Among other things (and these are just a few examples), the Indian Penal Code, drafted by British imperial rulers in the mid-nineteenth century, criminalizes homosexuality under Section 377; creates a crime of ‘sedition’ under which students shouting slogans have been arrested; and applies a double standard to the commission of adultery.
The draconian concept of ‘sedition’ was enacted as an offence in 1870 to suppress any criticism of British policies. Under Section 124A of the Indian Penal Code, any person who uses ‘words, signs or visible representation to excite disaffection against the Government’ can be charged with sedition and potentially sentenced to life. This was explicitly justified by its proponents at the time on the grounds of restricting free speech in a subject state: one Briton spoke candidly in 1870 of needing a law to curb ‘seditious offences not involving an absolute breach of the peace’. In other words, no free speech for Indians.
When the law was tightened further in 1898, to make it harsher than it was in England, the British Lieutenant Governor of Bengal admitted: ‘It is clear that a sedition law which is adequate for a people ruled by a government of its own nationality and faith may be inadequate, or in some respects unsuited, for a country under foreign rule.’
Sedition was therefore explicitly intended as an instrument to terrorize Indian nationalists: Mahatma Gandhi was amongst its prominent victims. Seeing it applied in democratic India shocked many Indians. The arrest in February 2016 of students at New Delhi’s Jawaharlal Nehru University (JNU) on charges of sedition, for raising ‘anti-Indian’ slogans in the course of protests against the execution of the accomplice of a convicted terrorist, and the filing of an FIR against Amnesty International in August 2016 on the same charges, would not have been possible without the loose, colonially-motivated wording of the law.
Agreeing with the outrage against colonial era provisions in the law, as a Member of Parliament, I introduced bills in the Lower House, seeking to amend these laws. I argued that the existence of these provisions on the statute books had made our penal code liable to misuse by the authorities in ways that infringed upon the constitutional right of Indians. My bill would allow an individual to be charged with sedition only when his words or actions directly result in the use of violence or incitement to violence or constitutes an offence which is punishable with imprisonment for life under the Indian Penal Code—like culpable homicide, murder, or rape. Mere words or signs criticizing the measures or administrative actions of the government will not constitute sedition. My objective is to promote the freedom of speech and the right to express dissent against the government, while ensuring safeguards against the use of words to incite violence—options that were not available to Indians under British rule.
Similarly, Section 377 of the Indian Penal Code, enacted in 1860, criminalizes ‘carnal intercourse against the order of nature’—a term so archaic that it would invite derision in most modern societies. There had never been a taboo against homosexuality in Indian culture and social practice—until the British Victorians introduced one. Section 377, in so far as it criminalizes consensual sexual acts of adults in private, violates the fundamental rights guaranteed under Article 21 (life and liberty, including privacy and dignity), Article 14 (equality before law) and Article 15 (prohibition of discrimination) of the Constitution of free India.
My amendment to Section 377 would have decriminalized sex between consenting adults of any gender or orientation. Conservative MPs from the ruling BJP party, however, voted against its introduction in Parliament, prompting LGBT activists to move the Supreme Court, which has agreed to hear a ‘curative review’ petition against its earlier judgement upholding the law. The judicial route may, indeed, offer a more effective way to overturn this iniquitous section of the penal code. Fifty-eight Indians have been arrested under Section 377 in just two years (2014 and 2015) for actions performed in the privacy of their homes. That’s fifty-eight Indians too many.
