đŸ’„Join UPSC 2027,2028 Mentorship (July Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

LGBT Rights – Transgender Bill, Sec. 377, etc.

Written by

Arun Muradnar

in

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.