7 Oct 2023
The colonial legacy persists, sometimes in the least expected places.
Colonial rules that are still prevalent in India
India gained independence from British colonial rule on August 15, 1947. Since then, India has been a sovereign nation with its own government and constitution. Colonial rule is no longer prevalent in India, and the country has developed its own political, economic and social systems but some of the features from colonial times are still followed. India has a democratic system of government with periodic elections and a rich cultural heritage. It has made significant progress in various fields including technology, education, healthcare and infrastructure since gaining independence. 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. However, remnants of colonial rule can still be seen in certain aspects of Indian society such as legal and administrative structures, educational institutions and cultural influences even now. British colonialism has left a lasting impact on India's governance, legal system and some cultural practices. For example, India's legal system, bureaucracy and parliamentary system of government were influenced by British colonial administration. The British Government designed several legislations during their rule in India in order to run the country by their own way. These legislations were not at all beneficial to the people of the country as they aimed at exploiting the resources of India and suppressing rebellion done by the masses against the British rulers. Unfortunately, some of these legislations are still believed by the Indian Lawmakers and are very much relevant to date so much that these laws are a part of our everyday routine.
Colonial laws that are still in practice in India
The Colonial rule left its legacy in the form of various acts and rules that are still in continuance in India and are being rigorously implemented. Following are some of the laws which have Colonial footprints:
The Dramatic Performance Act, 1876
India used theatre as a weapon to express resistance to Colonial rule in the 18th century. Threatened by social revolution, the British government enacted the Dramatic Performance Act in 1876, prohibiting “scandalous” and “defamatory” dramatic performances. Performances that were likely to elicit anti-government sentiment or that were likely to corrupt audience members were prohibited.
The statute still survives seventy-six years after independence, and many states, with the exception of Delhi and West Bengal, introduced and amended it after 1947.
The Khakee dressing
Sir Harry Bernet, The Colonial officer is known to be the person behind the idea of the Khakee dressing worn by Police officials in the country. The uniform has been prevalent since 1847. The word ‘Khaak’ means ‘dust, soil, and ash,’ implying that the person wearing Khakee puts his life to stake and is brave and bold enough to turn to ashes while fulfilling his duty.
Left-handed traffic arrangement
In 1800, the British introduced this system in India. We still drive and walk on the left side of the road under this system of transportation. Contrary to this, numerous countries around the world follow the right-hand-side-of-the-road regulation. Only a few countries in the world, including India, use the left-handed transportation system.
The Indian Police Act, 1861
The British government drafted this statute after the revolt of 1857. Before implementing this law, the British government’s major goal was to create a police force capable of dealing with any government uprising. All powers were centralised in the hands of the state which acted as a dictatorial administration under this Act. However, despite the fact that India has declared itself a sovereign republic this act is surprisingly still in force.
Even though Maharashtra, Gujarat, Kerala and Delhi have passed their own legislation in this regard, these laws very much appear to be derived from the original Act of 1861. According to the Police Act, 1861 police is under state control, i.e. Inspector General/Director General will act according to the order of the Chief Minister and can be removed from their post by the order of the Chief Minister.
The Indian Evidence Act, 1872
The British Government passed this Act applying it to all the court proceedings including Court Marshal. However, the provisions of this Act are not applicable to arbitration proceedings. This Act specifies which objects can be used as evidence and which must be reported to the court of law in advance. Hence, even after 149 years, this Act continues to play a significant part in various legislations, even if it is in modified forms.
The Foreigners Act, 1946
This Act was passed prior to the country’s independence. Any person who is not an Indian citizen is classified as a foreigner under this Act. The individual will have to prove nationality. If someone suspects a foreigner is staying in India illegally for longer than permissible, they must report it to the local police station within 24 hours of receiving the information. Otherwise, that person will be subjected to legal action.
The Transfer of Property Act, 1882
The Transfer of Property Act governs all the legal provisions relating to the transfer of movable and immovable property in India. This Act was also legislated by the British Government. Transfer of Property, according to this Act, giving property to one or more individuals or oneself. Property can be transferred at present or in the future.
