Accidental death,” the Bengal Advocate General concluded: The English colonial planter who shot dead his servant Faqueerah at Bhugwanpore one morning in 1841 claimed to have been aiming his shotgun at a herd of sheep. Thirty eyewitnesses, though, said there were no sheep to be seen. “The unsatisfactory manner in which this case was disposed of,” the East India Company’s Court of Directors observed, “affords an additional instance of the urgent want of Tribunals for the trials of British-born subjects in the mofussil.”
Earlier this month, the central government proposed replacements for the Indian Penal Code of 1860, and the Code of Criminal Procedure passed the next year—among the first three laws ever enacted by the colonial government.
The proposed decolonisation of Indian law is somewhat less dramatic than advertised, careful analysis shows. Even though the new codes include several welcome measures to modernise the criminal justice system, the legal reforms do not address the darkest colonial shadow over law enforcement in India: The police.
Like Faqueerah, millions of Indians remain victims of a criminal justice system founded on inequality. Even though legal reforms after Independence removed racial bias and promised equality, justice has remained out of reach for swathes of the population like women, Dalits, the poor and religious minorities.
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Law-enforcement reforms
Long, complex discussions lie ahead as the new criminal laws make their way to a standing committee of Parliament. Law enforcement officials have sought many of the changes proposed for years. The Bharatiya Nyaya Sanhita Bill, which seeks to replace the Indian Penal Code, brings terrorism into the core body of criminal law instead of a special legislation like the Unlawful Activities Act. The Bill also allows for the punishment of organised crime, now addressed by multiple state-level laws, like that of Maharashtra.
The Bill mandates that police be allowed to handcuff certain violent criminals, a practice curbed by the Supreme Court in 1979. Law-enforcement experts have argued that the regulated use of restraints, in line with global practice, will, in addition to protecting police from violent criminals, protect suspects at risk of being executed in staged escape attempts.
For its part, the Bharatiya Sakshya Bill, which replaces the Evidence Act of 1872, includes modern provisions for electronic evidence. Law enforcement officials and the High Courts have pressed for laws to replace the outdated Section 65B. The new Bill also proposes allowing for online services of summons and routine examination of witnesses.
Even though the new laws have generated criticism, analysis suggests much of their content is, in fact, similar to the colonial-era legislation they replace. Four-fifths of the Bharatiya Nyaya Sanhita, lawyer Tarun Khaitan has shown using plagiarism-checking software, is forged from language present in the old penal code. This was also observed during the analysis of the new code of procedure, the Bharatiya Nagarik Suraksha Sanhita, and the evidence act, or Bharatiya Sakshya Bill.
Former Border Security Force (BSF) director-general Prakash Singh has advocated that the new laws retain the earlier numbering for important offences—like murder—to avoid confusion among investigators and prosecutors. Experts also worry that the re-numbering process will set back decades-long work on India’s searchable online criminal database.
Legal reform isn’t the same as the criminal justice system—and the history of laws the Bills seek to replace helps us understand why.
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Taming European settlers
Early in the 19th century, the East India Company governed Indians and English residents through different sets of laws. King’s courts in the Presidencies used English judges and lawyers to administer English law. Far from the Company’s coastal centres of power, its courts administered a complex maze of traditional Hindu and Muslim laws. Even as late as 1789, Islamic criminal law – including mutilation and amputation – was being followed in Bengal.
Governor-General Warren Hastings had, in 1773, set aside a distinct space for religious personal laws—but it began to become clear that the secular sphere of criminal law needed some kind of uniform regulation.
Following the end of the company’s monopoly in 1813, growing numbers of Europeans independent of its discipline began to arrive in India. European planters and settlers found themselves in direct conflict with Indians—and the resentment this engendered challenged the company’s desire to control its territories.
The company, historian Elizabeth Klosky has noted, had no squeamishness about the brutal use of armed power against Indians. The experience of the American Revolution, though, showed injustice could engender violent reactions, and the company was wary about the emerging challenge to its monopoly on force.
