This article is written by Pooja Arora, from ILS Law College, Pune and has been edited by Abanti Bose, from Amity University Kolkata, India. This is an article that analyses the changes required in the Indian Penal Code.
Table of Contents
Introduction
Under colonial rule, India was governed by the laws made by the Britishers. This was for the convenience of the colonial empire and so that they could attain the objective of their ruling. The laws were stringent and harsh on Indians and criminalised many activities according to the English beliefs and legal system. Indian Penal Code (IPC) was formalised under the British Rule around 150 years ago. It specifies crimes and their punishments. Although the IPC is allegedly one of the strongest criminal laws and is extensive in its scope, the changing times have felt the requirement of revamping this old law and making it more relevant for modern democratic India. There have been many amendments over the years in the IPC, but there are many areas and provisions in this law that still need restructuring. Introducing certain amendments to the Indian Penal Code will ensure that the crimes that have evolved in recent times are also addressed. This should be done by keeping in mind democratic values and human rights.
Understanding the laws under the Indian Penal Code
Indian Penal Code, 1860 is the criminal code of India. It defines various activities that are considered to be a crime, their scope, nature, and penalties and punishments levied for the same. IPC is a comprehensive criminal code that covers the essential elements of criminal law. Unlike the Criminal Procedure Code (CrPC) it does not lay down the criminal procedure but only the various crimes and their punishments. IPC extends to the whole of India. It consists of 511 sections divided into 23 chapters. The objective of IPC was to implement the same criminal law across the country so that there are no inconsistencies. It has been amended various times to cope with the changing times.
Historical background
The IPC was introduced in India during the colonial rule as an attempt to bring a common criminal code in India and remove the defects of Mohammad law that prevailed in India at that time. This code had its roots primarily in English law but it was also based on some elements of the Napoleonic Code and Louisiana Civil Code of 1825. One of the first attempts to bring a penal code was in the year 1827 when the Elphinstone Code was introduced under the guidance of Governor Elphinstone. In 1833, the Charter Act was introduced which provided for the enactment of laws in India. Under this Act, the first law commission of India was established in 1834. The law commission under the chairmanship of Lord Thomas Babington Macaulay drafted the IPC and the complete draft was presented in the parliament in 1856. Several changes and alterations were suggested by Barnes Peacock before the code was presented in the Legislative Assembly. IPC was finally passed on 6th October 1860. This delay in passing the law was due to the famous revolt of 1857. IPC came into force on 1st January 1862 in India. However, it did not apply to the princely states as they had their legal system. After independence, India adopted this comprehensive code with open arms.
Need to revamp IPC
With the changes in society, perspectives of people, and the nature of crimes, the laws need to evolve as well. Although the IPC enacted in 1860 was ahead of its time and has been in India for one and a half-century, it has not kept pace with the progressive times. The Act brought in by the British to meet their needs and objectives has somewhere failed to serve the people in modern times. It is based on the colonial attitude of Britishers to rule India. Revamping of IPC is thus required to shift the power from the rulers to the people. The restructuring of IPC is needed as many of its provisions have become obsolete with changing economic developments and technological advances. Crimes like mob lynching, financial crimes, white-collar crimes, economic crimes, etc, have not found proper recognition in the IPC. There is also uneven punishment for crimes of grievous hurt, For example, a chain-snatching incident can be life-threatening as well, but under IPC this is not taken into consideration and an equivalent punishment is not provided for the same. It is booked under robbery or theft depending upon the police. Therefore, to standardize the punishment, IPC needs renewal.
There have been many amendments to ensure that IPC evolves with time, but it has not been amended totally since the date of enactment. Although certain amendments to the provisions of IPC have been made, as supported by the decisions of the courts. For example in the cases of adultery and the decriminalisation of homosexuality. IPC is based on the deterrent theory prevalent at that time but the criminal law needs to shift from the deterrent or distributive theory to the reformative theory of punishment. Some of the changes that need to be brought are:
- A gender-neutral definition of rape is required. Section 375 of IPC does not include men, hijras, and boys as the victims of rape and only considers women as victims of rape.
- Sedition under Section 124 A of the IPC was inserted by the Britishers in 1898 to control the uprisings against them and to suppress the freedom movements. However, in recent times this section is often misused against people who criticize the government.
