100 Years Past Due: Why It's Time to Retire Colonial-Era Laws

By Durba Ghosh, Ph.D.

In Delhi, India in February, the government arrested the student president of India's largest university for engaging in what the government considered seditious speech. The law used by the government to detain him was a colonial-era law, section 124A of the Indian Penal Code, enacted by the British to suppress any speech that could incite public disorder. Widely used by the British colonial government in India in the 1920s and 1930s to jail figures such as Mohandas K. Gandhi, the democratically elected Indian government has resorted to a colonial-era law to suppress political dissent.

After a century and a half, it is time to abandon sedition and security laws that suppress political dissent and withdraw civil liberties from citizens. Laws once used to keep colonizers in power over a subject population that had few legal rights are now being used to buttress the authority of elected officials over populations that are entitled to rule of law and human rights. Modern nations should not behave as colonizers.

No longer considered "extraordinary," emergency laws that call for enhanced security measures such as increased surveillance of particular ethnic and religious groups have become commonplace. Part of a global phenomenon to increase the power of military and police, as well as the executive authority of the government, emergency laws that were once accused of undermining democracy under colonialism are now being used in postcolonial states.

India is not alone in using colonial laws to restrict the rights of its citizens. After a series of attacks left more than 100 dead in Paris last November, the French National Assembly voted overwhelmingly to extend a state of emergency that allowed the government to censor the press, raid homes without warrants, and monitor those suspected of planning terrorist conspiracies.

In spite of protests and widespread reports that police and security officials had wrongly detained thousands of Muslims, France's state of emergency has been extended for another three months.

The state of emergency in France relies on the force of a colonial-era law passed in 1955 at the start of France's battle against Algerian independence. Now due to expire at the end of May 2016, France, like several other democratic nations, is using colonial-era laws to police its populations.

Student protests are raging against the government in Delhi and citizen protests across France have challenged the extension of the state of emergency, colonial-era laws are experiencing a troubling revival.

In short, laws to "protect" France from Algerians in the late 1950s are now allowing France to protect itself against a Muslim minority that threatens to commit acts of terrorism. In India, a law enacted by the British government to control anticolonial political speech is now being used by a political regime hoping to hold onto its majority in parliament.

9/11 marked the beginning of a global crisis of terrorism and subsequently multiple nations passed laws to restrict the movements and activities of populations most associated with terrorism, such as Muslims.

In the United States, the National Security Entry/Exit Registration System required Muslim men from nearly two dozen countries to register with the government at designate facilities. In use from 2002 until 2011, the act followed the movement of Muslims from Middle Eastern countries such as Iran, Iraq, Libya, Sudan, Syria, Saudi Arabia, to Asian nations with large Muslim populations such as Pakistan, Bangladesh, and Indonesia.

Reminiscent of earlier American laws to restrict the movement of Chinese, Japanese, and Indian laborers into the United States, NSEERS reminded Americans that in a time of crisis, certain groups were targeted as threats to the nation.

Yet, 9/11 was not the beginning of anti-terrorism laws of states of emergency. A system of laws to suppress anti-state violence has been in use throughout the twentieth century. Used in areas that were colonized, the French and British enacted states of emergency to control colonized populations who were defined as insufficiently civilized for the kind of civic society that could lead to democratic behavior.

Inspired by the Defense of the Realm laws used in Britain and Ireland at the start of the first World War, the Defence of India Act of 1915 detained those suspected of terrorism against the state. Rationalized as a wartime measure that was intended to contain the threat posed by subjects who sympathized with the Axis powers, the Defense of the Realm and other related laws targeted particular populations. These groups including communists, Irish republicans, and Muslims who wanted to reinstate the caliph in Istanbul. They were subjected to increased police surveillance, press censorship, and detention in specially built camps to keep them from spreading radical and militant political ideas.

Nearly a hundred years later, these laws, considered extraordinary in their time, are deemed essential for regimes that were attempting to control populations who were considered poorly prepared for democracy, such as Muslims. Colonial officials defended these laws as temporary measures to protect the process of civilizing the natives, believing that colonialism existed to educate colonized subjects in the norms of civil and democratic behavior. Modern officials defend these laws as part of their armature against terrorism.

Nationalists in India, Ireland, Egypt, and South Africa in the early part of the twentieth century were roundly opposed to emergency laws because they suspended the rule of law and damaged the possibility of democratic engagement.

Challenging the British government's actions to suppress political dissent, leaders such as Jawaharlal Nehru, the first prime minister of India argued that emergency laws that limited the freedom of speech, assembly, and association would impede the process of creating a just and equal civil society.

Yet, many independent nations, particularly India, inspired by the terms of the British Defence of India Act of 1915, adopted anti-terrorism laws such as the Preventive Detention Act (1950), another Defence of India Act (in 1962), and eventually a series of Prevention of Terrorism acts and ordinances after it became independent. The passage of the Maintenance of Internal Security Act (MISA) allowed Prime Minister Indira Gandhi to declare a state of emergency for 16 months in the 1970s, marking a tragic interruption in India's nearly 70 years of democracy.

The recent invocation of another colonial-era law, section 124A of the Indian Penal Code, to arrest and detain the president of a student union demonstrates that colonialism is alive and well, even in nation-states that define themselves as modern and democratic. It is ironic, that in a nation whose founders protested sedition law, that its postcolonial leaders have embraced them.

In balancing tensions between enhanced security and suppressing the legal rights of citizens, it's essential we work to break the bonds of colonial relationships, particularly those embedded in outdated colonial laws. As events unfold in the aftermath of the attacks in Brussels, we need to take care that terrorist acts do not result in limiting the civil liberties of ordinary citizens.

As we collectively move toward securing democracy against acts of terrorism, we should rely on laws that allow political dissent to thrive without resorting to state violence.

Durba Ghosh is an associate professor of history at Cornell University and is a Public Voices Fellow with The OpEd Project.