Indian Penal Code, 1860
The Indian Penal Code is the official criminal code of India intended to cover all the aspects surrounding criminal law. The suggestions of the first Law Commission in 1860 were used to draft the Indian Penal Code. Under the chairmanship of Sir Thomas Mckaley, the first law commission was constituted in India. Under the British administration, the Indian Penal Code was enacted in 1862. The code defines crimes and the penalties stipulated for those crimes under Indian Law.
A common argument against the validity of Section 377 is that the law is archaic, having no place in the 21st century. The law was repealed in 1967 in UK. Section 377 of the Indian Penal Code has a long history in India as well as the UK. The law was partially read in 2009 to exclude sex acts between consenting adults but reversed in 2013 by the Supreme Court. In the UK, criminalisation of anal intercourse was written into law through the Buggery Act in 1533. Punishment for homosexual acts was death till 1861 and then life imprisonment till 1967. Then, the Sexual Offences Act 1967 was introduced to amend the law of England, thereby stipulating that private sex acts between consenting men over the age of 21 (in private) would no longer be a criminal offence. The age of consent was lowered in 1994, and a long way after legislation by legislation finally gay marriage became legal in England, Wales and Scotland in 2014.
A hint of Colonial legacy in Indian judiciary
It is a well-established fact that the British Colonial rule has majorly influenced the present legal environment in India ranging from dress codes to the provisions of statutes. The Indian judicial system is somehow tangled within the Colonial legacy. Over years, there have been numerous debates as to whether it is time to move on from the Colonial conventions.
Due to its unsuitability in Indian weather, the necessary coat-and-gown dress rule for lawyers has been criticised. Senior Advocate NL Rajah, a member of the Madras High Court’s Heritage Committee points out that a Colonial influence still persists throughout the Indian Judicial System. Because of the large number of cases pending in BHARAT, courts are deciding whether or not to give relief based on the severity of the violation rather than the violation itself. The fact that the law ignores trivial cases is another indication of the Colonial mindset.
Government replacing all colonial acts to remove British Raj traces
More than 160 years after Lord Macaulay laid down a penal code for what was then a colony of the British crown, India is poised to supplant it with new laws free of colonial vestiges and designed to speed up the judicial process.
Atmanirbhar Bharat Policy under the leadership of Prime Minister Narendra Modi decided to banish the remnants of the British rule and has instructed all government departments to identify and replace all pre-Independence acts with new laws.
“The Government desires that the entire legal code of India should remain purely Indian and there is a need to remove traces of or references to British ties and subject matter of British Statutes, etc. Thus, existing laws made by legislature of pre-Constitution era should be replaced with laws made by the legislature which is in place post-independence,” the Legislative Department told all government departments on March 23.
The Indian Penal Code, 1860 is replaced by the Bharatiya Nyaya Sanhita Bill, 2023, the Criminal Procedure Code, 1898 is replaced by the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and the Indian Evidence Act, 1872 is replaced by the Bharatiya Sakshya Bill, 2023.
Bharatiya Nyaya Sanhita Bill> The Bharatiya Nyaya Sanhita, 2023 was introduced in Lok Sabha on August 11, 2023. The Bill repeals the Indian Penal Code, 1860 (IPC). Categories of offences covered under it include those affecting:
(i) human body such as assault and murder,
(ii) property such as extortion and theft,
(iii) public order such as unlawful assembly and rioting,
(iv) public health, safety, decency, morality, and religion,
(iv) defamation, and
(v) offences against the state.
The Bill retains several parts of the IPC. Changes include introduction of offences of organised crime and terrorism, enhancement in penalties for certain existing offences, and introduction of community service as a punishment for certain petty offences. Certain offences under the IPC that have been struck down or read down by courts have been omitted. These include offences of adultery and same-sex intercourse (Section 377).
Key changes proposed in the Bill include:
· Sedition: IPC defines sedition as bringing or attempting to bring hatred or contempt, or exciting disaffection towards the government. It is punishable with imprisonment term between three years and life imprisonment, and/or a fine. The Bill removes this offence. It instead penalises the following: (i) exciting or attempting to excite secession, armed rebellion, or subversive activities, (ii) encouraging feelings of separatist activities, or (iii) endangering sovereignty or unity and integrity of India. These offences may involve exchange of words or signs, electronic communication, or use of financial means. These will be punishable with imprisonment of up to seven years or life imprisonment, and a fine.