Late in 1824, a Dacca judge warned the directors of the emergence of a “class of persons very common in this district, and who are emphatically designated latteals, or bludgeon-men.” He wrote that the gangs funded by European indigo planters used violence to “enforce payment of outstanding balances from the ryots, to secure and hold in lein their crops, but not infrequently to lay hold of and carry off the produce of neighbouring cultivators.”
Thomas Babington Macaulay set sail for India in 1833, charged with what he described as the “momentous task of codifying the law of India, creating in great and entire work symmetrical in all its parts and spirit.”
Europeans, in fact, retained many of their privileges. The Criminal Procedure Code of 1861, for example, gave special privileges to European-born British subjects, like the right to be tried by a White-majority jury and a British judge. The principle of racial inequality deepened in 1872 when Indian magistrates were barred from trying European-born British.
The nationalist movement, scholar Mirinalini Sinha has recorded, was born from struggles to end this White impunity. The growing racism of late-Victorian English society provoked growing anger among Indians. The 1888 case of the English manager of the Rungamatty Tea Estate, who evaded prosecution for rape by pleading guilty to adultery, was one of many which illustrated the absurdity of racialised justice.
There were sharp battles, too, historian Judith Whitehead has written, over perceived encroachments of criminal law into Hindu tradition, like the 1891 amendment of the Indian Penal Code to raise the age of consent of girls from 10 to 12.
Even as late as 1923, when the Criminal Procedure Code and other laws were amended to remove racial discrimination in trials, English liberalism proved unable to deliver on its promise of equality.
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Lingering colonial shadow
The government’s efforts to decolonise Indian criminal law will not account for much, unless it addresses the machine that enforced it during colonial rule. The Police Act of 1861 made Indian law enforcement dangerously subservient to the political executive. Even though 17 states passed new police Acts to replace the colonial legislation, none met Supreme Court benchmarks for insulating appointments and tenure from political interference.
Even before colonial authorities created a new legal framework for criminal justice, the rudiments of an imperial police force to implement it were already being built.
From 1793, under Governor-General Charles Cornwallis, the East India Company started seizing responsibility for law and order from zamindars and handed it to police stations. The new police station chiefs, the civil servant John Beames observed, served the empire by being close to the people and their own interest by being even closer to criminals.
“They ruled their territories like little kings,” Beames recorded.“Their misdeeds were legion and always went unpunished.” English law in India, not surprisingly, had little to say on police accountability.
Following the rebellion of 1857, historian Erin Giuliani has written, imperial administrators were convinced of the need for a more effective police force—but didn’t want to pay the price. There were just 532 enrolled police officers for all of Bhagalpur in 1862, she found. Each responsible, on average, for a staggering 3,740 people.
That meant violence became the main tool for solving crime, recovering stolen goods, and suppressing dissent. An investigation of the Company’s police system in the Madras Presidency, conducted in 1885, reported that “corruption and bribery reign paramount through the whole establishment…violence, torture and cruelty are their chief instruments for detecting crime.”
Even today, little has changed. Figures published by the Bureau of Police Research and Development show that Indian police forces are, on average, 20 per cent short of the number of personnel governments have sanctioned. Bihar has just 76 personnel for every 1,00,000 people, and Uttar Pradesh has 133 instead of the required 183.
The use of modern investigative technology, as well as training standards, remains poor. “There are no consistent standards,” public policy expert Sonal Marwah has written, “and most training facilities lack basic amenities and sufficient instructors.”
Prime Minister Narendra Modi’s commitment to rid Indian criminal law of the last ink stains left behind by Macauley can’t be faulted. To give these reforms real meaning, though, he must also reform the police the empire authored in India.
The author is National Security Editor, ThePrint. He tweets @praveenswami. Views are personal.
(Edted by Zoya Bhatti)