Revamping British-era Indian Penal Code

Introduction:

Indian Penal Code, 1860 is the criminal code of India that codifies the substantive aspects of the criminal law. It was drafted in the year 1860 under the recommendations and guidance of first law commission that was set up in the year 1834 under the Charter Act of 1833 under the chairmanship of Lord Macaulay. After IPC, 1860 was framed, it has never been amended in totality. Only some additions and deletions have been made for administering provisions to deal with various new crimes.

The Indian Penal Code apart from being a colonial-era law, cannot be tainted as an anachronistic law. The statute has been the longest-serving act in the world. The IPC replaced the Mohammedan Criminal Law which had a very close relationship with the Islam. Thus, IPC laid the foundation of Secularism.

It came into force in British India during the early British Raj Period in 1862 but it did not apply automatically in the Princely States as they had their own courts and legal systems until the 1940s.

However, Offences under the Indian Penal Code has been defined under several chapters like chapter 1 deals with the introduction, chapter 2 talks about general explanations, chapter 3 is about punishments, chapter 4 speaks of general exceptions chapter 5 is of abetment, chapter 6 tells about offences against the state and so on and so forth. In totality, there are 23 chapters with 511 sections.

Historical Background of The Code

The history of making the code offers useful insights of its character, coverage and principles which stood with the need of time. The code is a product of early 19^th century English law reform with the carinal principles governing the IPC were based upon Utilitarian Principles which were developed by the thinkers like James Mills and Bentham. Barry Wright, a Criminal law professor in Canada finds that IPC was most Benthamic and arguably the most influential British Criminal Code. Despite, its success the IPC was failed to resolve the tension between universal and situational principle. The basic structure of IPC remains the same from the very beginning. The factors like judges having a uniform set of rules and legal principles upon which to base their decision and a religious law simply lacked the necessary ingredients of the modern legal system ere the weaknesses that have caused jurist to convince that India needs a fresh law as part of the reform process.

Prof. Barry Wright dealt with the issue of revision of IPC when it celebrated its 150^th year and found the task of updating IPC was difficult and the goal of perfecting the same will be highly complex.

Need to Revamp IPC

The idea behind to overhaul INDIAN PENAL CODE, 1860 is that

1) Master-servant concept envisaged in IPC should change. After it was framed, IPC has never been amended in totality, however, some additions and deletions have taken place with time.

However, the Home Ministry is also set to overhaul IPC which has been designed by the Britishers in the British India Period as there is a need to reboot the code framed by Britishers as it is primarily based on the spirit of Master-Servant relationship.

Along with the changes in IPC, the other changes in the other acts are required to be made such as in CrPc, Arms Act, Narcotics Drugs and Psychotropic Substances Act, Cybercrimes, Juvenile Offences etc.

2) In addition, there are uneven punishments for crimes of grievous nature.

3) To match with the change in the societal concepts.

4) Macaulay, himself has favoured regular revision whenever gaps and ambiguities were found or experienced.

5) Many amendments had been ad-hoc and reactive in response to the situations like after Nirbhaya Gang Rape case, section 377etc.

6) The 42^nd report of Law Commission in 1971 has also recommended for a complete revisit of IPC,1860.

The IPC was enacted in 1860, while the Indian Evidence Act came into effect in 1872 and therefore the CrPC in 1973. The new laws should reflect the fashionable reality and that they should be in accordance with the democratic aspirations of the people and supply speedy justice to women, children and therefore the weaker sections of individuals

Overall, The provisions of the IPC were enacted keeping in sightthe interests of BritishRaj at that pointin mind. Therefore, mere judicial interventions and legislative interventions, within the sort ofamendments cannot really serve the aimof reconciling it with today’s context so as to form the legal coderelevant,there’sa strict got torevamp the Code as is being suggested by the HomeMinistry.

The issue with the IPC has not just been the colonial hangover related toit. the difficultyis further aggravated by the shortageof its efficacy because ithas remained largely unchanged since 1860 when it had beenintroduced. The very factremains that the legislature has resorted to Local and Special laws so as to combat emerging categories of crimes liketerrorism, drug offences, cybercrimes, etc. The IPC is that the legal codeof the country and like allother “Code”, it should be an entirelaw and exhaustive in itself. Enactment of other laws handlingspecial categories of offences and an incomplete legal codeserves no real purpose.