The irony is that in India there has always been place for people of different gender identities and sexual orientations. Indian history and mythology reveal no example of prejudice against sexual difference. On the contrary, in the great epic the Mahabharata, the gender-changing Shikhandi killed Bhishma. The concept of the Ardhanareeshwara imagined God as half man and half woman, prompting the movie-star chief minister of Andhra Pradesh in the 1980s, N. T. Rama Rao, to dress up as Ardhanareeshwara and surprise his followers—an unusual, even eccentric, act that was still seen as very much in keeping with Indian traditions. Transgender people were recognized as a napunsakh gender in Vedic and Puranic literature and were given due importance in India throughout history (and even in the Islamic courts during the period of Mughal rule). The Jain texts recognized a broader concept of gender identity by speaking about the idea of a psychological sex being different from that of a physical one. Unfortunately, the British-drafted Indian Penal Code criminalized aspects of human behaviour and human reality that in India had not previously been regarded as criminal or requiring legal sanction. Section 377 of the Indian Penal Code and the Criminal Tribes Act of 1871 target the transgender community as well as the homosexual community. They violate the Indian ethos and the traditions of perhaps at least 2,000 years of Indian cultural practice, mythology, history, the Puranas, and Indian ways of living. Instead of India’s traditional tolerance and ‘live and let live’, the British saddled the country with a colonial-era interpretation of what was good and right for Indians. It is ironic to see the self-appointed defenders of Bharatiya Sanskriti on the Treasury Benches now acting as the defenders of the worst prejudices of British Victorian morality.
The Indian Penal Code is no easier on straight women than on gays. Section 497, criminalizing adultery, punishes extramarital relationships involving married women but not married men. A husband can prosecute his wife for adultery, and a man having sexual relations with his wife, but a woman cannot sue her husband for having an extramarital relationship, provided his partner is not underage or married. This double standard, exposed in a series of recent cases, again reflects Victorian values rather than twenty-first century ideas of morality. Ironically, in all three cases, the British have revised their own laws, so none of the offences they criminalized in India are illegal in Britain. One of the worst legacies of colonialism is that its ill effects outlasted the Empire.
I do not mean to blame the British alone for the persistence of these injustices. But the British enshrined these laws that have proved so difficult to amend. Strikingly, no less an eminence than India’s head of state, President Pranab Mukherjee, chose the 155th anniversary of the Indian Penal Code to underscore the need for its thorough revision. Our criminal law, he declared, was largely ‘enacted by the British to meet their colonial needs’. It needed to be revised to reflect our ‘contemporary social consciousness’ so that it could be a ‘faithful mirror of a civilization underlining the fundamental values on which it rests’. That Indians have not done this so far is, of course, hardly Britain’s fault, but by placing iniquitous laws on the books, Britain has left behind an oppressive legacy. It is time for twenty-first-century India to get the government out of the bedroom, where the British were unembarrassed to intrude. It is also past time to realize that the range of political opinion permissible in a lively and contentious democracy cannot be reconciled with the existence of a pernicious sedition law.
four
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DIVIDE ET IMPERA
Divide and rule as a colonial project – caste, race and classification – the creation of community feeling – the British punditocracy – how the census undermined consensus – British colonialism self-justified – caste reified by colonialism – the Hindu–Muslim divide – communalism as a colonial construction – the Indian National Congress and the Muslim League – the British and the Shia–Sunni divide – British communal bias – a saint among sinners – separate electorates – stumbling towards Armageddon – Congress resignations – Quit India �
�� the revival of the Muslim League – the Cripps Mission – endgame: election, revolt, division – negotiations over withdrawal – two surrenders: the British give up and the Congress gives in – quitting India, creating Pakistan – a ‘tryst with destiny’
If British claims to creating viable political institutions in India, a democratic spirit, an efficient bureaucracy and the rule of law all seem hollow after the analysis in the previous chapter, it is their overarching assertion of having bequeathed India its political unity that underpins these claims. But while the events outlined above were occurring, another anti-democratic British project was coming to fruition that would discredit any credible view that the political unity of India was an objective of British colonialism.
