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IPC & the need for modernisation


 

The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens.

Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said that the IPC, 1860 requires a thorough revision to meet the needs of the 21st century. Click here to know everything about sedition law

History:

  • The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington MacaulayAnswer in comments.>
  • It came into force in British India(but not princely states) during the early British Raj period in 1862
  • After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code and later in B’desh also
  • Jammu and Kashmir does not follow IPC but has enacted a separate code known as Ranbir Penal Code (RPC) which is based on IPC

Some notable points:

  • The IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism
  • It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire
  • Today, it is the longest serving criminal code in the common-law world
  • Today, most of the commonwealth follows the IPC

Law Commission on IPC:

  • 42nd Report (1971)– Law Commission of India for the first time had recommended the repeal of Section 309 (criminalization of suicide)
  • 172nd Report (2000)– Recommended deletion of Section 377 (criminalization of unnatural sexual offences)
  • 210th Report (2008)– Recommended Humanization and Decriminalization of Attempt to Suicide under Section 309

Past attempts at amendment:

  • Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the Law Commission in 1971 recommending it
  • Also the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha
  • As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times
  • Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case

Why amend IPC?

  • The philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy <designed to meet colonial needs to subjugation and exploitation of India and Indians, sedition law for instance>
  • Some of the concepts underlying the code are either problematic or have become obsolete
  • there are many new offences, which have to be properly defined and incorporated in the code
  • Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced
  • In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then

Specific cases or problems:

  1. Sedition law, inserted in 1898: It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Learn more about sedition law here
  2. Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
  3. Criminal conspiracy: It can be invoked merely when two people agree to commit an offence without any overt act following the agreement.
    It was added in 1913 by the colonial masters to deal with political conspiracies.
    Kehar Singh etc were convicted and sentenced to death under the offence of conspiracy ,, though none of them participated in the actual crime or were present at the scene of the crime.
  4. Section 149, Unlawful assembly: The principle of constructive liability under this law is pushed to unduly harsh lengths.
    Mere membership of the assembly without any participation in the actual crime is sufficient for punishment.
    Several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime.
  5. The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
  6. Sexual offences under the code reveal patriarchal values and Victorian morality.
  7. Section 377:  Unnatural sexual offences (LGBT right). Want to know about argument of Delhi high court in decriminalizing homosexuality, click here to read about Naz Foundation case

 

Contrarian view point of Justice Hegde

We should not repeal something just because it’s 150 years old.

On Sedition: He favours the sedition law as some restrictions are needed to stop people from abusing and talking against the country. “I believe in sedition law. I am a patriot. Any patriot cannot go on abusing the country. There are certain parameters.” He points to distinction b/w criticizing the person (prime minister), policies, system v/s abusing the state

On IPC:  We can not just scrap Indian Penal Code because somebody is involved in a crime (and wants it to be scrapped)

We can not just ape west. Ground realities in India and west are very different and they demand different levels of freedom of expression and religious freedom.

Any doubts?


  1. Profile photo of Sandeep Shukla Sandeep Shukla

    SIR ABHI PIB NEWSCARDS- DEC 2016 COMPILATION NAHI AAYA HAIN…..ACCORDING TO YOU IT IS COME ON 10th OF EVERY MONTH…….

    1. Profile photo of Discuss Discuss

      It will be released today (positively). Also, please put such questions on forum. This story thread is for LGBT Rights not PIB Newscards demands 🙂

      1. Profile photo of Sandeep Shukla Sandeep Shukla

        SORRY SIR…………….

