Where the Indian Penal Code Comes From

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.]

Eighteenth-century Hindi sayings

In a post on the British Library's Asian and African Studies blog, I discussed a Persian dictionary by the eighteenth-century bureaucrat and connoisseur Ānand Rām Mukhliṣ. The dictionary, Mirʾāt al-iṣt̤ilāḥ (ʻMirror of Expressionsʼ) completed in 1158/1745, is a strange work because it's less a dictionary and more a miscellany describing people and things that interested its author. At the end of each chapter, it gives some Persian sayings [muḥāwārāt] sometimes with Hindi equivalents. 

I quoted one of my favourites, dar jang ḥalvā bakhsh nimīkunand [During war they don't hand out sweets], which is rendered in Hindi as laṛāʾī meṁ koʾī laḍḍū nahīṁ baṭte. It's a charming example in part because Persianate halwa has been replaced by Indian laddus. People asked for more examples of Hindi sayings quoted in the text, so here are few:

Persian food words

I was featured in a NPR food piece by Nina Martyris, "From Candy To Juleps, Persians Left Imprint On Many Edible Delights". A lot of common English names for foods have a Persian or an Indo-Persian connection.

Indian Higher Education follow up

As I write this, there are forty-six online comments on my Outlook article on education and it’s time to reply. The comment I expected above all was a variation of what commentor Varun Garde declares,

Liberal arts education is about people who dont want to work hard or who dont have intelligence required to do real work. many of these lazy low IQ people become Politicians, Journalists, lawyers and even worst civil servants.

I think this is the greatest fallacy in the debate and I’ll refute that general claim in a moment. But let me discuss India specifically and put my cards on the table. I am asserting that what I would define as a “liberal arts education” does not exist in India today. This is not just my argument but one that I have heard echoed by dozens of friends and colleagues. The “Arts” stream in Indian higher education does not provide a liberal education but rather a narrow humanities education, which I am not advocating. It is a huge mistake to conflate the humanities and the liberal arts. Therefore, claims such as that stupid people in India get a liberal education while clever people become engineers cannot be sustained, because these so-called stupid people are not getting a liberal education in the first place.

One critical passage that I had to cut from the final article—as it went from 2,500 words to 1,700 words—was to define what a liberal education is and isn’t. It is “broad-based”, as I wrote in the article, but that does not mean unstructured. Let’s take as an example my alma mater, Princeton University. At Princeton all undergraduate students studying for an A.B. (bachelor of arts, what most universities call a B.A.) must take a writing seminar and a foreign language as well as classes chosen from seven categories. (Students in the sciences have a similar list.) This is the chart from Princeton’s website, which is worth visiting to read in full:

General Education Requirements for A.B. Students

• Writing Seminar—one course
• Foreign Language—one to four terms to complete, depending on the language students study and the level at which they start
• Epistemology and Cognition (EC)—one course
• Ethical Thought and Moral Values (EM)—one course
• Historical Analysis (HA)—one course
• Literature and the Arts (LA)—two courses
• Quantitative Reasoning (QR)—one course
• Science and Technology, with laboratory (ST)—two courses
• Social Analysis (SA)—two courses

Now the names are misleadingly complicated (why did they have to choose a name like “epistemology and cognition”?), but the philosophy is clear: all students need to take a wide range of courses. Some of these count towards the requirements set down by a student’s department but others are for general knowledge. I got a degree from a literature department but I ended up taking Multivariate Calculus and two chemistry classes to satisfy the QR and ST requirements. These were challenging classes that tested my limits, and they changed my outlook on the world. One major success of the system is that I was able to take them and not fear for my marks: We were allowed to designate a certain number of classes as “pass/fail” courses, meaning that the course would appear on our transcripts but without a final mark. (I turned out to be a terrible mathematician so this was very good for me.) In India I’ve never come across a similar system to allow students to study things that they cannot be confident about mastering.

There are some other misconceptions about the liberal arts. Someone brought up the Sokal Hoax, in which physics professor Alan Sokal sent a completely nonsensical article to a well-known humanities journal and it got published. That is not an argument for why the humanities are useless, but why a liberal education is important: If I were a journal editor, rest assured that I would not have printed that article because I’ve studied science and know its limits. Similarly, Santosh Gairola wonders “If I am correct now, ‘liberal education’ means, art and artistic subjects.” NO. This is “arts” in the old sense of "skills" rather than in the sense of “fine arts”.

