Time to revisit IPC
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Two prominent reasons can be attributed to this. The code has been premised on some very basic principles of criminal jurisprudence and hence the underlying expositions and definitions in the IPC mostly remained unchallenged.
The remarks made by the President of India while addressing a gathering of advocates in Kochi last week about the need to revise the IPC of 1860 in the wake of fresh challenges in the modern society have again underlined the possibility to undertake a comprehensive exercise for revisiting the Indian Penal Code. Besides the ongoing controversy on the law of sedition, there are enough cogent reasons for this. It also is interesting to explore as to why many extensive amendments, except the amendments of 2013, could not be made in the Code.
Two prominent reasons can be attributed to this. The code has been premised on some very basic principles of criminal jurisprudence and hence the underlying expositions and definitions in the IPC mostly remained unchallenged. Besides, the classification of offences was kept generic and wider enough to include a vast array of wrong-doings and therefore it also did not pose major problems until recently.
The history of making of IPC offers useful insights into its character, coverage and principles which stood the test of time. The code was a product of 19th century English law reform debate, in particular, Bentham’s idea of comprehensive codification but unlike many British Colonies, England never codified, despite Macaulay’s hopes that IPC would inspire stalled efforts there. The cardinal principles governing the philosophy of IPC were based upon the Utilitarian traditions developed by thinkers such as James Mill and Bentham in conceiving and contemplating a comprehensive law for contemporary India. Barry Wright a Professor of Criminal law in Canada, finds that the IPC was most Benthamic and arguably the most influential British Criminal Code. Despite its success, the IPC did not resolve tension between the universal and the situational principle and pragmatism and deductive and inductive reasoning that persisted through Bentham’s ideal conception of codification. Macaulay wanted to shift law making from courts to legislature and limit judges to simple application of law. Macaulay relied on many laws and documents in shaping the Code such as the Louisiana Code of law and French Penal Code. Despite many changes since beginning, the basic structure of the Indian Penal Code has remained the same since it’s very first draft. The factors like judges having a uniform set of rules and legal principles upon which to base their decisions; and Hindu and Muslim law simply lacked the necessary ingredients of a modern legal system were the weaknesses that have caused jurists historians to convince that India needed a fresh law as part of the reform process.
Lord Macaulay who presided over Indian Law Commission was entrusted to lead the responsibility of this project and he wanted to replace a patchwork of Muslim and Hindu laws overlaid with a mixture of transplanted English laws and the East Indian Company regulations to ensure an objective law of justice. McCauley envisaged four-fold objectives for the code: one, the code should be more than a mere digest covering all aspects of the law, second, the code should suppress crime with least infliction of suffering and allow truth discovery in most efficient way, third, the code should be unequivocal and concise and fourth the uniformity in definition and procedure must be the key feature in the code. In nutshell, Macaulay premised the IPC on the principle: uniformity when you can have it; diversity when you must have it; but, in all cases certainty.
Prof. Barry Wright, dealt with the issue of revision of IPC when it celebrated its 150th year and found that the task of updating IPC was difficult and aim of perfecting the IPC in accordance with the original principles would be highly complex.
The canons of legal realism would show that the law has a tendency of being located in a context of contemporary social, political and cultural milieu. Accordingly, the judicial interpretations of the legal provisions also tend to shape. All the laws do not have a natural and structural ability to imbibe such changes. Resultantly, a gap between the promise of law and performance of law surfaces. The limiting premise for any law is its inability to anticipate new situations, novel issues and developments. The need, therefore, to contextualize the code in wake of new challenges is axiomatic.
Thinking of revision project of IPC would be an acknowledgement of influence of extra- legal factors affecting the operation of code. The IPC was essentially a cultural product that reflects a European lineage which was quite alienated to many indigenous colonial cultures. Macaulay also had his own limitations of understanding the cultural nuances of the region. Besides, he had a specific political context of improving the contemporary British governance which was facing challenges to its sovereignty. The most powerful argument going in favour of revisiting IPC remained that the rule of law enshrined in code was more about sovereignty of the state than the rights of the people. It therefore provides tremendous scope to contextualize the IPC from the perspective of rule of law in modern sense. In this sense, the IPC was more of a liability creating law alone than the right-conferring proposition. This stance holds well in a constitutional democracy.
