (UN) resolution calling for a moratorium on the death penalty. This stance was reiterated in 2012 when India voted against a UN draft resolution seeking to end the death penalty.
However, in 2015, the Indian Law Commission recommended that the death penalty be abolished for all offences except for those related to terrorism. The recommendation was made citing various reasons including the apparent arbitrariness in its application and the lack of deterrent effect.
The Colonial Psyche and the Indian Judicial System
From the Common Law system to official dress codes – it is not disputed that the British Colonial rule has shaped the contemporary Indian Court system.
However, over the years, there has been some debate as to whether it is time to move away from some colonial-origin conventions in Court practice.
The mandatory coat-and-gown dress code for lawyers has come under some criticism, given its unsuitability in Indian weather conditions. The practice of having mace-bearers marching ahead of judges in some Courts has prompted interesting debate.
However, Senior Advocate NL Rajah, a member of the Madras High Court’s Heritage Committee, opines that there is a larger issue beyond such external manifestations that merits attention.
He points out that a colonial psyche persists in the administration of justice through the Indian Court System.
Based on Thomas Hobbes’ philosophy of sovereign absolutism, the British Colonial Empire protected its subjects only on the surrender of their rights to their rulers. In other words, justice could not be demanded, but rather it was allowed by the state as a matter of concession.
This is in contrast to ancient Indian systems, where justice could be demanded, being a concept that was inbuilt.
Rajah quotes the legend of King Samaneedhi Cholan to explain the ethos which prevailed in ancient India. As the legend goes, King Samaneedhi Cholan is said to have executed his own son to grant justice to a cow whose calf he had killed.
“That is why in the Madras High Court, you have a statue of Samaneedhi Cholan. Even a cow could go and demand justice.”
Instead of this approach, the colonial mindset left behind by British Imperial rule is apparent from the manner in which pleadings are drafted in Court, the way in which the Court is addressed and, most importantly, accessibility to the Court itself.
Justice is not demanded but prayed for in the humblest terms. Judges continue to be addressed as Lordships and Ladyships.
The ordinary litigant is often unable to bear the expenses of pursuing litigation in distant Higher Courts, as was the case with the Privy Council during British colonial rule.
Further, the mounting backlog of cases means that judges are rendered helpless, even if they want to help the ordinary litigant.
The huge case pendency means that it is the degree of injustice rather than the injustice itself which determines whether relief is granted by Courts. That the law disregards trivial cases is also a part of the persisting colonial mindset.
The eradication of such a colonial mindset may take time. However, Rajah opines that it is worth being aware of its subtle ramifications in the Indian Legal system.
“Before change must come realization.”
