A lost opportunity to find and erase the ‘colonial’ in the Penal Code

The Bharatiya Nyaya Sanhita (BNS) Bill, 2023, was tabled in parliament earlier this month to replace the Indian Penal Code (IPC), 1860. The BNS aims to ‘decolonise’ India’s criminal justice system and make it relevant to contemporary times. This promise of ‘decolonisation’ and contemporisation is significant, and yet very intriguing. It, therefore, warrants a closer examination. Seven-and-a-half decades post-Independence, is the IPC still really rooted in colonial values? And what does ‘decolonising’ truly mean for a law as fundamental as the IPC? 

Colonial-era criminal justice

Prior to the enactment of the IPC, criminal justice in India was administered through a complex web of laws, including Hindu, Muslim and English law. These laws were often in conflict with each other -- providing different definitions of offences, prescribing different standards of evidence, and permitting inhumane punishments. Interestingly, even the English law applied in India was inconsistent across different presidencies. For instance, the offence of purchasing regimental necessaries from soldiers was punishable with a fine of forty rupees in Madras, but with imprisonment of four years in Bombay. Similarly, the offence of perjury had different punishments across the three presidencies.

This posed significant difficulties in enforcing criminal law in India and, therefore, necessitated the enactment of a comprehensive penal code, based on a cogent and consistent penal philosophy. Tasked with this, and guided by the utilitarian philosophy of Jeremy Bentham and James Mill, the Indian Law Commissioners, led by Thomas Babington Macaulay, drafted the IPC in 1837. It was based on the principles of comprehensiveness, clarity and precision. Offences were systematically defined and classified into different chapters. Punishments were clearly specified and prescribed purely for their utilitarian objectives. Elaborate illustrations were incorporated to guide the judges in the application of the law.

Designed to bring consistency and predictability to the form and application of criminal law, the IPC was hailed as a revolutionary document, far ahead of its time.

Aiding colonisation

The IPC was, however, brought in a specific context. India’s political scene was rapidly changing through the 19th century. Those legislating for India had objectives far and beyond just regulation. In this context, criminal laws served as a tool to assert authority and establish a concrete source of power for the British in India. And the underlying assumptions were even more problematic.

Indians were seen as inferior and unworthy of reformation. Fredric J Mouat, an Inspector-General in Bengal, referred to native Indian prisoners as “aboriginal savages”. Punishments were designed to induce fear and were seen as the primary means of controlling the local people. For instance, the punishment of ‘transportation for life’ was considered appropriate because Indians regarded it with a “peculiar fear”. It was expected to “inspire terror” in the minds of the Indians.

Vocal Indians were seen as a threat to the British administration. In fact, certain offences in the IPC, such as sedition, were designed solely to check them and protect colonial interests. Similarly, the provision on criminal defamation was kept extremely broad and it criminalised both oral and written imputations, unlike the law in Britain, which only criminalised written imputations. In contrast to the law in Britain, Indian law was made stricter, and there was no express requirement for the imputation to lead to a breach of peace. Vague and ambiguous drafting of these provisions was further used to aid arbitrary colonial policing.

Victorian morality

Various provisions of the IPC were also reflective of Victorian moralities and sensibilities. The marital rape exception, for instance, was incorporated under the provision for rape due to the belief that marriage implies unconditional consent to sexual intercourse. 

Criminalising homosexuality, by labelling it as ‘unnatural’ and ‘against the order of nature’ was in utter disregard of the diverse spectrum of same-sex relationships which were prevalent in communities and indigenous cultures across India. The provision on adultery, similarly, was rooted in Victorian stereotypes and the belief that every married woman is the property of her husband.

BNS misses the mark

The IPC, though an advanced law for its time, continues to bear the imprint of the colonial past. Many parts of the IPC are archaic and also inconsistent with democratic values and modern sensibilities. Given this, the government’s professed aim to ‘decolonise’ the law is relevant. However, the proposed Bharatiya Nyaya Sanhita Bill, 2023, falls far short of the promise – it makes only superficial changes, leaving the underlying assumptions untouched.

Removing references to the British ‘crown’ and ‘emperor’, though necessary, are only cosmetic in nature. Dropping ‘unnatural offences’, ‘adultery’ and ‘attempt to suicide’ from the penal code is no more than a housekeeping exercise since these provisions have already been struck down by the courts.

Unfortunately, the colonial bits in the IPC, with all their underlying assumptions about Indians, remain in the proposed law. In the BNS, there is no move away from the harsh colonial penal policy that saw Indians as ‘savages’. There has been no attempt at rationalisation of punishments. In fact, punishments have been increased, and the death penalty added for a few offences. Just like the colonial IPC, the proposed Bharatiya Nyaya Sanhita uses wide and ambiguous provisions that have the potential to encourage abuse of police power. Considering all of this, the BNS actually does very little in the way of ‘decolonisation’.

(The writers are with Vidhi Centre for Legal Policy) 

(This is the second article in a DH-Vidhi Centre for Legal Policy series on the
proposed new criminal law codes)