Open Forum
New Delhi,25 March 2016
Indian Penal Code:
WHOLESALE Vs AD HOC REFORMS
By Dr.S.Saraswathi
(Former Director, ICSSR, New Delhi)
The use of the
Sedition Law in the JNU student’s case and the persistent refusal to amend the
Section on gay law has opened the debate on the need to revisit India’s criminal
law codified in the Indian Penal Code (IPC).
Undeniably, this colonial
155 years old document has been our model code which has been adapted in
several Asian and African countries. But, like other historical documents it
cannot remain the permanent guide for criminal law in the country.
Remember, the
architect of this Code Macaulay himself favoured periodical revision of it. Already,
it has undergone 75 amendments --- additions and deletions over a period of time
according to changing social needs.
But, it has not been
totally revised. Consequently, legal reforms in India have remained a patchwork,
without a holistic approach. Succinctly described by a legal expert as an
illustration of what Karl Popper called “piecemeal social engineering”. Whereby,
some chapters have received a re-look, but several have not.
As a result, the much
needed re-examination of Sedition Law
introduced by the British in 1898 to deal with
violent forms of protest against colonial
rule like the Blasphemy law introduced
in 1927 and the criminal conspiracy offence
added in 1913 to be used against the
freedom movement remain
in the Statute book though the ground for their enactments has lost relevance.
Undoubtedly, these present
a threat to democratic freedom and their use at times gives rise to suspicions
of politicizing criminal law.
Notably, commissioned
literature on legal reforms is vast and varied.
But, this valuable material does not appear to have received the
attention it deserves from the ruling authorities. Reports of several commissions and committees
lie in record rooms.
President Mukherjee in
his valedictory address on the 155th anniversary of the IPC in Kochi last month mentioned
the need to revise the Code to meet the changing needs of the 21st Century.
He emphasized, “Criminal
law has to be necessarily sensitive to changes in social structure and social
philosophy. It has to be a reflection of
contemporary social consciousness and a faithful mirror of a civilization
underlining the fundamental values on which it rests”.
True, the IPC might have
become out-dated vis-à-vis certain
sections and therefore urgently needs additional enactments to include new crimes
forms growing every year. However, the feasibility of overhauling the entire Code
is an altogether different matter and a big challenge to the Government.
Notably, the criminal
law establishes the most vital aspect of State-citizen relationship and highlights
the power of the former over the latter. Hence it is extremely important. Any wonder, the IPC is next to the
Constitution in importance in governance of the country and citizens.
In fact, the most
essential function of a State is to provide security for citizens and property.
This is discharged through the instrumentality of the criminal law of the land.
As such, the IPC reflects the intentions of the State in the most vital aspect
of social life.
Pertinently, India was one
of the forward countries to have a penal Code in 1860 and a Criminal Procedure
Code (CPC) a year later which established the rule of law, due procedure,
common legal system and legal equality among citizens.
It also introduced
definiteness in law and punishment in place of arbitrariness and prejudices. Thus,
the IPC replaced the Mohammadan Criminal Law and numerous local traditional
laws. It was the first codification of criminal law in the British
Empire and has the distinction of being the longest surviving Code
in the world of common law rule.
Toward that end the first
Law Commission of India was constituted in 1834 and instrumental in framing the
Indian Penal Code. An executive body established by a Government order its
members are drawn mostly from among legal experts with a fixed tenure. Its
major function is to work for legal reform
In independent India, the
first Law Commission was set up in 1955. In 1959 it announced its intention of
revising the IPC and the CPC. A non-official resolution was moved in Parliament
recommending the appointment of a Law Commission “to recommend revision and
modernization of laws with special reference to the civil and criminal
procedure codes and penal code.”
Mainly, “to reduce the
quantum of case law and to resolve the conflicts in the decision of the High
Courts on many points with a view to realize that justice is simple, speedy,
cheap, effective, and substantial”.
The then Prime
Minister Nehru was not in favour of wholesale legal reform and instead was
inclined to go with “bits and parts”
keeping in mind a broad picture.
Since then, legal
reforms remain on the agenda of various Governments. The 42nd Report of the Indian Law Commission
in 1971 reopened the question of IPC revision but no progress was made. Recently,
the 20th Commission constituted in 2013 terms of reference includes
revision/repeal of obsolete laws.
However, Law
Commissions are not the sole agency to recommend law reforms. Several other committees set up for different
purposes also recommend
legal reforms in their fields thus contributing tremendous
materials by experts from diverse fields which are useful for the reform process.
Indeed, codification
of criminal and civil law is a tough exercise at any time. Manu’s Hindu Law
known as “Manava Dharma Shastra” or “Manu Smriti” is one of the ancient codes
in the world and dates back to 2nd century B.C.
Surprisingly, there was
no codification of Roman law in ancient times and the Chinese “Tang Code” made
in 7th Century AD was one of the oldest criminal codes.
In modern days, while
the British were able to codify a law for India,
a common criminal code is absent in England. The essence of English Common
Law is that it is made by judges in courts applying legal precedents to cases
before them.
In the US, a Model
Penal Code is in existence but not as common law. It provides the basis for
criminal law of many States. Federal Statutes-Public Laws (PL) are codified therein.
There is no
gainsaying, law reforms can never be left to politicians. Nor is it the
function of lawyers who are practising existing law.
Consequently, the Law
Commission entrusted with the task of reform of criminal law should include lawyers,
jurists, criminologists, psychologists, physicians, teachers and social workers
having field knowledge of the existing system and the direction of changes
needed.
Concepts of inclusiveness
and participatory system have to be adopted in the Constitution of the Reform Commission.
To get speedy results and tap best ideas, the Commission might be split in
groups with members competent to handle specific fields of penal law.
Clearly, this will be essential
if India
chooses to make wholesale reform and end the tendency to go for ad hoc changes.
-----INFA
(Copyright, India
News and Feature Alliance)
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