Azaadi from a colonial rule book

The Supreme Court agreed to refer the curative petition against its earlier decision on Section 377, upholding its constitutional validity to a bench of five judges.  

“Whoever voluntarily causes or attempts to cause any person to do anything… by inducing or attempting to induce that person to believe that he… will become… an object of Divine displeasure if he does not do [that] thing… shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

This is not a law out of a Lewis Carroll novel or a Sukumar Ray short story. It is Section 508 of the Indian Penal Code, 1860. Placed next to another antiquity — insulting the “modesty” of a woman (Section 509) — it is a stark reminder of the dissonance between India’s great criminal law code and the constitutional principles of autonomy and equality.

Gautam Bhatia

A relic of our colonial past

Most major Indian laws are legacies of the British, the results of a great codification movement that failed to make much headway in the colonial metropolis, and therefore chose India as its laboratory. Apart from the Indian Penal Code or IPC (1860), there is the Indian Evidence Act (1872), the Indian Contract Act (1872), the Transfer of Property Act (1882), the General Clauses Act (1897), the Code of Civil Procedure (1908), and — until its overhaul in 1973 — the Code of Criminal Procedure (1898). Crime, contract, property, and legal procedure — the bastions of any legal system — have come down to us, in 2016, largely preserved since the time of their inception.

In some respects, this is unsurprising. Many of these laws do not have an overtly political flavour. The rule against admitting hearsay evidence, for instance, is a result of simple good sense and a keen awareness of human nature, independent of the relationship between the ruler and the ruled. The same goes for the laws of property and contract. It is, however, in the field of criminal law, unmistakably coloured by the brush of colonial morality and colonial governmentality, that the absence of change in all these years has been a matter of surprise.

In recent times, two provisions of the IPC have been in the news. >Section 377 was back in the headlines after two years, when the Supreme Court agreed to refer the curative petition against its earlier decision upholding its constitutional validity to a bench of five judges. Section 377, which foisted the completely alien term “carnal intercourse against the order of nature” upon the Indian public, is one of the clearest examples of the Victorian morality that pervades the IPC. The other provision is Section 124A, the offence of sedition. Created to deal with the rising Wahhabi movement in the 1870s, used against Gandhi, Tilak, Besant and many other stalwarts of the freedom movement, and in its latest avatar, invoked against sloganeering university students, the law of sedition is perhaps amongst the most recognisable — and notorious — provisions of the IPC.

Victorian morality, imperial logic

Sections 377 and 124A reflect the two prominent ways in which the British left their stamp upon >India’s criminal law, in a manner that is entirely inconsistent with a democratic, constitutional republic. Section 377 embodies a form of colonial morality, drawn from Victorian England, famously repressed and repressive when it came to sex. It is this morality that is also the basis of Section 497 of the IPC, for instance, which punishes a man for adultery, but exempts the woman (who can be punished only as an “abettor”, and not as the primary offender), and Section 498, which punishes “enticing” a married woman. It is a morality that views women as the passive partners in a sexual relationship, led astray by unscrupulous men, and unable to take responsibility for their own actions. Similarly, the exception to Section 375, which places forced sexual intercourse between a husband and a wife outside the definition of “rape”, is based upon a belief that marriage entails a one-time, permanent and irrevocable consent to sex. And it is this morality that criminalises the sale of “obscene” books ( >Section 292; the word “obscene” was not even defined until 1969) and the performance of “obscene songs” (Section 294).

Section 124A, on the other hand, reflects a colonial logic, predicated upon a subject-ruler relationship between the Indians and the British. Its prohibition upon spreading “disaffection” against the government, and the manner of its use, makes it clear that it was enacted to preserve the reputation of the colonial government in the eyes of its subjects. Two other speech-based offences follow a similar logic. Section 295A, which was enacted in the aftermath of religious riots across north India in the 1920s, criminalises insulting the religious beliefs of any “class” of citizens. Section 153A criminalises promoting “enmity” between different groups. These provisions reflect the British strategy of dividing the subcontinent into clearly identifiable “groups”, and managing the relationships between them, qua groups, in a manner that it would become impossible for them to present a united front against colonial rule.

Reconciling the irreconcilable

The colonial context of these laws, and the earlier — as well as continuing — manner of their use, has often left the courts in a bind. Unwilling to go so far as to strike down parts of the IPC, they have been forced into a number of unconvincing contortions to try and reconcile the colonial law with the constitutional republic. While upholding the constitutionality of sedition, the Supreme Court restricted its operation to incidents inciting towards, or leading to, public disorder. This is directly at odds with the language of >Section 124A, and has failed entirely to prevent abuse at the level of the police and lower judiciary. While upholding Section 295A — insult to religious feelings — the court limited itself to intentional insults, which, it held, could not but have a tendency to lead to public disorder. If the sedition case stretched the boundaries of language, then the 295A case did the same with facts! Similarly, while upholding the constitutionality of obscenity in 1964, the court adopted a Victorian definition of the term that has progressively been repudiated in the intervening years. And most recently, in 2014, the Supreme Court was asked to issue directions prohibiting hate speech during election campaigns. While declining to do so, on the ground that existing hate speech laws were sufficient to cover the issue, the court nonetheless expounded upon what hate speech meant, and why it had to be regulated. Drawing upon contemporary advances in the understanding of hate speech, both by philosophers and by foreign constitutional courts, the Supreme Court defined hate speech to be speech that could lead to discrimination, hostility or violence against vulnerable groups. While that is an admirably progressive interpretation, it remains at odds with the language of Section 153A which — as mentioned above — follows the colonial logic of keeping warring groups at arm’s length from each other while giving them the legal weapons to indulge in a competition of mutually hurt sentiments. Unsurprisingly, the court’s interpretation has failed to check the misuse of Section 153A against dissident speech, in any meaningful way.

Comprehensive relook needed

This survey reveals two things. First, the problems with the IPC cannot be solved in a piecemeal manner by taking isolated sections of the code and attempting to modernise them (as the Verma Committee tried to do with the laws of sexual assault, in the aftermath of the Nirbhaya case). Second, this is not a task that the judiciary can accomplish, with all the will in the world and with the best of intentions. It is for the legislature to take a comprehensive relook at the IPC for the first time in its 156-year history and introduce reforms that do not merely tinker at the edges but transform the very philosophy of the penal law in a manner that is consistent with our constitutional principles. Such a move is not without precedent in the Commonwealth: as recently as 2003, the criminal law of the United Kingdom was comprehensively reviewed and changed, via the Criminal Justice Act.

Any such reform would have to be carried out in conformity with the basic principles of the Constitution. Three of those principles are individual autonomy, the freedom of speech and conscience, and equality. In light of these principles, laws that claim to protect individuals from moral degradation and corruption (the package of obscenity laws), that privilege community sentiment over the individual right of speech and conscience (the speech-restricting laws), and that are based upon stereotypical assumptions about men and women, must be reviewed and modernised in a manner that is consistent with the Constitution. While we may choose to retain the already-existing, lucid and sensible definition of “murder”, and attempt to retain the precision of drafting that is the hallmark of colonial law, there is little doubt that significant swathes of the IPC have outlived their utility, whether moral or pragmatic. Change has never been more overdue, or more urgently required.

(Gautam Bhatia is a Delhi-based lawyer. His book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution, was published in December 2015.)

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Printable version | Mar 4, 2021 11:08:39 AM | https://www.thehindu.com/opinion/lead/sections-377-and-124a-highlights-azaadi-from-a-colonial-rule-book/article14149577.ece

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