India's criminal justice system: Shedding colonial skin and embracing Bharatiya codes

Decolonisation is not just a political process, but an essential exercise in reclaiming identity, history and dignity. Especially when it comes to the laws that govern a nation, continuing with colonial-era statutes is like wearing the chains of subjugation as jewellery. The Indian Penal Code of 1860, the Indian Evidence Act of 1872, and the Criminal Procedure Code of 1898 are relics of an era where India was seen and treated as the “Jewel in the Crown” of the British Empire, not as a self-sustaining civilisation with a rich history of governance and jurisprudence. As post-colonial scholar Gayatri Chakravorty Spivak aptly puts it, “The colonizer writes history, the colonized is the history.” Using laws drafted by colonial masters not only binds India to a past where it wasn’t free but also hampers its journey towards true self-realisation. Emotionally, it feels like a bird trying to soar the skies with weights tied to its wings. For India to truly realise its potential, it must decolonise every aspect of its existence, especially its legal framework. The fingerprints of Thomas Babington Macaulay are indelibly imprinted on the entire criminal justice system of India. While one must grudgingly acknowledge the comprehensiveness with which Macaulay managed to codify the laws, the underlying purpose behind this undertaking cannot be ignored. The essence of this colossal legal exercise is steeped in colonial ambition and domination. It was not merely an attempt to bring order but a calculated strategy to subjugate an entire people, entwining them in a legal framework designed by those who saw themselves as rulers rather than allies. The legacy of this system continues to bind India, a painful reminder of a past that sought to suppress rather than elevate. On 10th July 1833, the grand arbiter of civilisation, Macaulay, proclaimed in the House of Commons a statement dripping with the benevolence of colonial paternalism. “I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be supplied,” he said, as though India, with its millennia of history, philosophy, and legal tradition, was but a blank slate awaiting the enlightened scribbles of the British quill. He continued with the heartwarming promise that India might “expand under our system” until they might actually demand European institutions, expressing his visionary goal of educating the “subjects” into a capacity for better government. The gallant Lord Macaulay, thus, graciously allowed for the possibility that Indians might one day rise above their “slavery and superstition” and aspire to the grandeur of European citizenry. How very magnanimous of him to ponder such a future for the Indians. His words, a testament to the self-congratulatory spirit of empire, are indeed a “title to glory” that only the colonial mindset could craft. Thereafter, in 1834 itself, the first Indian Law Commission was formed under the chairmanship of Macaulay. Its role was to look at the existing Courts, police systems, and the laws in India at the time. The Commission recommended several legal actions to the Government. One key recommendation was the Indian Penal Code, which became law in 1860. Despite being a product of the colonial era, this Code is still in use in the country, with only a few changes made over the years. The ongoing presence of these laws, originally crafted to serve the interests of the British rulers, can be seen as a negative aspect of India’s legal heritage. It is a reminder of a time when laws were not always made with the best interests of the Indian people in mind. Its persistence is a lingering shadow of a past that sought not to elevate India, but to shape it in the image of those who sought to rule rather than respect. Furthermore, the whole idea behind introduction of IPC, CrPC and Evidence Act was that India’s legal system was primitive. In David Skuy’s paper, “Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century,” he explores the comparative development of criminal law in India and England during the 19th century. Skuy asserts that the Indian legal reforms were mirroring those happening in England, with India’s legal changes reflecting the Peel Acts, the creation of criminal codes, and other legal shifts in England. Skuy argues that Macaulay’s initiation of writing a penal code for India was a result of England’s criminal law reform, and not due to the Indian legal system’s condition. Furthermore, he challenges the notion that England’s legal system was inherently superior or more modern than India’s. He calls for an understanding of India’s indigenous legal systems to allow for an objective comparison, suspecting that India’s criminal justice system was not necessarily more primitive than England’s. Skuy’s study illustrates that English law, and its development cannot be taken at face value, especially when comparing it with Indian law in the same period. Additionally, when the criminal justice system was “reformed” in India, it was not applied consistently across the board. The wisdom of the British colonial mindset was rightly captured by none other than the Chief Justice of the Calcutta Supreme Court, Charles Jackson. A fervent advocate for the “peculiar circumstances” that allowed a “small dominant and civilized class” to benevolently bestow upon the “large native uncivilized population” a judicial system superior to anything they ever had. However, heaven forbid that these same British subjects should be subject to such laws themselves! Jackson’s candid assessment: the natives were “better off”, while Europeans would only suffer from being subjected to “inferior” laws. The solution, he magnanimously proclaimed, was not to “reduce the British subject to the level of the Native” but to “raise the Native to the position of the British subject.” Indeed, the benevolence in wanting to raise the natives while keeping them at arm’s length from the laws that governed the British is truly touching. One can only wonder at the grace it took to see the system as an uplifting gift, rather than the clear tool of differentiation and control it was designed to be. For generations, the people of India have lived under laws that were never truly ours. They were laws given to us by people who didn’t understand us, who looked down on us, and who thought they were doing us a favor. The Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act were like old clothes that never fit, handed down by those who once ruled over us. But now, a new day is dawning. The Bharatiya Nyaya Sanhita Bill, 2023; the Bharatiya Nagarik Suraksha Sanhita Bill, 2023; and the Bharatiya Sakshya Bill, 2023 are more than just new laws. They are our laws. They are a sign that India is ready to stand tall and walk on its own path. It’s about saying goodbye to the past and embracing a future that belongs to us. So, here’s to a new beginning. And to Thomas Babington Macaulay, who once thought he could teach us how to be civilised, we say thank you for the lessons, but we’ll take it from here. We’ve got our own wisdom, our own strength, and our own way of doing things. It’s time for India to be India, and we wouldn’t have it any other way. The author is Additional Private Secretary (Policy & Research), Economic Advisory Council to the Prime Minister. He tweets @adityasinha004. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect Firstpost’s views. Read all the  Latest News ,  Trending News ,  Cricket News ,  Bollywood News , India News  and  Entertainment News  here. Follow us on  Facebook,  Twitter and  Instagram.