And let us return to the assumption that liberal arts courses attract stupid people and engineering attracts clever people. Anshul writes

As someone else has commented it is very much necessary to liberate our civil services, politics, media and civil society from liberal arts type wallas who enjoy sprouting this or that ism and while living as parasite on public money castigate others for trying to make a decent living.

Let's pause to recognise the irony that engineers don’t feel the need to use evidence when discussing a question like this. The recent civil service examination results are out and engineers did very well. But do they make better civil service officers? Where is the evidence? One commenter went so far as to claim that when too many IIT students succeeded in the exam in 1995-6, the next year the marking system was doctored to favour humanities students. Let me call that what it is, a crazy conspiracy theory. Likewise, an MBA is not a liberal arts degree. One successful consultant recently wrote an article his thoughts on why a philosophy PhD was more useful for him than an MBA. Vivek Wadhwa's thoughts on the matter are also useful.

One commenter, Sunil, wrote something that inadvertently helped prove my point and was also very moving:

Our vernacular literature is alive, active advanced and beyond compare - and is generally inaccessible to non-native language speakers like Dudney.

First of all, I do have access to Hindi and Urdu vernacular performance because I can read and understand both. I enjoy Rabindra Sangeet but because I don’t know Bengali except for the alphabet and Hindi/Urdu cognates, I depend on translations. The vibrance of India’s vernacular literary scenes is unquestionable but where does it find a place in the classroom? Indeed, my original title for the piece—before the editors replaced it with the pithier and more controversial “Beyond Techno-Coolies”—was “The Liberal Arts in India, Everywhere but in the University”. Many of the people who are arguing for opening the curriculum up to the liberal arts are just as keen on having the vernacular represented. This is what I hinted at in the last paragraph of my article.

Some people were far less nice than Sunil about my supposedly not getting India because I’m a foreigner, but it’s not an argument to point a finger at someone with a reasoned opinion and say “foreigner!” as if that settles it. Actually, I’ve been educated in the US system, the UK system and the Indian system so I can compare the three. In any case, complaining about the US is irrelevant. One commenter wrote,

also the assumption here is that the liberal American colleges have got it right. They may have good in the past, but average graduate of a liberal arts college in the USA is very poorly educated. And for this the colleges charge $40,000/yr. Its a money making racket just like India

But, respectfully, that is not the assumption. You can get a good education in America or a bad one. However, if you compare the best American institutions with the best Indian ones, it is clear that they are using very different educational models. In the U.S., there have been years of debate over whether liberal education works while in India there has not been any such a debate and top institutions don’t provide a liberal education. Nor do the economic arguments that a U.S. education is bad value for money really hold. In fact, because of the private education model (which incidentally India is rapidly adopting), the best universities in the U.S. tend to have the most money to give for scholarships and so it is often less expensive to attend one of the top universities than a middle-ranked university. Every year universities like Princeton and Harvard provide needy students with a free education, and on average more than half the undergraduate students receive some kind of scholarships. The question of whether it is fair that donations can influence admissions decisions is too complicated to get into here, but I can say that it is not particularly common.

Debotosh Chatterjee takes umbrage at my sentence "Liberal education is not some fusty notion about reading good books, but is rather an important investment in the future" which made him “wonder whether the writer is himself really convinced. There is nothing 'fusty' about reading good books.” This again leads us to the question of what a liberal arts education is. There is nothing wrong with reading good books but opponents of the liberal arts say that it’s just wasting time reading or “talking”. But the goal is to increase people's general knowledge and intellectual capabilities, which involves a lot of reading, writing and discussion. Part of it is learning the indispensable skill of expressing yourself well. It is true that every corner of the Internet is full of bad writing but one commenter deserves special mention: He pulls off the astonishing feat of misspelling “coolies” three different ways (“collies” which are fluffy dogs, “collis” which is an English surname or a hill on another planet, and “colles” which is a kind of wrist fracture). I don't know what kind of education can explain that.

