Decolonization is not just a political process, but an essential practice for restoring identity, history and dignity. Especially when it comes to the laws that govern the nation, continuing with colonial-era laws is like wearing chains of oppression as jewelry. The Indian Penal Code of 1860, the Indian Evidence Act of 1872 and the Code of Criminal Procedure of 1898 are relics of an era when India was viewed and treated as the ‘crown jewel’ of the British Empire, rather than as an autonomous nation. Sustainability of civilization with a history rich in governance and jurisprudence. As postcolonial scholar Gayatri Chakravorty Spivak aptly puts it, “The colonizer writes history, and the colonized is history.”
Using laws formulated by colonial masters not only links India to a past where it was not free but also hinders its journey towards true self-realization. Emotionally, it’s like a bird trying to fly through the sky with weights tied to its wings. For India to truly realize its potential, it must decolonize every aspect of its existence, especially its legal framework.
Thomas Babington Macaulay’s fingerprints are indelibly imprinted on the entire criminal justice system in India. While one must grudgingly acknowledge the comprehensiveness with which Macaulay was able to codify the laws, the underlying purpose behind this undertaking cannot be ignored. The core of this formidable legal practice is steeped in colonial ambition and domination. It was not merely an attempt to impose order, but a calculated strategy to subjugate an entire people, integrating them into a legal framework designed by those who saw themselves as rulers rather than allies. The legacy of this system continues to constrain India, a painful reminder of a past that it sought to suppress rather than elevate.
at 10y In July 1833, the great arbiter of civilisation, Macaulay, proclaimed in the House of Commons a manifesto full of the generosity of colonial paternalism. “I think no country has ever needed a code of laws more than India; I also believe that there has never been a country where a need can be so easily satisfied, as if India, with its thousands of years of history, philosophy and legal tradition, were but a blank page waiting for the enlightened scribbles of the British quill. He continued with the intimate promise that India might “enlarge under our system” until it could actually lay claim to European institutions, expressing his visionary goal of educating the “subjects” and empowering them to form a better government. So the fearless Lord Macaulay allowed the prospect that Indians might one day rise above “slavery and superstition” and aspire to the greatness of European citizenship. How very generous of him to think of such a future for Indians. His words, which are a testament to the empire’s self-congratulatory spirit, are in fact a “title of glory” that only the colonial mentality could make.
Subsequently, in the same 1834, the first Indian Law Commission was formed, chaired by Macaulay. Its role was to look into the courts, police systems and laws that existed in India at that time. The committee recommended that the government take several legal measures. One of the major recommendations was the Indian Penal Code, which became law in 1860. Despite being a product of the colonial era, this law is still in use in the country, with only a few changes made over the years. The continued existence of these laws, which were originally devised to serve the interests of the British rulers, can be seen as a negative aspect of India’s legal heritage. It is a reminder of the time when laws were not always made with the best interests of the Indian people in mind.
Its continuation is a lingering shadow of a past that sought not to elevate India, but to mold it into the image of those who seek rule rather than respect.
Moreover, the whole idea behind introducing the IPC, CRPC and Evidence Act was that the legal system in India was primitive. In David Scoy paperMacaulay and the Indian Penal Code of 1862: The myth of superiority and modernity inherent in the English legal system compared to the Indian legal system of the nineteenth century, explores the comparative development of criminal law in India and England during the nineteenth century. a century. Scoye asserts that Indian legal reforms were mirroring those taking place in England, as the legal changes in India mirrored the Peel Laws, the creation of criminal laws, and other legal transformations in England. Scoye argues that Macaulay’s initiation to write the Penal Code for India was a result of criminal law reform in England, rather than the state of the Indian legal system. Furthermore, he challenges the notion that the legal system in England was inherently superior or more modern than the legal system in India. He advocates an understanding of India’s domestic legal systems to allow for an objective comparison, believing that the criminal justice system in India was not necessarily more primitive than that of England. Scoe’s study shows that English law and its development cannot be taken seriously, especially when compared with Indian law in the same period.
Additionally, when India’s criminal justice system was “reformed,” it was not applied consistently across the board. The wisdom of the British colonial mentality was captured only by the Chief Justice of the High Court of Calcutta, Charles Jackson. An ardent defender of the “special circumstances” which allowed “a small dominant and civilized class” to give “a large number of uncivilized natives” a judicial system superior to anything they had ever had. However, God forbid that these same British subjects should be subject to such laws! Jackson’s frank assessment: the natives were “better off,” while the Europeans would suffer only to be subject to “inferior” laws. The solution, he generously declared, was not “to reduce British subjects to the level of natives” but to “raise the native to the level of British subjects.” In fact, the desire to raise indigenous people while keeping them away from the laws that governed the British is truly poignant. One can’t help but wonder what grace it took to view the system as a fine gift, rather than the obvious tool for differentiation and control for which it was designed.
For generations, the people of India have lived under laws that were never ours. They were rules given to us by people who didn’t understand us, looked down on us, and thought they were doing us a favor. The Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act were like old, out-of-date clothes passed down by those who once ruled us.
But now, a new day has dawned. Bharatiya Nyaya Sanhita Bill, 2023; the Bharatiya Nagarik Suraksha Sanhita Bill, 2023; and the Bharatiya Sakshya Bill 2023 are more than just new laws. It’s our laws. It is a sign that India is ready to stand tall and walk its own path. It is about saying goodbye to the past and embracing the future that belongs to us.
So, this is a new beginning. And to Thomas Babbington Macaulay, who once thought he could teach us to be civil, we say thank you for the lessons, but we’ll start here. We have our own wisdom, our own power, and our own way of doing things. It is time for India to become India, and we wouldn’t have it any other way.
The author is Additional Private Secretary (Policy and Research) on the Prime Minister’s Economic Advisory Council. He tweeted @adityasinha004. The opinions expressed in the above article are personal and belong only to the author. They do not necessarily reflect the opinions of Firstpost.
Posted on: 14th Aug 2023 16:25:56 IST