It has been more than 75 years since India achieved independence[1], but one can still identify deeply dug imprints of colonial laws and practices within its criminal justice system[2]. Conceived by Britain to suppress dissent and maintain control over a huge population, most of them have remained unchanged over the years with insignificant reforms while the former colonizers became a democratic republic with rights and principles to protect its citizens. In the recent past, new laws have been introduced as well as amending the colonial statutes to suit the needs of the people. Nevertheless, it is the presence of the colonial structures within the same system that stands out as the biggest impediment to justice.
This essay probes the deep impact colonial-era laws, such as the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), retain alongside policing practices and judicial procedures and how new laws were experimented upon to suit changing modern needs. It thus acknowledges that trend of slow and perhaps inadequate reform that dismantles the colonial legacy.
Foundations and Their Ongoing Influence
The statutes created under British rule form the main pillars of India’s modern criminal justice system. Two shining examples of such legislation would include the IPC of 1860[3] and the CrPC of 1898[4]. Such statutes were made specifically to carry forward British colonial interests, more so in order to ensure order under foreign rule than justice. Despite the numerous amendments, the basic tenor of these laws has not changed.
Section 124A[5] of the IPC is a shining example of the former kind of legislation that criminalizes sedition. Passed to quell the freedom fighters, such an act continues to currently suppress dissent under post-colonial India. Witnessed in the form of Disha Ravi[6], a climate activist who was charged with sedition in 2021 in relation to her role in protests against the agricultural laws issued by the present government, Section 124A exemplified and brought into sharp focus the far-reaching implications of the Act. In the case of Kedar Nath Singh v. State of Bihar (1962)[7], the Supreme Court upheld the constitutionality of the law of sedition but attempted to restrain its misapplication.
It declared that in order for sedition to be invoked, incitement must have been directed to violence against the state. However, despite these guidelines, the courts continue to be used as tools to gag the voice of dissent. The colonial mindset still lingers in the system. A law that causes such a chilling effect prohibits public debate and instills a sense of fear among citizens.
The CrPC not only reflects a legacy of colonial influences but also provides the procedural frame for criminal trials. It is often criticized for advancing procedural formalities over justice. For instance, the long process of bail[8] has resulted in unjust outcomes mainly affecting marginalized communities due to the burdening nature of criminal proceedings.
Policing Practices: The Colonial Hangover
The Police Act of 1861[9] marked the beginning of the modern Indian police for the first time, after the revolt of 1857[10], to work as a force for the colonial administration. The same Act has been governing the contemporary Indian police, which had been indicted for order over citizens’ rights at times.
Custodial violence[11] is still afflicting the people, showing the persistence of the colonial mentality. The 2020 Jayraj and Bennicks[12] another case of death in police custody in Tamil Nadu witnessed massive spotlights on the brutal policing practices that resonate with the legacy of colonial oppression. Jayraj and Bennicks were arrested for allegedly violating COVID-19 lockdown rules when they were subjected to severe torture in police custody-the last seen of them is said to be when their bodies arrived at the local mortuary for a pathetic post-mortem. It provoked mass demonstrations all over the country and brought into the open the grave need to hold the police responsible.
In D.K. Basu v. State of West Bengal in 1997[13], the Supreme Court of India ordered a set of guidelines to restrict custodial violence. In a lamentable irony, these guidelines exist more on paper than in practice. The guidelines had made it obligatory for the police to maintain arrest records, to let detainees know of [14]their rights, and to conduct custodial interrogation in less harsh terms. This is not the reality when held up to the grayer realities of people’s lives. Police brutality remains unabated.
The Model Police Act, 2006[15] builds a people-friendly police force that is aimed more at prevention than at punishment. Supreme Court order of Prakash Singh v. Union of India (2006)[16] mandated police reform measures using ‘independent oversight bodies’ to provide checks and balances, but these are some of those measures for which many states are not doing an effectively implementing and are actually relying on colonial models of policing where control and rule rather than community safety often take precedence.
Judicial Delays and Undertrial Prisoners: A Colonial Legacy
India’s judiciary is slow, a relic of the colonial era. The British preferred long trials and complications in processes, designed more to exercise control than mete out justice. Today this same outcome leads to considerable delay in meting out justice.
