Reform the Indian Penal Code

JNUSU president Kanhaiya Kumar, along with union vice-president Shehla Rashid (left) and Rama Naga (right), addresses a news conference on the JNU campus in New Delhi. Mr Kumar is facing sedition charges. Activists of various student unions shout anti-government slogans during a march to Parliament. Kanhaiya addresses fellow students during a march. (Photo: PTI)

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country, said Winston Churchill. Penal law is indeed an instrument of government, and in no other branch of law is there more at stake for the individual and the society.

At a time when liberals are arguing for the deletion of the archaic sedition law which even the British imperialists did not include in the original Indian Penal Code, and the so-called nationalists justify mob lynching of those who were merely present when anti-national slogans were raised, the President’s call recently for a comprehensive revision of the penal code gives us an opportunity to take a critical look at our fundamental penal law in the light of new and progressive ideas.

Some penal code offences need to be dropped to make the code consistent with the new ideals of constitutional morality, viz. the narrowest possible definitions of crimes, presumption of innocence, proof beyond any shadow of doubt, individualism, and the rights of the accused.

In a criminal justice system, since an accused as an individual is pitted against the might of the state, criminal law must ensure that the state does not take undue advantage of its position as prosecutor.

The IPC was intended by T.B. Macaulay to be regularly revised by legislative amendment. This did not happen, with the result that the courts had to undertake this task upon themselves. The result was not very satisfactory as judges relied on common law, which the code had intended to replace. Most amendments have been ad hoc and merely reactive, and have not kept in view the underlying drafting principles of the original code.

Although there is a need for revision, there is a real danger that in the name of reforms in IPC, we may eventually make IPC more regressive and retributive as the cry for blood has become a norm on some primetime TV programmes. We are too engaged with the crime, and the criminal is not given adequate attention in our sentencing policies. No one is interested to know why people commit crimes.

The critics of IPC are not aware that it had replaced Mohammadan Criminal Law, which had a very close relationship with Islam. It is disgusting to see that some TV anchors today want to go back to the Islamic penology and favour kisas (a life for life, and a limb for limb). The love of ultra rightists for dated Islamic punishments is intriguing.

IPC needs substantial changes to fit into the liberty model and its obsolete provisions must go. Let’s look at some of them. Criminal conspiracy was made a substantive offence in 1913.Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, an illegal act, or an act, which is not illegal, by illegal means. It differs from other offences in that here mere agreement has been made a crime even if no step is taken to carry out that agreement.

The offence is objectionable because it was added to the code by our colonial masters to deal with political conspiracies against the British government. “The crime of conspiracy,” remarks Russell, “affords support for any who advance the proposition that criminal law is an instrument of government.” The abuse of the law of criminal conspiracy in the hands of government creates a genuine fear in all minds. Sayre did warn us, “A doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends no strength or glory to the law; it is a veritable quicksand of shifting opinion and ill-considered thought.”

The recent instances of award of death penalties were just for conspiracy on the basis of indirect and circumstantial evidence and not actual participation in terror crimes, and thus the test of ‘rarest of rare’ was not met except in the case of Kasab. Similarly, liability under ‘common object’ under the principle of constructive liability has been pushed to unduly harsh lengths as mere membership of the unlawful assembly without any participation in the actual crime has been made punishable. The re-examination of the law of sedition, inserted in the IPC in 1898, too is necessary in spite of emotional difficulties due to the intense debate on nationalism. It is legitimate to ask whether we need a law of sedition, which we ourselves condemned during the British regime, and Sardar Patel — who is idolised by BJP — opposed. ‘Sedition’ is now used as a ground for restricting freedom of speech under Article 19. However, the Supreme Court had held that mere anti-national slogans, if not accompanied by violence, is not sedition.

Large sections of India are up in arms against the Modi government for charging JNU students with sedition. Under the UPA, as many as 7,000 sedition cases were filed against the villagers who opposed the Kudankulam nuclear power plant in Tamil Nadu.

The offence of blasphemy, inserted in 1927, should also have no place in a liberal democracy like ours. To take another example, the distinction between ‘culpable homicide’ and ‘murder’ is also criticised as the ‘weakest part of the code’ as definitions are obscure. ‘Culpable homicide’ is defined, but ‘homicide’ is not defined at all. Indeed, ‘culpable homicide’, the genus, and ‘murder’, the species, are defined in terms so closely resembling each other that it is difficult to distinguish them.

Sexual offences show patriarchal values and Victorian morality. Though the outmoded crime of adultery gives the husband sole proprietary rights over his wife’s sexuality, it gives no legal protection to the wife to secure similar monopoly over her husband’s sexuality. In fact there are striking similarities between ‘theft’ and the offence of ‘adultery’ and thus the wife is basically considered the husband’s property.

Similarly, the penal code attaches undue importance to the protection of property. More than 100 sections deal with property and give even the right to kill not only to protect one’s property but also to safeguard the property of others. Moreover, the code goes out of the way to protect just ‘possession’ and does not care for ‘ownership’. Also, in respect of the old notion of insanity represented in the IPC, the science of psychiatry has completely altered the old notions.

Macaulay held that ‘India cannot have a free government. But she may have the next best thing, a firm and imperial despotism.’ Thanks to our freedom fighters, we are not only a free country but also a liberal, democratic republic. Our penal code must reflect this change. Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad