The Indian Penal Code, which (with many amendments) is still the basis for criminal law in India, started as a utopian project that was intended to create law that would be neither British nor Indian but universal. Utilitarian thinkers, notably James Mill and Jeremy Bentham, were disillusioned with common law, the haphazard body of legal precedents in Britain. Utilitarian political philosophy required a legal code that spelled out what acts were criminal and what the penalties for committing them were. Everything would be rationally justified and explained.
Such a root and branch reform was too radical to try out in Britain so they used India as their laboratory. (This is not unlike how the modern civil service was developed in British India and later "brought home" to Britain.) Whatever the shortcomings of common law in early nineteenth-century Britain, jurisprudence in colonial India at the time was even more of a mess: The British ran eight different court systems and they all were based on disparate legal principles. If the law was meant to produce consistent results, even colonial officials admitted that things were going very wrong on their watch.
Mill proposed that his frenemy Lord Macaulay chair the drafting committee for the code. Macaulay is a famous villain in Indian history for, among other things, writing a snippy memo proposing that Indians learn English and that the East India Company should stop funding "useless" traditional Indian educational institutions. The committee released its draft code in 1837 and nothing happened for two decades. It took a major rebellion in 1857 and a complete reorganization of colonial government to make legal reform a priority. The Penal Code finally came into force in 1862.
The problem with Section 377 of the code, which criminalized same-sex relations, is not that Lord Macaulay was a racist (he was) or that the penal code was foisted on a colonial population by foreigners (it was). Rather the issue is that it was written at a particular historical moment by people with particular predilections, and we—or at least right-thinking people and as of last week the Indian Supreme Court—disagree with the drafters of the code that “carnal intercourse against the order of nature” is a meaningful phrase. In fact, Macaulay was far more of a prude than Bentham, who argued the surprisingly modern position that consensual sex couldn’t be a crime because there was no injury to anyone and people enjoyed it.
Never significantly amended, Section 377 endured as a Victorian artifact, when the Penal Code as a whole remained fit for purpose as the criminal law of India and other former colonies that adopted it, and has been amended many times. Detaching the Code from the broader evils of colonialism, it is a remarkable achievement. Although the prejudices of the drafters of any law mean that there is no such thing as a "universal" law, the draft code really does not reference any existing legal system in depth except for the Code for Louisiana, which was a similarly idealistic project from the decade before. The Utilitarians got their utopia.
[This is extra historical context for an article I wrote for Slate.]
Such a root and branch reform was too radical to try out in Britain so they used India as their laboratory. (This is not unlike how the modern civil service was developed in British India and later "brought home" to Britain.) Whatever the shortcomings of common law in early nineteenth-century Britain, jurisprudence in colonial India at the time was even more of a mess: The British ran eight different court systems and they all were based on disparate legal principles. If the law was meant to produce consistent results, even colonial officials admitted that things were going very wrong on their watch.
Mill proposed that his frenemy Lord Macaulay chair the drafting committee for the code. Macaulay is a famous villain in Indian history for, among other things, writing a snippy memo proposing that Indians learn English and that the East India Company should stop funding "useless" traditional Indian educational institutions. The committee released its draft code in 1837 and nothing happened for two decades. It took a major rebellion in 1857 and a complete reorganization of colonial government to make legal reform a priority. The Penal Code finally came into force in 1862.
The problem with Section 377 of the code, which criminalized same-sex relations, is not that Lord Macaulay was a racist (he was) or that the penal code was foisted on a colonial population by foreigners (it was). Rather the issue is that it was written at a particular historical moment by people with particular predilections, and we—or at least right-thinking people and as of last week the Indian Supreme Court—disagree with the drafters of the code that “carnal intercourse against the order of nature” is a meaningful phrase. In fact, Macaulay was far more of a prude than Bentham, who argued the surprisingly modern position that consensual sex couldn’t be a crime because there was no injury to anyone and people enjoyed it.
Never significantly amended, Section 377 endured as a Victorian artifact, when the Penal Code as a whole remained fit for purpose as the criminal law of India and other former colonies that adopted it, and has been amended many times. Detaching the Code from the broader evils of colonialism, it is a remarkable achievement. Although the prejudices of the drafters of any law mean that there is no such thing as a "universal" law, the draft code really does not reference any existing legal system in depth except for the Code for Louisiana, which was a similarly idealistic project from the decade before. The Utilitarians got their utopia.
[This is extra historical context for an article I wrote for Slate.]
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