Prime Minister Narendra Modi, speaking at the flag hoisting ceremony at the Ayodhya Ram Temple, spent some time and attention castigating colonial India's most famous legal draftsman, Thomas Babington Macaulay.

Macaulay had, we were told, laid the "foundation of mental slavery" in the country which now needed to be uprooted and destroyed in a culturally resurgent India. This attention on a 19th century figure is surprising, but fits into a larger scheme of indigenisation of statutes that had been enacted during colonial rule which has been put into motion by the Government.

Over the years, Macaulay has stood out as the most visible symbol of the intellectual and legal legacies of colonialism. His infamous 'Minute on Indian Education' delivered in 1835 has been portrayed as having laid the intellectual framework of the British Empire in India, which led to the destruction of indigenous knowledge systems and vernacular languages, replacing them with English as the mark of class stature, authority and intellectual sophistication.

Macaulay's education policy in India was designed by his own admission to create a class of Indians who would be transformed to English morals and tastes, and help in colonial governance. The identifier has stuck, and in recent years, to be anglicised and distant from indigenous roots is a sure marker of belonging to the class of the Macaulay-putra. In the current political scenario, members of what is termed the 'old establishment', including bureaucrats, economists, academics and journalists, educated in the West, and who may happen to hold less than enthusiastic views on government policy, are susceptible to having their lineages drawn back to this infamous figure.

Macaulay's most enduring legacy, however, was to be on Indian law. As the first Law Member to be appointed to the Governor General's Council, he had led the drafting of the Indian Penal Code ("IPC"). The IPC was the first attempt across the common law world to reduce the entire body of substantive criminal law into a single statute, designed to apply to any kind of criminal activity imaginable. Though he did not live long enough to see it enacted, Macaulay's code was used extensively as the central criminal statute in India for over 150 years till the recent enactment of the Bharatiya Nyaya Sanhita, 2023 to replace it. The IPC had also been transplanted across British colonies in Asia and Africa, and different versions of the statute remain in force today, making it perhaps the most influential statute to have ever been drafted.

It is not surprising then, given its outsized presence in Indian law, and coupled with Macaulay's discredited reputation as the intellectual fount-head of colonialism, that the IPC became the first target of the decolonisation exercise. A Committee for Reforms in Criminal Law (CRCL) was appointed in 2020 to recommend reforms in the criminal law. The CRCL ultimately drew up three codes to replace the IPC, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973.

These drafts were then introduced into the parliament, referred to a standing committee, amended, and enacted as the three principal general laws that operate in India today. The IPC was replaced by the Bharatiya Nyaya Sanhita; the Indian Evidence Act by the Bharatiya Sakshya Adhiniyam; and the Code of Criminal Procedure by the Bharatiya Nagarik Suraksha Sanhita. The enactment of these three statutes was hailed as a major step towards the decolonisation of Indian law, and also as the inauguration of a criminal justice system which was centred around ideas of justice rather than those around punishment.

The Indigenous Replications of Project Macaulay

It is important to note that Macaulay is not universally regarded as a symbol of British repression and the forced 'mental slavery' of Indians. Zareer Masani, in his book on the Englishman, characterises him as the pioneer of India's modernisation, and the person who universalised education by breaking caste control over traditional forms of knowledge. Macaulay's education policy introduced a new currency of social and economic mobility for Dalits and women who had been systematically excluded from accessing traditional forms of education in India. Access to English education turned out to be crucial in establishing and communicating the ideas through which equality could be meaningfully articulated or demanded.

Similarly, his IPC was also based on universal principles, removing caste and religious differences between Indians when it came to criminal liability and punishment. Prior to the IPC, the criminal law of the country had been vague and confusingly scattered, and recognised arcane and obsolete distinctions on liability and guilt. Punishments could be mitigated on the basis of whether the victim was a relative, or a slave, of the offender, or where a murder victim's family was compensated by the offender. It was the IPC that rationalised and equalised the subject for a vast majority of Indians across castes and communities by ensuring equal liability for an offence irrespective of class or caste location. Not just that, the IPC, for its own time, was a statute that vastly reformed criminal punishment and established a system of proportionate sentencing.

How then does one evaluate the enduring legacy of the person who has perhaps influenced the course of Indian criminal law more than we would like to admit? And what does it mean to transform a colonial criminal law into one which is based on a democratic and constitutional ethos?

Macaulay, the 'scientific’ codifier of criminal law

Although the IPC had been drafted and was presented to the Governor General in Council on the May 2, 1837, it was not enacted for another 23 years, and was finally promulgated after the transfer of administration of British India from the East India Company to the Crown in the aftermath of the Revolt of 1857.

Macaulay's perspective towards legal codification was deeply influenced by Utilitarian thought, favouring clearly worded statutes over vague and complex common law principles and masses of judicial precedent. He particularly followed the principles of Jeremy Bentham on codification, relying on brevity, clarity, singularity of principle, aiming to create a single comprehensive law of crimes. There was no single code of criminal law in force across the common law system of the UK at the time, and he set about reducing legal rules and principles developed over hundreds of years into the form of a clear code of law.

This task would have been challenging in any circumstance, and it occupied him for a significant period of time. But the product of this exercise was not the reproduction of English law in a codified form. In rationalising and rearranging the subject, Macaulay took the opportunity to also clear the persistent confusions within the law, and to improve it on substantive aspects.

