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.]

What I was thinking about a year ago

5 June 2017 - It is Monday, the day after the day after. I am alone in a gallery in the British Museum with the Assyrian king Ashurnasirpal II. It is late afternoon and rain is battering the glass panels in the ceiling. The fine weather of the past week is already a distant memory, but that’s how summer works in England. The cuneiform inscription around the king reads, among other things “I am important; I am magnificent” before describing how brutally he used to kill his enemies. He has the best brutality, everybody says so.

Before coming to the museum, I had spent the day up the road at the British Library reading eighteenth-century manuscripts. On Saturday night, three terrorists had driven a van into pedestrians at London Bridge and attacked people with knives at the nearby Borough Market. As I went about my day, reading in the library and meeting with colleagues also going about their day, I followed the thread updating on The Guardian’s website, learning more details as the authorities released them. Mostly though I was concerned with honing an argument about whether comical poetry written in Delhi three hundred years ago was a social critique or just harmless fun. Armed police had shot the terrorists dead in eight minutes. I am not a callow, out of touch academic. I am fighting back.

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.

My Delhi book is out

My new book, Delhi: Pages from a Forgotten History, is out from Hay House India:

The megacity that is today’s Delhi is built upon thick layers of history. For a millennium, Delhi has been at the crossroads of trade, culture, and politics. The stories of its buildings and great historical personalities have been told many times, but this book approaches the past of India’s capital through its literary culture. By focusing on writers and thinkers, we meet a colourful cast of characters only glancingly mentioned in political histories.

Many Delhiites are surprised to learn that the language of their city’s cultural heyday was Persian. Despite first being brought to India by invaders, it eventually became an authentically Indian language used in both administration and literature. Although it was cultivated by an elite, it was also a widely available language of aspiration and opportunity, like English today. It connected India to the wider world, and the Indian Subcontinent, particularly Delhi, was once a place where talented poets and scholars from the whole Persian cultural world – from Turkey to eastern China – came to make their fortunes. Its traces remain everywhere but Persian is effectively a dead language in India today.

Scroll.in ran an excerpt from chapter two on same-sex love in Persian literature.

Purchase information:

The publisher's page for the book is here. It is for sale on Amazon.in and Flipkart.com, and in some bookshops. It is not unfortunately yet available outside of India. You can now get it shipped outside of India at Abebooks.com or Abebooks.co.uk, or from DK Agencies.

"This light and darkness in our chaos join'd"

I re-read Alexander Pope's longish poem An Essay on Man after a decade and a half. I know the world hasn't stopped long enough for us to give poetry its due (murdered cartoonists in particular are weighing on my mind though I could choose from half a dozen other world events that make sitting down with a poem feel wrong). But let me quote the second section, which begins:

Know then thyself, presume not God to scan;
The proper study of mankind is man.
Plac'd on this isthmus of a middle state,
A being darkly wise, and rudely great

They don't write like that anymore. The critic Harold Bloom hated An Essay on Man (calling it "a poetic disaster"), which is probably in itself a good reason to have a read. Various other great thinkers through the centuries have either adored or hated the poem.

Didactic poetry, whether the underlying philosophy is solidly formed or shaky, is a genre I have always loved. Pope's expressive power is at its peak ("darkly wise" and "rudely great" are phenomenal turns of phrase), and yet he is presuming to think through the meaning of being human. We haven't solved that one yet, but would someone dare to write a poem of that scope today with such a direct engagement with philosophy? Literary fashions have changed, of course, but the reason is deeper: Our thought is too compartmentalized. 

Noor Inayat Khan (1914-44), code-name Madeleine

The BBC has a radio documentary on my favourite spy, Noor Inayat Khan. She's probably the only spy who was also a harpist and a Sufi. (Her father was the Sufi teacher Inayat Khan and her mother was his American wife who had taken the name Ameena Begum.)

She spent her tragically brief career working for the British Special Operations Executive (SOE) in occupied France, relaying information to and from London and aiding the French resistance. She kept her cool after the collapse of the SOE's network in Paris but was betrayed, tortured, and eventually shot in Dachau.

On nice days, I visit Noor in Bloomsbury. In 2012, a bust of her was installed in Gordon Square. As it happens, I've also spent a lot of time at her father's dargah in Nizamuddin in Delhi.

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The recent BBC documentary on the Kinshasa Symphony Orchestra was also great.