The IPC in the mirror of history

Tahir Mahmood

former Chairman, National Minorities Commission, and ex-Member, Law Commission

SPEAKING in 1861 on the Indian Penal Code (IPC), enacted by the British rulers of India in the preceding year, eminent jurist James Stephen said: “The IPC is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made.” Over a century and a half later, then President Pranab Mukherjee observed: “The IPC has undergone very few changes in the last 155 years. Very few crimes have been added to the initial list of crimes and declared punishable. Even now, there are offences in the Code which were enacted by the British to meet their colonial needs. Yet, there are many new offences which have to be properly defined and incorporated in the Code. It is a challenge to bring all new-age offences with their intricacies within the ambit of the criminal law.”

Enactment of the new laws is welcome, but all new laws must remain strictly secular — not reflecting any particular ideology.

In the light of these two observations, we need to look into the genesis of the IPC and its development both before and after Independence.

In 1833, three centres of foreign rule, the so-called Presidencies, were brought under a centralised system of governance. A central Legislative Council was established to make laws for all the territories then in possession of the British imperialists. Two years later, a Law Commission was set up under the chairmanship of Thomas B Macaulay, law member of the new council, for drafting the laws to be enacted afresh. The unacknowledged source of all such laws was to be the English common law.

The first job assigned to the commission was to enact a comprehensive penal law. A hurriedly prepared draft for it was submitted to the Governor-General in 1837. In the subsequent years, it was thoroughly revised by Macaulay’s successors Drinkwater Bethune and Barnes Peacock. The revised draft was placed in the Legislative Council in 1856. Its enactment was halted because of the first Indian war of independence, which the British damned as a ‘mutiny’ and suppressed with their might. Alarmed by this development, the government got the draft revised once again to arm itself with the power to suppress the ‘rebels’ in future, and presented it to the Legislative Council. Passed on October 6, 1860, it came into force on January 1, 1862, by the name of the Indian Penal Code.

The code was quickly translated into Urdu, which was then the court language, by a team of professionals in Allahabad, chaired by eminent scholar Deputy Nazir Ahmad. It was given the name ‘Tazirat-e-Hind’ (penal laws of India) by which it is popularly known till this day. After 1947, when Hindi gradually replaced Urdu as a court language, the title of the IPC was translated as Bhartiya Dand Sanhita, but the new title did not become popular. In Bollywood movies, as also in the Bar and Bench in several parts of India, the code is still known as Tazirat-e-Hind.

As originally enacted, the IPC had 511 sections put under 23 chapters. Until Independence, it had been modified by 11 Indian Penal Code (Amendment) Acts enacted one after the other. To the original 23 chapters of the IPC were added two — on criminal conspiracy and offences relating to elections, inserted in 1913 and 1920, respectively, thus, bringing the total number of chapters to 25. Beginning in 1959, Parliament amended the code 12 times. Since the original enactment of the code in 1860, as many as 61 new sections have been inserted in it, each marked with letters of the alphabet added to the immediately preceding section so as not to disturb the original serial numbers. The number of the sections repealed from time to time is 21.

After all these additions and deletions, the total number of IPC sections at present is 555. With all the alterations and modifications, the IPC is a very confusing and complicated code of law. The original code was wholly written in Victorian English, which now seems quite out of date, while additions made in recent years are very different in language and construction. This has turned the IPC into a linguistically hybrid law. On the whole, the code has outlived its grandeur.

Certain sections of the IPC are archaic and reminiscent of our colonial past. The most glaring among these is Section 124A, relating to the offence of sedition — added in 1870 and made more stringent in 1898. Meant to prevent nationalist rebellion against the foreign rulers, this provision should have no place in the penal code of the sovereign, democratic republic of India. The judicial concerns and approaches to criminalisation of consensual homosexuality (Section 377) and decriminalisation of adultery (Section 497) are to be duly attended. Section 494, which makes bigamy an offence only if it is prohibited by the family law applicable in a given case, needs reconsideration. Growing misuse of Section 498A, which pertains to cruelty to women by their husbands and in-laws and was inserted in the code in 1983, also calls for urgent attention.

In this background, the move of the present political dispensation at the Centre to bring about a new penal code should be duly hailed. Along with the IPC, the Indian Evidence Act of 1872 and the Code of Criminal Procedure, (CrPC), 1973, are also to be replaced with fresh legislation. Originally enacted by the British rulers in 1861, the CrPC was replaced by them with a new version in 1898, which remained in force for the next 75 years. The revision of the present CrPC, which was enacted 26 years after Independence, will not be as stupendous a job as that of the now 163-year-old IPC.

The enactment of the new laws in conformity with the Indian social ethos and needs of the time would be welcome, but all new laws must remain strictly secular — not reflecting any particular ideology.

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