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Generations of Indians have demurely and reverentially accepted the colonial narrative dished out in our textbooks that by enacting the three Criminal Major Acts, namely, the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence Act (IEA), the British had introduced ‘legal reforms’ in the colony.
The historical background and facts pertaining to the enactment of these laws forcefully contradict this false notion. The overriding concern of the British in enacting these laws was, in fact, to ‘protect’ the European employees of the East India Company (later the British Empire) and settlers from the ignominy of being tried by Indian judges under traditional Muslim criminal law.
As George Claus Rankin, former chief justice of Bengal, writes in his book Background to Indian Law, each of the three presidencies — Bengal, Madras and Bombay — had their own set of ‘regulations’ framed and passed from time to time by the respective Governor’s Council before 1833. James Bryce notes in his Studies in History and Jurisprudence that since this medley created enough confusion, as the first step towards ending the ambiguities and complexities, the first Law Commission headed by Macaulay was established in 1834 by the Charter Act of 1833.
Citing the Parliamentary Papers of the British House of Commons, Edward Ryan (chief justice of Bengal during 1833-43) admits that a need was felt that the Europeans who were permitted to settle in the mofussil areas (referring originally to those parts of British India that were outside the towns of Bombay, Calcutta and Madras) ought not to be made subject to the local courts as long as they administered Mahomedan (the word they used for Muslim in those days) criminal law.
Leaving this aside, there was no demand from any quarter in India. No Indian subject had ever prostrated before the British and prayed that his life and the lives of his ancestors over the past centuries had been made unbearable by the stupidities and tyrannies inherent in the Muslim and Hindu criminal laws, and they would be eternally grateful collectively if the British condescended to ‘reform’ the legal system.
Emergence of legal codes
The first draft of the IPC was ready as early as June 1837. However, as James Fitzjames Stephen informs in his A History of the Criminal Law of England, its approval got delayed because the British considered their occupation with the Afghan War, the battles in Central India, the Sikh Wars and the annexations of Dalhousie more important. Barry Wright categorically states in Codification, Macaulay and the Indian Penal Code that the hurried enactment of the IPC in 1860 was sparked by the crisis of the Revolt of 1857 and its intention was to make the imperial authority more effective and ‘legitimate’.
The first Code of Criminal Procedure (1861), quite expectedly, came almost simultaneously with the Indian Penal Code as the IPC could not have been put into effect without a corresponding criminal procedure code to implement it. For that too, they remained concerned with ‘protecting’ the white subjects.
The first Criminal Procedure Code of 1861 had provided that white British citizens could not even be tried in district courts; only superior courts could try them. This ridiculous practice survived until 1872 when they provided that white people could be tried in district courts only if the judges too were white. This lasted until 1882 when they provided that Indian magistrates could try white people but only in presidency towns.
In 1883, viceroy Ripon sought to make British subjects amenable to the sessions courts. This proposal, as embodied in the Ilbert Bill, provoked furious protests, especially among the Calcutta European business community and the Bengal indigo planters. Reina Lewis et al say that the British press in India spread wild rumours about how Indian judges would abuse their power to fill their harems with white British women. Eventually, a compromise was reached by which a British subject could claim a jury, half of which would be Europeans!
Archaic laws in modern India
In this age, in the 21st century, and particularly when India is witnessing a sort of self-assertive revival of its ancient identities, we cannot keep on taking pride in the socio-cultural legacies of our past in almost every field and, at the same time, quietly admit that the criminal justice systems, which had governed millions upon millions for centuries were worthless. It would amount to self-contradiction and an intrinsic illogicality.
If we really believe that the British introduced ‘legal reforms’, we must have the intellectual honesty to admit that we indeed had criminal justice systems, which were unfair, unjust, arbitrary, and repugnant to good governance, natural justice and common sense. We must also admit that for centuries the people of this country had been groaning under the oppressive weight of the obnoxious criminal justice systems imposed upon them by their religious texts or by their debauchee rulers.
Colonialism, by that logic, would therefore be not just a blessing in disguise but deliverance from the whimsical atrocities of petty rajas and nawabs. Should that be so, let us stop from pretending that we were anything but ‘an area of darkness’, infested by ‘snake charmers, fakirs, nautch girls and thugs’, and with people so degenerate that they were not worth being consulted before a superior power imposed a legal system upon them. If it is not so, then using the words ‘legal reform’ is an insult to the nation.
That the Codes have survived for nearly 160 years is not a testimony to any intrinsic merit therein. On the other hand, it demonstrates the quintessential subservience of the Indians, who are also averse to any intellectual exertion of their own as long as someone superior has done it for them.
George Otto Trevelyan, in Life and Letters of Lord Macaulay, had remarked that the younger Indians carried the Code about with gratitude in their saddlebags and the older in their heads. The British could get away with such insulting remarks because they had correctly gauged the Indians’ subservience.
Second, it is because of a very clever Indian state that does not want to let go of any of the powers of the colonial era. Third, if even in the third decade of the 21st century, a nation of nearly 140 crores is not ashamed of living on the wisdom of a couple of English gentlemen of 1837, it means something sinister.
What prevented the Indians from giving themselves a new set of criminal laws and justice system after independence? Are they intellectually incapable? Though it is possible, I doubt it.
There is no reason to believe that those who could give us one of the most elaborate and complicated constitutions in the world could not have rewritten the IPC, CrPC and IEA to make them more responsive to the aspirations of an independent nation. Since it was not done, it means that they actually wanted the unlimited powers of the state to continue.
Very cleverly, they gave us a constitution that, at least in theory, raises this nation to a high moral pedestal with its lofty ideals. However, the way the state has continued to grant immense powers to itself and thus indirectly to the ruling dispensations; the way the agencies of the state like police have exploited the loopholes in the criminal justice system shows that the constitution with its lofty ideals is just the façade; the reality of the exercise of the state’s power over the citizens has remained unchanged.
The Indian state will never let go of any of the draconian powers of the colonial rulers. Irrespective of the party in power, nobody wanted to reduce the powers of the state even one bit. That is why abuse of almost all institutions, including police, has become the new normal in India.
N. C. Asthana is a retired IPS officer and a former DGP, Kerala. Author of 49 books, his latest book is State Persecution of Minorities and Underprivileged in India. He tweets @NcAsthana.