The colonial history of the Indian Penal Code and how its influence extends to the BNS 

History of the IPC

Before the arrival of the East India Company, the Indian legal system consisted of a patchwork of laws, administered by kings or village tribunals. Even during the Mughal rule, local administration of justice was largely ignored, except when it concerned the collection of revenue or the repression of crimes affecting the stability of the state.

When the Company began its operations in the Indian subcontinent, it was largely subject to the dominion of the Mughals. However, even in its earliest days, it had obtained the authority of the British Crown to administer justice in the areas in which it operated. In 1618, Thomas Roe, the Ambassador of King James I, secured a treaty with the Mughals, permitting the Company to decide disputes between Englishmen. Still, its influence remained constrained and rarely applied to the native population.

According to Motilal Setalvad, the first Attorney General of India, the Company’s judicial hold over India coincided with the cession of Bombay by the Portuguese to the English in 1668. In The Common Law in India (1960), Setalvad argues that the charter of the Company over Bombay required it to enact “laws consonant to reason… and as near as may be agreeable to” English laws. Setalvad commends the first governor of Bombay, Gerald Aungier for his commitment to the same.

“The noble words of Governor Aungier deserve to be reproduced,” he writes, “for they enunciate principles which in the course of years that followed set the pattern for the administration of justice not only in the island but in other areas in the country.” Setalvad credits Aungier and the British for introducing a system of common law in India.

Supreme Court of Judicature at Fort William (Kolkata), c. 1786 (Public Domain)

As factory towns emerged in Bombay, Madras, and Calcutta in 1726, common law began to spread across the country. More than a century later, Queen Victoria’s Privy Council opined that English Criminal Law in India started in 1726 with the establishment of Company Courts in Presidency Towns and factories subordinate to them.

Although the Company controlled a significant amount of territory by the turn of the 19th century, it was largely preoccupied with mercantile matters. Across the rest of India, the laws were a complex array of parliamentary charters, Company regulations, English Common law, Hindu law, Muslim law, and other regional customs. According to author David Skuy, in Macaulay and the Indian Penal Code of 1862 (1998), this chaotic legal mixture convinced legal thinkers such as Thomas Babington Macaulay that India needed a uniform set of laws.

Governor Mountstuart Elphinstone’s 1827 Bombay Criminal Code also influenced Macaulay’s thinking. While he didn’t rely on Elphinstone’s code while writing his own, he was pleased to find that it had been adopted without resistance.

During a debate in Parliament in 1883, he stated, “’I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be applied.” According to his letters of correspondence, Macauley finished drafting the code in 1937, however, the Indian Penal Code (IPC) would remain in limbo for decades. 

In Macauley’s Indian Penal Code (2011), Barry Wright, a professor of law at Carleton University, argues that the IPC project was delayed by governmental inertia and resistance from European residents over having the same legal status as Indians. Wright notes that several crises including the Revolt of 1857, spearheaded the implementation of the IPC, elevating codification of the law into one of the main legislative priorities of the Crown.

The IPC was enacted in 1860 and came into force on January 1, 1862. It was discontinued on July 1, 2024. This makes it the longest-surviving common law code in the world.

Departing from English criminal law 

In the 19th century, British intellectuals often assumed that India’s indigenous legal system was primitive compared to England’s. The prolific jurist and legal reformer, James Stephen, characterised India’s legal system as vastly inferior to its Western counterpart. If indigenous law was not eliminated, Stephen argued, it would inevitably give way to the refined social customs of English society.

However, as Skuy notes, English law before the late Victorian period was not modern itself. The IPC was far more comprehensive than English criminal law, unintentionally demonstrating that “imperial powers were often able to do in their colonies what they were unable to do at home.” 

Macaulay’s speeches and writings indicated his contempt for English laws and he repeatedly affirmed that the IPC was a distinct legal entity, removed from the confines of any preceding laws. In The English Utilitarians and India (1990), British historian Eric Stokes echoes this sentiment. For Stokes, Macauley was an enlightened man, influenced by utilitarian thinkers such as Jeremy Bentham and John Stuart Mills. Of Macauly, he writes, “purging (each creed) of dogma and blending their practical claims and spirit, he voiced the trenchant, generous, empirical liberalism of the eighteen-twenties and thirties”

Macaulay envisioned the IPC to reflect a Universal Science of Jurisprudence, embodying liberal values and ushering in universality and equality. Despite that underlying sentiment, Arushi Garg, an assistant professor at the University of Cambridge, argues that the IPC was greatly influenced by prevailing notions of Western superiority and Macaulay himself, by English law. 

Thomas Babington Macaulay (Wikimedia Commons)

In line with its colonial origins, the IPC was designed to consolidate British rule and included several provisions that differentiated between coloniser and colonised.