Efforts Taken by The Government

1) Home Ministry has written to all states and Union Territories seeking suggestions to amend several sections of IPC.

2) The Ministry has also set up two committees comprising legal luminaries have been constituted.

3) Bureau of Police Research and Development (BPR&D) will work on a proposal to amend various sections of IPC and several sections of CrPC.

During the British Era, the Police were raised to protect the interest of the Britishers but in today’s scenario, the aim of the police is that now it is their duty to protect the people, furthermore since independence more than 34,000 od police officials have lost their lives in the line of duty.

Bureau of Police Research and Development (BPR&D)

• It was set up on 28^th August 1970.
• Its main aim modernisation of police forces in the country.
• At present it has four divisions, namely: Research, Development, Training and Correctional Administration
• It works under the Union Ministry of Home Affairs.

IPC and CrPC

• Indian legal code is that the law that states the punishable offences in India, alongside their punishments or penalty or both.
• Criminal Procedure Code pertains to the law that describes the general procedure which is to be followed while undertaking a criminal case.
• The initial sketch of the Indian legal code was drawn by Macaulay in 1830s, but it had been finally drafted in 1860 and came into force in 1862.
• Prior to that, the ultimate draft of the Code of Civil and Criminal Procedure was ready in 1861.
• Indian legal code was inherited by Pakistan after separation and was later named Pakistan legal code and therefore the same was adopted by Bangladesh also.
• It was also adopted in most British colonies of Asia like Burma, Sri Lanka, Malaysia, Singapore and Brunei.
• Before 1860, the idea of justice was ‘The English Criminal Law’ which was administered within the Presidency-Towns of Bombay, Calcutta and Madras.

Shortcomings of Indian Penal Code

The IPC as a law was created much before the emergence of constitutional democratic regime and therefore it has significantly failed in capturing the essence of such principles therefore the mismatch between the two becomes visible4 in various places.

In section 8 “he” is used as a general term, but it is a notable question why “she” is not used as a general term. This section thus shows a gender bias.

In section 10 the terms “man” & “woman” denotes a human being of any age, but it is a question how a child or a baby can be considered as a male or female human being as they have not any psychological development from their perspective gender.

In Section 27 “woman” is considered as equal to a clerk or servant & bounded to “man”, which is a discriminatory behaviour because a woman is as equal as a man, which is neglected in this section.

In section 53 the punishment provided in Chapter III of IPC also provide a transparent case of revision as section 53 enumerates the sort of punishments which will be imposed. This classification is very conservative insight of serious developments which have taken.

In Section 63 the terms “unlimited” & “excessive” are contradictory from a general sense.

In Section 67 the “amounts” are quite amazing. In 1860, such amounts were considered as much valuable. But in the present era, the amounts are much poor to be considered as fine. So, the “fine” must be reformed according to the present market price as well as the inflation rate.

Section 76 the terms “mistake of fact” & ‘mistake of law” “in good faith” are contradictory as these can be misused by any public servant for his defence.

Section 80 this section can also be misused by a public servant as “section-76.”

Section 103 “The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:

Secondly. -House-breaking by night;

 the “second” one can be criticized why mischief or trespass by day is not recognized.

Section 124(a) in this section a re-examination of the sedition law in 1898, is necessary.

Section153(a) punishes the act of promoting enmity between different groups on grounds of faith, race, place of birth, residence and language. The provisions aren’t in consonance of the wide scope of freedom of speech and expression guaranteed by the Constitution of India. What constitutes an “insult” or “promotes enmity” is quite subjective. The Code doesn’t attempt laying down an objective test so as to clarify what actually constitutes promotion of enmity or insulting religious beliefs. The provisions, therefore, have an enormous scope for gross misuse. For instance, of former Hindu Mahasabha leader, Kamlesh Tiwari, who was recently murdered. In 2015, an FIR had been lodged under these provisions against him after his remarks about Prophet Muhammad were taken as insulting. These provisions are merely illustrative of the absurdities within the IPC in its current shape.

Section 272-279 in the sections, from “272 to 279”, the amounts of fine are criticized. The amount was suitable for the era of 1860, but they are quite joking for such a heinous act as such sections. So, the amounts must be reformed up to date.