The IPC was a significant advancement over the unclear, disorganised and primitive criminal law then existent in Britain, which was notoriously unclear and barbarous, prescribing capital punishment for around two hundred offences. British law, having developed through degrees over judicial decisions spanning centuries, was destitute of arrangement and several of its rules were internally inconsistent. In comparison, with the enactment of the IPC, Indian criminal law became a set of clearly worded provisions, based on uniform rational principles which were systematically arranged. Offences were clearly defined and the conditions of criminal liability were set out for each of them. Complex provisions were explained through illustrations showing their operation. Further, punishments for offences were arranged proportionately to the seriousness of the crime, with capital punishment restricted to some of the most serious offences.

The IPC recognised excuses from liability such as insanity, young age, the right to private defence, and mistakes of fact. The statute was also accompanied by detailed "Notes" which further explained its provisions and why they had been drafted in the manner that they had. Macaulay also recommended that the Code be translated into Indian languages and circulated amongst people to ensure it was well understood. These represented tectonic changes in the way criminal law was defined and enforced at the time. In India as well, the statute would replace a complex amalgam of Company regulations, principles of Islamic law, and customary practice.

The IPC of 1860 was far from perfect, particularly if it is evaluated on 21st century notions of criminal law. It contained provisions that criminalised same-sex intimacy, as well as adultery, which should not be, and are no longer, considered criminal offences. However, by the standards of legal and political thought existent at the time of its enactment, it was a scientific revolution of sorts. Its approach towards legal codification would continue to be emulated long after its enactment, and the statute itself would go on to become the criminal law across the world as one of the greatest exports of British colonialism. In fact, so influential is the IPC's intellectual paradigm, that its modern Indian replacement adopts it almost entirely, making a few changes to its substantive provisions.

How Ambedkar and Nehru's Words Debunk Modi's Prejudiced Understanding of the ‘Macaulay Mindset’

The codification exercise carried out during this time bore a strong imprint of Macaulay's individual genius, which found unhindered expression due to the lack of any democratic or representative opposition. Macaulay acknowledged that he was in the position of an "enlightened despot", crafting legislation without the need to consult or convince any legislature, or the common public. He considered this lack of democracy peculiarly advantageous, well suited to an expeditious codification. It is also clear that he considered legal codification as a justification of colonial rule.

He, along with virtually every other colonial administrator, frequently argued that the introduction of European government and legality advanced the colonised peoples morally, materially, and politically from a stage of primitive medievalism and rampant misrule towards modernity. The introduction of the 'rule of law' and legality were to be the most cited reasons justifying British colonial rule and policy, and the codification enterprise was often the most direct example of its success. As Macaulay himself said, the duty of the British government in India was "to give good government to a people to whom we cannot give a free government."

Macaulay in colonial administration

Legal brilliance notwithstanding, it is simplistic to view the IPC disconnected from the deeply colonial rationale behind its enactment. It is important to interrogate the rhetoric of British colonial rule having introduced a 'rule of law' or legal equality into Indian society. It is here that we must also confront some uncomfortable truths about the nature of British rule, as well as the role officers such as Macaulay played towards its sustenance.

One of the primary reasons behind the enactment of the IPC, and the codification of Indian law that began in earnest after 1857, was centred around anxieties of sustaining British rule. This had a lot to do with British and European criminal behaviour, and less with introducing a 'rule of law' for Indians. Non-official Europeans who had come to, and settled across India at the time, making their fortunes through a variety of trade and commercial activities, had been enjoying a liminal status in Indian criminal law, and were exempt from prosecution for criminal offences instituted by any Indian except at the Supreme Court in Calcutta. This was so because most Company courts across India applied Indian law, and subjects of the British Crown were considered answerable only to British criminal law as enforced by the crown. This essentially meant that an Englishman could not be put on trial across the length and breadth of British India, except in courts that did function under British law.

The near absolute legal immunity for European settlers emboldened them to indulge in rampant criminality towards Indians, with little or no consequence. These men frequently displayed their most pilfering and violent attributes in India, indulging in fraud, assault, murder, and abduction. European criminality had assumed such proportions that administrators felt that it would undermine the basis of colonial rule itself, eroding any psychological notion of superiority that Europeans enjoyed over Indians. British criminality was also considered responsible for having fuelled large-scale Indian discontent against Europeans, sometimes leading to outbreaks and clashes. The East India Company tried various administrative measures, such as placing restrictions on non-officials from traveling to and settling far away from Presidency areas, exiling persons who had committed crimes against Indians etc, but to limited effect.

One of the major reasons behind the introduction of the IPC was to remove the immunity from prosecutions that White Europeans used to enjoy. A code of law based on English principles and enacted by the British, that would be universally applicable, rendered exemptions based on racial privilege unnecessary. European associations active in India at the time, and whose members had been the primary beneficiaries of the criminal law loophole, vociferously opposed its introduction. Ultimately, the IPC was never enacted during the East India Company's rule, and instead after British India came under Crown rule. Though it did remove caste and racial discrimination from substantive criminal law across Indians, its claim to having introduced a 'rule of law' needs to be carefully evaluated.

Macaulay, having set the bar on how to draft and design a general criminal law statute, was in reality no votary for equality between the Europeans and Indians. While explaining his approach to drafting the IPC to the Governor General, he emphasised how different penal treatment for Whites and Indians was built into the statute. He saw no irony in arguing for alternate sentences for persons of "unmixed European blood" for the same crime as compared to Indians. He stated that Europeans and Indians were different in morals and material conditions, and the effect of punishment was also differently felt by each. What would be proportionate and just punishment to the Indian, would be disproportionately harsh for the White person. Further, for Indians to witness Europeans jailed in ignominious conditions would lower the estimation of British national character in Native eyes, and that would incalculably harm the authority of colonial rule. Macaulay therefore proposed that Whites be transported to penal colonies instead of being imprisoned in India, and went on to delicately suggest that these colonies be situated in a "temperate climate" for their ease.