South Asian countries which were once as a whole known as the Indian subcontinent share some common traditions, values, culture, and history. But one thing that they share the most is their colonial legacy which is still in effect to this day largely in the realm of Law. In South Asian countries, mostly India, Pakistan, and Bangladesh we see the use of colonial-era laws. Some of these laws are outdated and outright repressive, even in Britain these laws are not in use.

In today’s postcolonial South Asia, we still see the use of The Penal Code of 1860, the police act of 1861, the Evidence Act of 1872, and the Official Secrecy Act of 1923. All of these laws were extremely oppressive and were used to repress the native population. The depressing thing is that these laws are still to this day being used to oppress the general population of the region. For example, section 5 of the Official Secrets Act of 1923 states, “Any communication not in the interest of the state is illegal”. This was at odds with the interest of the citizens living in the colonial state structure. This Official Secrets Act is still used in Bangladesh, India, and Pakistan. 

Another example of such law is section 377 of the Indian Penal Code 1860 which states that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment] for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”. The section was abolished on September 6, 2018, by the Indian Supreme Court stating that this violates a person’s privacy and their sexual rights. The section also criminalized homosexuality and is still in use in Bangladesh and Pakistan. 

Tendency towards autocracy

American-Pakistani historian Ayesha Jalal argued that the British colonial government introduced laws that suppressed Indians, and also emphasized that these British policies and regulations are contradictory with democratic values and are authoritarian, this is one of the reasons why South Asian countries have not been able to achieve their democratic aspirations. In Bangladesh, the Digital Security Act of 2018 uses some provisions that are inherited from colonial law. For example, section 32 of the DSA criminalizes the breaching of government secrecy, and section 28 of the DSA was incorporated from section 295A of the Indian Penal Code. Although the new Interim government is planning to remove the DSA with the Cyber Security Act, nonetheless the DSA can be remembered as a relic of authoritarianism in Bangladesh that stemmed from the colonial era law. In Pakistan, we see that it's legal foundation is based on colonial period common laws and the Indian Independence Act of 1947 made it applicable to Pakistan.

South Asian countries are leaning towards autocracy. In India we can see that the government is moving towards religious autocracy.  The current government has been working on removing some of the colonial-era laws. Still, it has created concerns because while the government has scrapped colonial laws it has replaced these laws with more rigorous ones. For example, in a new legislation the duration of police custody has increased from 15 days to 60, and in special cases can last up to 90 days. This has concerned human rights groups. 

In Pakistan, the Lahore High Court changed its sedition law of the Indian Penal Code of 1860. In 2023, Lahore High Court deemed this law to be unconstitutional. This is a huge win for freedom of speech in Pakistan. However, some laws are still in use today and can be attributed to negative use. In 2017, in an article by Amnesty International’s South Asia Director, the writer said that "crude colonial-era laws have been unleashed against government critics, new laws have been invoked against critics online, and brutal practices have endured in areas afflicted by conflict".

Long way to go

If one analyzes the contemporary South Asian legal landscape, one can still see the influence of colonial-era laws and these laws are largely being used to oppress the common people. But there are also changes to be seen. In Bangladesh, India, and Pakistan one has seen some colonial laws and their oppressive acts being changed and, in some instances, more oppressive ones taking their place. 

South Asia still has a long way to go in its journey of decolonization and to do so it essentially needs to change its colonial-era laws. One can only hope that in the future we will come out of our colonial-era mindset. If and when we can do so democracy, rule of law, and justice will flourish in the South Asia region.

(The author is studying International Relations at Jahangirnagar University, Bangladesh. Views expressed are personal. He can be reached at sadi007mohammod@gmail.com)