The birth of independent India was immediately followed by a need for an adequate mechanism of governance, indigenous in its nature and yet acceptable and sensitive to the needs and customs of the large multitude of castes, classes, religious and linguistic communities it was trying to tie up together. Unsurprisingly then, for the new government, continuance of the judicial system put together by the British was a compromise formula that worked best then. Steeped in European culture and practices, a number of these legal codes saw themselves being adopted in Indian society and being in existence long after the colonial powers had left.
Ten years into independence, the Law Commission of India in its fifth report on the British statutes applicable in India stated, “While India remains a member of the Commonwealth of Nations, the only trace of the old ties is the fact that the Crown is regarded by India as the symbolic Head of the Commonwealth.” No longer tied with the United Kingdom, the Commission suggested that India could have a new set of legal Code and if a British statute is sought useful, it could be replaced by a corresponding Indian statute, having necessary provisions from the British law.
Though 1200 archaic laws were scrapped in bulk, Indians are still following many obsolete laws that have been prevalent from the time of British colonial rule. A majority of the laws over which the Indian judiciary relies upon are derived from colonial times.
Here are some of the archaic laws that we continue to follow even now:
Criminalisation of homosexuality
The criminalisation of homosexuality or what is popularly referred to as Section 377 of the Indian Penal Code (IPC) dates back to 1860 when the British introduced it as sexual activities against the “order of nature.” The section has been much in controversy since 2009 when the High Court decriminalised it. Later, in 2012, however, the Supreme Court overturned the decision and homosexuality continues to be a criminal offence in India. Although recent developments relating to the IPC law has evoked a flicker of hope among people, when the apex court headed by Chief Justice Dipak Misra heard a clutch of petitions challenging the IPC law for three days without a break from July 10, 2018, reserving the verdict on July 17.
The roots of the legality, however, can be found in European culture which for a long time had influenced Indian ways and thoughts.
The stigma attached to homosexuality in Europe dates back to the 11th and 12th centuries when categories of people like lepers, witches, prostitutes and sodomists were considered to be carriers of contamination. The contamination was believed to threaten Europe’s sexual identity and it was considered necessary to include sodomy laws wherever colonisation was in effect.
As early as 1825, laws related to sexual offences had come into existence under the leadership of the then Chairman of the Law Commission Thomas Babington Macaulay. In 1842, British court termed the act of homosexuality as “nasty, wicked, filthy, lewd, beastly, unnatural and sodomitic practices,” to which the defence raised objections on the vagueness of the crime and said that mere adjectives did not provide clarity of the crime.
In light of the sepoy mutiny of 1857, the “Offences against the Person Act” was passed by the Parliament of the United Kingdom of Great Britain and Ireland in 1861 which went on to define homosexuality as “unnatural offences”, an inspiration to the provision present under the IPC. Macaulay introduced two clauses defining “Unnatural Offences” based on whether the act was consensual or non-consensual. The clause further dropped the value of consent, and is what it reads today as Section 377 of IPC, 1860.
Ironically, England made homosexuality partially legal and repealed its 1885 law, introducing the Sexual Offences Act, 1967, which amended the previous law criminalizing homosexuality.
Section 124A of IPC was used in the recent past against the youth of the JawaharLal Nehru University (JNU) which resulted in arrest of the two for voicing their thoughts in favour of the separatist, Afzal Guru. Since then, the provision has been slapped on many and in July 2017 the National Crime Records Bureau (NCRB) recorded 165 arrests made on the charge of sedition in the last three years.
War against the King, compelling him to amend his policies or to intimidate the Parliament was considered an offence in England under the Treason Act, 1795. During the lifetime of King Charles II, sedition had its genesis under the Treason Act.
In the context of colonial India, sedition was first introduced in 1835 and was legally made into a criminal offence in 1870. Nationalist leader Bal Gangadhar Tilak was among the first few to face the brunt of the British law. According to the Bombay High Court archive, two British soldiers were murdered in Pune by some Brahmin youths who were allegedly instigated by Tilak’s public speeches. Charged with sedition twice, Tilak was released after completing a sentence of 18 months for the first trial and was sentenced six years for an editorial published in his newspaper, Kesari.
