This article has been written by Anindita Deb, from Symbiosis Law School, Noida. This article aims to discuss the relevance of the Colonial laws that were implemented in India, of which some are still prevalent.
Table of Contents
Introduction
The British Government designed several legislations during their rule in India in order to run the country at their own whims. These legislations were anything but beneficial to the people of the country, they aimed at exploiting the resources of India and suppressing any rebellion by the masses against the British rulers.
Unfortunately, some of these legislations are still retained by the Indian Lawmakers and are very much relevant to date, so much so that these laws are a part of our everyday routine. This article aims to deal with such legislations and how some of them are unethical and need doing away with.
Impact of Colonial rule on independent India’s legal system
The emergence of independent India was quickly followed by the necessity for an adequate governance system that was both indigenous in origin and acceptable and attentive to the requirements and customs of the vast number of castes, classes, religious, and linguistic communities it was attempting to unite. Unsurprisingly, the continuation of the British-created court system was a compromise formula that worked well at the time for the new government. A number of these legal codes, which were based on European culture and traditions, were embraced by Indian society and continued to exist long after the Colonial powers had left.
Ten years post independence, the Law Commission of India in its fifth report on the British Statutes applicable in the country suggested that India could now have a new legal code and in case a British statute proves to be useful, a corresponding India statute, having necessary provisions from the British Law, could be formulated in order to replace it.
Despite the fact that 1200 archaic regulations were repealed in bulk, Indians continue to follow several outdated laws that date back to the British Colonial period. The Indian judiciary relies on a large number of legislations that date back to Colonial times.
Colonial laws that are still in practice in India
The Colonial rule left its legacy in the form of various acts and rules that are still in continuance in India and are being rigorously implemented. Following are some of the laws which have Colonial footprints:
The Dramatic Performance Act, 1876
India used theatre as a weapon to express resistance to Colonial rule in the 18th century. Threatened by social revolution, the British government enacted the Dramatic Performance Act in 1876, prohibiting “scandalous” and “defamatory” dramatic performances. Performances that were likely to elicit anti-government sentiment or that were likely to corrupt audience members were prohibited.
The statute still survives seventy-six years after independence, and many states, with the exception of Delhi and West Bengal, introduced and amended it after 1947.
The Khakee dressing
The Colonial officer Sir Harry Bernet is known to be behind the idea of the Khakee dressing worn by Police officials in the country. The uniform has been prevalent since 1847. The word ‘Khaak’ means ‘dust, soil, and ash,’ implying that the person wearing Khakee puts his life on the line and is brave enough to turn to ashes while fulfilling his duty.
Left-handed traffic arrangement
In 1800, the British introduced this system in India. We still drive and walk on the left side of the road under this system of transportation. Contrary to this, numerous countries around the world follow the right-hand-side-of-the-road regulation. Only a few countries in the world, including India, use the left-handed transportation system.
Salt Cess Act, 1954
The Salt Satyagraha was a notable landmark in the history of India. Though his Satyagraha was against the salt tax, you might be shocked to learn that the ‘Salt Cess Tax Act of 1953‘ is still in effect today. This tax is levied as a sub-tax to cover an exclusive administrative expense. It is levied at a rate of 14 paisa per kilogram of body weight. This tax is levied on salt factories that are either privately held or owned by the government.
In the fiscal year 2013-2014, the government was able to collect around $ 538,000 which was only half of the total cost of collecting this tax, thanks to this statute. Due to the high cost of collection, a committee was formed to look into the practicality of continuing the tax, but they were unable to reach a decision. The salt industry in India is responsible for providing employment to about 1.4 lakh individuals per day. Besides this, 92% of the salt production is carried out by private entities.
The Indian Police Act, 1861
Following the rebellion of 1857, the British drafted this statute. Before implementing this law, the British government’s major goal was to create a police force capable of dealing with any government uprising. All powers were centralised in the hands of the state, which acted as a dictatorial administration under this Act. However, despite the fact that India has declared itself a sovereign republic, this act is surprisingly still in force.
Even though Maharashtra, Gujarat, Kerala and Delhi have passed their own legislation in this regard, these laws very much appear to be derived from the original Act of 1861. According to the Police Act, 1861, police is under state control, i.e. Inspector General/Director General will act according to the order of the Chief Minister, and can be removed from their post by the order of the Chief Minister.
The Indian Evidence Act, 1872
The British Government passed this Act making it applicable to all court proceedings including Court Marshal. However, the provisions of this Act are not applicable to arbitration proceedings. This Act specifies which objects can be used as evidence and which must be reported to the court of law in advance. Hence, even after 149 years, this Act continues to play a significant part in various legislations, even if it is in modified forms.
