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How Empire Still Rules Through Law: Colonial Law in Modern Post-Colonial States

By Luisa Hardman


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On 1 July 2024, the Indian Penal Code (1860) (IPC), was  repealed and replaced by the Bharatiya Nyaya Sanhita (2023) (BNS), overhauling India's criminal justice system and emphasising justice and rehabilitation over punishment. This marked a watershed in India’s legal history, addressing the colonial legacies which still play a significant role in the way the country operates. 


The Indian Penal Code was enacted during British colonial rule, based on a simplified codification of the law of England at the time, whilst incorporating aspects of the Napoleonic Code and the Louisiana Civil Code. It standardised legal practices across British India.


Law played a crucial role in the construction of the colonial state. Far more than a tool of governance or a means to provide justice, the Code served the British Empire’s desire for cultural dominance and state control. It reinforced racial hierarchies, injustices and violences of colonial rule, frequently protecting Europeans from prosecution for their crimes against Indians and therefore failing to provide justice for all subjects of the Empire. 


The sedition law within the Indian Penal Code, Section 124a, was used by the British government during the colonial era to suppress independence movements. The law criminalised acts that brought or attempted to bring ‘hatred or contempt’ or ‘disaffection’ towards the government through speech or writing. 


This law in particular has come under international scrutiny in the past decade because of its use by the Indian government against social activists, students, journalists, intellectuals and others critical of the government. The colonial law, used historically by the British against Indian political leaders seeking independence, was weaponised by successive democratically-elected governments as a tool of suppression. 


It is yet to be seen whether the new legal code, the Bharatya Nyaya Sanhita (2023), will successfully ‘decolonialise’ the criminal justice system as the government claims it aims to do. Critics argue that the new codes actually reinforces and legitimises colonial ideas within the criminal law. Even though the said code removes sedition as an offence, it introduces a new offence targeting acts endangering India’s ‘sovereignty, unity and integrity’, thus maintaining the effect. The ambiguity of this new law’s wording has raised some concerns about how much it represents a true change, or if such ambiguity could be exploited for similar, suppressive, ends. Moreover, the new code maintains many of the old offenses steeped in archaic morality, especially in regard to the marital rape exception and the definitions of sexual assault. 


Furthermore, the new legislation does not effectively address the flawed implementation of these laws by legal systems and institutions. In fact, the strengthening of police power reinforces colonial dynamics, strengthening the state in an increasingly unequal society. 


India’s struggle to disentangle itself from colonial law is mirrored in many parts of the world. Across former British colonies, legal systems continue to perpetuate colonial and imperial logic, weaponising inherited structures of inequality and repression. 


In Zimbabwe, for example, British sedition statutes, similarly used in the colonial era to crush independence movements, have been repurposed following independence. Opposition leader, Job Sikhala was charged under these sedition statutes for allegedly inciting violence. Similar provisions in Uganda target journalists and other critics.


Meanwhile in Nigeria, Public Order Acts implemented under British colonial rule gives governments sweeping powers to ban protests and regulate public assemblies. Initially introduced to stop anti-colonial agitation, they continue to be used today to suppress demonstrations.


Furthermore, much like in India, the legacy of colonial law in Guyana goes beyond formal law: legal systems and institutions of punishment also perpetuate colonial modes of control. 


In 2016, unrest broke out in Guyana's oldest and largest prison, Camp Street in George Town, where prisoners set fires to protest overcrowding and delays. The fires led to the deaths of 17 inmates. The problems with Guyana’s prison systems, especially its emphasis on punishment over rehabilitation (and therefore overcrowding), as specified by a subsequent official enquiry, can be linked to its colonial past.


The colonial origins of law and punishment in Guyana are evident in the continued legacies of slavery and indentureship. Whilst colonial rule was overturned, and slavery abolished, the state’s jail-building programme made sure to fill the void of unfree labour originally furnished through slavery. Rehabilitation was counterintuitive to this elitist desire for a continued supply of unfree labour. 


The preceding examples hardly scratch the surface of the varied and far-reaching legacy of the British Empire’s colonial law. Nevertheless, they demonstrate key patterns in how colonial legal systems continue to shape post-colonial governance, which are worth more reflection. 

 

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Edited by Artyom Timofeev


 
 
 

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