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Published online by Cambridge University Press: 29 May 2015
This paper dispels the myth of liberal Enlightenment in relation to penal law reforms in colonial India by advancing two sets of argument. First, the liberal project of codification on the basis of universalist notion of utilitarianism never broke with cultural hierarchy inbuilt in the very act of colonisation. In this paper, I specifically look into the emerging phenomenon of evolutionary science in the nineteenth century – social Darwinism – to explain the dominant normative, as opposed to realist, justification of such racial hierarchy in colonial discourses since the nineteenth century. Second, using Dipesh Chakrabarty’s theoretical framework, I provincialise the penal law reform project in colonial India through the examination of literature in the field, and substantiate how the notion of utilitarian universality remained vague and unpromising in face of instrumental needs on ground – both in the colony and in the metropolis. Taken together, these propositions dispel the myth of the liberal project of penal law reforms in colonial India based on this universalist position and underscore the fallacies of the transition narrative of modernity itself.
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25 Mill quotes from the Code of Manu a long list of persons who are excluded as witness under this rule:
Those must not be admitted who have a pecuniary interest; nor familiar friends; nor menial servants; nor enemies; nor men formerly perjured; nor persons grievously diseased; nor those, who have committed heinous offences. The king cannot be made a witness, nor cooks and the like mean artificers; nor public dancers and singers; nor a priest of deep learning in Scripture; nor a student of the Vedas; nor an anchoret secluded from all worldly connexions; nor one wholly dependent; nor one of bad fame; nor one who follows a cruel occupation; nor one who acts openly against the law; nor a decrepit old man; nor a child; nor a wretch of the lowest mixed class; nor one who has lost the organs of sense; nor one extremely grieved; nor one intoxicated; nor a madman; nor one tormented with hunger or thirst; nor one oppressed by fatigue; nor one excited by lust; nor one inflamed by wrath; nor one who has been convicted of theft.
In addition, women were held incompetent to give evidence, unless in the case of evidence for others of the same sex. Servants, too, mechanics, and those of the lowest class, are allowed to give evidence for individuals of the same description. See, Laws of Manu, ch. viii. 64-8, cited in ibid. at 272-73.
26 Mill (1840 [1817]), supra note 11 at 274.
27 Thomas Strange, Elements of Hindu Law at 309, cited by Horace Hayman Wilson, commentary to the 4th edition of Mill’s History of India, vol. II, footnote 1 at 274.
28 According to Mill:
A body of laws may be said to be complete when it includes every thing which it ought to include; that is, when all those rights, the existence of which is calculated to improve the state of society, are created; and all those acts, the hurtfulness of which to the society is so great as to outweigh the cost, in all its senses, necessary for preventing them, are constituted offences.
See Mill (1840 [1817]), supra note 11 at 282.
29 For Mill, the exactness of a body of laws is conformed: 1. when it constitutes nothing a right, and nothing an offence, except those things precisely which are necessary to render it complete; 2. when it contains no extraneous matter whatsoever; 3. when the aggregate of the powers and privileges which ought to be constituted rights, the aggregate of the acts which ought to be constituted offences, are divided and subdivided into those very parcels or classes, which beyond all others best adapt themselves to the means of securing the one, and preventing the other; 4. when it defines those classes, that is, rights and offences, with the greatest possible clearness and certainty; 5. when it represses crimes with the smallest possible expense of punishment; and 6. when it prescribes the best possible form of a judicatory, and lays down the best possible rules for the judicial functions. See, ibid. at 28283.
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86 Ibid. at 250.
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108 Ibid.
109 Ibid. at 538. Skuy demonstrates that Indian law reform mirrored developments in England in a variety of ways:
court reforms in the 1820s and 1830s in India occurred while the Peel Acts were passed; Macaulay wrote a criminal code for India while a Royal Commission wrote one for England; Macaulay submitted his Code to Parliament the same year Parliament passed the 1837 Acts; the Indian Law Commission reviewed Macaulay’s Code in 1847-48 just as the second Royal Commission finished its draft criminal code; and a few months before the Indian Penal Code became law, the British Parliament passed the 1861 Acts. In substantive and procedural terms, the Indian Penal Code reflected developments in English law.
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111 Ibid. at 61.
112 For a survey of these approaches in relation to international law, see, Martti Koskenniemi, “Histories of International Law: Dealing with Eurocentrism” Inaugural Lecture delivered on 16 November 2011 on the occasion of accepting the Treaty of Utrecht Chair at Utrecht University.