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
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:
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
Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
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.
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.
The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
Sexual offences under the code reveal patriarchal values and Victorian morality.
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.
[op-ed snap] A rights bill gone wrong
Loopholes in Lawmaking in India:
Laws are often drafted without in-depth research, as a result of which they are misinformed and remain paper tigers
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:
In April 2014, the Supreme Court delivered the landmark judgment of NALSA v. Union of India, which affirmed the fundamental rights of transgender persons
The court gave a series of directives to the government to institute welfare measures for transgender persons, including affirmative action
In December 2014 Rights of Transgender Persons Bill, 2014 was introduced as a Private Member’s Bill
On April 24, 2015, in a rare instance, the Rajya Sabha unanimously passed the Bill. However, it never made it to the Lok Sabha
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
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
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
It is unclear at which point the drafting changed, for the Bill introduced in the Lok Sabha was drastically different from the 2015 Bill
It shorn of many critical features of the previous two Bills
It also completely disregarded all existing discourse and resources — the NALSA judgment, the Expert Committee Report, and public comments
The 2016 Bill has now been referred to a Standing Committee
The 2014 and 2015 Bills had more accurate definitions of the term transgender
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’
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
Bill is completely silent on how its content will impact the operation of existing laws
Most laws, including of marriage, adoption and succession, continue to be based on the binary of male and female
Criminal laws, especially those dealing with sexual offences, also continue to be gendered
Section 377 remains unaddressed:
None of the Bills have addressed the issue of Section 377, which is frequently used to harass transgender persons, specifically transgender women
The conventional understanding of Section 377 is that it criminalises all sex that is not between people of opposite genders
Recognising trans-rights means recognising that there are more than the “opposite” genders of male and female
Embracing rights of persons with non-conforming genders while criminalising persons with non-conforming sexual orientations is thus absurd
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.
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’
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
Koushal v. Naz Foundation: India’s LGBT community was cast back into the shadows of illegality after a judgment of the Delhi HC
Section 377 of the IPC, was reversed in appeal
SC observed that the LGBT community was a “minuscule” minority that did not deserve the court’s time or protection
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
These couples argued that requiring them to return to India would raise a well-founded fear of persecution and violate their human rights
Change in course: Gujarat HC stated that State government’s failure to grant a tax concession to a film depicting homosexuality was unconstitutional
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
Later, Allahabad HC decided that transgenders would be entitled to be treated as the “head of a household” under food security legislation
A ‘third gender’ option is now available in railway reservation forms, ration card applications, passport applications, and Life Insurance Corporation proposal forms
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.
Section 377 of the IPC:
Introduced during the British rule of India in 1860
Criminalises sexual activities “against the order of nature”, including homosexual sexual activities
The section was decriminalized with respect to sex between consenting adults by the HC of Delhi on July 2009
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