  2. Profile photo of Anubhav Tripathi Anubhav Tripathi

    All human beings are created by nature. If a thought is coming in a person’s mind existing on this planet, that will not be unnatural. Homosexuality is no where an unnatural thought or any unnatural activity, it is a choice. When you have right to choose a particular language, a particular culture, a particular religion, so why choosing a particular mate is a crime. Strange!! Loving someone is a crime i don’t think so this is what our religious sentiments teach us. And if Indian govt. is not accepting this thing and rather criminalizing such things, then they must read our history, it is India only which accepted homosexual forms of sexual activities. They must be sentenced to death. Even activities like raping a woman, child abuse, molestation, eve teasing , domestic violence i think are very unnatural but they are happening. Those who call LGBTQs mentally re-tarted are themselves highly unstable just because of their old retarted thoughts and their behavior creates more mental torture to LGBTQs life. Gays must never be considered as criminals rather those who are torturing and snatching someones right must be hanged. But it is useless to say because India is a hypocritic country. We can tolerate two man holding a gun in his arms, or man calling India an intolerant country or we can accept a Porn actor moving freely on streets which is very much in favor of our culture but we cant see two men holding their hands. I am not saying that their is fault in our country’s constitution but if we assign equal human rights the equality must be visible in all aspects. Or lest they should change their constitution and say we cant give equal rights….. Why India is still a slave of Britishers and this is when homosexuality is legal in British Islands and other European nations. It is time to think now!!!

    1. Profile photo of SHIKHAR JHA SHIKHAR JHA

      I can understand that criminalizing the freedom of individuals is not acceptable…but in India when you go to smal towns and villages,the people are not even aware that two persons of same gender also have sexual attraction..they have never heard about the word “gay”….they only know about transgenders…which is not only a mental but also a physical abnormality…in a country where more than half of the population is rural,who are not aware of the metropolitan culture of homosexual marriages….it is nt easy to enforce a law about it…before legalising anything,there is a need to make people aware about it!

  3. Profile photo of bhushan bhalerao bhushan bhalerao

    First of all, why homosexuality is criminalised. I have read somewhere (I exactly don’t remember), that Dr. Ambedkar had said,” The rationale behind criminalising homosexuality is that it doesn’t serve the purpose of reproduction”. It is way back in 1950s. But after, 60 years of constitution making, where the concept of right to life is vastly expanded to include even the surrounding environment and animals, then why we have to criminalise homosexuality? Something can’t be justified just because it is tradition. After all, the we have abandoned the “Sati” tradition where widows were burnt alive.
    Next, we are living in the world of democracy and democracy exactly means “Acceptance and Accommodation” and not “Submission and Domination”. We have to respect everyone’s sexual orientation and their personal liberty. It is a sign of mature democracy.
    Next point is that, it doesn’t matter whether it is written in the law book or not. Ultimately, law is document which can be changed according to the exigencies of time. Constitution is the supreme law of the land. It can also be changed then why not CrPC? We can’t exclude all those people whose sexual orientation is different from others. I have read a news that in Mumbai there is first transgender taxi driver in India. When we accept all those people and we channelize their energy, it will be beneficial for our country also. Otherwise, we will be creating another group of minorities who will create problems when their status of Indian citizenship and human beings is not accepted by the very citizens of this nation.

    1. Profile photo of Sumer Shah Sumer Shah

      Nice writeup dost! Very logical points.

    2. Profile photo of Dr V Dr V

      Excellent.
      Basically conservatives fear that decriminalsation will lead to demand for marriage rights, adoption and all sort of things which are a strict no no for conservatives.

  4. Profile photo of Devesh Tiwari Devesh Tiwari

    sec 377 has nothing to do with indian tradition and culture !
    even in mahabharat concept of third gender exist ( remember shikhandi who killed Bheeshma ?) and “ardhanareshvar” form of lord shiva .
    and its natural if third gender existed in that time; then there has to be act of love between third gender communities !
    in india many ancient caves indicate there was unnatural sex (what we call today) in that period ! or another proof is “kamasutra” by vatssyayan where many positions are suggested for homosexual communities !