By and large the IPC has successfully lived up to the expectations of people at large. The IPC has been subjected to a very limited number of amendments. And these amendments were not substantial in nature. The need is often felt that construction of offence and punishment present in IPC fall short of current day society’s expectations. Many changes in complexion of crime and criminal justice dispensation has taken place which have not been captured in the description of offences as entailed in the IPC.
The legislature in the independent India preferred to create separate enactments as ‘Local and Special Laws’ to deal with various kinds of offences not included in IPC. For instance Cyber Crimes, Drug Offences, Economic Offences, Juvenile Offences, Customs & Excise Offences and further there are many more emerging forms of crime to which IPC does not address.
The IPC is divided into XXII chapters and has 511 sections. The experience of enforcing IPC in the country clearly brings out that more than 40% of offences that are registered pertains to two classes – under chapter XVI – Offences affecting human body and chapter XVII – Offences against property. Significant from the standards of present day society, the offices relating to public order, sexual act and economic crime constituted only 3.0, 4.7 and 5.0 percent respectively in the year 2014 according to the crime in India. This skewed distribution is the function of classificatory anomalies in the IPC which as per new trends need a reconsideration.
A quick perusal to pattern of offence registered and disposal of cases would find that there are offences in IPC which fall in the category of ‘rarely or exceptionally invoked’. This category include Offences relating to Public Justice, Offences related to Army, Navy, Airforce, Offences against State and many offence under the head of local and special laws.
Apart from this structural deficiencies, there are some fundamental areas calling attention to make changes in the IPC. The IPC as a law was created much before the emergence of constitutional democratic regime and therefore it has significantly failed in capturing the essence of these principles. The mismatch between legal provisions and constitutional aspirations therefore becomes visible at various places in the IPC.
The need of revision in the IPC also stems from the debate on issue of criminalization of sexuality. This scenario provides a position taken by the Supreme Court of India which enforced a victorian morality regime to people of various sexual orientation. On the other hand, Delhi High Court’s decision on this subject interpreted this as per section 377 of IPC in context of people’s choices in a constitutional democracy. The law criminalizing homosexuality and adultery in the IPC is quite contrary to the people’s expectations in modern era. This dilemma rests in many sections of the IPC. The initial premise in the IPC were clearly in favour of guiding public morality in identifying and defining underlying principles in the IPC and hence places public interest issues on a higher pedestal, back seating concerns relating to privacy of people.
In case of adultery the liability is completely fixed on male and female have been kept away from purview of liability. This construction is also quite against the notion of gender equality and needs rectification in an appropriate manner.
The IPC also reveal an interesting gender analysis which again becomes a ground considering changes in it. The IPC has provisions dealing with sexuality, procreation and marriage and the implications of the operation of this part of IPC raises complex issues of privacy and discriminatory application of law to men and women. The loaded patriarchal value framework in the IPC allows heterosexual relations in privacy and within the marital relations. The legal provisions relating to obscenity, prostitution and trafficking adopt a sexist approach and in many cases criminalization becomes unnecessary and the agency of women has not been recognized in a liberal context.
The punishment provided in Chapter III of IPC also provide a clear case of revision as section 53 enumerates the type of punishments that can be imposed. This classification is highly conservative in view of significant developments which have taken place in penology and correctional administration. For instance the punishment types does not have the mention of community services, restorative provisions and other community based obligations for offenders. Having death penalty on statute book is also contrary to the ideas of humanizing criminal justice response and punishment for offender.
Keeping of death penalty in the IPC had a different objective inthe beginning as the state wanted to profess a retributive stance and deterrent move for potential offenders and against the people joining mutiny. All such reasons have now vanished and the presence of death penalty in master criminal law of India defies modern principles of penology and rehabilitation.
In many nations the state has raised the quantum of fines for various wrongdoings so that victims could be compensated for injustice out of this corpus. A survey of various punishments in IPC would reveal that the range of fines is from a few hundreds to a few thousands. This by any measure is not sufficient nor does it serve any purpose for compensation to victims of crime.
The most pertinent amendment in the IPC were made in the year 2013 after Delhi gang rape incident. Significant changes in IPC were made to create new category of offences. These changes were quite contemporary and took into consideration the new methods of crime commission in account. It included Acid Throwing as an offence under section 326 (A) and 326 (B). It also placed a punishment in section 166B for non-treatment of victim. The definition of rape was expanded to cover many forms of non-penetrative actions.
