The Law: Congealed Colonialism


The Emergency is often seen as a moment of darkness in an otherwise exemplary history of a State committed to securing basic freedoms to its citizens. Brutal human rights violations committed under the sanction of draconian laws is seen as an unfortunate part of the history of a State that is otherwise, simply put, the 'world's largest democracy'.

However, this exclusive focus on 1975-77 sometimes obscures the deeper colonial legacies and post-colonial excesses that also need to be taken into account in any understanding of the Indian democracy.

What links India in 2005 to the India of the colonial era is a remarkable continuity in colonial laws. There is no sense post-1947 that the people are sovereign and have given unto themselves the Constitution, which is a document premised on the notion that all individuals have fundamental rights to life, equality and dignity.

K G Kannabiran - eminent human rights lawyer and president, People's Union for Civil Liberties - captures this brilliantly in his account of the trial of A K Gopalan, the veteran communist leader. On the same day that Nehru made his famous 'tryst with destiny' speech, Gopalan, who was the sole prisoner held in solitary confinement (all other prisoners having been released), decided to celebrate Independence Day by walking the length of the jail carrying the national flag. For this act, he was produced before the additional district magistrate on charges of 'sedition against His Majesty, the Emperor'. Gandhi and Tilak had been charged with the same offence; the only difference was that this trial was being held in independent India.

Kannabiran ('The Wages of Impunity', 2004) concludes from this somewhat farcical situation that, "Governance [for the magistrate and public prosecutor] was a continuous process and the principles of governance set up by the British in India were seen as appropriate and relevant for free India. The advent of independence was just an event which did not disturb continuity; it did not announce a change in the existing social order."

This example clearly illustrates the fact that structures set up by the colonial regime - to control colonial dissent - have never been fundamentally interrogated in independent India. If anything, these repressive laws were repromulgated under newer and newer titles to continue to suppress dissent.

Beginning from the Maintainance of Internal Security Act (MISA) in the Emergency era to the Terrorist and Disruptive Activities Act (TADA) and the present Unlawful Activities Act, these laws illustrate the phenomenon of expanding State lawlessness in the contemporary era. Thus, while there is no national emergency, many regions - and the people - of India continue to bear the brunt of neo-colonial governance through the panoply of repressive laws.

To take up just one illustration of this phenomenon of state lawlessness, one merely needs to examine the State's reaction to the Khalistan movement in Punjab from 1984-1994. The operation of TADA allowed the State to exterminate people under the guise of fighting an emergency. 'Reduced to Ashes' (2003), a report by Ram Narayan Kumar and others, documents the work of human rights martyrs such as Jaswant Singh Kalra, who made valiant efforts to make the Indian State accountable to its people. Kalra examined the records of crematoria and realized that there were over 25,000 unclaimed bodies in Punjab, thereby raising the question of mass human rights violations by the State. The Northeast, Andhra Pradesh and many other parts of India will have similar stories to tell.

Colonial continuity is not just in the way the State treats self-determination struggles, but also in the way it deals with questions of personhood. If today, women in India continue to deal with laws that do not permit the full expression of their personality, colonial laws have a lot to answer for. The conceptualization of women as the property of their men to do with as they please is most apparent in the law on adultery, where the husband can prosecute the 'lover' for tampering with his 'property'. The law on marital rape, wherein rape within marriage (provided the wife is over the age of 15) is no offence, is another example. Both these laws are a colonial inheritance. When it comes to issues such as marital rape, even the latest Law Commission recommendations - well into the 21st century - still express the fear that recognizing marital rape would "disturb the family".

Also tied to the colonial legacy are the rights of homosexuals, who continue to be second class citizens because of the existence of Section 377, Indian Penal Code, which criminalizes what it quaintly calls 'carnal intercourse against the order of nature'. This provision has been used as a tool by the post-colonial State to harass, persecute and torture those of a different sexual orientation. The micro-fascism of the State in its everyday manifestations is most visible in the way the law enforcement machinery deals with examples of gender non-conformity by the hijraand kothi community.

What is troubling about the history of colonial continuity is that we are talking about laws and institutions from an era that specifically meant to keep down a subject people, in an era when those people are themselves the sovereign. The imagination of the Constitution is not just to free a people from subject status, but also to enable the full development of a person's personality, free from constraints of class, caste, gender or sexual orientation/gender identity.

The contemporary era has failed in this second respect, leading to a proliferation of social struggles raising the question of democracy in its widest sense.

Parliamentary democracy, with its entrenched channels, is totally inadequate in representing the democratic struggles of the diverse peoples of India. To take one example, in the debates in the Maharashtra Assembly on the Bill prohibiting dance bars, there was not even an acknowledgement of the fact that the dance girls - whose profession was to be prohibited - had serious livelihood concerns. The House chose to concentrate on the supposed 'moral evil' that they perceived the girls as representing. The remoteness of the debates of the House from the women's livelihood concerns prompted Flavia Agnes to title her critique of the House's response, in a newspaper article, 'The house of depravity'.

To get a true sense of the democratic urges and aspirations of the Indian people, one needs to be attentive to the myriad struggles being waged in the streets - all of which stand in noisy testimony to the fact that, 55 years down the line, the Indian State is far from fulfilling its constitutional promise. It can be said of our rulers, as George Orwell presciently observed in 'Animal Farm', "The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which." 

Arvind Narrain is founder member of Alternative Law Forum; faculty member, National Law School, Bangalore; and co-author of 'Because I Have A Voice: Queer Politics in India.

By arrangement with Women's Feature Service


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