The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens. Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said last month that the 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.
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. Today, it is the longest serving criminal code in the common-law world. Paying a compliment to Macaulay’s masterpiece, James Stephen had remarked that “The Indian Penal Code is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made. It is to the French Penal Code and, I may add, to the North German Code of 1871, what a finished picture is to a sketch.” Today, most of the commonwealth follows the IPC and legislators would find it difficult to improve it in terms of precision, comprehensibility, comprehensiveness and accessibility. But on contemporary relevance or modernity, the IPC needs substantial changes.
Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced. The IPC’s original architect cannot be blamed for the current dismal state. 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. As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times. Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case. To extend Stephen’s metaphor of the IPC as a “manufactured article”, it has not been properly serviced, let alone remodelled, since leaving Macaulay’s desk.
There is no denying the fact that the philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy. Some of the concepts underlying the code are either problematic or have become obsolete. A re-examination of the sedition law, inserted in 1898, is necessary. It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Similarly, 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. There are doubts about the need for the continuation of the law on conspiracy that can be invoked merely when two people agree to commit an offence without any overt act following the agreement. The offence is objectionable because it was added to the code by the colonial masters to deal with political conspiracies. Justice T.R. Fitzgerald observed, “The law of conspiracy is a branch of our jurisprudence to be narrowly watched, to be zealously regarded and never to be pressed beyond its true limits.” Kehar Singh, Yakub Memon and Afzal Guru were all convicted and sentenced to death under the offence of conspiracy, though none of them participated in the actual crime or were present at the scene of the crime.
It is felt that under Section 149 on unlawful assembly, the principle of constructive liability is pushed to unduly harsh lengths. As mere membership of the assembly without any participation in the actual crime is sufficient for punishment, several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime.
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. Section 377 should also be repealed.
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