    1. Profile photo of Ashima Banerjee Ashima Banerjee

      1. Nobody denies existence of 3rd gender, gays and lesbians are not 3rd gender.
      2. Just because gay and lesbian sex is painted in some wall murals does not make it cultural tradition of India. There are wall murals showing human beings having sex with animals, would you now ask for legalizing bestiality ?
      3. These jholachap leftists cite Indian traditions to ask for legalization of homosexuality, would give precedent of western liberal values when it suits them and criticize the other party when it cites same scriptures and traditions in other aspects.
      It’s against the order of nature and only the parliament can take a call on it. supreme court has no right to sit on judgement over it

      1. Profile photo of SHIKHAR JHA SHIKHAR JHA

        I agree…

      2. Profile photo of Tamizh Kaathalan Tamizh Kaathalan

        Defining a thing as natural and unnatural is highly unnatural ! Sounding HOMOSEXUALITY as Against order of nature sounds unsound !

      3. Profile photo of Devesh Tiwari Devesh Tiwari

        1- if 3rd gender is not an issue for you then you should know how sec 377 is creating hurdles in sex life of LGBT communities ,
        lets take example of 3 couple
        a) man and 3rd gender
        b) two 3rd gender
        c) female and 3rd gender all three couples cant be together only because of sec 377 .
        and i would suggest you to read some biology books and observe the hormonal patterns of LH, TESTOSTERONE, ESTROGEN and how it works. hormonal imbalance is natural. it can happen with any healthy person , it doesnt mean they will be considered as alien and against nature , being a citizen they should have right to take decision with whom they wants to marry irrespective of their gender.
        2- you raised valid issue about animal sex , if it is present on ancient caves then no doubt those practices were present .even today also we read in these kind of news atleast once in month.
        IPC has been written in 1860 , after 150 years (in 2010) some people are demanding for homosexuality . may be “”MAYY BEE” after another 150 years (in 2150) people can demand for animal sex with arguments like “if fish, chicken and goats can be used for ‘tongue’ then why not for sexual pleasure ?” or there will be some hashTAGS like “#AnimalTOOneedsLoVe” … noone knows future .
        3- more than 50% of constitutional paras are uncleared and history has shown us who has better protected order of nature and who has better ability to interpret constitution , without any second thought any blind will believe supreme court not on parliament .
        and last always remember thumb rule of democracy “even if one % of people are demanding something which is out of box its a duty of government to fulfill those needs unless it doesnt mess with national integrity and unity of country” .

        1. Profile photo of Ravi Mantwal Ravi Mantwal

          Haha… Haan bhai.. yahin raho… gaayab mat how! 😛
          God bless you… 🙂

        2. Profile photo of Ravi Mantwal Ravi Mantwal

          Long Time-No See! 😛
          Where were you champ?

          1. Profile photo of Devesh Tiwari Devesh Tiwari

            bhas yahi tha bhai 😀 ,,

      4. Profile photo of Sneha Sodhi Sneha Sodhi

        It’s a human rights issue Ashima. I think supreme court should take a call on this. What people do behind closed doors should not be anyone’s concern though everyone is free to propagate his/ her views.

      5. Profile photo of Rahul Meena Rahul Meena

        you have a really broad minded approach to the issue. keep it up.
        (yes I’m being sarcastic)

        1. Profile photo of Ashima Banerjee Ashima Banerjee

          you seem to have exclusive preserve of deciding what’s broad minded and what’s narrow minded.

  5. Profile photo of tushar dhingra tushar dhingra

    actually what is demands in 377 and its pro and con ??

  6. Profile photo of Simran Bains Simran Bains

    What basically is curative petition?

    1. Profile photo of somesh kumar somesh kumar

      The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.[1] The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.[2] For this purpose the Court has devised what has been termed as a “curative” petition. In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation. This has to be certified by a senior advocate. The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement, if available. No time limit is given for filing Curative petition

      1. Profile photo of Simran Bains Simran Bains

        Thank you.
        I had thought my question would go unnoticed here. Got the meaning. 🙂

      2. Profile photo of Javed Aftab Javed Aftab

        “Dismissed by circulation” meaning ?