The Income Tax Act, 1961
The laws related to Income Tax in India are provided for under this Act. This statute specifies how taxes are levied, collected, and the basic structure of the tax. Though the government intended to repeal this Act together with the Wealth Tax Act of 1957 by enacting the Direct Tax Code, it was not repealed when the Wealth Tax Act was abolished.
The most contentious section of the Income Tax Act of 1961 is Section 13-A. The purpose of this Act is to charge income tax on the revenue of political parties. Also, any organisation that receives a donation of $10,000 or more from an individual or a group must disclose the source of its funds. Surprisingly, all political parties claim to have received donations of less than Rs. 10,000 per person.
The Foreigners Act, 1946
This Act was passed prior to the country’s independence. Any person who is not an Indian citizen is classified as a foreigner under this Act. The individual will have to prove whether or not he or she is a foreigner. If someone suspects a foreigner is staying in India illegally for longer than permissible, they must report it to the local police station within 24 hours of receiving the information. Otherwise, that person will be subjected to legal action.
The Transfer of Property Act, 1882
The Transfer of Property Act governs all the legal provisions relating to the transfer of movable and immovable property in India. This Act was also legislated by the British Government. Transfer of Property, according to this Act, entails giving property to one or more individuals or oneself. Property can be transferred at present or in the future.
Indian Penal Code, 1860
The Indian Penal Code is the official criminal code of India intended to cover all the aspects surrounding criminal law. The suggestions of the first Law Commission in 1860 were used to draft the Indian Penal Code. Under the chairmanship of Sir Thomas Mckaley, the first law commission was constituted in India. Under the British administration, the Indian Penal Code was enacted in 1862. The code defines crimes and the penalties stipulated for those crimes under Indian Law.
Laws repealed in the UK but still in practice in India
The Lok Sabha enacted the Repealing and Amending Bill and the Repealing and Amending (Second) Bill in December 2017, repealing 245 obsolete and archaic laws and identifying almost 1,800 more.
For example, the Dramatic Performance Act of 1876, which restricted theatrical representation in India and was originally enacted by the Raj to regulate theatre, was overturned.
However, there are still several outdated and seldom used laws in India. Here is a list of five problematic, archaic laws that are still in effect in Independent India but have been repealed in the United Kingdom.
Sedition
Sedition is defined under Section 124A of the Indian Penal Code as “hatred or contempt excited against the government” by means of words, written or spoken, or through visible representation.
The law of sedition has received mass criticism on the ground that it stifles the freedom of speech and expression of the citizens of a country. For the same reasons, this law was abolished in the UK in 2009. However, it continues to be in force in India.
The law’s objective in the 1870s was to arrest and convict revolutionary nationalists who spoke out against the Colonial government’s legitimacy. Surprisingly, the Colonial authorities amended the legislation in India to charge VD Savarkar with sedition, thereby banning his book and “seditious” pamphlet.
The sedition law is still rigorously put to force in India, with 326 sedition cases being filed in the period of five years from 2014-19. Out of these 326 sedition cases, only six were convicted, hence, it is evident there has been exploitative use of this law.
In a society where freedom of opinion and expression was protected under the Human Rights Act of 1998, the law surrounding seditious libel was considered arcane in the United Kingdom. It was regarded as a vestige of a time when freedom of expression was not regarded as a right, and so sedition was no longer considered a crime.
Blasphemy
Blasphemy is punishable under Section 295A of the IPC which describes the penalty for deliberate and malicious acts which are intended to outrage the religious feelings of any class by means of insulting its religion or religious beliefs. Its roots can be traced back to communal hostilities between Hindus and Muslims in the 1920s, when the Rangeela Rasool magazine (supposedly) insulted Prophet Mohammed, causing chaos and conflict. To preserve other religions and foster harmony, Section 295A was seen as a “need of the hour.”
Until 2008, blasphemy or blasphemy was a potential offence in the United Kingdom if any published piece of text attacked the Bible or Christianity and harmed public order. It could even lead to the death penalty. In the 1980s, a movement to repeal the law began, coinciding with attempts by Muslims in the United Kingdom to use blasphemy laws against Salman Rushdie’s Satanic Verses.
The UK Law Commission proposed that the law be repealed in 1985, citing the right to freedom of expression as well as the law’s insignificance in modern society, which is no longer founded on religion. The law was abolished in 2008, with the UK government claiming that rarely used laws like blasphemy served no beneficial purpose and instead encouraged religious organisations to attempt to restrict artists.
Unlawful Assembly
If there is an assembly of five or more persons who have the common intent to show criminal force or to resist the execution of any law, then that assembly of persons becomes unlawful under Section 141 of the IPC. This provision of the law is often considered vague and has on several occasions led to the prohibition of peaceful gathering, issued under Section 144 of the Criminal Procedure Code.
