OP-ED: What is wrong with (keeping) colonial laws?

The colonial agenda of the British East India Company rulers was to exploit the government and court system to further their commercial interests. Lord Macaulay, in his address to the Privy Council, famously remarked that the Indian people needed not a British legal system, so the British would give them a legal system to keep Indians under control.

The 200-year-old colonial rule significantly changed the nature of laws and the legal system in South Asia. Bangladesh has kept these colonial laws post-1971 with some minimalistic changes. 

With the latest draconian onslaught on journalism by dint of applying a law dating back to the 1920s, the public interest in colonial laws has been fuelled. It is important to see what it actually means to have colonial laws in an independent, sovereign, and post-colonial state like Bangladesh. The crux of this article is to see what characteristics might turn a legislation colonial.

What makes a law colonial?

Simply put, what makes a law colonial is its “who and when,” that is, a law made by a colonial government during a colonial regime is colonial law. The criticism of colonial laws gives the impression that colonial laws are ipso facto bad and repressive. 

However, that is not always the case. For example, when we come across laws like Bengal Sati Regulation 1829, Widow Remarriage Act 1856, Dissolution of Muslim Marriages Act 1929, Caste Disabilities Removal Act 1850, etc.

These acts helped protect deprived women and recognized their rights otherwise unrecognized. So, just because a law was made by and during colonial government doesn’t make it a bad law.

What makes colonial laws bad?

So, we need to ask: What makes colonial laws bad? The answer concerns the next factors that make a law colonial: A colonial law promotes colonial governmentality, which means specific strategies deployed by colonial governments to dominate the natives. These laws are drafted for protecting colonial governments.

Works by Partha Chatterjee show how colonial laws were intended to aid the executive and subjugate the “savage” Indians. A colonial government uses both hegemony and dominance to fortify its control and surveillance over the colonized people. 

If the above mentioned “apparently good and pro-weak” laws used hegemony to consolidate the British rule by appearing empathetic, then there were also laws like the CrPC, Criminal Tribes Act, PC 1860, that unabashedly exercised executive power over the people in a manner that was repressive.

For example, The 1923 Official Secrets Act in section 5 says, inter alia, any communication not in the interest of the state is deemed punishable. The phrase “in the interest of the state” is vital. The interest of a colonial state was in ruling the colony, because the colony served as a resource pool. Thus, the interests of such states were very much in conflict with the interests of the people residing in those colonies.

However, this needs to be distinguished from a sovereign state and its government. A post-colonial government has vested interest in protecting the people because the interest of the people is not different from the state. As such, laws like the 1923 Official Secrets Act are very much against the spirit of our constitution.

A festering culture of non-accountability

To ensure that colonial laws could be used to strengthen the executive and weaken the individuals in the colony, these laws were imbibed with certain characteristics that make a colonial law the evil that it is. One such character is using vague, overarching words.

The 1923 Official Secrets Act nowhere defines the “interest of the state.” Similarly, the Penal Code 1860 does not define the “modesty of a woman.” Continuing that legacy, a law from as late as 2018, the Digital Security Act, ignored defining what “religious sentiment” means.

Perhaps the most infamous vagueness is portrayed by the “good faith clause.” The good faith clause originally comes from the law of contractual obligations. However, the colonial criminal laws of the Indian sub-continent are abound with good faith clauses. There is no definition anywhere as to what good faith means, and over decades it has come to mean “absence of intention to break the law,” “acting in honest belief,” etc.

In practice, it means any act or omission which otherwise would be an offence will not be considered an offense if that act/omission is done by an officer of the state in “good faith.” In the absence of a clear definition of what is good faith by an officer, one needs to rely on executive orders and judicial analysis, but that comes only after a violation has already taken place.

The original motivation in British era laws was to grant unlimited immunity to colonial officers. This resulted in the festering culture of non-accountability, wide indemnity, and corruption that Bangladesh suffers from.

Section 54 under CrPC is another example of power given to the police to arrest any person on the basis of “mere suspicion.” The executive abused this provision for too long before, in 2003, the Apex court ruled against it in “BLAST & Others v Bangladesh & Others.” 

Vagueness in legal provisions leads to discretionary interpretation which overstretches the jurisdiction and original intent of the law. Most executive officers in the British Raj were white, and the handful of “native” ICS officers were also moulded to serve the colonial apparatus. Such a principle pitted the officers against the common people. They were servants of the Crown, not the people.

Laws made in sovereign Bangladesh should not have continued such practice, but they did. So, when the Mental health Act 2018 allows an executive officer to take a person into custody because he suspects the mentally disabled person is dangerous, the officer no longer remains a “public servant” -- he or she function within a colonial system that changes their behaviour towards citizens.

A good example of such executive dominance is provisions on “false, frivolous, and vexatious” suits. While apparently they seem to be pro-victim, they are actually safeguards for the white British in Indian mofussil towns who wanted security against charges filed by native Indians. 

This provision now serves the interest of the politically and economically powerful.

Next characteristic is overreliance on the executive. In common law traditions, written statutes generally focus on precision so that the law clearly conveys the intended message. 

But laws in the colonies were designed with overstretching sentences so that the executive and judiciary could bend the laws in any way that helped them.

This overstretching openness gave leeway to the executive for discretionary action. As such, many Bangladeshi (post-1971) laws contain the sentence “any or all such ___ as may be declared by the Government, by notification in the Official Gazette.” Thus, a citizen might never fully understand the scope and reach of a particular legislation.

Continuing the colonial legacy

Our laws have not been decolonized. Our legal system, especially our administration, is very much the poll-bearer of coloniality. These laws were drafted in a period when states enjoyed enormous control over personal freedom.

In this age of human rights, colonial laws are not only archaic but pretty much anti-human rights. And the scary thing about that is the fact that an independent, sovereign Bangladesh still by and large follows such patterns and characteristics while drafting laws.

By keeping these colonial laws, the Bangladeshi legal system -- which consists of the legislative, the executive, and the judiciary branches -- is operating in a way that is very much like that of the British Raj.

Arpeeta Shams Mizan is a sociolegal researcher and a teacher of Law. She is doing her PhD at University of Bristol.