What Is "Colonial" about Colonial Laws?

I.INTRODUCTIONTo what extent have the laws, institutions, policies, and ideologies of the colonial state survived the end of colonial rule? These questions about "colonial continuity" have been of great interest to scholars of post-colonial legal systems.1 Questions about colonial continuity also play a role in normative criticism of contemporary laws and institutions, since the origins of a law or institution within the colonial state are often used to attack their presence in the postcolonial state. This article argues that, despite its ubiquity in academic and political discourse, the concept of "colonial continuity" can obscure thinking about post-colonial laws and institutions in important ways. This is because the category of the "colonial" is itself a problematic conceptual category when applied to laws and institutions in India's colonial past.There are at least three ways in which the term "colonial continuity" (or some cognate term, such as "colonial inheritance" or "colonial legacy") figures in contemporary discourse. In the first sense it is used to explain or diagnose some present-day ill.2 Sometimes this diagnosis involves an exercise of shifting blame. Dr. B. R. Ambedkar warned against in his famous closing address to the Constituent Assembly, in which he said "[b]y independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves."3 This point has been echoed more recently by scholars such as Andre Beteille.4Colonial continuities are also invoked to criticise contemporary laws and institutions: the fact that an institution or law is a "colonial inheritance" is sometimes taken to be a reason to get rid of it, or to alter its character.5 Thus, one of the challenges to section 377 of the tIndian Penal Code (criminalizing sexual activities "against the order of nature") - has been that it is a "vestige of the colonial order."6 Interestingly, this form of political argument is compatible with a range of political ideologies. Thus, at the other end of the ideological spectrum from Naz Foundation, the chief of the Hindu rightwing group, the Rashtriya Swayamsevak Sangh ("RSS") in 2000 denounced the Constitution as a whole as no more than a continuation of the Government of India Act, 1935, a colonial statute.7A third use of the term "colonial continuity" concerns the survival within the post-colonial state of institutions such as the police or the civil service.8 These institutions were instruments of colonial control and repression and had a long history of conflict with the nationalist movement. Yet this nationalist movement, whose criticism of colonial rule rested in part on a criticism of these institutions, chose to retain them after the end of colonial rule. This attempt to fulfill post-colonial ambitions through what one commentator called "the trained servants of imperialism" has seemed to some scholars to be a paradox or puzzle to be explained.9This puzzle, in turn, leads to a lament: given the history of this anti-colonial opposition to colonial institutions, their survival into the post-colonial state is seen then as a political failure. Indeed, the failure of the post-colonial state to live up to some of its ambitions has in turn been attributed to the colonial origins of some of its institutions, thus leading us back to the first use of the term "colonial continuity" described above.10This article argues that the persistence of institutions such as the police and the bureaucracy seems puzzling only against the background of a nationalist narrative in which Indian independence is seen through the lens of conflict with the institutions of colonial rule. If the battle was fought (in part) to get rid of the institutions, then their persistence is a sign of defeat.11This nationalist narrative takes the history of the anti-colonial movement to be primarily one of extra-constitutional conflict between the Congress and the British Raj, - particularly during the Gandhi-led mass agitations of 1919, 1930-31, and 1942. …