The notion that everything colonial was toxic might have had some rhetorical utility when the freedom struggle was on. To swallow that rhetoric as the literal truth is silly. The rule of law, the notion of equality before the law and of due process are colonial creations, as are the railways, electricity, tarred roads, newspapers, the postal system, modern industry and mining, a regulated banking system, limited liability companies and stock markets, cricket, football, movies, recorded music and a civil service, besides the English language that served as the lingua franca for linguistically diverse Indians, and as the language of precision for framing laws and determining adherence to principle. And these are entirely welcome.
The modern system of school and college education, to which a young B R Ambedkar, a dalit, had access, as well as the offspring of the ritually high-born, was a contribution of the colonial system. The ideas of freedom, accountable government and liberty seeped into the psyche of the Indian elite and, later, spread to a largish proportion of the population, thanks to this colonial reform.
What was colonial in colonial law was the lack of accountability of the administration to the people, and severe curtailment of essential individual freedoms in the service of stability of the colonial regime. Representative government, instituted after Independence, was supposed to remedy this. But the very nature of the transfer of power from the British crown to leaders of Independent India left the legal and administrative structures and culture intact, leaving laws and rules meant to subordinate and subjugate a subject population, rather than empower a free citizenry and constantly expand its universe of liberty.
Do the laws that replace IPC, CrPC and the Evidence Act work to enhance accountability of the state to the people? On the contrary, the new laws take away powers from the citizenry and aggrandise the power of the state, specifically of the police, that arm of the state meant to monopolise the use of force within the country.
In any democracy, keeping the police from misusing its power against citizens, particularly against vulnerable sections of the citizenry, is a struggle. In the US, ‘Black Lives Matter’ had to be asserted, and, in France, immigrant-heavy parts of the populace had to riot, to register the inherent humanity and citizenship of certain groups.A prominent feature of the new criminal laws is the transfer of powers from the civil administration, manned by the Indian Administrative Service, to the police. Now, police officers can be made special executive magistrates, not just members of IAS. To attach properties, the permission of the magistrate has been done away with. The police can arrest people without a warrant from a magistrate. A police officer can decide if an arrested person can be put in handcuffs.The period for which a person can be kept in police custody has been increased from 15 days to a maximum of 90 days. The provision to permit an officer to carry out a preliminary investigation before registering a first information report (FIR) would, ideally, be welcome – as registering FIRs is now a routine form of harassment. But it can be misused to not register an FIR against a powerful person, when filed by a powerless person. The shift in the balance of power towards the police makes police arbitrariness even more likely than it is now.
The offence of sedition, contained in Section 124A of IPC, has been done away with, as also that of adultery. That is welcome. However, Chapter 7 of Bharatiya Nyaya Sanhita, on offences against the state, essentially describes the crime of sedition, and expands its scope, leaving it wider open to the police for misuse against political opponents of the ruling party. The sweeping language describing crimes against the state, combined with arbitrary powers for the police to make arrests even without a warrant and for extended custody, makes the new law more egregious than Section 124A of the IPC.
To decolonise penal laws, what is required is to hold the police accountable not just to the executive but also to a committee of the legislature and also to the Human Rights Commission. Such multiple lines of accountability would serve not just to hold the police to account but also to make it more autonomous in the discharge of its duties. There is no inkling of any such desire in the new laws.
The telecom law empowers GoI to take over networks and intercept conversations of citizens. This is necessary. But it needs to be accompanied by prior judicial sanction and subsequent accountability to a committee of Parliament, to prevent misuse of the provision. That is absent in the law.
We need to decolonise our systems – in substance, not name.