The sight of Hindu and Muslim soldiers rebelling together in 1857 and fighting side by side, willing to rally under the command of each other and pledge joint allegiance to the enfeebled Mughal monarch, had alarmed the British, who did not take long to conclude that dividing the two groups and pitting them against one another was the most effective way to ensure the unchallenged continuance of Empire. As early as 1859, the then British governor of Bombay, Lord Elphinstone, advised London that ‘Divide et impera was the old Roman maxim, and it should be ours’. (He was not quite right: the term was coined not by the Romans, but by Philip II of Macedonia, though some Roman conquerors followed its precepts.) A few decades later, Sir John Strachey opined that ‘the existence of hostile creeds among the Indian people’ was essential for ‘our political position in India’.
CASTE, RACE AND CLASSIFICATION
The British had a particular talent for creating and exaggerating particularist identities and drawing ethnically-based administrative lines in all their colonies. Scholars have theorized that this practice may have stemmed from the British horror of diluting their own, idealized English identity, to which their colonial subjects were not allowed to aspire. In this respect they were quite unlike the French, whose policy of cultural assimilation went so far that little African and Asian children could be found dutifully reciting ‘nos ancêtres les Gaulois (Our ancestors the Gauls)’ in their schoolrooms in Senegal or Vietnam. Indians were always subjects, never citizens; throughout the days of Empire, no Indian could have presumed to say ‘I am British’ the way a French African was encouraged to say ‘Je suis français’.
This tendency to separate was apparent in British attitudes from the start. Indeed, it had been evidenced in the only already-white country the British colonized, Ireland; instead of assimilating the Irish into the British race, they were subjugated by their new overlords, intermarriage was forbidden (as was even learning the Irish language or adopting Irish modes of dress) and most Irish people were segregated ‘beyond the Pale’. If the British could do that to a people who looked like them, they were inclined to do much worse to the darker-skinned peoples they conquered in India. While we have examined some aspects of this phenomenon in previous chapters, I would like to examine how they classified Indians into various immutable categories, especially those of caste and religion.
Let us start by giving the British the benefit of the doubt and assuming that they might have been inclined to suspect that Indians, too, must be like them, and would like nothing more than to shield themselves behind their own identities. But the British effort to understand ethnic, religious, sectarian and caste differences among their subjects inevitably became an exercise in defining, dividing and perpetuating these differences. Thus colonial administrators regularly wrote reports and conducted censuses that classified their subjects in ever-more bewilderingly narrow terms, based on their language, religion, sect, caste, sub-caste, ethnicity and skin colour. In the process of such categorization and classification, not only were ideas of community reified, but entire new communities were created by people who had not consciously thought of themselves as particularly different from others around them.
The American social anthropologist Nicholas B. Dirks explains it lucidly: ‘Colonialism was made possible, and then sustained and strengthened, as much by cultural technologies of rule as it was by the more obvious and brutal modes of conquest that first established power on foreign shores… Colonialism was itself a cultural project of control. Colonial knowledge both enabled conquest and was produced by it; in certain important ways, knowledge was what colonialism was all about. Cultural forms in societies newly classified as “traditional” were reconstructed and transformed by this knowledge, which created new categories and oppositions between colonizers and colonized, European and Asian, modern and traditional, West and East… As India was anthropologized in the colonial interest, a narrative about its social formation, its political capacity, and its civilizational inheritance began increasingly to tell the story of colonial inevitability and of the permanence of British imperial rule.’
Bernard Cohn, a scholar of British colonialism in India, has argued that the British simultaneously misinterpreted and oversimplified the features they saw in Indian society, placing Indians into stereotypical boxes they defined and into which they were assigned in the name of ancient tradition: ‘In the conceptual scheme which the British created to understand and to act in India, they constantly followed the same logic; they reduced vastly complex codes and their associated meanings to a few metonyms.’ Laws had to be translated into terms the British could understand and apply. A complicated, often chaotic and always fluid society like India was ‘redefined by the British to be a place of rules and orders; once the British had defined to their own satisfaction what they construed as Indian rules and customs, then the Indians had to conform to these constructions.’