Section 295 the consequences of insulting a particular religion is quite less than its “weight” & the “gravity” of the offence.A provision that was inserted within the Code in 1927 punishes blasphemy by making the act of insulting religious beliefs a punishable offence.

Section 300 in culpable homicide the excellence between “culpable homicide” and “murder” was criticized even by Stephen because the “weakest a part of the code”, because the definitions are obscure.

The most pertinent amendment within the IPC was made within the year 2013 after the Delhi gang-rape incident. Significant changes in IPC were made to make a new category of offences. These changes were quite contemporary and took into consideration the new methods of crime commission in account. It included Acid Throwing as an offence under section 326 (A) and 326 (B). It also placed a punishment in section 166B for non-treatment of victim. The definition of rape was expanded to hide many sorts of non-penetrative actions.

As a substantive law, the IPC made drastic changes within the existing section 354 by including many other sorts of crime. keep the rising instances of harassment, stalking, voyeurism, trafficking in mind, section 354 (A) on harassment Section 354(B) on sexual abuse, Section 350 (C) on voyeurism and section 350 (D) on stalking were added. By far, this was the foremost significant change seen by IPC in capturing new sort of crimes in its fold. The punishment for rape by the employee was also enhanced up to 10 years extendable to imprisonment of life.

Section 375 whole “definition” is not much relevant, as the definition has only recognized by a man with a woman, not the vice-versa. Man can also be raped against his will. Moreover, the “marital rape” is unrecognized in the definition. According to the point, marital rape is not any crime surprisingly. Then, the “age limits” in the “fifth point” & “exception” are totally contradictory, which is also unacceptable.

Section 376 the “punishments” referred are not perfect for a particular crime as “rape”. Rape is undoubtedly different from any other crime, which must be considered in the punishment. Also, if we consider punishments of rape with other countries, ours become such surprisingly much little. The offence of gang rape in section 376 was added in context of Nirbhaya case.

Section 377 the definition termed as “unnatural offence” is a wrong term. Through this term, we have recognized the “gays” & the “lesbians” as “unnatural beings”, whereas, they are also human beings like ours. Through this narrow definition, their sexual behaviour is questioned & unrecognized. Section 377 of the IPC that punished “carnal intercourse against the order of nature,” until very recently when it had been partially decriminalized by the apex court. This provision really held no relevance in today’s time when a person’s liberty is protected by virtue of the elemental rights of the citizens, particularly Articles 14 and 21 of the Constitution, and was imposed upon the country by British Raj upon its Indian “subjects”.

Section 497 is yet one more provision within the Code drafted by Macaulay that lost its relevance and has been recently held unconstitutional. the supply punished only the male outsider just in case of adultery, that is, only the male- and not the woman- who engaged in adultery, might be prosecuted under this provision, except where such man had “consented” or “connived” within the act of adultery. The essence behind the supply was that the husband exercised ownership over his wife during a proprietorial manner- a thought that can’t be reconciled with our modern jurisprudence.

Criminal defamation laws have also come under the scanner on the bottom that were introduced to guard the interests of British Raj. Rajya Sabha MP had even pleaded before the highest court to dilute the law to form defamation only a civil offence as was the trend world over. this is often yet one more glaring example of how retaining British era Code without a considerable alteration has led to an outright absurdity.

The IPC also reveal a stimulating gender analysis which again becomes a ground considering changes in it. The IPC has provisions handling sexuality, procreation and marriage and therefore the implications of the operation of this a part of IPC raises complex problems with privacy and discriminatory application of the law to man and woman. The loaded patriarchal value framework within the IPC allows heterosexual relations in privacy and within the marital relations. The legal provisions concerning obscenity, prostitution and trafficking adopt a sexist approach and, in many cases, criminalization becomes unnecessary and therefore the agency of girls has not been recognized during a liberal context.

Keeping of execution within the IPC had a special objective in the beginning because the state wanted to profess a retributive stance and deterrent move for potential offenders and against the people joining mutiny. All such reasons have now vanished and therefore the presence of execution in master legal code of India defies modern principles of penology and rehabilitation. In many nations, the state has raised the quantum of fines for various wrongdoings in order that victims might be compensated for injustice out of this corpus. A survey of varied punishments in IPC would reveal that the range of fines is from a couple of hundreds to a couple of thousands. This by any measure isn’t sufficient nor does it serve any purpose for compensation to victims of crime.

