This article is written by Surbhi Jindal, a law student at Dr B.R. Ambedkar National Law University, Sonipat, Haryana. The article attempts to discuss whether Independent India should follow the colonial precedents or not?
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Before India became a British colony, it was divided into various kingdoms. When the British arrived, not all the kingdoms came to an end. Some continued, but they were to work by British rules and regulations. The arrival of the British brought both positive and negative effects.
Not all British rulers were bad. Some even supported India in achieving the feat of Independence. The British brought various laws, some of which continue to apply in India even after we gained Independence.
India gained Independence from British rule on August 15, 1947. Making colonial India independent of the British government was not an easy process. It took years of efforts of our great freedom fighters to establish an India that is free from colonized rule.
But India has not gained Independence yet in a true sense. It is still suffering from a colonial hangover. The reason why I say this is very simple. Some of the laws that even apply today have become obsolete. Their application remains ambiguous and is not as per the present situation. Many amendments are required in the interpretation of various Acts and Regulations. However, due to the lackadaisical behaviour in the Parliament, we continue to apply the previous laws.
Even the Chief Justice of India, Justice NV Ramana called for the Indianisation of the legal system. He discussed making the courts and its working accessible to all. Quoting him, “Our legal system is colonial, not suited for the Indian population. The need of the hour is Indianisation of justice accessible to all”.
Through this article, I attempt to discuss the issue of whether India should follow colonial precedents. What are the laws that the Indian legislature continues to apply from the British era? What was the primary purpose of these rules in the colonial period, and how did it affect the judicial interpretation in the past and present.
Some laws that have been applicable in India were long ago repealed in the UK. We will go through the timeline of all such laws, which now have been abolished in the UK. However, still, India did not consider them to be put to an end even if they had become obsolete. Apart from this, few laws deal with sedition, unlawful assembly, etc., which have now been repealed in the UK but continue to exist in India. Has anyone thought what would be the situation of India if the British Empire had not ruled it? What would India look like? I will put forward a few points to imagine how India would be if no British rule existed.
Whether India should follow the colonial precedents or not will also be discussed. But before we move forward, an important question arises: why is Indian society impacted by British rule. Let’s find out to make the concept more clear of the relation between the colonial empire and present-day India.
Why is India impacted so much by the British rule
The British ruled India for almost 200 years. It is not easy to get free from the impact of British rule in India even years after Independence because of the multi-faceted approach they adopted. Some of the regulations and laws brought by the British were already implemented in their country Britain. Hence, it became easier for them to rule India with laws for their vested interests. The rules brought in both the positive and negative aspects. Here are some points to consider if you want to know how and why India suffers from the colonial hangover.
When the British arrived in India, they sensed the necessity of establishing an efficient and mightiest bureaucracy. They were not willing to apply anything that was merely an experimentation process. Hence they used their administrative system to the existing organizational system in India.
They set up a constitutional framework through which the government functioned and established the essential principle of ‘rule of the law.’ The rules and regulations of the administration were changed from time to time. Still, the officers acted by the existing laws that the British had put in place. Due to the impersonal administration created, the bureaucracy was strengthened. Bureaucracy functioned within the system of democratic checks, and hence this administration continues in India. Nothing was attempted to change the administrative laws since our leaders felt that everything was going smoothly. It was redundant to introduce a new administrative system.
Strengthening of Unitary approach
Before the arrival of the British, Indian society was kept divided by some of the inherent forces. But the Britishers attempted to keep the system unified and strengthened the central powers. It made the administrative system very centralized, thus making India adopt a unitary approach.
The rule of law
The English Common Law system brought in the concept of the rule of law. The idea has a tremendously profound impact on the judiciary of India. The rule of law essentially meant that the people of a nation would be governed by the law and not by men. In other words, the decisions made by the government will only be valid if legal principles apply to them.