For example, Garg points to the mitigating circumstances codified under the IPC provisions for murder. While they were supposed to be applied equally, colonial courts would often use those provisions to minimise sentences of British citizens. Colonial courts would rely on pseudo-scientific evidence that introduced bewildering notions such as that Indians have a uniquely weak spleen, which causes death more easily. Consequently, Europeans could not be convicted of murder as they could not have foreseen or intended to kill. 

“The use of expert and scientific evidence is leading the substantive law to operate in different ways from the procedural laws, depending on whether the victim is a local or European,” she says.

While the IPC was often used to shield Europeans from justice, it was also used to curb dissent amongst the native populations. In 1866, an Englishwoman was attacked by a man in Kohat, now a part of Pakistan. He fired a bullet at her in close range but barely scraped his target. During his trial, the man claimed that he came to Kohat with the intent of killing a European officer and was unaware that he was shooting at a lady.

Three days later, he was convicted of attempted murder and sentenced to immediate execution. The judgment far exceeded the maximum legal punishment for the crime. In his ruling, Peshawar Division Commissioner JR Becher justified the sentence, stating that “the fierce fanaticism directed against the lives of the ruling race of India is a special danger of this frontier, and one which requires to be taken into account in determining punishment.”

Theoretically, a European could fatally attack an Indian in broad daylight and escape punishment because natives have weak spleens (Fuller Case 1875). Whereas an Indian could be sentenced to death for a far far less severe crime. 

That was the backdrop against which the IPC was written. 

Enduring legacy

The penal code has worked for several generations across multiple countries, such as Malaysia, Singapore, Kenya, Uganda, and Sudan. In former colonies, each with distinct cultural practices, the penal code has influenced criminal law in some form. As senior advocate Sanjoy Ghose points out, even though India and Pakistan have fought three wars, up until this year, they have continued with the same criminal law.

According to Garg, even in countries where it wasn’t adopted, the Code could not be ignored as it “became so fundamental to conversations about the codification of criminal law.” The late English barrister Robert Wright once remarked that the IPC has been adopted by countries across the globe from America to New Zealand. “ In each of these great collections of mankind there are judges enunciating the law and schools teaching it, and professors meditating upon it, seeking to criticise and reform it,” he wrote in the book Legal Essays (1939).

Even Motilal Setalvad and BN Pandey have praised the IPC, the latter calling it “the perfect code”.

To begin with, the IPC was revolutionary for the Indian subcontinent. It introduced a codified and universal system of laws that ostensibly granted all colonial subjects equal treatment. It established an independent judiciary that could not be questioned by the British administration or Indian local leaders. It also created an adversarial system of trial.

According to Ghose, the IPC was also relatively simplistic. Drafted in a “commonsensical way”, it included illustrations detailing how the law would apply to different situations.

The Code has also sustained several iterations. According to Garg, the IPC “has been adapted, indigenised – even though it is a colonial-era code, it isn’t as though the development of laws stopped in 1947.” She states that a “part of the IPC’s story is that its longevity stems from the mechanisms it contains to consolidate state power.” While it was designed as a colonial utensil, it also provided value to subsequent Indian governments looking to “shore up their power.”

As a result, according to Tarun Khaitan, Chair of Public Law at the London School of Economics, the BNS, which replaced the IPC, contains much of the same provisions. Following an experiment he conducted, Khaitan estimates that the IPC and BNS share around 82 to 83 per cent of the same provisions. “Even a 16 per cent change is not nothing,” he states, but if there was no substantial textual change, the result could have been easily achieved through amendments to the existing code. That in turn would have saved the courts, the police and the prosecutions from significant overburdening.

Ghose agrees that most provisions remain the same. He criticises the replacement provision for sedition as “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.”

In an interview with Karan Thapar in June, Jaising says the rewording of the sedition clause in the BNS is problematic for two reasons. Firstly, it disregards the Supreme Court judgment staying the sedition law. Secondly, by using the words “sovereignty and integrity of India,” it conflates dissent with anti-nationalism. 

The BNS has also been criticised for how it was passed, with Khaitan describing the process as “short, inconclusive, secretive, and without any engagement with civil society.”

Ghose states that while the BNS is “futuristic,” it is not “practical.” For example, the BNS says that there should be a mobile forensic lab in every district court complex. Ghose questions the feasibility of such a prospect, especially given that the Chief Justice acknowledged that the judicial system cannot even provide toilets for female judges in certain courts. In an article for the Indian Express, Jaising writes that “while there are some positive changes, our institutions certainly do not have the capacity to implement them.” By her estimates, the backlogs for criminal cases could increase by 30 per cent because of the BNS.

Ambiguity over the implementation of the BNS has confounded individuals across the legal system, from patrol officers to senior lawyers. According to Khaitan, “We don’t even know if the 160 year body of jurisprudence established by the IPC will transfer to the new laws or whether it is now rendered pointless.”

In the speech to the British Parliament, Macauley said that the basis for any criminal code should be “uniformity where you can have it; diversity where you must have it; but in all cases certainty”. The new criminal laws are old wine in new bottles, doing little to separate India from its colonial past.