When India became independent, its first head of state was its last Viceroy. Pakistan chose to break the connection completely and Muhammad Ali Jinnah became the head of state. The Congress, despite its years of struggle for independence, chose continuity with the British Raj rather than rupture. This was also the message implicit in the Gandhian tactic of unarmed struggle and lawful defiance of the regime. The Congress never challenged the system of courts nor the legal corpus built up under British rule.
It is this continuity which has perhaps helped India establish a stable regime, though its neighbours did the same and it did not help them. The civil service and all the rules and procedures have been inherited from the imperial rule. The Government of India kept, and has used, the entire apparatus of draconian laws to maintain security. The Emergency of 1975-77 was a reminder of the alien rule. Many of the repressive articles of the Constitution are derived from the Government of India Act 1935.
The principal instrument of preserving order — the Indian Penal Code — is also frequently, if not daily, in use to restrict the many activities of citizens — be it meetings, or marches, or any assembly of more than five people etc. The Indian Penal Code, perhaps even more than education in the English medium, is Macaulay’s lasting gift. A law written in the 1830s, that was codified 30 years later, rules India as if nothing has changed over the past 150 years. Britain, in the meantime, has been through many legal revolutions and has modernised the legal system on which Macaulay based his version. India still sticks to it.
Recently, Article 377 — criminalising unnatural sex — has been reaffirmed by the Supreme Court as the law of the land. The LGBT community, their friends and supporters would like it to be changed. The law on rape has been drastically revised after the Nirbhaya tragedy. This was done through a combination of events, from powerful mass mobilisation to a speedy report by sympathetic experts and an exemplary exercise by an otherwise unproductive Parliament to enact a law.
Nothing so speedy is likely for 377. Nor will it be possible to mount a mass campaign against Section 295 A, which criminalises speech that offends some religious community or other. This is the law behind which Penguin took shelter and withdrew Wendy Doniger’s book The Hindus: An Alternative History. Penguin cited risk of their staff being attacked as one of the reasons. This implied that when it comes to religious hit squads, the Indian State cannot be relied upon to defend its citizens’ rights. Or perhaps one should say not the State but the government, of whichever party it is, which weighs in balance the rights of the citizen publishing or selling books as less valuable than pandering to the outrage of a religious vote bank, no matter how small.
There is no doubt that the politicisation of religion in the past three decades has been the most sinister threat to the freedom of expression of Indians. The hypocrisies of secularism have allowed governments to get away with attacking the right of their citizens to indulge in free expression by sheer passivity in face of an attack. This passivity has been ecumenical, affecting Taslima Nasrin, M F Husain, Salman Rushdie, the employees of the Bhandarkar Institute in Pune and now, tacitly, Penguin employees. India is no longer a leading light in matters regarding freedom of speech, as shown by a recent ranking which put the country at 140th among 200 nations.
What then is to be done? In a nation of lawyers, it should be easy to ask that we re-examine the continued relevance of the Indian Penal Code and see if there are aspects of it which need rewriting or excising. This can only be done comprehensively for the entire code, which must be ripe for revision after 150 years. It is not so much a concession to minority tastes but a signal that India now feels at ease with itself and that it is independent enough to have its own laws.