· Terrorism: The Bill defines terrorism as an act that intends to threaten the unity, integrity, and security of the country, to intimidate the general public or disturb public order. Terrorist acts include: (i) using firearms, bombs, or hazardous substances (biological or chemical) to cause death, danger to life, or spread a message of fear, (ii) destroying property or disrupting essential services, and (iii) activities included in the treaties listed in the Second Schedule of the Unlawful Activities (Prevention) Act, 1967 such as unlawful seizure of aircraft or taking of hostages. Punishment for attempting or committing terrorism includes: (i) death or life imprisonment, where the offence has resulted in death of any person, (ii) imprisonment term between five years and life in other cases. An offender will also be liable to a fine of at least five lakh rupees.
· The Bill also penalises conspiring, organising, or assisting in preparation of any terrorist act with an imprisonment term between five years and life imprisonment, and a fine of at least five lakh rupees.
· Organised crime: The Bill defines organised crime as: (i) a continuing unlawful activity such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime, (ii) carried out by use of violence, intimidation, or other unlawful means, (iii) to obtain material or financial benefit, and (iv) carried out by individuals acting singly or jointly, as members of or on behalf of a crime syndicate. Attempting or committing organised crime will be punishable with: (i) death or life imprisonment, where the offence results in death of any person, and (ii) imprisonment term between five years and life, in other cases. The offender will also be liable to pay a fine.
· Petty organised crime: The Bill makes attempting or committing petty organised crime punishable with imprisonment between one and seven years, and a fine. Petty organised crimes are those which cause general feelings of insecurity among citizens, and are committed by organised criminal groups/gangs. These include organised pick pocketing, snatching, and theft.
· Murder by a group of persons on grounds of caste or race: The Bill specifies separate penalty for murder committed by five or more people on specified grounds. These include race, caste, sex, place of birth, language, or personal belief. Each offender will be punishable with imprisonment between seven years and life, or death. It will also attract a fine.
· Death penalty for gang rape of minor: IPC allows death penalty for gang rape of women below 12 years of age. The Bill allows death penalty for gang rape of women below 18 years of age.
· Sexual intercourse by deceitful means: The Bill penalises the act of sexual intercourse with a woman (not amounting to rape) through deceitful means or a promise of marriage without intending to fulfil it. It will be punishable with simple or rigorous imprisonment up to 10 years, and a fine.
· Extending applicability of certain offences to boys: Under the IPC, importing girls under the age of 21 years for illicit intercourse with another person is an offence. The Bill specifies that importing boys under the age of 18 years for illicit intercourse with another person will also be an offence.
Bharatiya Nagarik Suraksha Sanhita Bill
The Bharatiya Nagarik Suraksha Sanhita, 2023 was introduced in Lok Sabha on August 11, 2023. It repeals the Code of Criminal Procedure, 1973. The Code provides for the procedure for arrest, prosecution, and bail for offences under various Acts including the Indian Penal Code, 1860. The Bill retains most of the provisions of the Code. Key changes proposed under the Bill include:
· Detention of undertrials: Under the Code, if an accused has spent under detention half of the maximum period of imprisonment for an offence, during investigation or trial, he must be released on his personal bond. This does not apply to offences which are punishable by death. The Bill adds that this provision will also not apply to: (i) offences punishable by life imprisonment, and (ii) persons against whom proceedings are pending in more than one offence. It further adds that first-time offenders will be released on bail if they have completed detention for one-third of the maximum imprisonment which can be imposed for the offence. The superintendent of the jail where the accused is detained must make the application seeking the release of such undertrials on bail.
· Trials in electronic mode: The Bill provides that all trials, inquires, and proceedings may be held in electronic mode. It also provides for the production of electronic communication devices, likely to contain digital evidence, for investigation, inquiry, or trial.
· Medical examination of accused: The Code allows conducting a medical examination of the accused in certain cases, including cases of rape. Such examination is carried out by a registered medical practitioner on the request of at least a sub-inspector level police officer. The Bill provides that any police officer can request for such an examination.
· Forensic investigation: The Bill mandates forensic investigation for offences punishable with at least seven years of imprisonment. In such cases, forensic experts will visit crime scenes to collect forensic evidence and record the process on mobile phone or any other electronic device. If a state does not have forensics facility, it shall utilise such facility in another state.