What are the laws that continue to exist even today since the British era
Some of the laws made by the British during colonial rule have been repealed in their country Britain. However, they are still followed by India. No efforts have been made to repeal them. Let us understand some of the outdated laws and have a look at how it affects the Indian culture:
Sedition is defined under Section 124 (A) of Indian Penal Code, 1860 as any act by words, either spoken or written, signs or representation that aims to bring hatred against the government in the general public, shall be liable for the act of sedition.
The Britishers brought this law, and it continues to be applicable in India. The Sedition law is considered one of India’s most debated issues since it curtails the fundamental right of speech and expression under Article 19 of the Indian Constitution.
The class of people responsible for bringing this law to India themselves abolished this sedition law as an offence in the UK in 2009 by the Coroners and Justice Act, 2009. In the words of Claire Ward, a former member of Parliament of the United Kingdom said that this law was present in that era as freedom of speech and expression were not seen as the necessary right. But today, freedom of speech and expression has become the touchstone of democracy and is crucial to maintain Independence.
In India, there have been several cases against sedition from time to time. One of the most famous cases under sedition is that of the year 2016. JNU president Kanhaiya Kumar was alleged to have spoken ‘Anti-India’ slogans and was charged with sedition. The recent article by Hindustan Times gives a glimpse of data relating to the cases registered under sedition from 2014 to 2019. More than 300 cases were reported, but only six have been convicted to date. There’s a strong need for India to reconsider the applicability of this law in present times.
Blasphemy is another law that has been abolished in the UK but continues to be applicable in India. Blasphemy is punishable under Section 295 (A) of the Indian Penal Code, 1860. It is defined as an act by words, either spoken or written and by signs or visible representations aimed deliberately and maliciously to hurt the religious sentiments of any person or class shall be punished under the law of blasphemy.
The law was inherited during Punjab’s religious uprising and the repeal of the Press Act in 1910. In other words, the origin of this law can be traced back to communal tensions that arose between Hindus and Muslims due to the publication named Rangeela Rasul that mocked the Prophet Muhammad, creating disorder and uncertainties in the society.
The recent example of Section 295 (A) can be seen when a comedian Kiku Sharda was arrested in charge of allegedly hurting the religious sentiments of the followers of the leader Gurmeet Ram Rahim Singh of Dera Sacha.
It is interesting to note that blasphemy law was abolished in the UK in 2008. The law commission in 1985 recommended that these laws are of no relevance in modern society because nowadays, society is not based on religion.
Unlawful assembly is defined under Section 141 of Indian Penal Code, 1860 as when five or more persons form a group with common intent to either resist or show any criminal force, then that is said to be known as unlawful assembly. This law is one of the obsolete laws, which has sometimes led to the prevention of gatherings for a lawful purpose with peaceful intent. It was introduced in 1860 to stop the national revolutionaries from holding protests against the colonial government.
In the UK, this law was abolished through the Public Order Act in 1986. This was done to make the law more comprehensive and clear to use. But in India still, this law continues with a scope of ambiguity. According to an article by Economic times, 885 orders were issued in 2010 and 2011 alone in Delhi. Still, only 5% of them were concerned with unlawful assembly.
‘Same-sex marriages cannot be given legal sanction: Government, read the headlines of the newspaper Economic Times. In India, same-sex marriages are not allowed. But in the case of the UK, the government has long abolished the law preventing same-sex marriages. Instead, the Parliament passed the Marriage (Same-Sex Couples) Act, 2013 to allow same-sex marriages in England and Wales. Even the Scottish Parliament has allowed same-sex marriages. Then why India is having a problem in recognizing same-sex marriages. Why aren’t the people of India granted the right to marry the person of their choice?
Capital punishment, also known as the death penalty has been in existence since ancient times. In India, the concept of the death penalty is yet prevailing. There has been a long debate going over the topic- Whether the death penalty should be abolished or not? While the supporters say that it should not be abolished because it will stop acting as a force to deter criminals from committing crimes. On the other hand, the people against the death penalty assert that it should be abolished because everything can be achieved by reformation. Also, hanging the accused will not reverse the crime, so it’s better to adopt any other way so that the crime rate can decrease.