The post-2013 IPC amendment experiences on a part of police have evoked a mixed response which again underlines a more careful and research-based exercise in contemplating changes within the IPC. The fact remains that police during this country is overworked and amendments wouldn’t be effective unless enforcement agencies are given matching resources. Registering cases under voyeurism, stalking etc. involves a lot of subjectivity and thus these offences are required to be more coherently defined. Another problem with this alteration in IPC is its integration. All these offences under section 354 have been placed in chapter ‘Offences against Human Body’. This successively creates a conceptual confusion as to how offences like stalking, voyeurism could fall in offences against the physical body.

Criminal Justice System

The Criminal Justice System includes the institutions, agencies and processes by the government to control crime in the nation. Its components are Police, Courts etc. The aim of CJS is to protect the rights and personal liberty of individuals and the society against its invasion by others. CJS can also impose penalties on those who violate the established law. The criminal law and procedure both are in the concurrent list of the seventh schedule of the constitution.

Justice v. Malimath Committee on Reforming CJS

Aim of the committee:

• Examining fundamental principles of criminal law so as to regain confidence in CJS.
• Includes revising of IPC 1860, CrPC 1973 and Indian Evidence Act,1872.
• 158 recommendations committee came up with after examining several national systems of criminal law mainly Continental European System.
• Propose a shift from an adversarial CJS to an inquisitorial system, where the objective is “quest for truth” and judicial officers control the investigation of offences.

Centre’s Decision to Revisit 2003 Report

• Decision of revisiting Malimath Committee on reframing CJS needs to be examined through the prism of civil rights.
• Contains valuable suggestions to revamp the administration of criminal law.
• Includes controversial recommendations such as making confessions to a senior police officer is admissible as evidence and diluting the standard of proof required for a criminal conviction

Recommendation of The Malimath Committee

The committee made 158 recommendations, and since then a number of these became law. Its recommendations on allowing videography statements is imposed.

Some recommendations were:

• Malimath Committee report recommends making confessions made to a senior policeman (SP rank or above) admissible as evidence.
• Confessions to police have repeatedly come under scrutiny due to allegations of custodial torture, instances of custodial deaths, fake encounters and tampering with evidence.
• The definition of rape has been expanded and new offences against women are added.
• Its advocacy of considerable witness protection has not been realised, but victim compensation is now a part of the law.
• The Centre would have best to ignore the recommendations concerning making confessions to high-ranking officers admissible, and increasing the amount of police custody from 15 to 30 days.
• These provisions were available only in anti-terrorism laws that are now no more effective. there’s no got to bring them into general criminal laws.
• The Malimath report suggests a type of proof less than the present ‘beyond reasonable doubt’ standard.
• Justice to the victims: The victim should be allowed to participate in cases involving serious crimes and even be given adequate compensation.
• If the victim is dead, the personal representative shall have the proper to implead himself or herself as a celebration, just in case of great offences.
• The State should provide an advocate of victim’s option to plead on his/her behalf and therefore the cost has got to be borne by the state if the victim can’t afford it.
• Victim Compensation Fund: A Victim Compensation Fund are often created under the victim compensation law and therefore the assets confiscated from organised crimes are often made a part of the fund.

 New Standard of Proof Suggested

• The Malimath report suggests a type of proof less than the present ‘beyond reasonable doubt’ standard.
• It moots a ‘clear and convincing’ standard, that is, it’s enough if the court is convinced that something is true.
• There is some understandable disquiet about the state of criminal justice administration within the country and there’s a crying need for a good range of reforms.

Madhava Menon Committee’s

Madhava Menon Committee’s ‘Draft National Policy on Criminal Justice’ (2007) noted, such popular dissatisfaction arises from the low rate of conviction, the apparent role of cash and influence within the outcome of cases, delayed and denied justice, lack of protection to witnesses and inadequate attention to crime victims.

The general insight of corruption and a gaping connection between crime cabal and politicians has led to an increase in the destruction of public trust in CJS.