Undertrial prisoners[17] are those who have been jailed while awaiting trial. They are detained without being convicted for sometimes years. The Supreme Court in the case of Hussainara Khatoon v. State of Bihar (1979)[18] addressed such issues holding the very conditions of detention inhuman and demanding speedier disposal of trials. The court observed: “The right to speedy trial forms an integral part of the right to life and liberty provided for in Article 21[19] of the Constitution.” Yet, undertrials continue to form a large part of the jail population in India. Jailing is the favored colonial legacy, but it goes hand in hand with insensitivity to due protection. Recently, however, the government has set up fast-track courts, especially in cases related to sexual assault. Institutional blockages persist.
A very recent case is that of Nirbhaya[20], an infamous rape case involving the brutal gang rape of a young woman in Delhi in 2012, which proves that even the most high-profile cases take years. The victim’s family had to sit through a long judicial battle, which once again showed how the system of criminal justice failed to provide timely justice[21]. This has also brought about more rigorous sentences for sexual offenses than previously – including even capital punishment for raping minor girls – but a systemic delay in judicial processes and systemic inefficiencies at every level dilute the impact of this legislation.
Preventive Detention and National Security Laws: Colonial Reincarnations
Presently, preventive detention laws[22] are even carried forward from colonial times to impose restraint on the people as enacted in the NSA[23] and AFSPA[24]. The Rowlatt Act of 1919[25] permitting detention without trial is famously reflected in the present preventive detention practices. The Rowlatt Act was shrouded with repressive measures leading to more unrest and protests across the Indian territories.
For example, A.K. Roy v. Union of India (1982)[26] was a case in which the Supreme Court ensured the legitimacy of the NSA, letting the government detain people without trial for some reasons under national security. While these enactments are professed to be authored for protecting the sovereignty and integrity of the state, they generally silence the voices of dissent and proportionally oppress vulnerable sections of society, as has been the case with Kashmir[27].
Exercise of such enactments on a perpetual basis breeds a colonial mindset and permits the interest of the state to prevail over that of the individual. There have been many criticisms of the NSA where, for instance, this petition has noted instances of arbitrary detention of persons contrary to clear trends of human rights violations and due process.
Legislative efforts in such matters have seen very little progress so far. Although some sections have undergone amendments to curb its misuse, the basic structure of these laws remains intact. Demands to scrap AFSPA based on well-documented provisions of human rights violation have also been resisted. The best example is being seen in conflicts occurring in places like Manipur[28] where the preventive detention laws in the name of security continue to go around this vicious circle of violence and oppression.
Colonial Legacy of Discrimination: Ongoing Inequality Against Marginalized Communities
One worrying aspect of the legacy of colonialism is the way such a system treated marginal groups, like Dalits and Adivasis. The British even codified social hierarchies, particularly caste distinctions, in the legal framework, and that legacy continues to shape the experiences of marginalized groups to this day.
Laws like the SC/ST (Prevention of Atrocities) Act, 1989[29] have been formulated to protect these communities from violence and discrimination. Its observance, however, remains a question. One such verdict in State of Madhya Pradesh v. Ram Krishna Balothia (1995)[30] upheld the constitutional validity of the Act, but events like the infamous massacre of Khairlanji massacre in 2006[31], wherein an entire Dalit family was brutally slaughtered, indicates that casteist prejudice has not been eradicated. The response of the law often imitates the institutionalized casteism bestowed by the colonial regime, by denying petty communities any access to the law.
It has been only now, with the rape and murder of a 19-year-old girl in Hathras in 2020[32], that Dalit killings have really shocked the nation. In fact, it is to this extent that their killings evoke outrage and protests across the land, making responses of states appear merely as want of accountability and failure to address the deeply ingrained bias that prevails in criminal justice. The complete and integral reforms demanded were to bring justice for and representation to the marginalized in the police and in the judiciary.
Incomplete Transformation of Colonial Offences in the Bharatiya Nyaya Sanhita, 2023
One of the most important overhauls in the legal landscape of India is the Bharatiya Nyaya Sanhita, 2023, coming into force on July 1, 2024[33]. It succeeds the Indian Penal Code, 1860, but preserves and redefines colonial-era offenses, such as sedition, defamation, and incitement to communal disharmony, which provokes talk of continuity in the tradition of colonial control.
Section 152[34] criminalizes acts deemed to endanger sovereignty, unity and integrity of India. Therefore, it introduces a scope for interpretations and potential misuse.
Defamation cases also enter the new realm with the introduction of community service as an alternative penalty under Section 356, despite offenses retaining the fundamental nature entrenched in colonial principles
The BNS, therefore, manifests partial transformation and requires judicious judicial oversight so that rights at the individual level are protected from the vestiges of colonial institutional form[35].
