Indian Penal Code
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History
The origins of the code
Arjun Sengupta, Aug 14, 2023: The Indian Express
The Indian Penal Code was enacted in 1860, and came into force on January 1, 1862. This makes it the longest surviving code in the common law world – perhaps a testimony to how well thought out it was, at the time of its creation.
However, times change. The Code came up during the heyday of British colonialism in India and was very much a product of prevailing attitudes and circumstances.
“The IPC as we know it today … presents the danger of perpetuating the moral judgments, values and policies of a bygone era,” legal scholars Stanley Yeo and Barry Wright write in their introduction to Codification, Macaulay and the Indian Penal Code (2011).
In fact, while it was enacted in 1860, the Code, in its first form, came up over two decades earlier.
The need for codification
As British colonial control expanded across the Indian subcontinent, so did the difficulties it faced in administration, particularly in the legal sphere.
“Indian law prior to codification consisted of a complex array of Parliamentary Charters and Acts, Indian legislation (after 1833), East India Company Regulations, English common law, Hindu law, Muslim law, and many bodies of customary law,” legal historian Marc Galanter wrote in ‘The Displacement of Traditional Law in Modern India’ (1968).
For Thomas Babington Macaulay (1800-1859), a leading legal mind of the time and Whig politician, this necessitated codification. He saw codification as the means to lift India from backwardness into modernity – as promised by the British “civilising mission”.
“The physical and mental distance separating East and West was to be annihilated by … transplanting the genius of English laws and English education. It was the attitude of English liberalism in its clear, untroubled dawn, and its most representative figure in both England and in India was Macaulay,” historian Eric Stokes wrote in his classic The English Utilitarians and India (1959).
Influence of Bentham
Macaulay was most directly influenced by the ideas of Jeremy Bentham (1748-1832), English philosopher commonly recognised as the father of modern utilitarianism. One of Bentham’s most central concerns was the codification of law. He saw the legal system in England as hopelessly cumbersome, a product of piecemeal legislation over centuries. Thus, he advocated for the replacement of all law with a “complete code of laws”, each with a set of reasons to justify it in the eyes of those compelled to obey it.
“Such a code, anchored in the principles of utility, would not only enhance the rule of law, but hold out promise of a ‘universal jurisprudence’, applicable to places as diverse as England and Bengal,” Barry Wright writes in ‘Macaulay’s Indian Penal Code: Historical Context and Originating Principles’ (2011).
For Macaulay, in a country like India, where laws did not just vary, but were also, in many cases, unwritten, a code was perhaps even more important. It would not only bring about consistency in laws, but also do away with the judicial discretion that marked the legal system of the time. Macaulay drafts the IPC
In 1833, the British Parliament passed the first Government of India Act to organise British rule in the country. Subsequently, a law commission was created under Macaulay to “modernise laws and the colonial governance of civil society.”
Echoing contemporary developments in English law reform, Macaulay began his task by focussing on criminal law. He completed the first version of the IPC in 1837. Notably, the IPC completely ignored existing Indian laws and instead was founded on British common law. This has prompted modern scholars such as David Skuy to say that the IPC represents the transplanting of English law in India, “not because Indian law was primitive, but because English law needed reform” (‘Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century’, 1998).
Unlike in England, where politics made major legal reform far more onerous, Macaulay pretty much had free reign to put his ideas into paper in India. However, it would take a mutiny for the IPC to be finally enacted.
The Rebellion of 1857 and the IPC
While Macaulay did receive a lot of latitude when it came to framing the IPC, it would take years for his proposal to finally be enacted. The IPC remained in limbo for years, undergoing revisions during that time.
According to Barry Wright, “The IPC project was delayed by governmental and legislative inertia, resistance by European residents to having the same legal status as indigenous populations and the loss of reforming momentum in the metropole.”
Multiple Governors-General of India, such as Auckland (1836-42) and Ellenborough (1842-44) felt reforms were not needed and opposed them with gusto. Crucially, at the time, India was still ruled by the East India Company, and not the British Crown itself.
However, the Rebellion of 1857 changed everything. It not only led to the eventual demise of the East India Company, with the British Crown taking over direct control in 1858, it also introduced a great crisis of legitimacy for colonial rule. With the rebellion being followed by brutal reprisals, it fundamentally shook the British claim of “enlightened” rule in its colonies.