The Politics of Meat in India

Everyone knows that Hindus don't eat beef and Muslims don't eat pork. At least that's how it goes in theory. A lot of my South Asian friends in the States will happily eat anything that moos, oinks, quacks, bleats or scuttles across the seafloor. In the Subcontinent, the entrenchment of cultural norms means that here you rarely get the opportunity to eat beef or pork (just as, for example, it's hard to find goat meat in the US).

Gay Pride on the March in India

Across most of the world, gay pride events are held during the summer. Here in Delhi, the third annual parade took place on 28 November. Apparently people fainted from the heat when it was held in June last year.

It's not just the date that's different in India. The progress of gay rights is moving at a dizzying speed since a Delhi High Court decision in July 2009 overturned the quaintly worded law banning "crimes against the order of nature." In just over a year, being gay has gone from a criminal act to something that can at least be discussed in the context of other rights guaranteed to Indian citizens. But like so many other things in this deeply contradictory country, there is no easy correspondence between gay identity here and in the West.

[Photos and video here.]

Conan in India

Conan O'Brien's new show has been on the air for just over a month. I don't like Conan as a performer (though he is a superb writer), and I probably won't watch the show. Still, the AmEx commercial that aired with the premiere caught my attention. It features Conan careering around Rajasthan in India, delightfully butchering Hindi as Indians call out "Ko-naan! Ko-naan!" The bright colors and stunning backdrops of Rajasthan are on display as Conan races around looking for silk. Of course you can read this as Orientalist blah blah blah, but because of Conan's self-deprecating demeanor, it's all in good fun. The people at Ogilvy & Mather, one of Madison Avenue's renowned firms, made something so elegant that it's jarring when the American Express logo finally appears.

Hanging out with Hazrat Nizamuddin Auliya

It was a Thursday night so I could have gone to the movies or to a nice restaurant, but instead I spent the evening with Hazrat Nizamuddin Auliya, the fourteenth-century Sufi saint. Every Thursday there is a performance of qawwali music in front of the dargah [shrine]. The musicians sit facing the dargah because technically they're not playing for the spectators but for the saint himself.

Hazrat Nizamuddin was the head of the Chishti order of Sufis in India and was a friend of the great poet Amir Khusrau, whose tomb is nearby in the same complex. Although in the West Islam has an aura of being against music (and against fun in general), Sufis have long embraced musical performance as part of their worship. It plays a role in zikr, the meditative remembrance of God. In South Asia, the act of remembering God often turns into a rollicking good time.

No, no, no. Islamic divorce in India gets stranger

In some interpretations of Sunni law—some 90% of Muslims worldwide are Sunnis rather than Shiites—it is permissible for a man to divorce his wife by saying "talaaq" (divorce) three times. There are various rules about how far apart the talaaqs have to be or how many witnesses there need to be, and there is considerable debate about whether triple talaaq has an sanction in the foundational texts of Islam. The practice is formally banned in a lot of majority Sunni countries, and is unrecognised by (secular) Indian courts, but every once in a while a case comes up that is equal measures tragic and hilarious.

A Visit to Aligarh

One approach to knowing a country is through its major cities. For me, for example, most of France is just padding on a map of Paris. I've just never spent enough time outside the capital to know how non-Parisians live. Some people argue that you have to visit the most out of the way hamlets to know a country, but I believe that a completely urban experience is legitimate—unless I were to pass myself off as an expert on the French countryside, which I am not. Country living too involves some trompe d'oeil. Some years ago I stayed in a lovely village with a mossy graveyard and thirteenth-century church in Oxfordshire in England. I soon learned that despite the rural atmosphere, the majority of the inhabitants in fact worked in London. It's expensive to maintain a medieval cottage, after all.

But even as a committed urbanite (who occasionally needs to get out of the city), I admit there's something remarkable about small towns. Tourists often make moral judgments about the small town landscape but it seems to me that the inhabitants of the periphery are not somehow guardians of a nation's culture but rather that a lot of metropolitan distractions are stripped away. It's easier to experience a place when you're not battling with people trying to sell you things or being nearly run over every time you cross the street. In some ways small towns are like cities that are more relaxed, more manageable, but there is however a different orientation. A small town has a centre, and people from nearby areas are drawn to it. Its centripetal force is even stronger than in a big, spread-out city precisely because it is compact.

