160 years of the Indian Penal Code

Context

Formed in 1862, the Indian Penal Code completes 160 years of its existence.  One of the prominent remains of the British era, IPC has been a part of Indian society.  But has it served society according to its needs? Or does it still have a colonial hangover?

More important… has it been able to keep pace with the changing face of crime.

What is Indian Penal Code (IPC)?

• The IPC is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law.
• The code was drafted on the recommendations of first Law Commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Macaulay.
• It came into force in British India during the early British Raj period in 1862.
• However, it did not apply automatically in the Princely States, which had their own courts and legal systems until the 1940s.
• The Code has since been amended several times (more than 70 times) and is now supplemented by other criminal provisions.

Applications beyond India

• After the partition, the IPC was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code.
• After the separation of Bangladesh from Pakistan, the code continued in force there.
• The Code was also adopted by the British colonial authorities in Colonial Burma, Ceylon (modern Sri Lanka), the Straits Settlements (now part of Malaysia), Singapore and Brunei, and remains the basis of the criminal codes there.

Key feature: Versatility of the IPC

• The Code is universally acknowledged as a cogently drafted code, ahead of its time.
• It has substantially survived for over 150 years in several jurisdictions without major amendments.
• The Supreme Court of UK has applauded the efficacy and relevance of IPC while commemorating 150 years of IPC.
• Modern crimes involving technology unheard of during Macaulay’s time fit easily within the Code mainly because of the broadness of the Code’s drafting.

Some controversial sections of IPC

[A] Section 377: Homosexuality

This section prevented private consensual sex between adults of same sex. The Supreme Court of India decriminalised homosexuality by striking off parts of Sec. 377 of which were held violative of Fundamental Rights of LGBTQ Community under Art 14.

[B] Section 309: Attempt to Commit Suicide

The Section 309 of dealt with criminalizing attempt to suicide. This was however in P Rathnam v. Union of India held this section as unconstitutional and void for it violates Article 21.

[C] Section 497: Adultery

The Section was been criticised on the one hand for allegedly treating woman as the private property of her husband. The Supreme Court headed by the then CJI, Deepak Misra, pronounced that Section 497 is unconstitutional and hence, struck it down.

[D] Section 124A: Sedition

This section criminalises anti-national activities and sedition . Throughout India’s history this overbroad provision has been used to silence public figures, including Mahatma Gandhi. More recently it has been used to justify the harassment of protesters.

[E] Section 153A: Hate Speech

Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.

[F] Section 499: Criminal Defamation,

This section criminalizes defamation, can be used to secure a conviction without proof that actual harm has occurred – the intent or knowledge that harm would likely result is sufficient. Predictably, this provision has been used to silence political speech.

Lacunae in IPC

• Unchallenged and archaic:  The code has been premised on some very basic principles of criminal jurisprudence and hence the underlying expositions and definitions in the IPC mostly remained unchallenged.
• Covers generic offences: The classification of offences was kept generic and wider enough to include a vast array of wrong-doings and therefore it also did not pose major problems until recently.
• Colonial attempt: The IPC was essentially a cultural product that reflects a European lineage which was quite alienated to many indigenous personal laws based on religion.
• Modern crimes not covered:  For instance Cyber Crimes, Drug Offences, Economic Offences, Juvenile Offences, Customs & Excise Offences and further there are many more emerging forms of crime to which IPC does not address.
• Persistence of death penalty: Keeping of death penalty in the IPC had a different objective in colonial times. All such reasons have now vanished and the presence of death penalty in master criminal law of India defies modern principles of penology and rehabilitation.

Other legacy challenges

• Delays in criminal trials pose a major challenge in the way of justice and seek more coordination between the stakeholders of the legal system.
• Lack of awareness among people regarding the criminal laws adds to the weak functioning of the legal system even after the existence of a comprehensive legal framework.
• Complex language of the laws mentioned under IPC forms a barrier for the legal interpreters and the common citizens which results in the delay of justice and adds loopholes in the entire system.

Way forward

The Malimath Committee (2003) has made following suggestions for a comprehensive for reforming and restructuring of IPC:

• Legal research: There is a need to have empirical legal research showing areas required to be contemplated as new offences in the code.
• Enforceability check: The same process should also be applied in case of identification of offences to be dropped from the IPC on account of being outdated nature and issues of enforceability involved in them.
• Gender-based offences: There is no separate chapter on sexual offences in IPC. It is therefore the right time to dedicate a full chapter on this subject to bring all sexual offences at one place.
• Cover modern laws: To be comprehensive enough, the IPC must also include chapters on cyber laws, economic offences, and terrorist offences in the code. This would be helpful in avoiding duplicity and confusion.
• Indigenization: In revision, the indigenousness in the framing of laws must be given space which was completely left out by the IPC.
• Parallel reforms in Policing: Although revamping IPC will lead to reforming the criminal justice system, additional changes in the police structure are also needed.

Conclusion

• Reforming the criminal justice system is not just a one-step process.
• Revamping IPC is a major step to modernize the criminal law of India and make it in accordance with the Indian democracy.
• Fulfilling political agendas should not be the reason behind adding specific provisions.