As a substantive law the IPC made drastic changes in the existing section 354 by including many other forms of crime. In keeping the rising instances of sexual harassment, stalking, voyeurism, trafficking in mind , section 354 (A) on sexual harassment, Section 354(B) on Sexual Assault, Section 350 (C) on voyeurism and section 350 (D) on stalking were added. By far, this was the most significant change seen by IPC in capturing new variety of crimes in its fold. The punishment for rape by public servant was also enhanced up to 10 years extendable to imprisonment of life. The offence of gang rape in section 376 was added in context of Nirbhaya case. While these changes are significant, the President of India’s insistence on revisiting the IPC still holds correct.
The post 2013 IPC amendment experiences on the part of police have evoked a mixed response which again underlines a more careful and research based exercise in contemplating changes in the IPC. The fact remains that police in this country is overworked and amendments would not be effective unless enforcement agencies are provided with matching resources. Registering cases under voyeurism, stalking etc. involves lot of subjectivity and therefore these offences are required to be more coherently defined. Another problem with this change in IPC is its integration. All these offences under section 354 havebeen placed in chapter ‘Offences against Human Body’. This in turn creates a conceptual confusion as how offences such as stalking, voyeurism could fall in offences against human body.
The project IPC revision would require the following suggestions for a comprehensive revamping of law:
1. There is a need to have empirical legal research showing areas required to be contemplated as new offences in the code. This project must be substantiated by empirical researchers and to be handled by professionals by undertaking extensive pre-legislative surveys.
2. The same process should also be applied in case of identification of offences to be dropped from the IPC on account of being outdated nature and issues of enforceability involved in them.
3. Considerable restructuring and re-arrangement of chapters in the IPC could be done, for instance in the areas of sexual offences. Despite changes in law following nation-wide agitation, there is no separate chapter on sexual offences in IPC. It is therefore the right time to dedicate a full chapter on this subject to bring all sexual offences at one place.
4. The chapter in the IPC on classification could also be based on the nature of liability such as mild, moderate and major liability, so that the quantum of fine could be spelled out accordingly.
5. To be comprehensive enough, the IPC must also include chapters on cyber laws, economic offences, and terrorist offences in the code. This would be helpful in avoiding duplicity and confusion.
6. 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.
7. In the revised project, the indigenousness in the framing of laws must be given space which was completely left out by the IPC.
The IPC seems to have fallen short as a scientific legislation fulfilling the need of a universal jurisprudence. But has given a framework to the jurists to develop a more rationalist and constitutionally grounded law for a rapidly growing democracy like India.
The author is Professor at the National Law University, Delhi
Two prominent reasons can be attributed to this. The code has been premised on some very basic principles of criminal jurisprudence and hence the underlying expositions and definitions in the IPC mostly remained unchallenged. Besides, the classification of offences was kept generic and wider enough to include a vast array of wrong-doings and therefore it also did not pose major problems until recently.
The history of making of IPC offers useful insights into its character, coverage and principles which stood the test of time. The code was a product of 19th century English law reform debate, in particular, Bentham’s idea of comprehensive codification but unlike many British Colonies, England never codified, despite Macaulay’s hopes that IPC would inspire stalled efforts there. The cardinal principles governing the philosophy of IPC were based upon the Utilitarian traditions developed by thinkers such as James Mill and Bentham in conceiving and contemplating a comprehensive law for contemporary India. Barry Wright a Professor of Criminal law in Canada, finds that the IPC was most Benthamic and arguably the most influential British Criminal Code. Despite its success, the IPC did not resolve tension between the universal and the situational principle and pragmatism and deductive and inductive reasoning that persisted through Bentham’s ideal conception of codification. Macaulay wanted to shift law making from courts to legislature and limit judges to simple application of law. Macaulay relied on many laws and documents in shaping the Code such as the Louisiana Code of law and French Penal Code. Despite many changes since beginning, the basic structure of the Indian Penal Code has remained the same since it’s very first draft. The factors like judges having a uniform set of rules and legal principles upon which to base their decisions; and Hindu and Muslim law simply lacked the necessary ingredients of a modern legal system were the weaknesses that have caused jurists historians to convince that India needed a fresh law as part of the reform process.