Tis the season (of Diwali)

Diwali has a nice tagline; it's the "Festival of Lights." In Hinduism, it commemorates the return of Lord Rama to his kingdom after fourteen years of exile and an epic battle with the demon Ravana. But just as Christmas as celebrated today has a tenuous connection with a guy born in a shed in ancient Palestine who may or may not have been God incarnate, Diwali, which fell on 5 November this year, is about eating good food, spending time with family and, of course, blowing stuff up.

My India is great

“Meraa bhaarat mahaan” is a patriotic phrase that you see painted everywhere, meaning “my India is great.” I don’t know where it comes from but it’s gloriously open ended. You neither have to specify that Delhi has just built itself a gleaming, world-class Metro system nor explain away the beggars and sick dogs on the streets.

As I await the arrival of American friends and family, I’m looking for a strategy to introduce them to India without recourse either to the guidebook clichés of a land of moonlit Mughal tombs or to a raft of health and safety regulations (don’t eat fruit you haven’t peeled yourself, look right then left when crossing the street, etc). Having lived here and studied Indian cultural history for my PhD, I’d like to think that for my own purposes I have a pretty good sense of the place—although admittedly I am always conscious of being an outsider. But how do I share my India with them?

In which I get quoted in a Yahoo! News India article whose premise I reject

A recent post in Yahoo! News India by Nitin Pai called "We Are Not South Asian" cites some research I did for SAJAforum about the origins of the term "South Asia." I wrote two years ago that its first modern usage recorded in the Oxford English Dictionary is from 1951 and that it was clearly invented to more-or-less cover "the nation-states created out of the former territories of British India" without saying that ungainly phrase every time.

The gist of Mr Pai's article is that "South Asia" is not only geographically misleading but more importantly that it creates a false identity, namely that it tricks us into thinking there are people called "South Asians" when there are really only Bangladeshis, Indians, Pakistanis, etc. I take exception to both lines of reasoning.

“Your mind expands when you chat with people”

That’s what Gopal, a painter working in our flat, told me as he and his partner were polishing some furniture they had finished staining. This conversation in Hindi was sort of a breakthrough for me because since arriving in India just over a week ago literally every single other person I’ve conversed with in India either preferred speaking English with me or was too stuck-up to have a conversation--and let's face it, in status-conscious Delhi that happens frequently. Gopal, on the other hand, spoke very little English so by necessity when he invited me to inspect his work and have a seat, the language of conversation was to be Hindi (since I didn't speak his native Bengali).

He apologises for his poor English but explains that people in his economic stratum in West Bengal state were educated in Bengali and Hindi, and English is an afterthought. “So for us, we can understand some English but it’s hard to speak; just like you understand Hindi, right?, but have some difficulty speaking,” he said. (I've translated our conversation from Hindi.)

It's more like reading Kafka in Delhi

As I sit here at peace with the world, Beethoven's Für Elise is wafting incongruously through the air in C-Block of Chittaranjan Park in south Delhi. This was not how I spent my morning. No, my morning was spent despairingly at the Foreigners Regional Registration Office (FRRO).

Salman Rushdie has observed that “at the frontier, our liberty is stripped away—we hope temporarily—and we enter the universe of control. Even the freest of societies are unfree at the edge…” Of course I have no reservations about the need for the Indian government to record where foreign citizens live. But the arbitrariness of the procedures I had to follow is an indictment of a country that claims to have clawed its way out of such investment-killing inefficiency.

Blogging Milton from India, introduction

Besides a Hindi-English dictionary, I brought one very heavy book with me to India: John Milton, Complete Poems and Major Prose Works. Most people know Milton as the author of Paradise Lost but he wrote a lot more during a career that came to define sixteenth-century English letters. He was both a popular poet and deeply intellectual, rather like Shakespeare, whose plays appealed both to the noblemen in the VIP seats and the commoners standing below them.

Why am I reading Milton in India? There are two reasons, the first of which is just that my eleven months here are a circumscribed chapter in my life and I need a project to lead me through them. The system is closed: I am in India for the first time as a professional scholar, and the rules of my Fulbright grant literally do not allow me to leave the country without putting my funding in jeopardy. Despite a steady stream of cameo appearances by friends and family from my American life, that life has been paused so I can have this one. Because this period stands apart, I thought I should have a project, and it can't be my dissertation since writing it will last at least a year after I return from India. So I'm going to blog, maybe once a week or every two weeks, about what I've read in Milton.