Terming sedition as the “prince among the political sections,” M K Gandhi considered sedition designed to suppress the liberty of citizens when he was brought in court for his articles in Young India magazine in 1922.
An amendment was made to the law and the word ‘sedition’ was dropped from the statute on December 2, 1948 when senior Congress leader, Seth Govind Das spoke in the house, “I believe they (British government) remember that this section was specially framed for securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then, many of us have been convicted under this section.”
Although the term sedition vanished constitutionally, but it remained under IPC as Section 124A.
Controversial for curtailing freedom of speech, Section 295A of the IPC has been time and again imposed for banning publication of several books and other content. After the infamous lawsuit against Wendy Doniger’s book, ‘The Hindus: An Alternative History,’ there have been uncountable debates concerning Article 19(2) (fundamental rights) of the Indian Constitution.
The blasphemy law was inherited from the British colonial government during Punjab’s religious uprising and repeal of the Press Act in 1920, when Muslims violently protested against a publication, Rangeela Rasool. The publication included information of Prophet Mohammed’s private life vastly offending Muslims. Charged under Section 153A of the IPC, the Lahore High Court did not consider the same an offence against the author under the said section but added a clause to Section 295 of the IPC. Publishing pamphlets having content that might hurt religious sentiments of a community was made an offence under the additional clause.
Following the communal tensions, the British considered this a grave lacuna not having a law modulating religious violence. While drafting the provision, the drafting committee raised several concerns regarding the language of the provision, fearing the fate of “scurrilous scribbler” as well as religious critiques.
Debates over triple talaq under Muslim personal law have been making rounds for the past many years, however, Muslim women rejoiced over the judgment pronounced last year by the Supreme Court declaring the practice as ‘void and invalid’. The top bench had directed the government to make amends to The Muslim Women (Protection of Rights on Marriage) Bill, 2017 and bring a legislation promoting equality among genders. The bill received an approval from the Union Cabinet on August 9, however, is awaiting its fate in the Rajya Sabha.
In the Medieval period and during the Mughal Empire, the Muslim administrators maintained harmony between the Hindu laws and the Muslim laws and chose not to interfere in the Hindu family, marriage and succession laws. Instead of constituting a new law modulating religious sentiments of both communities, Governor-General of India, Warren Hastings nurtured the personal laws of Hindus and Muslims.
Under the Charter Act of 1753, Indians were explicitly spared from trying their suits and disputes in the Mayor’s court (highest court during the British rule) and were directed to resolve their disputes themselves, unless both the parties of the case subjected themselves to the jurisdiction of the court. Hastings Rule specifically demarcating the personal laws of Hindus and Muslims was rephrased in Cornwallis Code of 1793 and it is by this rule that personal laws found a firm ground in the 17th century and continues to be what it is today.
The Dramatic Performance Act
In the 18th century, India used theatre as a weapon to exhibit rebellion against the colonial rule. Threatened by revolutionary impulses, the British government introduced the Dramatic Performance Act in 1876, which prohibited dramatic performances of “scandalous” and “defamatory” nature. Performances that would excite feelings among people against the government in power or likely to corrupt persons at the performance were prohibited.
Seventy years after independence, the law still exists and post-1947 many states introduced the law and amended it accordingly with the exception of Delhi and West Bengal.
The Law Commission in its 248th report published in 2014, recommended the repeal of the Act and said, “It was enacted during the colonial era and extensively used to curb nationalist sentiments propagated through dramatic performances. It has no place in a modern democratic society.”
As recent as 2014, the Madras High Court held that the Tamil Nadu Dramatic Performance Act, 1954 should be repealed as it is violative of Article 14 and 19 of the Indian Constitution and reasoned that provisions under the state law bore similarities with the central law.