Opinion | 90 years later, India must send Simon back

More than 250 British laws, defining the basic framework of Constitution, continue to govern us. They must go
It’s time for India to undo colonial-era legislations(Getty Images)
It’s time for India to undo colonial-era legislations(Getty Images)
Updated on Jul 19, 2019 09:44 PM IST
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ByArghya Sengupta

In 1928, the Simon Commission, established to study the working of the Government of India Act, 1919, and recommend constitutional reforms, visited India. The ignominy of a seven-member panel, solely comprising British Members of Parliament (MPs), and headed by John Simon, MP from an obscure hamlet in Yorkshire, was not lost on Indian nationalists. Throughout 1928, cries of “Simon, Go Back” rang out in every city which the Commission visited. While the Commission did go back, it was not before reinforcing the basic legal framework of British governance in India — carefully representative provincial governments under the suzerainty of the Viceroy, implementing laws that had been enacted by the British for India. Today, while India is sovereign and governed by its own Constitution, Simon’s basic framework remains — an imperfect Union of Centre and states where, by a recent law commission estimate, over 250 British laws continue to govern the lives of citizens.

In advance of the 75th anniversary of our Independence, Parliament must begin undoing Simon’s compact. While this is necessarily a gradual exercise, it has three fundamental elements. First, create a federal framework; second, repeal British laws which are outdated; third, set in forth a process to meaningfully Indianise four pillars of the legal system — the Civil Procedure Code, the Indian Penal Code, the Indian Evidence Act and the Indian Contract Act.

In the last five years, the term ‘cooperative federalism’ has been in vogue. But a close look at the constitutional framework, particularly the Seventh Schedule to the Constitution that deals with power-sharing between Centre and States, will reveal that state governments, though popularly elected, are severely hamstrung. They can set up universities, but not decide what to teach at such universities. They provide law and order, but depend on central financial support to do so. They create hospitals, but are not able to regulate drugs to be used in these hospitals. This is a direct legacy of the Government of India Act, 1935, enacted pursuant to the Simon Commission recommendations, which created responsible government at provincial level but maintained ultimate control with New Delhi. The Constitution must become truly federal first, if the Centre and states are to meaningfully cooperate to serve the people.

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The starting point of such cooperation should be the repeal of outdated British laws. The law commission recommended 133 colonial laws for repeal in 2014. Though several laws were repealed by Parliament in the last five years, a majority still remains on the statute book. The Police (Incitement to Disaffection) Act, 1922, designed to curb nationalist activities, made it an offence to spread disaffection among the police. Its continuance is a blot on our proud proclamations of freeing the country of the colonial yoke. On the other hand, the Bangalore Marriages Validating Act, 1936, funnily enough, validated certain marriages that were mistakenly solemnised by a particular priest in Bangalore. Though now recommended for repeal, its perpetuation for over seven decades in independent India, while harmless, is a symbolic indication that while Parliament and state legislatures are sovereign in form, they need to start taking their sovereignty seriously in practice.

But laws such as these are mere accoutrements. The foundation of the Indian legal system — the Civil Procedure Code, 1908, the Indian Evidence Act, 1872, the Indian Penal Code, 1860 and the Indian Contract Act, 1872 — are all colonial legislations that have survived the test of time. Lawyers swear by them, law students grapple with their contents, and judges decide cases relating to their provisions everyday. To the legal fraternity, they are gifts that keep on giving.

Also read: The Constitution must permeate Indian society

But outside the legal fraternity, it is time to dispassionately assess their relevance to modern India. For example, the contract Act bars wagering contracts but makes an exception for horse racing prizes, a hat tip to the centrality of derbies to social life in the Raj. The CPC is wedded to a strictly adversarial nature of dispute resolution whereas a more communitarian and cooperative process is natural to India. The Indian Penal Code, its drafting prowess notwithstanding, is squarely designed to entrench a police State. A combination of these, and other permissive procedural rules, even more permissively interpreted, has led to a clogged justice system that is too daunting, expensive and slow for the ordinary Indian.

These examples only skim the surface. A detailed review of these marquee laws will demonstrate many more obvious faultlines. Some of these might be attributed to the ordinary passage of time. Others will be ghosts of Simon, examples of the Raj entrenching its ideas of, and for, India through formal law. It is time to change these laws. Only then, will Simon, well and truly be sent back, nearly a century after he first arrived.

(This is part of a series of articles on India’s priorities as we head towards 75 years of Independence)

Arghya Sengupta is research director, Vidhi Centre for Legal Policy

The views are personal

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Thursday, May 19, 2022