“The English political classes… saw the legitimacy of British rule, founded on claims of constitutionalism and the rule of law, undermined by such repressive responses… Enactment of the IPC helped to address these concerns,” Barry Wright writes.
Embodies tenets of Islam, Hinduism
From the archives of The Times of India 2007, 2009
‘Penal code embodies tenets of Islam, Hinduism’
Saeed Khan | TNN
Ahmedabad: Gujarat High Court has observed that Indian Penal Code embodied the basic tenets of Islam and Hinduism that attack is permissible for self defence only and not to inflict injury to others. The order also defined Hinduism and the concept of jihad in detail.
Upholding a seven-year jail term awarded to two Muslims by a special Pota court in a firing incident on Surat-based lawyer Hasmukh Lalwala in 2002, a Bench comprising Justice Jayant Patel and Justice ZK Saiyed deprecated the act of violence as being revenge for post-Godhra violence.
Stressing that India is wedded to secular policy, the judges observed if citizens of the country start with mental strategy of division based on religion, it may result in damaging the unity of nation and consequently would tinker with the integrity and security of the nation.
‘‘Neither Hindu nor Muslim religion permits taking of revenge... no religion professes that if a person from one religion has committed misdeed, revenge should be taken from all persons following that religion,’’ the Bench observed.
The judges also dwelled on historical aspects and noted, ‘‘The Hinduism is based on principles of ‘Sahanshilta’. It has been cited so many times that it is on account of receptivity and adaptability of Hindu culture, it has survived for more than 5,000 years, though the number of persons following Hindu religion are less as compared to others in the world — Christians, Muslims and Buddhists...’’
The judges cited Maulana Wahiduddin Khan’s book ‘True Jihad’ to explain ‘Jihad’. Islam never permits ‘‘use of violence for taking revenge, but power is to be used only as a protective measure. It is only by way of self defence, attack is permissible. Such principles are interwoven even in the IPC for invoking the right of self defence,’’ the order states.
The court also observed, ‘‘The country is like a family having members of different ways of thinking and sometimes different way of praying to the God. Merely because the ways to get the blessings of God are different, one cannot divide the family...’’ The accused sentenced are Mohammed Tahir Bakaswala and Ashraf Nagori. Two others Liversingh Chikhligar and Ishaq Makrani died as undertrials and Salim Variava is absconding in this case.
Crimes by persons of unsound mind
2021: Madras HC
Sureshkumar K, Oct 31, 2021: The Times of India
Invoking a rare exemption under Indian Penal Code (IPC) for crimes committed by persons with unsound mind, Madras high court has set aside triple life sentences awarded to a CISF constable who shot dead three of his colleagues at Kalpakkam Atomic Power Plant in 2014.
“Even in Kautilya’s Arthasastra, there is an exemption from punishment for a mentally ill offender,” said a division bench of Justice P N Prakash and Justice R N Manjula on Friday. Vijay Pratap Singh, head constable in the Central Industrial Security Force (CISF), was found to have suffered from chronic schizophrenia since 2012. But unaware of this, the force allowed him to handle a 9mm carbine submachine gun.
Though the additional district and sessions judge of Chengalpet failed to appreciate the facts about this mental illness and sentenced Sindhi to life imprisonment, the bench addressed the issue and decided to grant him the rare exemption after considering undisputed medical records.
“That, however, is not the end of the matter. An accused who is acquitted by taking recourse to the exception under Section 84 IPC can’t be allowed to go Scot-free and be unleashed on society,” the HC said.
Pointing out the requirement to pass consequential orders for the safe custody of such accused persons under the CrPC, the judges directed immediate transfer of Vijay Pratap Singh the Government Mental Hospital, Bareilly, Uttar Pradesh which is his home town, so that he could get adequate family support.
This apart, the court directed payment of Rs 3 lakh as compensation from the victim compensation fund of Tamil Nadu to the family of the deceased in addition to Rs10 lakh already paid by the Centre.
According to prosecution, On October 8, 2014 at around 4am the accused who was on morning shift collected his weapon from the armoury and went to the barrack and killed head constable Mohan Singh.
Then he proceeded towards the parade ground and fired indiscriminately at other personnel who were preparing for the shift, resulting in the death of Subburaj, head constable, and Ganesan, assistant sub-inspector.