Despite these considerations, any move to form substantive changes within the way criminal justice is run will need to be through with great circumspection, lest vital constitutional safeguards against abuse of police and judicial powers are violated within the process.

In the name of revamping the law, investigation and trial shouldn’t be altered during a way that undermines the principles on which the justice system was founded.

What to Do?

• The state must avoid unprincipled criminalisation and rather specialise in developing a guideline for re-classification of offences.
• This is because unprincipled criminalisation often results in not only the creation of latest offences on unscientific grounds, but also arbitrariness within the criminal justice system.
• There is also a need for simultaneous reforms in police, prosecution, judiciary and in prisons.
• Therefore, CJS reform Committee must be involved with an aim to advance Indian CJS.
• The Committee must carry over the work done earlier by Menon Committee on Criminal Justice System, the Malimath Committee, and therefore the Law Commission.

Viewpoint of Some Personalities

• According to S.R. DARAPURI, retired I.P.S officer, he says that:

“It is not incorrect to mention that the IPC was drafted with the mindset of a ruler to regulate ‘subordinates’, which it’s only a few democratic elements. There are many offences covered under the IPC, like sedition, that aren’t relevant today. The sedition law is usually misused today and wishes to be scrapped. Moreover, there are other crimes that aren’t recognised under the IPC, like economic crimes, hate crimes like mob lynching and societal crimes committed within the name of caste and religion. The Britishers were not much bothered about caste and religion. But it isn’t the case with today’s politicians. Political leaders attempt to get votes supported these lines. during this day and age, caste atrocities are tolerated that successively results in politicians being indirectly promoted to the ranks of power. Changes within the IPC are desirable and required, but they ought to not be made to suit the requirements of the ruling party or any politician. Reforms must be introduced to uphold democratic values, and human rights must tend top priority. Both the IPC and therefore the CrPC must be in tune with the Constitution. so as to try to that, provisions like preventive detention under the CrPC that are in blatant violation of Article 21 (right to life and private liberty) must be scrapped. Moreover, officialdom should tend no immunity from arrest. The decision to introduce changes within the IPC and therefore the CrPC may be a good breakthrough, but every proposed change must be subject to popular opinion before being implemented.”

• According to Vapalla Balachandran, Former Special Secretary, Cabinet Secretariat and author of National Security and Intelligence Management, he says that

“Revamping IPC may lead to change in the behaviour of police officials towards citizens. Presently, the IPC and the Police Act (1861) has changed post-Independence, set out the legal prerequisite of securing that police will behave act good with the citizens. This is often partly because both these legislations were enacted by British to empower the police as their coercive arm. Former British Prime Minister Sir Peel, as British Home Secretary in 1829, wanted a clean break within the British police system that was corrupt, inefficient and had a high-handed approach to handling the general public. He created the London “Bobby” force with the essential principle of “Policing by Consent”, which meant that the authority of British constable springs from three sources: the crown, the law and therefore the consent and cooperation of the general public. This was the bedrock of the 1829 Metropolitan Police Act. In amplification of this Peel’s principle, two commissioners of Police of the Metropolis subsequently laid down nine principles of police behaviour towards the general public, which one can find on the web site of British headquarters. The attitude of cops towards the general public in India will change drastically if the principles mentioned above are taken into consideration while making amendments within the IPC, IEA and therefore the CrPc.

Conclusion

It’s not a bad idea to revisit committee reports with a view to considering the possible implementation. However, such an exercise much be pursued with due care and caution. Therefore, the proposed amendments must be done in a proposed and principal way based on the identification of laws which needs to be replaced or amended.

Hereby I conclude in the words said by Justice PN Bhagwati-

“If the bark that protects the tree fails to grow and expand along-side the tree, it’ll either choke the tree or if it’s a living tree, it’ll shed that bark and grow a replacement living bark for itself. Similarly, if the law fails to reply to the requirements of adjusting society, then either it’ll stifle the expansion of the society and choke its progress or if the society is vigorous enough, it’ll discard the law, which stands within the way of its growth. Law must therefore constantly keep it up adapting itself to the fast-changing society and not lag behind.”

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References

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*Student of Centre for Legal Studies- Gitarattan International Business School, Rohini, New Delhi