Codification of Law in India, Part 2

Codification of Criminal Law

Four Indian Law Commissions worked intermittently on the Anglo-Indian Codes from 1834 to 1879. One of the most important contributions of the first Law Commission was the Indian Penal Code, submitted by Macaulay in 1837 and passed into law in 1860. Codification of the criminal law did not stem from an ongoing reform process but from prevalent legal ideas about “native feelings and prejudices.” Colonial lawmakers such as Macaulay and Maine believed that the reform of the criminal law would meet with the least social resistance given that crime was universally understood whereas civil law touched upon what Maine called “the local peculiarities of the country.” Because it was assumed that natives would not have the same prejudices about criminal law as they did about civil law, the Indian Penal Code (1860), the Code of Civil Procedure (1859), and the Code of Criminal Procedure (1861) were the first three codes enacted by the colonial government.

The Code of Criminal Procedure passed in 1861 secured the legal superiority of “European-born British subjects” by reserving for them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments. These fiercely guarded “privileges” — or “rights” — as they were alternatively described, made the law both a symbolic and a literal marker of imperial power: European subjects were literally given special privileges that distinguished them from Indian subjects; symbolic due to their significance in preserving and showcasing European power and prestige. Kolsky remarks that: “The debates about uniform criminal jurisdiction poignantly illustrate how abstract universal theories ceded to the concept of “Indian human nature” and equal legal protections became embroiled in the European community’s struggle to differentiate itself from the colonized subjects of India. Amended several times during the nineteenth century, the Code of Criminal Procedure continued to sustain a system of racial inequality according to the inverted logic of colonial difference. As one Member of the Legislative Council tellingly put it, “equality was a miserable sham” if it meant that Europeans and Indians would be set on an equal footing before the law. Various Indian inversions defined the arguments of those opposed to uniform criminal jurisdiction: equality became inequality; the “doctrine of equal laws for all” was compared with the “actual state of things”; and racial distinctions were renamed “safeguards,” the removal of which would purportedly increase existing inequalities rather than make all men equal before the law.”

The Purported Necessity for Codification

The British saw the linguistic, political, religious, legal and social diversity they encountered in India as a hindrance to the consolidation of their power and undertook a uniformization project through various reforms. They argued that codification would bring order to the chaotic subcontinental legal framework by replacing the arbitrary and personal will of the Oriental despot with the rational and reliable objectivity of a universal law. The civil and criminal procedure codes were, in their opinion, in need of codification and systematization in order to better aid their own administrative practices. To this end, codification embodied the civilizing mission, and a method of non-coercive control over the native populations that were otherwise capable of mounting a revolt against the foreign rule.

Ideas about Indian history and culture were evoked to argue that “the principle of equality is not applicable in the present state of India,” because “the principle of equality has no application among the Natives themselves, as their domestic and social institutions prove.”9Rather than representing the abstract efforts of metropolitan legislators to create a “science of legislation,” the work of codification in India therefore, was prompted by the burgeoning problem of European criminality and shaped by the colonial insistence and racialisation of the peculiarities of Indian culture. ‘East is East’ they claimed: “our thoughts are not their thoughts, nor are their ways our ways.” Colonial justice was described as “immeasurably superior to anything they [Indians] had ever had before”.10

The colonial propensity for documentation and codification extended across disciplines, whether it was of the literature and texts, languages, cultural traditions, or the subject of the present discussion — of legal procedures, systems, and customs. Codification was an objectification and classification of traditions that facilitated their further representation, reference, and organization, for use as channels of control. They drew from the Hindu Sanskritic texts and legitimized their power through the application of the law thus derived. Their favor of written over oral traditions, in effect altered the indigenous conception and nature of the Dharmaśāstras and the law therein contained. The British derivation of authority in texts secured for them not only symbolic but also real power as well. As stated by Robert Yelle, “the effects of this textual voice on both Hindus and British is a noteworthy legacy of colonialism. This bias distorted the actual shape of Hinduism, displacing living traditions in favor of the written in standard that in many cases was ancient, irrelevant or even incomprehensible to many Hindus.”11

Extrapolating this to Hindu law (whether public or personal), it may be stated that the derivation of authority solely from textual sources, with a preference for antiquated sources over the more recent, was in direct conflict with the Hindu worldview, wherein law was seen as evolutionary, and was rarely applied in letter, but rather in spirit, conforming to general ideas rather than specific prescriptions. Therefore, codification as an exercise was not only in effect, the imposition of foreign law but also irreversibly altered the manner in which textual sources of indigenous law are analyzed and applied. What seems like painstaking efforts to codify law and the judicial system was in fact a not-so-subtle way of better understanding a nation that could then be subjugated, controlled, and ruled. Language and information were vehicles of control, made obvious by the apparent connection between knowledge and power12.

However, fearful that codification would make the backward civilization of the colony more modern, force an enlightened and paternal despotism to make legal rights more accessible to colonized peoples. and transform Indian subjects and British citizens into legal equals, the purportedly universal character of codification in India was consistently infused with colonial ideas about “Indian nature” and difference. In other words, a uniform rule of law would profoundly threaten the power dynamic that distinguished colonizer from the subject.

