Ghosts of the Empire: Retrospection of the colonial legacy of legal systems in South Asia and its competence to bring justice
Faculty of Legal Studies South Asian University
In the words of Frantz Fanon in “The Wretched of the Earth” Whiteman had a desire to possess world and needed it himself predestined to rule the world. Indeed the legal nexus that has been expanded around every nook and corner of India Subcontinent and Sri Lanka can be attributed to those white Sahibs who ruled this part for many decades. In the poetic sense of Rudyard Kipling it was known as “Whiteman’s burden” which outrageously justified European moral obligation to subjugate Oriental nations to make them civilized. However the chains of events that occurred as a part of colonials caused to degenerate the subjects morally and their resources were abhorablly plundered. In order to legitimize the colonial exploitation and making the subjects meek and obedient to the colonial administration used law as a competent tool. This paper would examine the roots and nature of the legal system planted by British in South Asia and how their legal vision stooped the moral life standards of the people where as they got jeopardized in a dilemma with a new order that was stumbled upon them.
In this paper I expect the main issues relating to the laws planted by British in the legal system and how those legal systems have hindered the ordinary people in process of achieving justice. In addition to that I deal with some colonial laws imposed upon the subjects by British which had no affinity with the natives at all and such laws still continue to exist in while making many ambiguities in the practical sphere. The British colonial legal heritage is deeply imbued with the history of British arrival in the sub-continent first as merchants in 1757 till they tied up their rule to the neck in 1857 by promulgating Government of India Act which set the last nail in the coffin of nominal Mughal empire in Delhi. Same circumstances led the adoption of British rule and laws in Sri Lanka when the last surviving Sinhalese kingdom in Kandy was handed over by Sinhalese themselves to British in 1815. In the very nature of British occupation in the sub- continent has left a reasonable question to modern day legal historians whether British protocol of making treaties with the subject was fair or not. In modern International Law the term “ Unequal treaty “ has directly derived from the one sided treaties took place between
China and Western powers in 19th century and early 20th century, which marked the Chinese century of humiliation before imperial powers like British and French.
The anomaly of legal system planted by British in South Asia has mainly caused creating further problems to the masses rather than bringing them justice. As an example it is an interesting fact to examine the penal offences introduced to the sub-continent by British colonial masters during the legal reforms conducted in 19th century. In most of the cases British anticipated to preserve their interests in organizing the legal system and also those so called laws were the reflections of Victorian values in 19th century Britain. The imposition of Victorian morality upon the natives in Indian subcontinent entirely took place in a mode of moralizing the native society which they considered as barbaric and crude. The structure of Indian penal code and its adoption in Ceylon ( Sri Lanka ) was set up by British notion of law and justice. In some of the provisions of the penal code and laws adopted by British became completely alien to the natives since they were quite far away from their manner of understanding. The Section 294 of Indian Penal code has set a provision for punishment for obscene acts in public, indeed the yardstick to decide what obscenity was completely culled by British perceptions under contemporary Victorian values. As Michael Foucault pictured in his “The History of Sexuality “the term sexuality and obscenity were mere inventions of Victorian culture. He states “If sex is repressed, that is, condemned to prohibition, nonexistence, and silence, then the mere fact that one is speaking about it has the appearance of a deliberate transgression”. s a matter of fact the oriental culture on obscenity or sexuality had been a wider one in the ancient period and the Khajuraho monuments which was built by Rajput’s or the greater Sanskrit work on sexuality “ Kama Sutra” are living symbols that even stand today as witnesses to the existed sexual freedom in sub-continent long time before Westerners set their foot. As I stated above in the paragraph British Victorian ethics mainly impacted on shaping the legal reforms in South Asia. Mainly Christian puritan influence from the missionaries urged colonial masters to impose restrictions on the private manners of the natives. English clergyman called Rev. William Gogerly who served in Anglican Church in Ceylon in the mid-19th century openly took part in a large movement in forcing colonial government to pass legislation on the attire of native women. In fact according to many historical reports Sinhlalese low country women did not wear upper garments to cover their breasts and it was indoctrinated into the society without making any sexual prejudices. It is true that one can argue the law passed by British on the attire of women was a progressive action to civilize the oriental native, but the greater question arises is any of those laws passed by colonial administrators did not emerge as a result of a greater social need from every nook and corner of the society. On the other hand in every legal reform done by colonial masters reflects their sheer hypocrisy. The British view on the prostitution in India is a cardinal factor to examine this truth. Contentment Act 1864 and Cantonment Act 1895 were promulgated by colonial administration in India to outlaw any licensing attempt of prostitution in cantonment. Though British considered prostitution as a decadent feature in society, they did not show the same resentment towards European immigrant prostitutes and instead of British authorities encouraged the idea of European brothels in major cities like Mumbai and Kolkata, because British considered it would help to impede Englishmen from associating local Indian women. In fact this law was implemented in Mumbai from 1909 to 1917 under Stephen Edwardes, police commissioner of Bombay city. These historical narratives portray British interest in passing legislations to control amorous acts or activities relating to sexuality in India had more racial basis and the real hypocrisy of those laws was the British had a lenient approach to their own community in the sub-continent.
Apart from setting legal system according to their interest, British were not capable of understanding the nature of local laws. When East India Company spread its rule more powerfully after the victory of Plassey battle in 1757, company officers foresaw the advantage of applying local laws and customs in the litigant matters among the natives. In the section 23 of the judicial plan brought by Warren Hasting in 1772 clearly states
“In suits regarding inheritance, marriage, castes and other religious usages and institutions, the laws those of shashter with regard to the Gentoos will be invariably adhered to : and on all such occasions, Maulavis or Brahmins shall respectively attend the Courts to expound the law and they shall sign the report and assist in passing the decrees”.