When everyone was fleeing for their safety, Shoba, an CISF inspector, confronted him and ordered him to lay down his weapon. On her orders, Vijay Pratap Singh meekly laid down the weapon and surrendered. Subsequently, he was arrested and remanded to judicial custody.
Criminal intimidation and the law
The Times of India, Oct 10 2015
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Abhinav Garg
Victim of online trolling? Fight back with offline laws
Contrary to what many believe, it is possible to punish trolls using existing provisions of the law. Web users need to stop suffering in silence, say experts India may soon see the first high profile arrest of an internet troll. On the complaint of a woman television journalist, Delhi Police registered an FIR in June this year against a conspicuous though anonymous Twitter handle. Swati Chaturvedi alleged the handle belonged to a senior journalist who heaped sexual abuse on her and harassed her online, goading his 40,000 odd followers also to troll her. Unlike other victims who either wind up their account or block abusers, the journalist lodged a case under the IPC for stalking, defamation, and outraging the modesty of a woman. Its effect was instant -the handle disappeared and the offensive tweets were deleted.
Though the abuser remains free, police sources indicate they have zeroed in on his identity . The delay in arrest and prosecution of such cases remains the central challenge for the Indian legal framework when it deals with online abuse through laws that are basically aimed at offline crimes.
Social media has given people a platform to air their views but it has also left them vulnerable to slander, character assassination, intimidation and defamation. Supreme Court lawyer Virag Gupta blames the brazenness of trolls on the high threshold of tolerance among web users. “A troll is a person who sows discord on the Internet by starting arguments or upsetting people, by posting inflammatory , extraneous or off-topic content on a newsgroup, forum, chat room or blog with the deliberate intent of online harassment. The ways in which people are harassed include cyber bullying, revenge porn, trolling, virtual mobbing and so on,“ Gupta explains, adding that these offenders are punishable under the IPC.
Along with former BJP leader K Govindacharya, Gupta has been pushing to make social media sites such as Google and Facebook more accountable to Indian users. In a PIL in Delhi High Court, he has accused them of evading taxes, leaving children exposed to cyber criminals and storing information on servers based abroad.
“There are two ways to counter harm ful acts committed on social media: new laws or using existing provisions under criminal law. It is not the medium but the behaviour that constitutes an offence. So provisions of the IPC would be attracted even for actions on the internet against the sender of the message and even the platform,“ Gupta says.
Till March this year, the government used Section 66A of the Information Technology Act as the remedy for all online abuse, but the Supreme Court struck it off from the law books. The apex court found the section to be not just “vaguely worded“ but also in violation of the Constitution since it criminalized speech on the subjective annoyance of a user. SC further faulted the provision for creating a new offence only on the basis of the medium used for communication.
Does this then mean that an important weapon against online abuse has been taken away by the SC? Not really , says Anja Kovaks, director of Delhi-based Internet Democracy Project. Kovaks and her team of researchers studied sexist comments, some of them downright abusive, faced by women vocal on social media and how the victims dealt with these. Their report, `An Exploratory Study of Women and Verbal Online Abuse in India', pitched for greater use of “alternative legal provisions“ by victims of online harassment and the “development of a broader women's law that accounts for systemic discrimination“.
Kovak says victims, mostly women, “develop a variety of strategies to deal with the verbal threats they face online but these strategies very rarely include the law.“
Section 295
2015: Punjab proposes life for sacrilege
The Times of India, Nov 20 2015
Rohan Dua
Populist Punjab approves life term for sacrilege
The Punjab cabinet announced it would introduce a new amended section -295 AA -in the IPC to punish with life imprisonment those involved in sacrilege of the Guru Granth Sahib. Hurting religious sentiments, currently covered under Section 295 A, makes sacrilege punishable by threeyear jail. “This would act as a deterrent to prevent the recurrence of such unfortunate incidents in future,“ deputy CM Sukhbir Badal said.
The move follows over a dozen cases of Guru Granth Sahib desecrations in the past couple of months which triggered violent protests.Two protesters were killed when cops fired on protesters in Faridkot last month.
BJP welcomed the move, but added that the government should seek a similar punishment for disrespect to Hindu idols in temples where prana pratishtha (idol consecration) is followed even as one of the party's ministers attended the cabinet meeting.
“SAD must understand that Hindu gods are equally important to devotees and the faithful in Punjab. The same law must include disrespect at temples as well,“ said BJP national secretary Tarun Chugh.