India is great...

...but I'm trying to put together a publishable article about my arrival here and about preparations for the Commonwealth Games in Delhi next month. If that gets rejected from wherever I send it, I'll put it here instead.

Mommy, when I grow up can I be an Indologist?

One blog is key to my daily procrastination routine: Andrew Sullivan's The Daily Dish. Sullivan himself is taking his summer vacation but Conor Friedersdorf, one of his deputy bloggers--I know it's an odd idea that a blog branded for its writer can have an editorial team but Sullivan's defense of the practice is compelling--has solicited anonymous reader emails on the prompt "About My Job."

It's been a remarkable exercise (ever wondered what a mortician or a pharmacist really thinks about his/her job?) which has become that much more remarkable after an email from an Indologist was posted. An Indologist! Now I am not an Indologist because that term refers to someone who studies pre-Modern South Asia and my research focuses on the eighteenth century (what we call the "Early Modern" period), but all of the writer's experiences explaining the field to well-meaning but confused interlocutors exactly track with mine. The word "Indologist" isn't even in my web browser's spellchecker.

Instead of "Indologist," the anonymous emailer writes, people often hear "entomologist." When I have described my field as "South Asian Studies," I have sometimes received the follow up question, "so you study missionaries?" I was completely flummoxed until I figured out that people had been hearing "salvation studies." And of course what I really study is philology (the historical study of language and literature, more or less), but most people have no idea what that is and fill in either "philosophy" or less commonly "phlebotomy." (I would have assumed the writer was exaggerating with the last one except that I have experienced it myself.)

Even stranger is that fact that I think I have figured out who the writer is. I believe it's Professor Wendy Doniger of UChicago's Divinity School. I don't know her personally, though I've heard her speak and I've read a number of her articles, and I think the prose style is exactly right. It was clearly written by someone who is a senior academic because the writer has a certain poise that takes years to develop in a field as complicated and fascinating as Indology. There is a reference to knowing Sanskrit, Pali and Avestan, which also suggests someone who has been at it for years. The writing isn't gendered but I think I detect a women's voice which narrows the field to female Indologists. Lastly the writer states that her favorite author is Milan Kundera, whom Doniger has quoted in articles. I think the odds I have it right are pretty good (though if I'm wrong, please let me know).

I'll close with her eloquent case for why academics often study and teach subjects that seem to have no immediate social value:

But apart from terminology, most people have no idea why one would even do such a thing. The reconstruction and analysis of ancient India? To what possible end? What possible use could that be to us in the modern world? My answer can only be this: that ancient India is an exceptionally interesting subject, not an exceptionally “important” one. But what is important is that, through the disciplines of the Humanities, people  make the effort to look at other times and other places in order better to reflect upon themselves. ...
The purpose of my field, then, is to understand something about the ways of being human in the world. And if I could find a single term to convey all that I’d be home free!

If only...

Joel Stein's racism problem (sigh)

In next week's issue of Time (it's already up on the web and has been making the rounds of the blogosphere), there is a painfully unfunny observation column by Joel Stein called "My Own Private India." It's a comparison between the lilywhite Edison, NJ of his childhood and the much browner Edison of today. (According to the 2000 census, Edison has the highest concentration of Indian-Americans in the country at about 18%.)

I wanted to write a detailed post to explain what exactly makes me so uncomfortable about the piece but Sepia Mutiny beat me to it in a post that is as hilarious as Stein's article is cringe-worthy. My advice, seconded by SM, comes down to this: If you're going to toe the line between racism and comedy based on race, which is exactly what Stein is trying to do, then you have to have a point (or get a free pass by being a member of the ethnic group you're satirizing). That's what seems to be lacking in Stein's essay--no one on the web seems to be able to figure out why he would have written something like this except that the author thinks it's funny, which isn't enough when talking about race.

Pitch perfect: A couple of lines from Faiz

A friend of mine recently reacquainted me with a couplet by the Urdu poet Faiz Ahmad Faiz (1911-84):

nahiin nigah mein manzil to justajuu hii sahii
nahiin visaal muyassar to aarzuu hii sahii


Literally:
If I can't get a glance [of my beloved] then at least I have the search itself,
If union [with my beloved] is impossible then at least I have desire itself.