Introduction
The Indian Penal Code is the subjective criminal law. It is essentially acts as a dictionary for criminal acts and their punishment in India. The reason India needs a criminal code is because; the judges did not have a uniform set of rules or legal principles to base their decisions. Also the Hindus and Muslims in pre-British India supposedly lacked a sense of modern legal principles. The Indian Penal Code was drafted by the first Law Commission of India under the chairmanship of Lord Thomas Macaulay in 1934. Finally enacted in 1860 and brought into force in the year 1862. The IPC is structured into twenty-one chapters divided into 511 sections classifying the acts which are offences in India.
Nature of the IPC
When Lord Macaulay was empower by the British Parliament to draft the Code Bill, he was ask about the principle on which he shall base the Code. He said ‘The principle is simply this; uniformity when you can have it; diversity when you must have it; but, in all cases certainty.’[1] This, however, can also be construed as a criticism of the existing criminal system of India which was uncodified and often arbitrary. In the first half of the nineteenth century, the English Law also witnessed an enthusiasm for criminal law reform. The Victorian Law Scholars wants to do away with the Bloody Code.
The statute that punish all crimes mentioned in it with death. Hence deeming it a cruel and inefficient law in reformative sense.[2] Scholars like James Mill and Bentham devise new methods and techniques to do away with the obsolete code. Therefore developed substantive and procedural elements for criminal law. These elements constitute a major part of the Indian Penal Code. That is why the Benthamite principles of ‘scientific legislation’ and ‘universal jurisprudence’ hold a key place in the foundation of the IPC.[3]
Scope of the IPC
Russel defined crime as the injurious result(s. 44) of human conduct(s. 33, 34) done voluntarily(s. 39) with a guilty mind which the penal policy of the state seeks to prevent. Therefore, the crimes in the IPC are divided into result based crimes and conduct based crimes. Result based crimes are the traditional crimes while conduct base prohibitory or regulatory. For example, section 34- criminal conspiracy or abetment to suicide.
Another distinction in the IPC is the difference between the culpability and exculpation provisions.
Elements of crime as under IPC
A crime consists of two major elements- mens rea(mental element) and actus reas(physical act). These elements accompanied by causation, the fusion of the mens rea and the act, injury and punishment.
Mens Rea
The legal maxim ‘actus non facit reum, nisi mens sit rea’ translates to ‘the act alone does not amount to guilt; it must be accompanied by a guilty mind’. Hence the ‘mens rea’ or the mental element. Although the IPC does not explicitly uses this term, the underlying sections refer to the mental state of a person when committing a crime. It is refer to by words such as ‘intentionally’, ‘dishonestly’, ‘knowingly’, ‘maliciously’. Fault element can be located in two ways- state of mind which the offenders act and failure to adhere to particular standards.
Intention
Intention is the first mental state that is made culpable in criminal law. The first thing that becomes important in intention is foreseeability. However, it is not enough to prove intention. Intention is foreseeability and desirability of the consequence. In such situations, desirability can be proved by incidents that happen before the act itself. Intention is always inferred from particular circumstances(choice and severity of weapon, choice of body part where the wound is inflicted, etc.). A point of consideration is that the accused must not necessarily be to cause grievous body harm but only foresee the consequence as far as possible, a high probability or virtually certain consequence.
Punishment
In terms of punishment, any consequence brought about intentionally with the mental element proven is given a higher degree of punishment in the IPC. Although the IPC has some exceptions such as section 124A of sedition. Section 232 against counterfeiting and section 263 against abduction.
Actus reas
The actus reas is the physical act, the actual conduction of the act which makes a person criminally liable. An overt act which proves that the person had the requisite mens rea to conduct an act criminal in nature hence provides for liability. Although there are provisions in the IPC which allow for penalisation without a physical concurrence. Such as abetment or criminal conspiracy.
Defences in the IPC
The Indian Penal Code along with the definition of offences also lists sections which exculpate persons from any criminal liability. These exceptions are essentially a result of negating the ‘mens rea’ in the conduction of a criminal act. For reference, section 84 of the IPC, the defence of insanity exculpates a person from criminal liability. This depends on the principle that a person with an unsound mind cannot form the requisite men rea to commit the crime. The same principle applies to the defence of involuntary intoxication and also to the case of minors. This outlines the consistent principle of the IPC regarding the importance of the jurisprudential principles of criminal law.
Shortcomings of the IPC
As mentioned earlier in this article, the Indian Penal Code is in itself an attempt to break away from the shackles of the past. A new age of reformation in the English Law scenario. Therefore, in today’s age, the IPC faces a test of time.
Some of the provisions in the IPC have incurr the criticism of being obsolete for a more modern world with care given to subaltern themes of those times.
Recent changes-
- The judgment of the Supreme Court in the case of Navtej Johar v Union of India; decriminalized the parts of section 377. That criminalized homosexual relationships.
- Another example can be the recent judgement in the case of Joseph Shine v Union of India; in which the Supreme Court struck down section 497 of the IPC. Which allowed for adultery to be a criminal offence.
- An example of legislative change could be the introduction of Mental Healthcare Act of 2017; which decriminalized section 309 of the IPC criminalizing attempted suicide.
Therefore, apparent revision of the code, even with its utility and relevance, is important. Moreover, even Macaulay suggested provisions to allow for the revision and implementation of legislation. Basically to keep altering the IPC but after the partition, none of the dominions fully incorporate those recommendations.[4]
Conclusion
While the Indian Penal Code is a short document. Its interpretation runs into volumes and legal scholars have dedicated lifelong research into understanding the nature and provisions of the IPC. A bulwarking Code in the dawn of reforms in modern criminal law. Constant research and interpretations by legal scholars and courts have presented the delicate nature of the Indian Penal Code. While one attempts to understand the IPC, the principles of criminal law and criminal jurisprudence theories shall buttress the process and allow for a deeper knowledge gain in this respect.
References
[1] Thomas Babington Macaulay, Complete Works of Thomas Babington Macaulay, (London: Longmans, Green and Co., 1898), XI, p. 579
[2] Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750 (London; Stevens & Sons Limited, 1848), 1, p. 575
[3] B. N. Pandey. The Introduction of English Law into India: The Career of Elijah Impey in Bengal; 1774–1783(London: Asia Publishing House, 1967), pp. 19–25.
[4] David Skuy, Macaulay and the Indian Penal Code of 1862:
The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century, Modern Asian Studies32, 3 (1998), pp. 513–557.
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