Criminal law

Does India today need to talk about “decolonization”?


In a historical article explaining the nature of the radical shift from Mongol rule to British colonialism, the anthropological historian says: Bernard Cohn It vividly depicts how a major transformation was brought about in the existing symbolic social order by maintaining continuity at the level of court rituals and practices. In pre-colonial India, imperial subjects of rank and status were symbolically incorporated into the bodies of Mughal kings and other indigenous rulers through mutual sacrificial acts. Nazar and receiving mixers in public ceremonies. While continuing to parade the royal courts, the human gift economy based entirely on loyalty and patronage was transformed by the British into one of the greatest economies in the world. swap The bribery and tribute relationship that helped their commercial and capital projects.

What we witness in India today with talk of decolonization is strikingly reflective of Cohn’s assessment of British colonial practices, albeit in reverse. To avoid being seen as disruptive to the prevailing social relations shaped by their experience in 1857, the colonists retained the imaginary spectacle of the Mughal court to cover up the fundamental disconnect they made in the symbolic realm. The exact opposite can be seen in the sudden ambient noise Codes of Decolonization Act 76 years since the independence of India. The proposed practice of settlement laws—dishonest at best and dangerous at worst—would only superficially alter the imagination through a startling display of rejection of the colonial inheritance while harboring no aspirations for freedom at the structural and systemic level of the state. the symbolic system itself.

Criminal law and justice

Home Minister Amit Shah of the ruling Bharatiya Janata Party recently introduced three new bills to parliament to reform the criminal legal system that has existed since the colonial period. Colonial era laws including the Indian Penal Code of 1860, Indian Evidence Act of 1872 and the updated Criminal Procedure Act of 1973 are set to be repealed and replaced by the Bharatiya Nyaya Sanhita Act, Bharatiya Sakshya Bill and Bharatiya Nagarik Suraksha Sanhita respectively. like expert analysts In the past few days, these bills, despite their grandiose stances, have signaled the preservation of the inherited legal edifice to a large extent with the introduction of minimal changes to solve its multiple crises in the areas of police and prison reforms, vaguely drafted laws and arbitrary implementation.

Apart from striking a blow to multilingualism in India by Give priority to Hindi SanskritTheir titles also misrepresent the object and purpose of these laws. For example, by translating the word “retributive” into “nyaya” which is commonly associated with justice in classical Hindu philosophy, one bill reduces the latter to a much narrower concern with crime and punishment. Nobody can guess why this particular term was chosen, but in its 2019 election manifesto, the Indian National Congress came up with the “Nyuntam Aay Yojana”, also known as Nyay, the basic income scheme. Although it was not sufficient to generalize universal welfare, this gesture was at least consistent with the global trend among political theorists to think of justice through the issue of social redistribution. In contrast, the BJP takes a step back in denying justice its redistributive orientation and equating it with the corrective problem of maintaining law and order.



UCC and social difference

As for this new development in the field of criminal law, the long-time favorite project of the BJP that it has so far been unable to achieve is the abolition of religion-based personal family laws and the enactment of a viable Uniform Civil Code (UCC). To all citizens across the country. Undoubtedly, the normative plurality of governmental and non-governmental laws on issues of marriage, divorce, and inheritance as we know them today is colonial product. But far from being a symptom of the much-criticized “divide and rule,” legal pluralism was initially motivated by Hinduphilia in the eighteenth century, and then, since the Queen’s Proclamation in 1858, by the sheer strategic necessity of maintaining imperial dominance by maintaining social distinctions.

Whatever the British impulse in respect of India’s heterogeneous social life, anti-colonial thinkers had long succeeded in separating their blistering attack on the colonial administrative apparatus from a more positive orientation toward empire as a political form. This is because, unlike the European-style nation-state, empire could theoretically bring religious and cultural differences together without erasing them.

And only in 1929 the Indian National Congress adopted the famous Lahore Resolution Purna Swaraj or complete independence, where the nationalists finally realized that India had no future in an empire that could not serve as an effective counterweight to colonial exploitation. However, even as British rule gave way to a new nation-state, there remained a deep intellectual investment in ancient and medieval imperial figures such as Ashoka and Akbar, who were revived through the adoption of iconographic motifs and history writing. Although nationalism inevitably had a congenial effect, the popular notion of India as a symbol of “unity in diversity” drawn from the imperial past sought to keep open some of its closures.

Read also: To what extent was the drafting of the three criminal bills really consultative?

If the Union Carbide Agreement is entered into force wholeheartedly, it certainly has the potential to nationalize the legal landscape in India, which will then be completely divorced from the long imperial history of accommodating religious and cultural pluralism. Without allowing in any way personal status laws that perpetuate discriminatory practices against women, it must be emphasized, as has been done at length in feminist studies and activism, that legal uniformity is necessary. Not like gender justice.

gradual decolonization

The global movement for decolonization grew out of an ardent progressive impulse to force European empires to reckon with their violent histories of slavery and racism that still blight formerly colonized societies to this day. But in India, the rhetoric of decolonization has been appropriated by Hindu nationalism which has traced back this rhetoric to 800 years of Islamic imperial rule, with a very narrow and superficial program of settlement. Those committed to a forward-looking, liberal left-wing politics should pause and wonder whether spreading such language co-opted entirely by their ideological opponents can serve at all any libertarian purpose in the present moment.

What makes decolonization so attractive to the Hindutva is its passive, regressive side, which allows them to simply enjoy demolition and destruction in all its forms – from architecture to codes of law. This constitutes a complete rejection of the legacy left by the founders of modern India, whose anti-colonial policies were always complemented by a more positive, future-oriented world-making imagination.

democracy and foreign

In our time, the chief sign of nationalism seems to be the rejection of everything foreign, including the English language and even the Constitution, much of which was unacceptable. apparently derived of the Government of India Act 1935. One way of responding of course is to say that the Indians possessed the English language and constitution despite colonial origins through continued use and appropriation. But, more importantly, as a wide range of thinkers from Rousseau to Freud As we have shown, a degree of alienation is essential to the creation of a democratic society.

While anti-colonial positions aim to nationalize the legal system, the ulterior motive driving this project is to do away with the idea of ​​a society governed by law. Instead, what takes its place is the excessively selfish pressure of the collective conscience and the justice of the majority. In the discussion of the British or Indian origins of our legal codes, the power which law has by its very nature to alienate is lost. The law forces people out of their immediate context of family and kinship, and enables them to form a life in common with non-identical others. Even in this difficult period for the Republic, we must have the courage to defy the nationalist will, for it is through some kind of self-alienation that Indians can forge a real political unity.

Dr. Moiz Tondawala is an Associate Professor of Law at Jindal College of Global Law, Delhi NCR, India, and Dr. Salmoli Chaudhary is an Associate Professor of Law at the National College of Law, University of India, Bengaluru.


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