- Section 57: Life Imprisonment as a punishment is at the discretion of the court as to the number of years. It depends more on the nature of the crime that has been committed. But, when it comes to the calculation of fractions of punishment, it is fixed for 20 years. This takes away the discretionary power of a judge and differences arise upon choosing the approach of giving punishments.
- Under Section 294, the act of annoying someone by performing any obscene act in public places is punishable. However, the word ‘obscene’ is not defined under the Act and this is often misused by the police.
- The punishments provided under Chapter 3 are very conservative. It only provides for imprisonment or fine. There is no mention of community service or reforming the criminal in any way.
Earlier amendments
Over the years, the nature and extent of crime have changed. The British made criminal code though was ahead of its time, needed amendments. The IPC has been amended about 77 times. However many recommendations from the 42nd report of the law commission 1971 have still not been adopted. The provisions for anti-dowry laws and stringent punishment for rape laws are some of them. Two of the major amendments were the criminal law amendment of 2013 and the Criminal Law Amendment Bill of 2018.
- 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. This amendment widened the definition of rape by including oral sex and the infiltration of other objects into women’s bodies as a crime. Considering the rising number of rapes in India and the severity of the heinous crime, this was a huge step. Stalking had also been criminalized under this act. It also considered the capturing and watching of women in a private demonstration against her will, to be a crime.
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.
- The insertion of Section 153 A and 509 was made to counter the racially motivated crimes. However, this did not receive support from all the states to that extent.
Evaluating the political agenda behind restructuring IPC
The Union Home Ministry proposed the idea to revamp the IPC, which was introduced during the British rule in India, based on the “master-servant” spirit. Under the Bureau of Police Research and Development, a committee has also been set up to look into the changes to be brought. The agenda for the government to rebuild this law which has been in force for so many years is to fulfill the democratic aspirations of the people and to ensure speedy justice and simplify legal procedures. Although the ministry claims the real reason to do this is to ensure speedy justice and the simplification of the legal system, one cannot help but think if there is any hidden political agenda behind this. IPC forms one of the basic criminal laws in the country that applies to all people. The changes in the IPC are surely required, however, the changes can be easily made to suit any one party or any politician. Changes should, therefore, be subjected to public opinion before being implemented.
Reforming the criminal system
IPC is a well-written code that has been amended many times over the years to bring a change in the criminal system. However, many scholars believe that the criminal system cannot be reformed just by revamping the IPC. The implementation of the code should also be efficient to ensure success. IPC cannot be enforced by the same police structures. Police reforms are needed for the changes in IPC to facilitate its successful operation. We need a change in the attitude of the police towards complainants, quick registration of first information reports (FIRs), and swift response against crimes. To change the attitude of the police towards the delivery of justice, many internal, external, and structural changes are also required. The police need to improve upon the available human resources, quality of investigations, and be more efficient. Additionally, it should be ensured that there is no external pressure on the police.
Suggestions
- The state’s suggestions should be taken into consideration. And surveys should be conducted by legal researchers to identify the offences that need to be added and the existing offences that need to be modified.
- 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.
Conclusion
Reforming the criminal justice system is not just a one-step process. Revamping IPC is a major step to modernize the criminal law of India and make it in accordance with the Indian democracy. The Britishers used IPC to their advantage and to put away freedom fighters, it was based on the deterrent theory. But now a shift has to be made from a deterrent to a reformative system. Revamping IPC will ensure that the criminal system will become more reliable and have the potential to understand and answer the reasons behind today’s crimes. It will also ensure that certain provisions of this age-old code that are not relevant today, are repealed. For example, Section 377 of IPC which criminalised homosexuality and was based on the victorian regime, was decriminalised in accordance with the changes in the modern era. Earlier, amendments made to code were fragmented and failed to bring about a significant change to the IPC as a whole. Fulfilling political agendas should not be the reason behind adding specific provisions. Although revamping IPC will lead to reforming the criminal justice system, additional changes in the police structure are also needed. Even if IPC is reformed, its implementation will be a challenge that the government will have to overcome.
References
- https://www.deccanherald.com/content/532874/time-revisit-ipc.html
- https://www.legalbites.in/indian-penal-code-general-introduction-background/
- https://theprint.in/opinion/macaulay-ipc-radical-in-19th-century-time-to-shift-power-balance-towards-indians/309374/
- https://lexlife.in/2019/10/31/analysis-does-the-ipc-need-overhauling/
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