[Independence Day 2022] The need for introspection to cure the colonial hangover that persists in our legal system

Justice DY Chandrachud of the Supreme Court recently called for critical introspection on the progress we have made to further the ideals of our Constitution this Independence Day.

This sentiment assumes great significance in light of the prevailing use of colonial-era laws in our country, and the consequences of the same. Even as India celebrates 75 years of Independence, our legal system continues to be haunted by the ghosts of our colonial past.

While it is misconceived for modern Indians to expect our country, which was under the colonial thumb for nearly a century, to have turned its legal system upside down right away, the resounding question remains: was 75 years not enough to evolve a system better suited for the nation?

Interestingly, this concern is not limited to fringe critiques of our pre-established structures, but has often been echoed by those at the very top of the system.

Chief Justice of India NV Ramana has, on many occasions, discussed the difficulties arising from the colonial legal system presently in place and its unsuitability for the Indian population. He has also repeatedly called for its "Indianisation".

The continued implementation of some pre-independence laws is problematic for varied reasons, ranging from scope for their misuse by the State machinery in furtherance of its own agendas, to their deeply misogynistic roots.

Pertinently, many of the laws that are pervasive in India have long been done away with by the British, who introduced them to us in the first place.

Here are some of the laws and practices introduced during the colonial era that merit a rethink in modern-day India.

Sedition

Sedition, which is currently the subject of a constitutional challenge before the Supreme Court, is a particularly relevant example. The law has been used in an arbitrary fashion against journalists, activists, students and others for speaking truth to power.

This law deserves additional scrutiny in light of the reason behind its original drafting and implementation. It was used as a weapon by the British Raj to disrupt the Indian freedom struggle, and was used against freedom fighters who were tried under the offence for their writings and speeches.

As it stands today, the law is kept in abeyance after the Supreme Court in May asked the executive to refrain from registering any cases under the offence till the government's exercise of reviewing it was complete.

Marital Rape Exception

Another example of an outdated provision, one that continues to put fetters on the autonomy of women in India, is Exception 2 to Section 375 of the Indian Penal Code (IPC), which effectively provides that a man who has non-consensual sex with his wife cannot be charged with rape.

When this provision was challenged before the Delhi High Court, the Division Bench arrived at a split verdict. This verdict has now been appealed in the Supreme Court.

This Exception made its way into our statute with the aim of protecting husbands’ conjugal rights. It goes back to the Doctrine of Coverture and implied consent, according to which legal rights of a woman were effaced after marriage, and having entered matrimony, she was deemed to have given irrevocable consent to participate in sexual acts with her husband.

Keeping the original framer’s intent in mind, it is essential to examine if this provision has overstayed its welcome, considering the evolution of feminist jurisprudence in the last two centuries. Does this exception stand the constitutional test laid down after the recognition of a woman’s right to bodily autonomy and every individual’s right to privacy? Moreover, does it align with the concept of modern marriage, which is a union between two equals?

Outraging religious feelings

An offence registered under Section 295A of the Indian Penal Code is punishable with up to three years of imprisonment. It has given rise to an array of what can only be referred to as frivolous complaints, leading to an indefensible waste of precious judicial time in a country where the common citizenry waits years, and sometimes decades for justice.

Such complaints are initiated across the board, by representatives and proponents of varied beliefs. For example, a complaint was lodged against the editor and photographer of a magazine booked for publishing a symbolic image of Goddess Durga in a distorted form.

Similarly, an FIR under the provision was registered against celebrities Raveena Tandon, Farah Khan and Bharti Singh for hurting the sentiments of Christians during a web show in 2019.

Irrespective of the outcome of these cases, courts end up spending years dealing with petition after petition arising out of the provision.

Unlawful assembly

Provisions criminalising unlawful assembly are a part of the IPC, and while a reading of the bare text may appear innocuous, the apparent abuse of this provision ought to be examined by law-makers and courts alike.

While the law in itself is aimed at maintaining peace, law and order, it is debated to have been used for deterring protestors, and depriving them of their fundamental rights to protest peacefully.

Set in motion for similar purposes as the sedition law, this provision was also weaponised by the Raj against movements during the freedom struggle.

Advocate Vrinda Grover, in a report titled Assessing India’s Legal Framework on the Right to Peaceful Assembly, opined that despite some protective laws and jurisprudence around assembly, there was a disturbing trend of growing intolerance towards democratic processes and social movements and the law relating to ‘unlawful assembly’ was found to be a part of this trend.

Death Penalty

The death penalty is another concept which found its way to the formal Indian legal system by way of IPC, drafted in 1860.

England has since changed its stance on the issue. In 2003, the country acceded to the 13th protocol of the European Convention on Human Rights to abolish the death penalty altogether.

India continues to award the death sentence in the ‘rarest of rare’ cases despite the Law Commission of India in 2015 recommending the abolition of death penalty in relation to all crimes other than terror offences and waging war against the State.

Colonial mindset ingrained in our court practices

Here, a special reference must also be made to the Indian justice system’s “colonial mindset”.

Ranging from the prescribed dress code, the common law system and even the language that pleadings are drafted in, it is easy to trace our system’s roots in the British Raj. The highly debated dress code mandating courts and gowns for lawyers is criticised for being entirely unsuitable for Indian cities, where temperatures soar to as 45 degrees in the summer months.

Even the manner in which lawyers are expected to argue before courts reflects a Victorian hierarchy, where a relief is 'humbly prayed for' and judges are 'My Lord', 'Your Lordship', 'Your Honour' and their names are prefixed with 'Hon'ble'.

However, it is important to note that judges across Constitutional Courts have begun attempting to break this norm, and urging lawyers to refer to them as ‘Sir’ and ‘Ma’am’ instead of using antiquated terms.

A ray of hope

Despite this all, this Independence Day, it would do us good to remember that all is not lost. Like any institution, the legal system sometimes may fail us, but courts have persisted in their efforts to do away with problematic, archaic provisions.

The apex court on 15 July while hearing the petition challenging sedition, observed that the provision was used by the British to quell the voice of Indian freedom fighters like Mahatma Gandhi and Bal Gangadhar Tilak before the country gained independence.

It is now being misused when someone does not like the views of another person and there is no accountability from the executive, CJI Ramana also stated.

"Dispute is it is a colonial law and was used by British and suppress freedoms and used against Mahatma Gandhi Bal Gangadhar Tilak. Is this law still needed after 75 years of independence? Our concern is misuse of the law and no accountability of the executive," CJI Ramana said.

While these observations were limited to an oral exchange between the bench and bar, it reflects the institution's willingness to re-examine outdated provisions and hold the executive accountable for its actions.

In pursuance of this objective, the Union Law Minister also recently said that the Centre had identified 1,824 obsolete laws, including colonial-era laws and would deliberate to remove 71 such laws in the Parliament's Monsoon Session.

In the spirit of highlighting what has been done right, it would bode well for us to remember that certain laws introduced during the Raj have endured changing socio-political climates, such as the Indian Evidence Act.

On this note of hope, we must endure to seek an Independent India - both in letter and spirit by encouraging discourse and critical introspection, as Justice Chandrachud said.