Lord Macaulay who presided over Indian Law Commission was entrusted to lead the responsibility of this project and he wanted to replace a patchwork of Muslim and Hindu laws overlaid with a mixture of transplanted English laws and the East Indian Company regulations to ensure an objective law of justice. McCauley envisaged four-fold objectives for the code: one, the code should be more than a mere digest covering all aspects of the law, second, the code should suppress crime with least infliction of suffering and allow truth discovery in most efficient way, third, the code should be unequivocal and concise and fourth the uniformity in definition and procedure must be the key feature in the code. In nutshell, Macaulay premised the IPC on the principle: uniformity when you can have it; diversity when you must have it; but, in all cases certainty.
Prof. Barry Wright, dealt with the issue of revision of IPC when it celebrated its 150th year and found that the task of updating IPC was difficult and aim of perfecting the IPC in accordance with the original principles would be highly complex.
The canons of legal realism would show that the law has a tendency of being located in a context of contemporary social, political and cultural milieu. Accordingly, the judicial interpretations of the legal provisions also tend to shape. All the laws do not have a natural and structural ability to imbibe such changes. Resultantly, a gap between the promise of law and performance of law surfaces. The limiting premise for any law is its inability to anticipate new situations, novel issues and developments. The need, therefore, to contextualize the code in wake of new challenges is axiomatic.
Thinking of revision project of IPC would be an acknowledgement of influence of extra- legal factors affecting the operation of code. The IPC was essentially a cultural product that reflects a European lineage which was quite alienated to many indigenous colonial cultures. Macaulay also had his own limitations of understanding the cultural nuances of the region. Besides, he had a specific political context of improving the contemporary British governance which was facing challenges to its sovereignty. The most powerful argument going in favour of revisiting IPC remained that the rule of law enshrined in code was more about sovereignty of the state than the rights of the people. It therefore provides tremendous scope to contextualize the IPC from the perspective of rule of law in modern sense. In this sense, the IPC was more of a liability creating law alone than the right-conferring proposition. This stance holds well in a constitutional democracy.
By and large the IPC has successfully lived up to the expectations of people at large. The IPC has been subjected to a very limited number of amendments. And these amendments were not substantial in nature. The need is often felt that construction of offence and punishment present in IPC fall short of current day society’s expectations. Many changes in complexion of crime and criminal justice dispensation has taken place which have not been captured in the description of offences as entailed in the IPC.
The legislature in the independent India preferred to create separate enactments as ‘Local and Special Laws’ to deal with various kinds of offences not included in IPC. For instance Cyber Crimes, Drug Offences, Economic Offences, Juvenile Offences, Customs & Excise Offences and further there are many more emerging forms of crime to which IPC does not address.
The IPC is divided into XXII chapters and has 511 sections. The experience of enforcing IPC in the country clearly brings out that more than 40% of offences that are registered pertains to two classes – under chapter XVI – Offences affecting human body and chapter XVII – Offences against property. Significant from the standards of present day society, the offices relating to public order, sexual act and economic crime constituted only 3.0, 4.7 and 5.0 percent respectively in the year 2014 according to the crime in India. This skewed distribution is the function of classificatory anomalies in the IPC which as per new trends need a reconsideration.
A quick perusal to pattern of offence registered and disposal of cases would find that there are offences in IPC which fall in the category of ‘rarely or exceptionally invoked’. This category include Offences relating to Public Justice, Offences related to Army, Navy, Airforce, Offences against State and many offence under the head of local and special laws.
Apart from this structural deficiencies, there are some fundamental areas calling attention to make changes in the IPC. The IPC as a law was created much before the emergence of constitutional democratic regime and therefore it has significantly failed in capturing the essence of these principles. The mismatch between legal provisions and constitutional aspirations therefore becomes visible at various places in the IPC.
The need of revision in the IPC also stems from the debate on issue of criminalization of sexuality. This scenario provides a position taken by the Supreme Court of India which enforced a victorian morality regime to people of various sexual orientation. On the other hand, Delhi High Court’s decision on this subject interpreted this as per section 377 of IPC in context of people’s choices in a constitutional democracy. The law criminalizing homosexuality and adultery in the IPC is quite contrary to the people’s expectations in modern era. This dilemma rests in many sections of the IPC. The initial premise in the IPC were clearly in favour of guiding public morality in identifying and defining underlying principles in the IPC and hence places public interest issues on a higher pedestal, back seating concerns relating to privacy of people.
In case of adultery the liability is completely fixed on male and female have been kept away from purview of liability. This construction is also quite against the notion of gender equality and needs rectification in an appropriate manner.