The Colonial authority utilised Section 144, which was enacted in 1860, to suppress nationalist revolutionaries’ protests and prevent riots. Section 144 allows the local magistrate extensive authority to call for an end to any demonstration, peaceful or otherwise. This Section can be seen too frequently imposed in recent times, some examples include the Delhi Riots of 2020 and post the Ayodhya verdict. Several State Governments have also imposed Section 144 in their states in order to curb the spread of COVID-19.
In the United Kingdom, the Public Order Act of 1986 repealed illegal assembly, rout, and riot in an attempt to make the law more comprehensive and easy to understand. Nonetheless, the ambiguous language of Section 141 has led to widespread use of the prohibitive order in India.
Death Penalty
The death penalty is another law that has made its way into the legal system of India by way of the British-drafted Indian Penal Code (IPC). Provisions of the IPC have made numerous crimes punishable by death.
The death penalty was abolished in the United Kingdom in 1998, except in times of war. It signed the 13th Protocol of the European Convention on Human Rights in 2003, abolishing the death sentence in its entirety.
However, the death penalty jurisprudence in India has grown significantly over time as a result of judicial interpretation. Following Supreme Court precedent, the death sentence is only used for the most heinous of criminal offences in the rarest of rare cases.
The term “rarest of rare” has yet to be defined objectively. Instead, the Supreme Court has established factors that a judge must consider when assessing whether an offender deserves to be executed on a case-by-case basis. As a result, the presiding judge’s decision on whether or not to impose the death penalty is ultimately up to him.
As per a 2019 report, India is one of the 56 countries that have retained the death penalty as against 142 countries that decided to abolish it.
Besides these, the criminalisation of homosexuality under Section 377 of IPC and adultery under Section 497 of the IPC was also adopted from the Colonial era. However, in September 2018, the Supreme Court struck down these sections of the IPC.
A hint of Colonial legacy in Indian judiciary
It is a well-established fact that the British Colonial rule has majorly influenced the present legal environment in India, ranging from dress codes to the provisions of statutes. The Indian judicial system is somehow unable to let go of the Colonial legacy. Over years, there have been numerous debates as to whether it is time to move on from the Colonial conventions pushed on the people of the country decades ago.
Due to its unsuitability in Indian weather, the necessary coat-and-gown dress rule for lawyers has been criticised. In some Courts, the practise of having mace-bearers march ahead of judges has sparked lively debate.
Senior Advocate NL Rajah, a member of the Madras High Court’s Heritage Committee, points out that a Colonial psyche persists throughout the Indian Judicial System.
The Colonial mindset of the British was to protect its subject only on the condition that they surrender their rights to the State. In other words, Justice could not be demanded, rather the State had the authority to allow it as a matter of concession. The way pleadings are written in Court, the way the Court is addressed, and, most crucially, the Court’s accessibility is all evidence of this Colonial mindset left behind by the British rulers. Justice is prayed for in the most humble terms, not demanded. Judges are still referred to as Lordships and Ladyships. The average petitioner, as was the case with the Privy Council during British Colonial authority, is often unable to afford the costs of pursuing suit in remote Higher Courts. Furthermore, judges are rendered helpless by the growing backlog of cases, even if they wish to assist the ordinary litigant.
Because of the large number of cases pending, courts are deciding whether or not to give relief based on the severity of the violation rather than the violation itself. The fact that the law ignores trivial cases is another indication of the Colonial mindset.
Is India ready to move on from Colonial laws
The abolition of Section 377 and Section 497 of the IPC were landmark moves on the part of the Supreme Court in order to push the legal system forward towards a more inclusive society. However, there are still laws and statutes that were given to the country by its Colonial rulers and continue to be used and applied everyday in a law-abiding citizen’s life. While some of these laws do not impose any threat, laws like Sedition and Blasphemy still carry the potential to be misused by the leaders of the country in order to suppress the fundamental right of Freedom of speech and expression. Besides these, the fact that dress codes prescribed by the British rulers are still being devotedly followed by the Guardians of the law is classic evidence of the fact that India might not just yet be ready to move on from the Colonial legacy bestowed upon it.
Conclusion
The Britishers stayed in the country long enough to control and shape the legal system that is followed today. While some of the laws have only assisted the lawmakers of the country to justifiably draft the law of the land, some of the archaic laws which are only aimed at exploiting the accused need doing away with. Overall, these British laws have done more bad than good, and seventy-six years post the independence of the country, there is no point in following the laws that the UK itself has abolished.
References
- https://www.barandbench.com/columns/independence-day-special-legal-system-british-colonial-rule-in-india
- https://www.thequint.com/news/India/Colonial-laws-still-in-practice-India-section-377-sedition#read-more
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