Impact

Pre-colonial legal arrangements varied across time and place, and there were multiple sources of judicial authority (Cohn, 1961). Nicholas Dirks, in the foreword to Cohn’s Colonialism and Its Forms of Knowledge: The British in India, summarily states that “the objectification of India, like the subtle and sinuous relations of knowledge and power, is perhaps most directly visible in the institutional domains of revenue policy and legal practice”13. Therefore, the codification of law (such as that undertaken for Criminal and Civil Procedure), presented as a much-needed judicial and legal reform for the British Raj, was in actuality, an imperial imposition that had lasting deleterious effects on the diversity and operation of laws, legal systems and fora in India. The “rationalization” and anglicization of law in India was used as a justification for British rule: law was construed as necessary in order to provide India with order and stability in a supposedly chaotic and anarchic state that characterized the pre-British days. Colonialism, therefore, could be repackaged as something that benefited the country, while drawing attention away from the brutal policies of economic exploitation that characterized colonial rule.

In her work Strategies of Control: The Case of British India, Valerian DeSousa states that Anglo-Indian law instated by the British was an “ideological” strategy of control (Althusser, 1971), and served to reinterpret traditional Indian law in terms of British legal philosophy, reconstitute Indian subjectivity and irreparably alter traditional relationships to more effectively serve British interests14. This was avowedly similar to the manner in which the imposition of an English-based education system succeeded in creating colonial subjects that were subsumed in the ideological discourse perpetrated by the British. Codification was initially supposed to take into account customary law, but that idea was quickly abandoned due to the complexity of the task and its impracticality. Instead, there was an exercise of reinterpretation of the sacred laws of the Hindus and customs through a lens of British philosophy, jurisprudence and attitudes, leading to a more rigid, secularized law, one that did not incorporate ritual prescriptions, customary laws, unwritten or oral traditions and practices, and informal legal forums. Thus, effectively, Anglo-Indian law was born, and replaced indigenous law, which was in contrast to Anglican law, founded on principles of flexibility and judicial discretion. Where the code did incorporate indigenous law, it was inconsistent or inadequate in intent and effect. As Anglo-Indian law, its institutions, and practices gradually replaced indigenous legal apparatuses, its effect was an alteration of the very relationships that individuals and groups traditionally held with each other and with the state, thereby reconstituting their very subjectivity.

Conclusion

Elizabeth Kolsky remarks that the codification project brought to the surface “internal tensions in liberalism and empire. The paradox of attempting to create democratic legal institutions in the context of absolute authoritarianism manifested itself with striking clarity in the debates about the Code of Criminal Procedure. Good ideas in theory, legal equality and uniform criminal jurisdiction were proclaimed to have no place amid the peculiar circumstances of India where different histories and different cultural understandings made “equality” a relative rather than absolute principle”15.

In retrospect, the codification of law was a key landmark in the development of the Anglo-Indian legal system in India, and a watershed moment in the colonial reinforcement of power. It changed the course of history, and invariably led to a fundamental restructuring of indigenous law and the legal system. The overall economic and social impact on the subjects of the laws, along with the implications on justice itself are beyond the scope of this paper, however, codification of law must be viewed with the same measure of distrust as the wholesale imposition of British laws were, in light of their enduring influence on post-colonial legal systems.

Footnotes

Regulation XLI of the Cornwallis Code of 1793, A Regulation for forming into a regular Code all Regulations that may be enacted for the internal Government of the British Territiories in Bengal, passed by the Governer General in Council on the 1st May 1793. Cited in Acharyya Bijay Kisor. Codification in British India. Calcutta, S.K. Banerji & Sons.

“A Speech Delivered in the House of Commons on the 10th of July, 1833”, in Lord Macaulay, The Miscellaneous Writings and Speeches of Lord Macaulay (London: Longmans, Green & Co., 1889).

Kolsky, Elizabeth. “Codification and the Rule of Colonial Difference: Criminal Procedure in British India.” Law and History Review 23, no. 3 (2005): 631–83. doi:10.1017/S0738248000000596.

supra note 2

The Anglo-Indian Codes: Adjective law. United Kingdom: Clarendon Press, 1888.

Section 53, Charter Act, 1833

The Anglo-Indian Codes: Adjective law. United Kingdom: Clarendon Press, 1888.

Law Commission of India, Twenty-Seventh Report, December, 1964. The Code of Civil Procedure,1908.

See the “Humble Memorial of the Anglo-Indian and European British subjects residing at Mirzapur in Upper India,” in Extra Supplement to the Gazette of India, July–December 1883.

See letter No. 1232 J-D. from F. B. Peacock, Secretary to the Government of Bengal, to the Government of India (Legislative Department), dated June 22, 1883, in Extra Supplement to the Gazette of India, July–December 1883.

Yelle, Robert A.. The Language of Disenchantment: Protestant Literalism and Colonial Discourse in British India. United Kingdom: OUP USA, 2013.

Cohn, Bernard S.. Colonialism and Its Forms of Knowledge: The British in India. United Kingdom: Princeton University Press, 1996.

Ibid., Cohn, Bernard S.. Colonialism and Its Forms of Knowledge: The British in India. United Kingdom: Princeton University Press, 1996.

DeSousa, V. (2008). Strategies of Control: The Case of British India. Sociological Viewpoints, 24, 61-74. Retrieved from https://www.proquest.com/scholarly-journals/strategies-control-case-british-india/docview/221250743/se-2

Kolsky, Elizabeth. “Codification and the Rule of Colonial Difference: Criminal Procedure in British India.” Law and History Review 23, no. 3 (2005): 683. doi:10.1017/S0738248000000596.

Authored by Sai Priya Chodavarapu. Published by Brhat.