(NOT) MADE IN INDIA

Despite successive governments scrapping thousands of archaic statutes

that have no place in modern India, there are a few British relics that we

continue to follow even today

India achieved independence from the United

Kingdom (UK) on August 15, 1947, but the colonial

legacy lives on in our love for chai and cricket, and

on a heavier note, in our law and order system

which is a direct import from the British.

Immediately after the country became independent,

adopting a system that was homegrown yet understanding

of the needs and beliefs of various castes, communities,

and classes it sought to bring together was possibly

the best way forward for the new government. As such,

the laws that were in existence under the British rule

continued well after they left, and while the Indian society

adapted to most of them, there were some that survived

like relics in a museum, having no relevance whatsoever

to modern India. A case in point is the century-old statute

levying toll tax of not more than two annas (a currency no

longer in existence) on boats ferrying passengers across

River Ganga.

As far back as 1955, the Law Commission of India suggested

that a new legal system be adopted, junking useless British

laws while retaining the more useful ones in a more

Indian format. Since then, successive governments have

weeded out as many as 1,301 obsolete laws to improve

administration and ease of doing business. The Narendra

Modi government achieved a record of sorts by scrapping

as many as 1,200 redundant Acts in just three years, in

addition to identifying 1,824 more obsolete Central Acts

for repealing. The streamlining exercise notwithstanding,

there are still at least five laws that owe their origin to

the British but continue to be followed even today. Here's

looking at them.

Some recent deal trends

The British government introduced the Dramatic

Performance Act in 1876 to prevent locals from using

theater to revolt against the Raj. There was a predilection

for outrageous and derogatory dramatic performances at

the time. With this Act, the British sought to gag all such

performances capable of corrupting people and inciting

anti-colonial feelings among them.

Even in independent India, many states introduced this

Act, albeit with amendments, save for West Bengal and

Delhi. In 2014, the Law Commission recommended that

the Act be rescinded as it had been propagated under the

British Raj to curb nationalist sentiments and that it had

no place in modern democratic society. In the same year,

the Madras High Court ruled that the Tamil Nadu Dramatic

Performance Act, 1954 be revoked as it violated Articles 14

and 19 of the Indian Constitution.

Blasphemy Law

During the religious uprising in Punjab in 1920, Muslims

resorted to violence to protest a publication, Rangeela

Rasool, which carried information about the life and

times of Prophet Mohammad which greatly offended the

community. The author of the work was charged under

Section 153A of the Indian Penal Code (IPC), but the Lahore High Court did not consider it as an offense. Instead, a

clause was added to Section 295 of the IPC, making the

publishing of content hurting the religious sentiments of

any community an offense.

Since then, Section 295A of the IPC—criticized for

restricting freedom of speech—has been invoked on

various occasions to ban the publication of books, etc.

One such instance was the lawsuit brought against

Wendy Doniger's book titled, "The Hindus: An Alternative

History" under Section 295A of the IPC. Many view the

section as a violation of Article 19(2) (fundamental rights)

of the Indian Constitution.

Sedition Law

In 1795 England, war against the King to force him

to change his policies or to intimidate Parliament was

considered an offense. In 1870 British India, sedition

(treason) was made a criminal offense, with freedom

fighter Bal Gangadhar Tilak among the few who bore the

brunt of the Sedition Law. The bone of contention was that

allegedly provoked by Tilak's speeches, a few Brahmin

youths in Pune murdered two British soldiers. Once, Tilak

was released after an 18-month trial, while in the other

instance, he was sentenced to six years' imprisonment

for an editorial published in his newspaper Kesari. Even

M.K. Gandhi in 1922 was taken to court for his articles

in a magazine, Young India, that spoke of sedition as the

"prince of political sections" intended to suppress citizens'

liberty.

Post independence in December 1948, the word "sedition"

was dropped and the law was amended when senior

Congress leader, Seth Govind Das, spoke against the

section in the house. While "sedition" disappeared from

the Indian Constitution thereafter, it remained part of

Section 124A of the IPC. Not very long ago, this section

was invoked against a student of Jawaharlal Nehru

University (JNU) for his remarks favoring separatist Afzal

Guru. In July 2017, as many as 165 arrests on charges

of sedition were recorded by the National Crime Records

Bureau (NCRB).

Personal Laws

Through medieval times and the Mughal Empire, Muslim

administrators opted not to interfere in the personal

laws of Hindus or Muslims so as to maintain harmony.

Under the British Raj, the Governor General of India,

Warren Hastings, too, chose to nurture the personal

laws of Hindus and Muslims instead of drafting a new

law to regulate the religious sentiments of both

communities. In a sense, this was as an extension of the

infamous "divide and rule" policy followed by the British

to establish their hold over India. Hastings' Rule that

distinguished between the personal laws of Hindus and

Muslims later found expression as the Cornwallis Code,

1793. Personal laws, which found firm ground back in the

17th century, have continued to influence the Indian polity

till date.

Over the years, triple talaq under Muslim law has been

the subject of much debate till the historic December

2017 judgment, where the Supreme Court of India set it

aside as a "manifestly arbitrary practice" and rendered its

pronouncement—either spoken, written, or in electronic

or any other form—as "void and illegal". The Muslim

Women (Protection of Rights on Marriage) Bill, 2017

made pronouncement of triple talaq a cognizable and

non-bailable offense, punishable with a jail term and

a fine. The Bill further entitled Muslim women upon

whom triple talaq was pronounced to receive from their

husbands' subsistence allowance for themselves and their

(dependent) children.

Criminalization Of Homosexuality

In British India, laws related to sexual offenses came into

existence in 1825 under the leadership of the then Chairman

of the Law Commission, Thomas Babington Macaulay.

In 1842, homosexuality was deemed "a nasty, wicked,

filthy, lewd, beastly, unnatural, and sodomitic practice".

Following the Sepoy Mutiny of 1857, the Parliament

of the United Kingdom of Great Britain and Ireland in

1860-61 passed the "Offenses against the Person

Act" which defined homosexuality as an "unnatural

offense" based on whether the act was consensual or

non-consensual. Thereafter, the "consent" aspect was

dropped to read as it does today under Section 377 of

the Indian Penal Code (IPC), 1860, which criminalizes

homosexuality.

Section 377 has stoked much controversy since 2009,

when the High Court decriminalized it. Then, in 2012,

the Supreme Court of India overturned the High Court's

decision and criminalized homosexuality once again. The

matter has once again come to the fore, with the Supreme

Court on July 12, 2018 stating that the social stigma and

discrimination attached to the LGBTQ (Lesbian, Gay,

Bisexual, Transgender, and Queer) community will go away

if consensual gay (homosexual) sex was decriminalized.

The SC has maintained that it will scrutinize the

Constitutional validity of Section 377 of the IPC in detail.

A five-judge bench comprising CJI Dipak Misra and Justices

R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and

Indu Malhotra is currently hearing petitions challenging

the Constitutional validity of the 158-year-old punitive

law.

Disclaimer – Statements and opinions expressed in this article are those from the editorial and are well researched from various sources. The content in the article is purely informative in nature.