· Power to prohibit carrying arms: The Code empowers the District Magistrate to prohibit the carrying of arms in any procession, mass drills, or mass training with arms in public places. This may be done to preserve public peace, public safety, or maintain public order. Such prohibitions may be in place for up to six months. However, the provision was not notified under the Code. The Bill omits this provision.
· Signatures and finger impressions: The Code empowers a Metropolitan/Judicial Magistrate to order any person to provide specimen signatures or handwriting. Such an order can be given for any investigation or proceeding under the Code. However, such specimen cannot be collected from a person who has not been arrested under the investigation. The Bill expands this to include finger impressions and voice samples. These samples may also be taken from a person who has not been arrested.
· Timelines for procedures: The Bill prescribes timelines for various procedures. For instance, it requires medical practitioners who examine rape victims to submit their reports to the investigating officer within seven days. Other specified timelines include: (i) giving judgement within 30 days of completion of arguments (extendable up to 60 days), (ii) informing the victim of progress of investigation within 90 days, and (iii) framing of charges by a sessions court within 60 days from the first hearing on such charges.
· Trial in absence of offender: The Bill provides for conduct of trial and pronouncement of judgement in the absence of a proclaimed offender. This shall be done when such a person has absconded to evade trial and there is no immediate prospect of arresting him. Proclaimed offender refers to a person who: (i) is accused of an offence punishable with imprisonment of at least 10 years or death and (ii) fails to appear at a specified time and place as specified by a Court.
· Metropolitan magistrates: The Code empowers the state governments to notify any city or town with a population of more than one million as a metropolitan area. Such areas have Metropolitan Magistrates. The Bill omits this provision.
Bharatiya Sakshya Bill
The Bhartiya Sakshya Bill, 2023 was introduced in Lok Sabha on August 11, 2023. It repeals the Indian Evidence Act, 1872. The Act provides rules for the admissibility of evidence in legal proceedings. The Bill retains several parts of the Act. It removes certain colonial references from the Act, widens the ambit of electronic records admissible as evidence, and removes provisions related to telegraphic messages. Key changes proposed in the Bill include:
· Admissibility of electronic or digital records as evidence: The Act provides for two kinds of evidence – documentary and oral evidence. Documentary evidence includes information in electronic records that have been printed or stored in optical or magnetic media produced by a computer. Such information may have been stored or processed by a combination of computers or different computers. The Bill provides that electronic or digital records will have the same legal effect as paper records. It expands electronic records to include information stored in semiconductor memory or any communication devices (smartphones, laptops). This will also include records on emails, server logs, smartphones, locational evidence and voice mails. As per the Bill, the information may have been created on, stored in, or processed by one or more computers or communication devices: (i) which may be standalone systems or on a computer network, or (ii) through an intermediary.
· Oral evidence: Under the Act, oral evidence includes statements made before Courts by witnesses in relation to a fact under inquiry. The Bill adds any information given electronically to be considered as oral evidence.
· Secondary evidence: Under the Act, documentary evidence includes primary and secondary evidence. Primary evidence includes the original document and its parts, such as electronic records and video recordings. Secondary evidence contains documents that can prove the contents of the original. Secondary evidence includes certain copies of the original documents and oral accounts of the document’s content. The Bill expands secondary evidence to include: (i) oral and written admissions, and (ii) the testimony of a person who has examined the document and is skilled in the examination of documents. Under the Act, secondary evidence may be required under various conditions, such as when the original: (i) is in the possession of the person against whom the document is sought to be proved, or (ii) has been destroyed. The Bill adds that secondary evidence may be required if the genuineness of the document itself is in question.
· Production of documents: The Act provides for the production of documents. If a witness is summoned to produce a document and has it in their possession or power, they must bring it to Court regardless of any objection to its production or admissibility. The Court will determine the validity of such a document. The Bill adds that no Court will require any privileged communication between the Ministers and the President to be produced before it.
· Joint trials: A joint trial refers to the trial of more than one person for the same offence. The Act states that in a joint trial, if a confession made by one of the accused which also affects other accused is proven, it will be treated as a confession against both. The Bill adds an explanation to this provision. It states that a trial of multiple persons, where an accused has absconded or has not responded to an arrest warrant, will be treated as a joint trial.
This piece expresses the opinions of the author alone and not S.C.A.R.
S.C.A.R neither endorses nor discredits any claims or opinions made in this write-up.