160 YEARS OF INDIAN PENAL CODE
RSTV PERSPECTIVE : 160 YEARS OF INDIAN PENAL CODE
- 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.
- The Home Ministry is all set to overhaul the Indian Penal Code.
Recent efforts to overhaul:
- Recently the Ministry wrote to all States and Union Territories seeking suggestions to amend various sections of the IPC.
- Two committees comprising legal luminaries have also been constituted by the Ministry.
What is IPC?
- The Indian Penal Code (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 in 1860 on the recommendations of first law commission of India established in 1834 under the Charter Act of 1833 under the chairmanship of 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 IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism.
- It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire.
- The draft was based on the simple codification of the law of England, while at the same time borrowing elements from the Napoleanic Code and Louisiana Civil Code of 1825.
Structure of the Indian Penal Code:
- The IPC in its various sections defines specific crimes and provides punishment for them. It is sub-divided into 23 chapters that comprise of 511 sections
- Today, it is the longest serving criminal code in the common-law world.
Why it needs a review?
- IPC, 1860 requires a thorough revision to meet the needs of the 21st century. In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then.
- Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced.
- The rebooting of IPC introduced by the British in 1860 was necessary as it is primarily based on the spirit of “master and servant.”
- In the British era, the police were raised to protect their interests, but now their duty is to “protect the people”.
- Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the law commission in 1971 recommending it — the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha.
- Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case.
Areas that need reforms:
- A re-examination of the sedition law, inserted in 1898, is necessary.
- The offence of blasphemy should have no place in a liberal democracy and, therefore, there is a need to repeal Section 295A, which was inserted in 1927.
- Criminal conspiracy was made a substantive offence in 1913. The offence is objectionable because it was added to the code by the colonial masters to deal with political conspiracies.
- Under Section 149 on unlawful assembly, the principle of constructive liability is pushed to unduly harsh lengths.
- The distinction between “culpable homicide” and “murder” was criticised even by Stephen as the “weakest part of the code”, as the definitions are obscure.
- Sexual offences under the code reveal patriarchal values and Victorian morality. Though the outmoded crime of adultery gives the husband sole proprietary rights over his wife’s sexuality, it gives no legal protection to secure similar monopoly over the husband’s sexuality.
- Criminal (Amendment) Act, 2013: The bill introduced before the enactment of this Act was also called the anti-rape bill. The Act was introduced to make the rape laws in India more stringent.
- Criminal Amendment Act, 2018: This Act was furthered to strengthen the rape laws. The quantum of punishment was increased from at least 7 to 10 years. Provisions for punishment for rape of a girl under 12 years and 16 years were also added under it.
- In 2016, the Home Ministry had proposed insertion of two stricter anti-racial discrimination provisions in the IPC. The two amendments — Section 153A and Section 509A “to deal with racially motivated crimes” received lukewarm response from the States.
- Unnatural Offences-Section 377: The Supreme Court, finally in the case of Navtej Johar, obliged and decriminalised the portion of this Section which punished consensual acts of this nature.
- Attempt to Commit Suicide – Section 309: though the amendment to this effect has not been carried, albeit, the use of the provision has minimized, by the coming into force of the Mental Healthcare Act, 2017.
- Adultery – Section 497: this Section, which criminalised and prescribed punishment, was criticised for treating a woman as the private property of her husband and imposing moral principles on married couples. This Section was finally struck down by the Supreme Court in September 2018 while disposing of the case of Joseph Shine v. Union of India
Criminal Justice System in India:
- Criminal Justice System refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct.
- Criminal justice system reforms broadly comprises three sets of reforms viz. Judicial reforms, Prison reforms, Police reforms.
Legal Framework for Criminal Jurisprudence in India:
- The Indian Penal Code (IPC) is the official criminal code of India.
- The Code of Criminal Procedure (CrPC) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1st April 1974.
Issues in Criminal Justice System:
- There were about 4 crore pending cases in the Supreme Court, High Courts and district courts.
- India has one of the world’s largest number of undertrial prisoners. This delay in disposal of cases is leading to human rights violations of the undertrials and convicts.
- Despite the Supreme Court’s directions on police reforms, there had been hardly any changes on the ground.
- Corruption, huge workload and accountability of police is a major hurdle in speedy and transparent delivery of justice.
- The codification of criminal laws in India was done during the British rule, which more or less remains the same even in the 21st century.
Suggestions to improve CJS:
- Some provisions in IPC may be deleted and left for redressal under the law of Torts, as it is in England.
- Penal code should be modified to incorporate the present day societal, economic, and other changes. The Penal code can be divided into various codes incorporating social offences, correctional offences, economic offences and a Indian penal code.
- Digitisation of documents would help in speeding up investigations and trials.
- Increasing awareness of laws among police personnel, increasing the number of police personnel and stations in proportion to the number of complaints in an area, and including social workers and psychologists in the criminal justice system.
- The focus also needs to be on the victim’s rights and smart policing. There is a need to study the rate of conviction of police officials and their non-compliance of law.
- Implementation of Malimath committee (2000) recommendations.
- Institutional reform including proper investigation of crimes, rationalisation of court systems by inducting technology, limiting appeal procedures to a minimum.
- Reforming the property based bail system, provision of proper legal support to remove problem of undertrials, improvement of prison conditions is needed.
Some of the changes that need to be brought in IPC are:
- The laws which are outdated and not relevant in the present times should be identified and empirical research should be done for the same. The problems with the enforceability of the provisions should also be checked.
- The rate of sexual offences is very high in India. Despite the various amendments, there are many loopholes in the law. Considering this, a separate chapter can be created dealing with the various sexual offences and their punishment.
- The chapters in IPC can also be classified on the basis of the nature of liability such as mild, moderate, and major liability.
- To avoid duplicity and confusion, separate chapters on cyber laws, economic offences, etc. should be added to IPC.
- Illustrations provided with various sections are now totally outdated from the standpoint of today’s standards. They were relevant when the case law was not developed so the need to replace them is quite significant.
- IPC should not have any political biases and should not be in favor of any political party. It should equal and protect the interests of the citizens. It should uphold the principles of democracy and a fair justice system.
- The setting up of a five-member expert committee by the Union Ministry of Home Affairs to overhaul criminal laws in the country is a welcome step that is long overdue.
- The Indian Penal Code and its corollary laws, the Indian Evidence Act and the Code of Criminal Procedure, were all first enacted in the late 19th-century and, despite proposals and suggestions in the past, have not undergone comprehensive revision.
- The Indian Penal Code, the legislation that an ordinary citizen arguably interacts with the most, and which governs his relationship with the state, is still rooted in colonial ideas.
- Although some changes have been made through amendments and judicial pronouncements, the laws do not reflect the aspirations of a Constitution that gives primacy to liberty and equality.
- While it took 158 years for the courts to decriminalise homosexuality and adultery — provisions in the IPC that echoed Victorian morality — many others that still remain in the books do not recognise individual agency. This is especially true for women.
- Sedition, punishable with imprisonment for life, is another colonial spirited law misused by the state against its citizens — and another provision that needs revisiting.
- Even as new crimes need to be defined and addressed, especially concerning technology and sexual offences, it is important to not give in to populist demands and run the risk of excessive policing and over-criminalising — when dealing with demands for safety, governments often take refuge in stricter laws and harsher punishments.