Decolonization :

Impact of
Colonization on Law
and Justice
“Perhaps, the best and the worst thing about
Colonization in the 21st century is that,
territory is not its absolute requirment.”

Prepared By: Sambriddhi Aryal

Kathmandu School of Law

“Recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family”
Preamble, Universal Declaration of Human Rights

“We hold these truths to be self-evident, that all men are created equal”

Declaration of Independence, 1776

Were African American considered “Men”?

 White Man’s Burden
Take up the White Man’s burden—
Send forth the best ye breed—
Go send your sons to exile
To serve your captives' need
To wait in heavy harness
On fluttered folk and wild—
Your new-caught, sullen peoples,
Half devil and half child

-Rudyard Kipling (1899)

Bengal Famine, 1943

Population of Bengal before the Famine : 60 Million

Number of Deaths : About 3 Million (estimated between 0.8-3.8)
“The dangers threatening us are
great but great too is our strength,
and there is no reason why we
should not succeed in…
establishing the structure of this
united Europe whose moral
concepts will be able to win the
respect and recognition of
mankind…”
-Winston Churchill
(Prime Minister of Britain and Founding
Father of Council of Europe)
Stage European Imperialism

A small group establishes a big empire The Europeans establish the European Empires
An imperial culture is forged Western culture

The imperial culture is adopted by the subject The subject people adopt English and French,
peoples Socialism, nationalism, Human Rights, etc.

The subject peoples demand equal status in the Indians, Africans demand equal status with Europeans
name of common imperial values in the name of Common Western Values such as
nationalism, Socialism and Human Rights,

The empires founders lose their dominance Europeans lose control of the global world, in favour of a
multi-ethnic elite largely committed to Western Values
and ways of thinking

The imperial culture continues to flourish and The Indians, Africans continue to develop their adopted
develop Western Culture

Sapiens: A Brief History of Humankind, Yuval Noah

Harari
British Raj in India
The British conquest and occupation of India cost the lives of millions of Indians

Today, Indians have adopted, the zest of converts and western ideas such as self-determination;

They were dismayed when the British refused to live up to their own declared values by granting native
Indians either equal rights as British subjects or independence.

They laid the foundations of the Indian judicial system, created its administrative structure, and built the
railroad network that was critical for economic integration. Independent India adopted Western democracy, in
its British incarnation, as its form of government.

English is still the subcontinent’s lingua franca, a neutral tongue that native speakers of Hindi, Tamil and
Malayalam can use to communicate.

Indians are passionate cricket players and chai (tea) drinkers, and both game and beverage are British legacies.
Bombay (Mumbai) High Court
Patan High Court

Even after India gained her Independence, the Greek goddess,

Themis is symbolized as the personification of Justice. This is
also seen in various South Asian countries along with Nepal
(Patan High Court, Kavre District Court, etc.)
“Our aim is to form a class of persons, Indians in blood and color, but
English in tastes, in opinions, in morals and in intellect.”
-Lord Macaulay, 1935

As Gandhi wrote in is biography, educated Indians took up the task of

“becoming English gentlemen in their dress, manners, habits, choices,
preferences, etc.”
British Gurkha Regiment
The objectives behind forming the British Gurkha Regiment:

(1) To Create a private/mercenary army for the purpose of subjugating the sovereignty of India to
East India Company

(2) To maintain the subjugation of the East India Company over the Nepalese population

(3) To create mercenary soldiers in the name of Nepalese valor and forming a mercenary army of the
East India Company in South Asia.

(Upanibesh dekhi upanibeshko yatra, Prof. Dr. Yubraj Sangroula )

Contemporary Judicial System

● Justice is prayed for in the most humble terms, not demanded.

● Is Justice always blind?

● Is Common law effective?

Berlin Conference

“How Europe shared Africa like a piece of Cake”

Right v. Duty
“You only have one right, that is to perform your duty.”
-Bhagavad Gita

The only real right of man in society is to do his duty.

-Leon Duguit

Article 16- 46 of Constitution of Nepal (Fundamental Rights )

Article 48 of the Constitution of Nepal (Fundamental Duties)

Society & Development : Modernization / Westernization?
● Article 6. Languages of Nation: All languages spoken as the mother tongues in Nepal are the
languages of the nation.

● Article 7. Official Language: (1) The Nepali language in the Devnagari script shall be the official
language of Nepal.

Most Schools in Nepal be like:

Colonization’s Impact on Oriental Society
The terminology “Loot”

English as the lingua franca

Dharma vs. Religion

Dress code of Legal Practitioners as per the Code of Conduct for Legal Practitioners
Judicial System in Nepal
The influence of Napoleonic Code in the drafting of Muluki Ain, 1910

Establishment of Durbar High School

Establishment of British Embassy in Nepal

The Government of Nepal Act, 2004,

Pradhan Nyayalaya Act, 2008

Adversarial System
• Lawyer v. Lawyer
• Magical Calculation of Evidence?
• Oration Skill of Lawyers as a means to Justice?

Judicial Council as a British Import?

Mitakshara v. Bakas
Battle of Cajamarca
“We are conquering
you for your
own Benefit”
Generation Theory of
Human Rights

Right to Opinion or
Right to Food ?
“राजा खान्छन् निसाफले, साहू खान्छ हिसाबले”

"झगडिया लाटो भयो भन्दैमा बिचारी लाटो हुनु हुँदैन“

“माछाको बल पानीमा, निर्धाको बल राजामा”

"न्याय नपाए गोर्खा जानु”

Social Darwinism

“Matsya Nyaya”
Inclination of Contemporary Nepali Society
towards Individualism

“ मै खाउँ मै लाउँ, सुख सयल वा मोज म गरुँ

म हासुँ मै नाचुँ अरु सब मरुन दुर्बलहरु “
Any Questions ?