Conclusion: A Free Future No Longer Constrained by Colonial Chains
The shadow of colonial law lingers long over India’s criminal justice system. It acts as an inheritance that gives importance to power plays rather than actual fairness in the course of dispensing justice. At least, Bharatiya Nyaya Sanhita, 2023 marks a step forward but is only a partial change- the mere renaming of colonial offenses without removal of oppressor roots.
We have custodial violence, judicial delays and discrimination still haunting our minds with a notion that we are still governed by remnants of colonialism in the realm of law. Injustice is still committed through laws that silence dissent and try to don power with veneers.
It calls for much more than obvious reforms; instead, proper scrutiny of these colonial laws will lead us toward making a justice system that can highlight human rights and fairness at its very center. We shall together strive for justice as a right, not an ability of the privileged few. And so, we promise and create a future in which justice overcomes tyranny, but it is only then that the real character of a democratic India comes out.
[1] Encyclopaedia Britannica, ‘Indian Independence Movement’ https://www.britannica.com/topic/Indian-Independence-Movement accessed 15 September 2024.
[2] J M Moore, ‘Colonialism, Criminal Justice and Criminology’ (British Society of Criminology, December 2021) https://www.britsoccrim.org/wp-content/uploads/2021/12/BSCN-Dec2021-v5_J-M-Moore-Colonialism-Criminal-Justice-and-Criminology.pdf accessed 10 September 2024.
[3] The Indian Penal Code, 1860 https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf accessed 8 September 2024.
[4] Code of Criminal Procedure 1898 (Repealed) https://cvc.gov.in/files/vigilance-manual-pdf/vm21ch5/vm17ch5/Code%20of%20Criminal%20Procedure%201898%20(repealed).pdf accessed 15 September 2024.
[5] Indian Penal Code 1860, s 124A https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=133#:~:text=%2D%2DWhoever%20by%20words%2C%20either,%5Bimprisonment%20for%20life%5D%2C%20to accessed 15 September 2024.
[6] Columbia University, ‘The Case of Disha A Ravi’ https://globalfreedomofexpression.columbia.edu/cases/the-case-of-disha-a-ravi/#:~:text=Facts,against%20Farmers%20Bills%20in%202020 accessed 15 September 2024.
[7] Kedar Nath Singh v State of Bihar [1962] AIR 955, [1962] SCR SUPL (2) 769 https://globalfreedomofexpression.columbia.edu/cases/nath-singh-v-bihar/#:~:text=The%20Supreme%20Court%20of%20India,for%20the%20Forward%20Communist%20Party accessed 9 September 2024.
[8] Jaya Prakash, ‘Bail in the Indian Legal System’ (iPleaders, 15 July 2023) https://blog.ipleaders.in/bail-indian-legal-system/ accessed 10 September 2024.
[9] The Police Act 1861 https://www.mha.gov.in/sites/default/files/police_act_1861.pdf accessed 11 September 2024.
[10] Drishti IAS, ‘Revolt of 1857’ https://www.drishtiias.com/to-the-points/paper1/revolt-of-1857 accessed 12 September 2024.
[11] Law Bhoomi, ‘Custodial Violence’ https://lawbhoomi.com/custodial-violence/#:~:text=Custodial%20violence%20is%20a%20violation,being%20of%20those%20in%20custody accessed 13 September 2024.
[12] Custodial Violence: An Overview (Encyclopedia, 2022) https://encyclopedia.pub/entry/30151 accessed 14 September 2024.
[13] Shri D.K. Basu v State of West Bengal, State of U.P [1996] AIR 1997 SC 610, [1997] AIR SCW 233, [1997] (1) SCC 416 https://indiankanoon.org/doc/501198/ accessed 16 September 2024.
[14] Kamal Kumar Arya, ‘Right to Speedy Trial and Mercy Petitions in India’ (2016) 1 Harati Law Review 168.
[15] Model Police Act 2006 https://www.mha.gov.in/sites/default/files/ModelAct06_30_Oct_0.pdf accessed 14 September 2024.
[16] Prakash Singh & Ors v Union of India & Ors [2006] https://indiankanoon.org/doc/1090328/ accessed 14 September 2024.
[17] Nyaaya, ‘What Are the Rights of Undertrial Prisoners?’ https://nyaaya.org/nyaaya-weekly/what-are-the-rights-of-undertrial-prisoners/ accessed 14 September 2024.
[18] Hussainara Khatoon & Ors v Home Secretary, State of Bihar, Patna [1979] AIR 1369, [1979] SCR (3) 532, [1980] (1) SCC 98 https://indiankanoon.org/doc/1373215/ accessed 14 September 2024.
