In what can be described as a landmark moment in the criminal jurisprudence of India, Union Home Minister Amit Shah has said that the Bureau of Police Research and Development (BPR&D) should work towards amending various provisions of the IPC and Cr.P.C. after seeking suggestions from people across the country. As per The Hindu a senior government official said that rebooting the Indian Penal Code, 1860 was necessary because the Code introduced by the British is primarily in the spirit of “master and servant.”
The government official said “The idea behind the overhaul is that the master-servant concept envisaged in IPC should change. After it was framed, the IPC has never been amended in totality. Some additions and deletions have been made.”
With this, the Home Ministry is all set to herald a much awaited and much needed change in the criminal jurisprudence of the country. The fact remains that the IPC is replete with provisions which were enacted in the historical context of the interests of the British Raj, while some provisions are signs of the Victorian Morality which we need not carry in our statute books any longer. One of such provisions is in the form of Section 377 of the IPC that punished “carnal intercourse against the order of nature,” until very recently when it was partially decriminalised by the apex court. This provision really held no relevance in today’s time when a person’s liberty is protected by virtue of the Fundamental Rights of the citizens, particularly Articles 14 and 21 of the Constitution, and was imposed upon the country by the British Raj upon its Indian “subjects”.
Even at the time of its inception, it did not hold much relevance as it was a sign of Victorian Morals, having no connection with the Indian worldview of the subject matter of the provision. Section 497 is yet another provision in the Code drafted by Macaulay that lost its relevance and has been recently held unconstitutional. The provision punished only the male outsider in case of adultery, that is, only the male- and not the woman- who engaged in adultery, could be prosecuted under this provision, except where such man had “consented” or “connived” in the act of adultery. The essence behind the provision was that the husband exercised ownership over his wife in a proprietorial manner- an idea that cannot be reconciled with our modern jurisprudence.
The above two provisions are merely illustrative and a number of enforceable penal provisions continue to exist that are signs of the British legacy and ought to be done away with. Take Section 295A, for example, a provision that was inserted in the Code in 1927 punishes blasphemy by making the act of insulting religious beliefs a punishable offence. Similarly, Section 153A punishes the act of promoting enmity between different groups on grounds of religion, race, place of birth, residence and language. Both the provisions are not in consonance of the wide scope of freedom of speech and expression guaranteed by the Constitution of India. What constitutes an “insult” or “promotes enmity” is rather subjective. The Code does not attempt laying down an objective test in order to clarify what actually constitutes promotion of enmity or insulting religious beliefs. The provisions, therefore, have a huge scope for gross misuse. Take the example of former Hindu Mahasabha leader, Kamlesh Tiwari, who was recently murdered. In 2015, an FIR had been lodged under these provisions against him after his remarks about Prophet Muhammad were taken as insulting. These provisions are merely illustrative of the absurdities in the IPC in its current shape.
Criminal defamation laws have also come under the scanner on the ground that were introduced to protect the interests of the British Raj. Rajya Sabha MP had even pleaded before the top court to dilute the law to make defamation only a civil offence as was the trend world over. This is yet another glaring example of how retaining the British era Code without a substantial alteration has led to an outright absurdity.
The provisions of the IPC were enacted keeping in view the interests of the British Raj at that time in mind. Therefore, mere judicial interventions and legislative interventions, in the form of amendments cannot really serve the purpose of reconciling it with today’s context. In order to make the Penal Code relevant, there is a strict need to revamp the Code as is being suggested by the Home Ministry.
The issue with the IPC has not just been the colonial hangover associated with it. The issue is further aggravated by the lack of its efficacy as it has remained largely unchanged since 1860 when it was introduced. The fact remains that the legislature has resorted to Local and Special laws in order to combat emerging categories of crimes such as terrorism, drug offences, cyber crimes, etc. The IPC is the Penal Code of the country and like any other “Code”, it should be a complete law and exhaustive in itself. Enactment of other laws dealing with special categories of offences and an incomplete Penal Code serves no real purpose. The Ministry of Home Affairs led by Amit Shah has therefore finally taken a step in the right direction.
