Law and Colonialism: Legacies and Lineages

• Author: Renisa Mawani
• Pages: 417-432

The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.

© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.

Introduction

On December 11, 2013, the Indian Supreme Court reached what for many was the

unthinkable conclusion that Section377 of the Indian Penal Code, which “criminal-

izes carnal intercourse against the order of nature with any man, woman or animal,”

did not violate India’s constitution. The Supreme Court’s judgment, which has been

fiercely criticized by constituencies in India and globally, set aside a 2009 decision by

the Delhi High Court in Naz Foundation v. Government of NCT of Delhi. Here, Naz

filed a petition against the Union government claiming that section377 of the Indian

Penal Code violated the right to equality, freedom, life, and personal liberty guaran-

teed under India’s Constitution. After a series of delays, the High Court ruled that

the law was unconstitutional. Their decision did not repeal the section altogether.

India’s anti‐sodomy law remained enforceable in a number of exceptions, including

non‐consensual and non‐vaginal sex involving minors (Arondekar 2010). This

proviso notwithstanding, India’s Lesbian, Gay, Bisexual, and Transgendered (LGBT)

communities celebrated Naz as a landmark decision. For many, it finally acknowl-

edged the rights of sexual minorities in India. For others, it challenged the afterlives

of British colonial rule.

The Indian Penal Code drafted by Thomas Babington Macaulay, which became

law in 1860, was the first attempt to codify criminal law in the British Empire.

Macaulay’s task was to impose order on what he believed to be India’s disorderly and

unreliable personal law system (Kolsky 2005: 632). Codification, he and his

supporters claimed, was vital to the success and longevity of British rule in India. In

the contemporary moment, critics of the Indian Supreme Court’s recent decision

have evoked these colonial legal histories as evidence of the ongoing tenacity of

Law and Colonialism

Legacies and Lineages

Renisa Mawani

27

418 Renisa Mawani

colonial law, its continued influence, and variegated effects. By rescinding constitu-

tional protections for sexual minorities, India has once again criminalized consen-

sual same‐sex relations, and in so doing, it has turned away from the trajectory of

Western human rights.1 By restoring s. 377, the Indian Supreme Court has recalled

and reaffirmed law’s force under Britain’s legacy of colonial rule.2

Debates on section377 and critiques of the Indian Supreme Court’s decision are

rich and complex. They highlight the intersections of religion and culture, the entan-

glements of colonization and decolonization, the politicization of sexuality within

the colonial and postcolonial state, and the growing influence of Western rights

discourse in the global South. A detailed assessment of s. 377 is beyond the scope of

my discussion here. However, I begin this chapter with the Indian Penal Code for

three reasons. First, s. 377 highlights the significance of law to colonial and imperial

rule. Recent deliberations on its constitutionality reveal the persistence of British

juridical regimes, including their unintended and unexpected effects. Second, these

recent conflicts demonstrate how idioms of British law and legality provided the

fulcrum for struggles against the Indian colonial state. Finally, and perhaps most

importantly, s. 377 offers a fascinating example of the movements and circulations

of colonial law. Whereas the Indian Penal Code – including its anti‐sodomy provi-

sion – was to facilitate a more efficient and effective mode of British legal rule on the

subcontinent, the outcome of codification extended well beyond India’s territorial

borders. The Indian Penal Code informed legal developments in other nineteenth‐

century British imperial jurisdictions, most notably in the eastern and western

Indian Ocean regions, including Singapore, Malaya, and Kenya (Hussin 2012;

Metcalf 2007). In addition, section377 was used as a model for anti‐sodomy legisla-

tion in the settler colonies of Australia, Canada, and New Zealand. The movements

of the Indian Penal Code highlight law’s ability to connect seemingly distinct imperial

jurisdictions, including protectorates, administrative and settlement colonies, and

regimes of direct and indirect rule. The movements of law raise critical questions

regarding the geographical and temporal divides that persist in legal studies of

colonialism.

Since the late 1990s, the scholarship on law and colonialism has flourished and

matured. Socio‐legal studies of colonialism and empire have moved from being the

purview of a handful of scholars (mainly anthropologists and historians) to

becoming a burgeoning site of interdisciplinary discussion with a wide spatial and

temporal reach. Questions of identity, power, and violence – which emerged out of

anti‐colonial writings and postcolonial studies, most notably from the work of

Frantz Fanon (1963) and Edward Said (1978) – have implicitly and explicitly inspired

developments in the field. So too have debates on the agency and resistance of colo-

nial subjects (Guha 1999). Notwithstanding the richness and diversity of this

scholarship, one point has drawn agreement: law has much to say about processes of

colonial and imperial expansion, revealing intensities of violence, forms of subjuga-

tion, and languages of critique, emergent and circulating among imperial authorities

and colonial subjects alike. Studies of law and colonialism reveal the contradictory

objectives of colonial rule, its intended and unintended consequences, and the force