The IPC also reveal an interesting gender analysis which again becomes a ground considering changes in it. The IPC has provisions dealing with sexuality, procreation and marriage and the implications of the operation of this part of IPC raises complex issues of privacy and discriminatory application of law to men and women. The loaded patriarchal value framework in the IPC allows heterosexual relations in privacy and within the marital relations. The legal provisions relating to obscenity, prostitution and trafficking adopt a sexist approach and in many cases criminalization becomes unnecessary and the agency of women has not been recognized in a liberal context.
The punishment provided in Chapter III of IPC also provide a clear case of revision as section 53 enumerates the type of punishments that can be imposed. This classification is highly conservative in view of significant developments which have taken place in penology and correctional administration. For instance the punishment types does not have the mention of community services, restorative provisions and other community based obligations for offenders. Having death penalty on statute book is also contrary to the ideas of humanizing criminal justice response and punishment for offender.
Keeping of death penalty in the IPC had a different objective inthe beginning as the state wanted to profess a retributive stance and deterrent move for potential offenders and against the people joining mutiny. All such reasons have now vanished and the presence of death penalty in master criminal law of India defies modern principles of penology and rehabilitation.
In many nations the state has raised the quantum of fines for various wrongdoings so that victims could be compensated for injustice out of this corpus. A survey of various punishments in IPC would reveal that the range of fines is from a few hundreds to a few thousands. This by any measure is not sufficient nor does it serve any purpose for compensation to victims of crime.
The most pertinent amendment in the IPC were made in the year 2013 after Delhi gang rape incident. Significant changes in IPC were made to create new category of offences. These changes were quite contemporary and took into consideration the new methods of crime commission in account. It included Acid Throwing as an offence under section 326 (A) and 326 (B). It also placed a punishment in section 166B for non-treatment of victim. The definition of rape was expanded to cover many forms of non-penetrative actions.
As a substantive law the IPC made drastic changes in the existing section 354 by including many other forms of crime. In keeping the rising instances of sexual harassment, stalking, voyeurism, trafficking in mind , section 354 (A) on sexual harassment, Section 354(B) on Sexual Assault, Section 350 (C) on voyeurism and section 350 (D) on stalking were added. By far, this was the most significant change seen by IPC in capturing new variety of crimes in its fold. The punishment for rape by public servant was also enhanced up to 10 years extendable to imprisonment of life. The offence of gang rape in section 376 was added in context of Nirbhaya case. While these changes are significant, the President of India’s insistence on revisiting the IPC still holds correct.
The post 2013 IPC amendment experiences on the part of police have evoked a mixed response which again underlines a more careful and research based exercise in contemplating changes in the IPC. The fact remains that police in this country is overworked and amendments would not be effective unless enforcement agencies are provided with matching resources. Registering cases under voyeurism, stalking etc. involves lot of subjectivity and therefore these offences are required to be more coherently defined. Another problem with this change in IPC is its integration. All these offences under section 354 havebeen placed in chapter ‘Offences against Human Body’. This in turn creates a conceptual confusion as how offences such as stalking, voyeurism could fall in offences against human body.
The project IPC revision would require the following suggestions for a comprehensive revamping of law:
1. There is a need to have empirical legal research showing areas required to be contemplated as new offences in the code. This project must be substantiated by empirical researchers and to be handled by professionals by undertaking extensive pre-legislative surveys.
2. The same process should also be applied in case of identification of offences to be dropped from the IPC on account of being outdated nature and issues of enforceability involved in them.
3. Considerable restructuring and re-arrangement of chapters in the IPC could be done, for instance in the areas of sexual offences. Despite changes in law following nation-wide agitation, there is no separate chapter on sexual offences in IPC. It is therefore the right time to dedicate a full chapter on this subject to bring all sexual offences at one place.
4. The chapter in the IPC on classification could also be based on the nature of liability such as mild, moderate and major liability, so that the quantum of fine could be spelled out accordingly.
5. To be comprehensive enough, the IPC must also include chapters on cyber laws, economic offences, and terrorist offences in the code. This would be helpful in avoiding duplicity and confusion.
6. 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.
7. In the revised project, the indigenousness in the framing of laws must be given space which was completely left out by the IPC.
The IPC seems to have fallen short as a scientific legislation fulfilling the need of a universal jurisprudence. But has given a framework to the jurists to develop a more rationalist and constitutionally grounded law for a rapidly growing democracy like India.
The author is Professor at the National Law University, Delhi