Besides associating Pandits and Mauliavis in decision making in the courts British attempted to translate the available Hindu dharmashahsra into English. The most well-known example for this attitude is Colebrooke”s Digest. It is an English version of the enunciation of Hindu law. However the greater drawback of this Anglo fascination with Indian legal heritage was the fact that English could not read Sanskrit initially and they tried to translate the texts from Persian translations and it crated many ambiguities in understanding the essence of Hindu law. Duncan
M. Derrit strongly argues in most of the cases British were utterly failed in understanding the real nature and texture of Hindu law in India which finally made more twilight areas in interpretation the law. Indeed the British way of fossilizing the legal system was not only confined to India. In Ceylon British did adhere to the local laws such as Kandyan and Theswalamai, those laws were codified by Dutch before British took over the island. Under British regime those laws continued to practice along with Roman Dutch law and English judges interpreted those laws according to common law standards. Especially in the events of reinterpretations the adjustment made by British judges were accepted without resentment or even a question. Even today what remains in Sri Lanka as the ordinance of Kandyan marriages or Theswalami law in Sri Lanka is not an authentic legal legacy , but a fragment left by British in the island. According to Prof. T. Nadataja the ambiguities crated by British in interpreting the special laws eventually delayed the process of justice in a complicated manner.
Another agony of the colonial legal legacy in South Asia is its outrageous way of trampling people from accessing the law. It is true that even before British arrival the existed legal justice system was not an egalitarian just one and it was rather a crude, vicious pandemonium ruled by Mughals, Nawabs or princes. Even in Sri Lanka criminal justice was always held under the will of king which decisively decided the final outcome of any offence. But the mechanism of local dispute settlement in the ground level had a more pragmatic approach since they were finally settled among themselves. But in the process of judiciary British introduced a court fee in 1795 under the Bengal Regulation which gradually developed as a tax for the litigants. Krishna Iyer Commission on legal aid vehemently criticized the existence of levy fee in its report. It state “Something must be done; we venture to state, to arrest the escalating vice of burdensome scales of court fee. That the state should not sell justice is an obvious proposition but the high rate of court fee now levied “. The contradictory in post-colonial India is, even though the Article 14 assures the equality before law and equal protection within the territory of India the above mentioned levy tax initiated by British administration remains unchanged and it gives a sense of feeling that state is playing a role of a tax collector in the process of judicial justice. In Sri Lanka another rotten legacy left by British in the legal system is the language of proceedings. In the first few years of British rule in the island most the judicial officers were Europeans and English happened to be the inevitable adopted court language. In the historiography of modern Sri Lanka, there have been number of incidents that demonstrate how natives were suppressed before the law when they tried to seek the justice. As an example British civil servant who served in British Ceylon in early 20th century had recorded the difficulties faced by the natives before European judges, because the entire proceedings were conducted in English. In some occasions defendants had to accept the charges without knowing under which chargers they had been prosecuted. It is an irony to see even today, nearly 70 years after British left still English holds the helm in judiciary of Sri Lanka. Where the proceedings of Appeal Court and Supreme Court are fully conducted in English and the system of Supreme Court records is entirely codified in English only. In fact this deplorable state of elitism in the sphere of law has manly crated a distinction between the living law and the people. Though the reverence towards the law and order of state has been planted by the black letter law of the colonial legacy, it is true that it has forsaken the very pillars of it.
In this paper my next critique will focus on some stereotyped laws made by British to uphold their supremacy in the land and some of those laws had emerged as a reaction to Victorian moral virtues in contemporary England. With regard to the first set of law the, one can easily recall the Section 124-A of the Indian Penal Code, which created a huge hullaballoo in the recent past. This section is popularly known as the sedition law and it states “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in [India], shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
Indeed the continuation of such a colonial heritage in the living legal system has been subjected to many of the criticism. Especially it is important to remember the main motive behind the sedition law by the British was to silent the nationalist movement in India which was becoming a ponderable threat to them. Tracing down the history, the most famous use of Section 124A of the IPC was against, the Famous freedom fighters, Bal Gangadhar Tilak, in 1897. He was convicted under the Sedition law for making a statement regarding the killing of Deccan chieftain Afzal Khan by the Maratha warrior-king Shivaji. Consequently, his statement incited the murder of two British officers. Similarly, Mahatma Gandhi in 1922 was convicted under the same law in the famous- Great Ahmedabad Trial, in which Gandhi was charged with sedition i.e for “spreading and inciting disaffection" against the then British-ruled government. But ironically this law has been resurrected in post-colonial India to subjugate the activists who became a potential threat to the government. The Booker Prize winning author-activist Arundhati Roy and pro-Maoist leader Vara Vara Rao among others were charged under the offence of “Sedition. Question to be addressed in this scenario is what makes of implementing a colonial oppressive law again in modern context. In addition to the sedition law section 377 of Indian penal code carries another colonial memory which was essentially initiated by British as a reflection of Victorian morality. The section 377 has declared homo sexual act as a punishable offence and still that law remains unchanged, even after Britain stepped down from their conservative attitude towards the Gay community.
In this paper I have made a slightly a brief attempt to question the reality of the present legal systems in South Asia and especially except Nepal, Afghanistan and Bhutan all other states had had the bitter experience of British colonialism. Though today the finally sun has set on the British Empire, none of her former colonies have been able to relieved from the heat of the sun shine. Indeed the legal system created by British for their need in South Asia is one of those prejudices and it still complicates the lives of people in its colonial grandeur.