        1. Profile photo of niks' fixes niks' fixes

          In layman terms, it just means that the Review Petition was rejected

[op-ed snap] A rights bill gone wrong

Loopholes in Lawmaking in India:

  1. Laws are often drafted without in-depth research, as a result of which they are misinformed and remain paper tigers
  2. A culture of tokenism prevails regarding pressing social issues, seen most recently in The Transgender Persons (Protection of Rights) Bill, 2016

Radical changes in draft:

  1. In April 2014, the Supreme Court delivered the landmark judgment of NALSA v. Union of India, which affirmed the fundamental rights of transgender persons
  2. The court gave a series of directives to the government to institute welfare measures for transgender persons, including affirmative action
  3. In December 2014 Rights of Transgender Persons Bill, 2014 was introduced as a Private Member’s Bill
  4. On April 24, 2015, in a rare instance, the Rajya Sabha unanimously passed the Bill. However, it never made it to the Lok Sabha
  5. Instead, the government decided to get its own Bill — The Rights of Transgender Persons Bill, 2015 — drafted, which was put up for public comments in December
  6. The 2015 Bill was largely based on the 2014 Bill, but it did away with provisions on Transgender Rights Courts and the National and State Commissions
  7. In April 2016, the 2015 draft Bill was sent to the Law Ministry, in July the Cabinet approved it, and in August it was introduced in the Lok Sabha
  8. It is unclear at which point the drafting changed, for the Bill introduced in the Lok Sabha was drastically different from the 2015 Bill

2016 Bill:

  1. It shorn of many critical features of the previous two Bills
  2. It also completely disregarded all existing discourse and resources — the NALSA judgment, the Expert Committee Report, and public comments
  3. The 2016 Bill has now been referred to a Standing Committee
  4. The 2014 and 2015 Bills had more accurate definitions of the term transgender
  5. In fact, the 2015 Bill was the most progressive in this regard as it granted a transgender person the right to identify as either ‘man’, ‘woman’, or ‘transgender’
  6. Another problem is the absence of a provision on reservation, running contrary to the NALSA judgment and the 2014 and 2015 Bills which directed reservations for transgender persons
  7. Bill is completely silent on how its content will impact the operation of existing laws
  8. Most laws, including of marriage, adoption and succession, continue to be based on the binary of male and female
  9. Criminal laws, especially those dealing with sexual offences, also continue to be gendered

Section 377 remains unaddressed:

  1. None of the Bills have addressed the issue of Section 377, which is frequently used to harass transgender persons, specifically transgender women
  2. The conventional understanding of Section 377 is that it criminalises all sex that is not between people of opposite genders
  3. Recognising trans-rights means recognising that there are more than the “opposite” genders of male and female
  4. Embracing rights of persons with non-conforming genders while criminalising persons with non-conforming sexual orientations is thus absurd

Note4Students:

India is within touching distance of enabling the legal empowerment of a hitherto marginalised community and it would be a shame if it squandered the opportunity by passing a bad law.

Make a note of b2b terms and be ready to answer a question, perhaps, in mains 2017 on this bill as UPSC had asked directly on such topics in mains 2013-14-15.

Back2Basics:

  1. Clause 2(i) of the 2016 Bill, defines the term ‘transgender person’, which has been inexplicably borrowed from a provision of the Australian Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which defines the term ‘intersex’
  2. Term cisnormative– the assumption that everyone has a gender identity that matches the sex the person was assigned at birth