Such an exercise might not have been possible in a pre-modern era, where identities were looser and more ‘fuzzy’, and the difficulties of breaching distance, and extending communications, made it difficult to create a consciousness of identity beyond the merely local. The path-breaking writer and thinker on nationalism, Benedict Anderson, has convincingly pointed out that identities uniting large numbers of people could arise only after a certain technological level had been attained. It is not seriously disputed that the sharper articulation of identities encompassing broad communities is a relatively recent phenomenon, nor that such identities have been ‘imagined’ and ‘invented’ to a great extent, as Anderson famously postulated. The British ruled India just as this kind of identity-creation was becoming possible, thanks to modern developments in transport and communication. Whereas an Akbar might have used such technologies to fuse his diverse people together, the British used them to separate, classify and divide.
Some critics point out that the British can scarcely be blamed for the pre-existing divisions in Indian society, notably caste, which divided (and still divides) the majority Hindu population into mutually exclusive and often incompatible social stratifications. Fair enough, but it is also true that the British, knowingly or unknowingly, helped solidify and perpetuate the iniquities of the caste system. Since the British came from a hierarchical society with an entrenched class system, they instinctively tended to look for a similar system in India. They began by anatomizing Indian society into ‘classes’ that they referenced as being ‘primarily religious’ in nature. They then seized upon caste. But caste had not been a particularly stable social structure in the pre-British days; though there were, of course, variants across time and place, caste had broadly been a mobile form of social organization constantly shaped and reinvented by the beliefs, the politics and quite often the economic interests of the dominant men of the times. The British, however, promulgated the theory that caste hierarchy and discrimination influenced the workings of Indian society. This is arguably a very narrow definition of how Indian society actually functioned in the pre-British era, and it is thanks to colonial rule that it has now become conventional wisdom.
In his seminal book Castes of Mind, Dirks has explained in detail how it was, under the British, that ‘caste’ became a single term ‘capable of expressing, organizing, and above all “systematiz
ing” India’s diverse forms of social identity, community, and organization. [A]s the result of a concrete encounter with colonial modernity during two hundred years of British domination…colonialism made caste what it is today [emphasis mine].’ Dirks is critical of the British imperial role in the reification of caste, using their colonial power to affirm caste as the measure of all social things.
In fact, caste, he says, ‘was just one category among many others, one way of organizing and representing identity. Moreover, caste was not a single category or even a single logic of categorization, even for Brahmins, who were the primary beneficiaries of the caste idea. Regional, village, or residential communities, kinship groups, factional parties, chiefly contingents, political affiliations, and so on could both supersede caste as a rubric for identity and reconstitute the ways caste was organized…Under colonialism, caste was thus made out to be far more pervasive, far more totalizing, and far more uniform than it had ever been before.’ This Dirks sees as a core feature of the colonial power to shape knowledge of Indian society. Quite deliberately, he suggests, caste ‘became the colonial form of civil society’, or, in Partha Chatterjee’s terms, the colonial argument for why civil society could not grow in India; it justified the denial of political rights to Indians who were, after all, subjects, not citizens and explained the unavoidable necessity of colonial rule.
Scholars who have studied precolonial caste relations dismiss the idea that varna—the classification of all castes into four hierarchical groups, with the Brahmins on top and even kings and warriors a notch beneath them—could conceivably represent a complete picture of reality (Kshatriya kings, for example, were never in practical terms subordinate to Brahmins, whom they employed, paid, patronized, heeded or dismissed as they found appropriate at different times). Nor could such a simplistic categorization reasonably organize the social identities and relations of all Indians across the vast subcontinent; alternative identities, sub-castes, clans and other formulations also existed and flourished in different ways at different places. The idea of the four-fold caste order stretching across all of India and embracing its complex civilizational expanse was only developed, modern scholars assert with considerable evidence, under the peculiar circumstances of British colonial rule. The British either did not understand, or preferred to ignore, the basic fact that the system need not have worked as described in theory.
An Era of Darkness: The British Empire in India Page 15