How to truly decolonise criminal law, make it ‘Indian’

One proclaimed objective of the newly introduced criminal law bills is to ‘decolonise’ our criminal justice system. The government has given Hindi names to the proposed three criminal law codes, removed references to the British monarchy, and omitted provisions that had criminalised same-sex intercourse (which the courts have already struck down) and attempt to suicide. But can these changes, which are largely cosmetic, truly decolonise the Indian criminal justice system?

Any attempt to decolonise must logically begin with identifying the vestiges of British colonial and imperial rule that have, in fact, persisted in the law. This is where the three bills’ promise of decolonisation seems far from what they actually propose substantively. Colonial criminal laws were premised on the logic of domination of Indians by the British, which underlies the offences, punishments as well as the operation of Indian criminal law even today. It is this logic that the three bills have failed to identify, and hence, failed to remedy.

The vision of the existing criminal laws, and how they define State-citizen relationship, was steeped in colonial prejudices and practices. The British had introduced the criminal codes in the aftermath of the 1857 war of independence to assert their authority over Indians, whom they considered an inferior race. This is why the codes enabled excessive social control. Offences such as sedition and widely-worded defamation were created to protect the colonial State, rulers, and interests, and to curb the growth of Indian nationalist sentiments. But as the Bharatiya Nyaya Sanhita Bill retains the same, possibly in an even more sinister form, the proclaimed agenda of ‘decolonising’ comes undone. 

As the colonisers viewed Indians as unworthy of reformation, the punishments in the IPC were designed to induce fear. The code is pivoted on punishments which have the sole objective of retribution, and is preoccupied with imprisonment. Unfortunately, this classical colonial view of punishments has been retained in the proposed law. Retribution seems to have strongly impacted our notion of what society should consider ‘justice’.

Despite claims that the objective of the reforms is justice and not punishment, the bills only increase the severity of punishments. An ‘Indian’ view of the new penal law would have entailed looking at justice from the viewpoint of the victim and perpetrator, too, and not only what satisfies the conscience of the society. A criminal law inspired by Indian ethos should have focused on restoration of loss, rehabilitation of the victim, and reformation of the perpetrator – whenever possible. The tokenistic inclusion of ‘community service’ is not enough to achieve this end. 

Equally colonial is the interaction of the institutional agents of criminal justice with the citizens. George Orwell said that he had witnessed “the dirty work of Empire at close quarters” during his time in the Imperial Police Force. Tracing its roots to the 1857 revolt, the criminal process and the police system are predicated on curtailment of civil liberties, often used as tools for political motives and private vendetta. For a system long-entrenched in incarceration and police brutality, it is necessary to build trust between the citizens and the police.

The new bills could have dismantled this foundational flaw, reimagining the justice process by incorporating principles evolved by our own Supreme Court, such as the D K Basu guidelines, which could have ensured safeguards in the process of policing, investigation, and interrogation. Nor do they look out for unnecessary complexities in the criminal process. Even the provisions sought to reduce delays by fixing timelines is not based on any ground-level study of what causes delay in the delivery of justice. 

It is the certainty, and not the severity of punishment that commands belief in the justice system. But the bills neglect all aspects related to this -- be it improved investigation or better case management by the police. This “comprehensive overhaul” misses out on reforming the Police Act, 1861, another colonial-era law that prejudices citizens’ liberty. Indian philosophy speaks out against ‘Matsya Nyaya’ (‘big fish eat small fish’, or the ‘law of the jungle’), where the strong dominate the weak. Our criminal justice system is often seen as a tool for the oppression of the socially, economically and politically disadvantaged. Nothing would ‘Indianise’ the system other than a fair and equal justice process that protects the weak from police atrocities and State excesses, and ensures justice to the wronged.

Another hallmark of British rule in India was the introduction of laws that criminalised entire social groups, identities, or occupations, and imposed Victorian standards of morality. These include IPC provisions that deny agency and sexual autonomy to women, standards of ‘obscenity’ that have been disapproved by the Supreme Court, laws that punish begging and vagrancy, laws that criminalise transgenders and indigenous tribes, etc. Despite Indian courts striking down some of these laws, the government’s proclaimed move to ‘decolonise’ the criminal justice codes does not take a full view of colonial criminal laws that keep several marginalised and disadvantaged groups in the shadows of oppressive rule. To truly Indianise the laws, the constitutional guarantee of equality and inclusiveness alone should be the foundation. 

The criminal law bills need to be a watershed moment, but they will not become that by merely declaring them to be so. They must be true to the agenda of decolonisation, which currently they are not.  

(The writer is Project Fellow, Vidhi Centre for Legal Policy).  

(This is the twelfth article in a DH-Vidhi Centre for Legal Policy series on the proposed new criminal law codes)