[NEW] Flagship TS Batch 2 for IAS Prelims 2018 starts on 15th Sept

To join click here | Want a demo test? Click here | Have Q? Call us at 8823831311

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. Sandeep Shukla

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

    1. 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. Sandeep Shukla

        SORRY SIR…………….

  2. 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. 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. 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. Sumer Shah

      Nice writeup dost! Very logical points.

    2. 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. 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. 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. SHIKHAR JHA

        I agree…

      2. Tamizh Kaathalan

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

      3. 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. Ravi Mantwal

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

        2. Ravi Mantwal

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

          1. Devesh Tiwari

            bhas yahi tha bhai 😀 ,,

      4. 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. Rahul Meena

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

        1. Ashima Banerjee

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

  5. tushar dhingra

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

  6. Simran Bains

    What basically is curative petition?

    1. 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. Simran Bains

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

      2. Javed Aftab

        “Dismissed by circulation” meaning ?

        1. niks' fixes

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

[op-ed snap] Target Section 377: On decriminalising gay sex

Image result for Section 377

Image source

Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Once you are done reading this op-ed, you will be able to attempt the below.

By the latest Supreme Court verdict, sexual orientation is an aspect of the right to privacy and an inalienable part of human dignity, freedom, and personal liberty. Comment

From UPSC perspective, the following things are important:

Prelims level:  Section 377

 Mains level: Issues related to LGBT (Lesbian, Gay, Bisexual and Transgender) rights


News

Context

  • The SC has laid the foundation to decriminalise consensual gay sex

Same-gender sex

  1. It remains a crime in the country ever since the constitutional validity of Section 377 of the IPC was upheld in Suresh Kumar Koushal (2013) Case
  2. What is Section 377: It criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community(lesbian, gay, bisexual, transgender, queer, intersex)

Court’s observations

  1. While declaring that the right to privacy is a fundamental right and an inherent component of human liberty and dignity, the nine-judge Bench has observed that the rationale behind the Koushal judgment is flawed and unsustainable
  2. It has said the rights of LGBT persons are real rights founded on sound constitutional doctrine and not “so-called rights” as the earlier Bench had described them disdainfully.
  3. The claim made in Koushalthat there was no need to challenge Section 377 because the LGBT community constitutes only a minuscule minority has been completely discredited.
  4. It was unreasonable to advance the view that constitutional protection is available to a group based on its size
  5. This week’s ruling on privacy rights contains a clear enunciation of the constitutional basis for protection of rights based on sexual orientation.
  6. Transgenders, even though insignificant in numbers, are entitled to human rights, another Bench had observed in National Legal Services Authority (2014), in a subtle hit at the “minuscule minority” formulation in Koushal.
  7. Significantly, it advocated the adoption of the Yogyakarta Principles

What is Yogyakarta Principles

  1. These are norms on gender identity and sexual orientation adopted by human rights experts in 2006 in Indonesia.
  2. A key principle is that discrimination based on sexual orientation and gender identity must end
  3. By commending this norm, the court has located sexual orientation not only as a freedom flowing from the right to privacy, but as demanding of non-discriminatory treatment.

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.







Highest Rated App. Over 3 lakh users. Click to Download!!!