[19] Constitution of India, art 21: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ Editorial Comment: Article 21 guarantees the fundamental right to protection of life and personal liberty, ensuring safeguards against arbitrary deprivation of life and liberty https://indiankanoon.org/doc/1199182/#:~:text=Protection%20of%20life%20and%20personal,of%20life%20and%20personal%20liberty accessed 14 September 2024.
[20] ‘Delayed Execution’ The Hindu (5 March 2020) https://www.thehindu.com/news/cities/Delhi/delayed-execution/article31077434.ece accessed 14 September 2024.
[21] Pragyablog, ‘Justice Delayed is Justice Denied’ Times of India (27 August 2023) https://timesofindia.indiatimes.com/readersblog/pragyablog/justice-delayed-is-justice-denied-43067/ accessed 14 September 2024.
[22] Asha Gupta, ‘Preventive Detention Law in India: A Critical Analysis’ (2023) 7 International Journal of Reviews and Research in Social Sciences 29 https://anvpublication.org/Journals/HTML_Papers/International%20Journal%20of%20Reviews%20and%20Research%20in%20Social%20Sciences__PID__2019-7-2-29.html accessed 15 September 2024.
[23] National Security Act, 1980 https://www.mha.gov.in/sites/default/files/ISdivII_NSAAct1980_20122018.pdf accessed 18 September 2024.
[24] Armed Forces (Special Powers) Act, 1958 https://www.mha.gov.in/sites/default/files/armed_forces_special_powers_act1958.pdf accessed 17 September 2024.
[25] ‘Rowlatt Act’ Wikipedia https://en.wikipedia.org/wiki/Rowlatt_Act accessed 9 September 2024.
[26] A K Roy Etc v Union of India and Anr [1981] SC 28 December 1981, 1982 AIR 710, 1982 SCR (2) 272, 1982 (1) SCC 27 https://indiankanoon.org/doc/875590/ accessed 10 September 2024.
[27] ‘Human Rights Abuses in Jammu and Kashmir’ Wikipedia https://en.wikipedia.org/wiki/Human_rights_abuses_in_Jammu_and_Kashmir accessed 11 September 2024.
[28] Detaining Authority Can’t Subject a Person Already in Custody to Preventive Detention Without Forming Opinion on Likelihood of Bail: Manipur HC’ LiveLaw (22 September 2024) https://www.livelaw.in/news-updates/detaining-authority-cant-subject-a-person-already-in-custody-to-preventive-detention-without-forming-opinion-on-likelihood-of-bail-manipur-hc-220525 accessed 22 September 2024.
[29] The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 https://socialjustice.gov.in/writereaddata/UploadFile/The%20Scheduled%20Castes%20and%20Scheduled%20Tribes.pdf accessed 21 September 2024.
[30] State of M.P. & Anr v Ram Krishna Balothia & Anr [1995] AIR 1198.
[31] Mook Nayak, ’17 Years After Khairlanji Massacre: Reflecting on a Dark Chapter in Dalit History’ (2024) https://en.themooknayak.com/dalit-news/17-years-after-khairlanji-massacre-reflecting-on-a-dark-chapter-in-dalit-history accessed 21 September 2024.
[32] Mint, ‘Hathras Gang Rape Case: A Look at the Timeline as UP Court Sets 3 Accused Free’ (2024) https://www.livemint.com/news/india/hathras-gang-rape-case-a-look-at-the-timeline-as-up-court-sets-3-accused-free-11677748908293.html accessed 15 September 2024.
[33] The Hindu, ‘Three Newly Enacted Criminal Laws to Come into Effect from July 1’ (2024) https://www.thehindu.com/news/national/three-newly-enacted-criminal-laws-to-come-into-effect-from-july-1/article67881602.ece accessed 15 September 2024.
[34] Lexology, ‘Section 124A of the Erstwhile IPC: Understanding the Law of Sedition’ (2024) https://www.lexology.com/library/detail.aspx?g=a1fcaa60-72fa-4315-bdbc-2679db761dac#:~:text=Section%20124A%20of%20the%20erstwhile,unity%20and%20integrity%20of%20India accessed 15 September 2024.
[35] The Hindu, ‘Sense of Uncertainty on the New Criminal Laws: State of Preparedness’ (2024) https://www.thehindu.com/opinion/editorial/sense-of-uncertainty-on-the-new-criminal-laws-state-of-preparedness/article68355670.ece accessed 17 September 2024.
Author: Harshdeep Garg, a 2nd Year student at Symbiosis Law School, Noida