[op-ed snap] Three years after the Koushal judgment

  1. Koushal v. Naz Foundation: India’s LGBT community was cast back into the shadows of illegality after a judgment of the Delhi HC
  2. Section 377 of the IPC, was reversed in appeal
  3. SC observed that the LGBT community was a “minuscule” minority that did not deserve the court’s time or protection
  4. Effect of the judgment: After the Koushal judgment, Indian lesbian and gay couples filed applications in different parts of the Commonwealth claiming refugee or protected status
  5. These couples argued that requiring them to return to India would raise a well-founded fear of persecution and violate their human rights
  6. Change in course: Gujarat HC stated that State government’s failure to grant a tax concession to a film depicting homosexuality was unconstitutional
  7. In the National Legal Services Authority case (2014), the SC held that hijras and transgenders should be treated as a ‘third gender’ for accessing public services
  8. Later, Allahabad HC decided that transgenders would be entitled to be treated as the “head of a household” under food security legislation
  9. A ‘third gender’ option is now available in railway reservation forms, ration card applications, passport applications, and Life Insurance Corporation proposal forms

Note4Students:

On one hand, there is inclusion of third gender in public sphere and acknowledgement of their identity, on the other hand, they are still facing instances of discrimination. This sensitive topic can be asked in Mains or Interview. Add to that, SC judgements are always important. So, keep a check on these backgrounders of sorts.

Back2Basics:

Section 377 of the IPC:

  1. Introduced during the British rule of India in 1860
  2. Criminalises sexual activities “against the order of nature”, including homosexual sexual activities
  3. The section was decriminalized with respect to sex between consenting adults by the HC of Delhi on July 2009
  4. Judgement was overturned by SC in 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary

 

Progressive move on transgenders

  1. News: Prime Minister told BJP MPs that the Govt is serious about getting the Transgender Bill granting certain protections and a legal status to the transgender community
  2. PM: A progressive move being taken by the Govt, and urged MPs to reach out to the community to educate them on the finer points of the Bill
  3. Background: The Bill was first cleared as a private members Bill in the Rajya Sabha, and now the Ministry of Social Justice and Empowerment is to pilot it in the Lok Sabha as a Govt Bill

SC observes that gays, lesbians, bisexuals are not third gender

  1. News: The Supreme Court (SC) clarified that its earlier verdict did not include lesbians, gays and bisexual persons under the category of transgenders
  2. Context: In 2014, the SC had recognised transgenders as a “third gender” and directed the government to ensure a dignified life for them
  3. However, the government has still not implemented the 2014 verdict and has returned to the SC seeking further clarifications

Re-examine colonial laws, says Amartya

  1. Context: The colonial laws that still govern us even after 68 years of Independence
  2. Opinion: These colonial laws must not remain unchallenged
  3. Law’s in Question: Sec 377 of IPC criminalises homosexuality and under Sec 295A of IPC, a person could be sentenced for hurting religious sentiments of the Indian Penal Code

Five-judge Constitution Bench to take a call on Section 377

Provision denies rights to privacy and dignity, court told.

  1. The SC referred a batch of curative petitions against Section 377 of the IPC.
  2. A colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private.
  3. A 3-judge Bench gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity.
  4. This results in gross miscarriage of justice.
  5. The petitions pose several questions with “constitutional dimensions of importance”.
  6. As per the apex court’s Rupa Hurra judgment in 2002, the Bench considering curative pleas should necessarily have the 3 top judges of the SC.

Whose law is it anyway

Those making a cultural case for Section 377 need lessons in South Asian history.

  1. Section 377 of the Indian Penal Code, criminalising gay sex, which was upheld by the Supreme Court, was passed in 1860 by the British who were then steeped in Victorian mores.
  2. Today, while the former colonisers have ensured equality through legislation, irrespective of sexual preference, for their citizens.
  3. Indian politicians are clinging to the cloak of colonialism and representing it as Indian culture.
  4. India is not one culture. It is and always has been a mosaic of cultures.
  5. Mid-18th century South Asia was teeming with communities that allowed sexual freedoms which left the colonisers very uneasy.
  6. Most laws passed by the British from the mid-19th century onwards,including Section 377, emerged from their cultural views, not ours.
  7. The recriminalisation of gay sex will also have high economic costs.
  8. The law can also be misused against political opponents, criminal conviction of Malaysia’s former deputy prime minister, Anwar Ibrahim, of sodomy being a case in point.


:( We are working on most probable questions. Do check back this section.







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