Remember the case when a senior advocate and a human rights activist Indira Jaising Singh received a backlash in public when she asked the mother of the victim of the Delhi gang-rape case, 2012 to forgive the four convicts. However the main purpose of her saying was that she was against the idea of the death penalty, but ultimately the pain and grief of the mother and the public cannot be ignored.
If we look at the case in England, then in the year 1965, Britain had abolished the punishment of the death penalty for murder. However, a few crimes including treason remained punishable till 1998. There exists a gap between law and precedents in Indian society and Britain. Don’t you think, this is the time to rethink the laws that prevail in our society. Though we have adopted a western lifestyle in many ways, our legal system still goes through the traditionality of British laws.
Should India be allowed to follow colonial precedents
Only those laws should be allowed to function, which are by the present-day conditions. For example, the sedition law, blasphemy law in the UK have been abolished. They abolished it because the UK government acknowledged that these do not apply to present-day society.
A time has come where India should have a deliberate discussion on the laws that have been prevailing since the British era. I vehemently stress that India should follow only those precedents and regulations that resonate with modern-day Indian society. It is high time that India should repeal its old laws.
What was the purpose of laws in the colonial era
Britishers started ruling the country India. But afterwards, they were facing the lingering challenges of the legal administration of India. India’s first governor-general in 1772 placed Hindus under Hindu law and Muslims under the Muslim Law, and other indigenous inhabitants under Muslim rule.
Afterwards, Britishers began to interfere in the other subjects and did not confine themselves to mere revenue collection. It started interfering with India’s legal system in the second quarter of the nineteenth century. After the Indian revolt of 1857, the British took control of the East India Company. It felt the need to introduce a uniform law that could govern the rights and liabilities of a person. Therefore, a unified law named Indian Penal Code, 1860 was introduced. The other civil, criminal, and commercial laws were codified later in the nineteenth century.
After India got Independence in 1947, the legal system introduced by Britishers remained unchanged. We adopted these laws and continued to apply them in Independent India’s social context. The primary purpose of the colonial laws was to safeguard the interests of colonial people. For instance, land and property laws introduced led to the Britishers securing titles to settlement lands. It also even allowed them to secure investments in the plantation industry.
India was drained of all its wealth because of the British. Britisher’s legal system was directly favourable to their countrymen and against the Indian people. Their law towards foreigners and non-foreigners was dricrimantely applied.
What would India have looked like if the British had not ruled it
According to an article by Indiatimes, some predictions were made on the subject ‘If the British had never ruled our country, this would be India today’. Here is the glimpse summarised below of that article.
- In the absence of British rulers, India would have been a land of fragmented states.
- The European colonial powers would have occupied India. For instance, the Portuguese would have taken Goa, and the French would have taken Pondicherry. They would’ve tried to expand their trade in India to be a trade link between Europe and India.
- The railways that we see today were introduced in the year 1871. In the absence of British rule in India, there would have been no railways in India until the 20th century. Also, it had not covered the whole part of India and had remained stagnant.
- India would have become a continent in itself. It had 30-40 states, each having its own identity, religion, and political systems such as parliamentary, presidential, and monarchy.
So, here we come to the end of this article. I inherently believe that there is no loss in following the colonial precedents provided that they are in consonance with the needs of present-day society. We discussed the various laws such as sedition, unlawful assembly, the death penalty and how they have been abolished in the UK but India still continues to apply them.
These laws originated from the British men, but the originators of these laws have now only considered them as obsolete according to the present conditions in their country. We, as the people of India, need a progressive society that is modern in all aspects. For this, the Indian people and the Indian Government has to think about what is the best that can be applied to society which goes on with the modern Indian justice system.
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