BRITISH India’s laws on rape, adultery, homosexuality, witch-hunting and blasphemy were codified in the Indian Penal Code (1861) by Thomas Macaulay and the first Indian Law Commission. Sedition and defamation were criminalised in 1870, and the Dramatic Performance Act (1876) prohibited theatre and dance because they ‘excited feelings’ against the administration and encouraged rebellion. Post-colonial South Asian states cling to these anti-democratic laws as determined by bio-politics and dependent on a historic collusion between British and Indian patriarchies and classist attitudes.

The colonial legal regime was a paradoxical combination of religion and science that benefited state elites and men. However, custom-based India was not some idyllic land of pre-colonial justice for women or lower castes but a site for incredible exploitation. This gets deflected by placing full blame on colonialism while exonerating religious tradition or Indian male complicity that undergirded these laws. To argue that all reforms were the result of colonial rescue or a surrender to Enlightenment values is, as Sumit Sarkar says, to submit to “the crudest and most obscurantist forms of nationalism”. It denies women’s liberatory agency and the reformist efforts of indigenous campaigners and organisations.

From the late 18th century, the East India Company was looking to stabilise a fixed order of public justice to replace the Mughals’ discretionary application of religious and customary laws. The Indian Penal Code, Code of Criminal Procedure (1862) and Evidence Act (1872) codified and standardised criminal, evidence, procedure and contract law, moving away from the common-law or pre-colonial practice of relying on case precedent. Customary and religious patriarchal order wasn’t displaced by the colonial; they enmeshed, merged and dissolved into the ensuing Anglo-Mohammaden criminal law. Colonial rape laws are exemplary of this melting process.

While sati and infanticide required ‘rescuing’, zina was relegated as a private matter and rape treated with clinical legality. To secure higher conviction rates, the Bengal regulation (1817) specified that rape must not be settled via razinamas but referred to the higher courts. Islamic laws of evidence, and qisas and diyat provisions for rape, adultery and fornication, were replaced by medico-legal evidence and experts instead of reliance on (male) oral testimony.

Why do South Asian states cling to anti-democratic laws?

British judges’ presumptions about rape were based on the English common law suspicion of women’s frequency of making false charges. This mistrust travelled to India to combine with colonial ideas about Indians’ ‘mendacity’. The Evidence Act required impossible corroborating evidence that stressed on class and caste status, prior sexual history, fresh complaint and proof of resistance. Where there was no medical evidence, there was no case.

The burden of proof on rape victims was not just the result of sexism found in the forensic manuals of Mathew Hale (1736) and Norman Chevers (1856) as used by courts, but also Jaising Modi’s Medical Jurisprudence and Toxicology (1920), which remains the standard authority in South Asia, which asserted that most rape cases were either concocted for blackmail or to deny consensual sex.

Such medical knowledge was supported by an abundance of ethnographic studies and hybrid genres of Indian male writings that came to be known as the ‘social sciences’. These, along with men writing for the Indian press and Indian legal experts, trafficked in discourses about women’s chastity and idealised visions of the dutiful Indian wife and mother, which influenced judicial thinking. Nizamat Adalat judges in­­creasingly doub­ted the morality of female victims and sympathised with the accused — a tradition that remains, as seen in misogynistic rulings on rape today.

In a bizarre pre-emption of Pakistan’s Zina Ordinance (1979) that clubbed rape with adultery, it was not uncommon for British judges to vacate a charge of rape and replace it with adultery if evidence was not ‘compelling’. The emphasis on character and body of the victim reversed the concept of mens rea. This was consistent with 19th-century Indian men’s fear of women’s individual rights.

Such evidentiary standards meant conviction rates in rape cases continued to decline rapidly into the 20th century. The colonial legal system was modernised but invested in the stability of the labouring household based on gender and class hierarchies and in defending the male accused.

Such historic transnational patriarchal collusion is found in the shaping of all personal and criminal laws of India, from women’s conjugal to property rights, and justified surveillance and control of women. A completely revised postcolonial legal norm is needed, but as long as we deny the historical collusions of men of all races and religions we risk duplicating these all over again.

The writer is author of Faith and Feminism in Pakistan.

Published in Dawn, October 15th, 2020