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Advances In The Penal Law Of India

A bill was proposed by the Central Government to replace the Indian Penal Code (IPC) with Bharatiya Nyaya Sanhita (BNS) as of 11 August 2023. This was proposed by the Union Home Minister, Amit Shah, to focus on justice punishment. At this juncture that I feel it is essential to grasp the essence of the IPC and comprehend how the BNS would impact India's penal law in terms of alteration.

The IPC is an official comprehensive criminal code of India. It covers all the substantive aspects of criminal law. It came into force in India during the British rule in 1862. Though the British ruled the entire area known as India, the code did not automatically apply in the Princely states. The princely states were ruled by the nawabs and the rajas, they had their own courts and legal system until the 1940s (India got independence in 1947).

Though the code was adapted when India was under the British raj, even after India's independence and adoption of democracy, it has continued. Since 1947, the code has been amended 77 times and is supplemented by other criminal provisions like the Code of Criminal Procedure 1973 (CrPC) and Indian Evidence Act 1872.

As the IPC was established when the India was under the British rule and the then landmass included both India and Pakistan (division as per present times), when the British India was partitioned both the newly formed countries inherited the penal code as- Indian Penal Code and Pakistan Penal Code. In 1971, with the independence of Bangladesh from Pakistan, the code was adopted there as well.

Britain had many colonies in the twentieth century, when these colonies achieved independence; the penal code became the basis of their criminal codes as well. These colonies were Ceylon (modern Sri Lanka), Singapore, Colonial Burma, the Straits Settlements (now part of Malaysia) and many more.

In its basic structure, the IPC contains a list of all the punishments and cases which applies to every Indian citizen or entity of Indian descent. Though military or any other Indian forces cannot be prosecuted on the basis of IPC, they have a separate dedicated list of rules.

Origin Of The Penal Law

The first law which governed India was the Hindu Criminal Law, this was before the Muslim rulers (Ghaznavid Empire in Delhi and later the Mughals) occupied India. As there was no state, Dharma was the primary source, the four important components of law were- Dharma (Sacred Law), History (Charitra), Edicts of Kings (Rajasasana), Vyavahara (Evidence). The law was mostly taken from Manu, Yagnavalkya and Brihaspati who were three of the most important dharmashastra writers with wide range of knowledge on subject of punishment.

Before the advent of British in India, the penal law which prevailed in most of the areas was Mohammedan Criminal Law, because of the conquest by Muslim rulers. This law was not made by the legislature but was the laws told by Prophet Mohammed as the commandment of God or Allah. The Mohammedan Criminal Law applied to both the Hindus and Muslims. Cruel and severe punishments were included in the Mohammedan Criminal Law broadly classified into 4 kisas or retaliations- Diyut or blood money, Hadd or fixed punishment, Tazeer and Siyasa or discretionary or exemplary punishments.

The severity of punishments by the Mohammedan Criminal Law was so much that Warren Hastings, first Governor General of Bengal, stated that such punishments were discontinued based on grounds of justice and humanity. Only in cases of crime against sovereign, crime against private individual (robbery or theft) and crime against god the Mohammed Law prevailed later.

In 1772 the British government interfered with the criminal law of India for the first time, this was during the administration of Warren Hastings and thus from time to time the British later interfered with the Mohammedan Law.

To stop the use of the 'Mohammedan law,' the IPC was formulated by the recommendations from the inaugural Law Commission of India established in 1834 under the Charter Act 1833. The commission was chaired by Thomas Babington Macaulay with members J.M Macleod, G.W Andarson and F Millet and the report was submitted to the Governor General of India Council in 1837. But still the Mohammedan Law was followed in the presidency towns.

The elements of the IPC were derived from the Napoleonic Code of 1804 (also called the French Civil Code' defines the concept of equality before the law and securing the right to property, to systemize all laws and make them into a single document) and Edward Livingston's Louisiana Civil Code of 1825 (set of civil penal reform codes written by Edward Livingston, USA lawyer and statesman, later adopted by Guatemala).

The drafting of the IPC was completed in 1850 and was presented to the Legislative Council in 1856, but took place in the statute of British India only after the Indian Rebellion of 1857 (started because of the Doctrine of Lapse, policy of annexation, discrimination against Indians and the economic and social policies of the British). The first draft underwent very careful revision at the hands of Barnes Peacock, who late was appointed as the first Chief Justice of the Calcutta High Court.

The code was passed into a law on 6 October 1860 and came into operation on 1 January 1862. Though Macaulay, who wrote the penal code was not able to see the code become a law and come into force, as he died on 28 December 1859.

The code also came into force in Jammu and Kashmir but only after the Jammu and Kashmir Reorganisation Act, 2019, replacing the Ranbir Penal Code.

Structure Of India Penal Code

The IPC defines the punishable offence and their punishments or penalties or both. This applies to every citizen of India or any person of Indian origin. It is divided into 23 chapters and 511 sections.

The 23 chapters can broadly be classified into four categories: Chapters I to V deal with general matters relating to the extent, definitions, principles of liability etc. They include 120 sections dealing with introduction, general explanation, punishments, general exception to right to private defense (section 96 to106), abetment and criminal conspiracy.

Chapters VI to XV deal with public matter between individual and the state. They include 177 sections (121 to 298) dealing with offences against the state, relating to Army, Navy and the Air Force, against public tranquility, relating to public servants, elections, false evidence and offences against public justice, coin and stamps, weight and measure, affecting public health, safety, convenience, decency and morals and relating to religion.

Chapters XVI to XXII are concerned with criminal offences committed by individuals against individuals or legal entities other than the state. They include 211 sections (299 to 510) dealing with offences affecting human body (murder, culpable homicide, injuries to unborn child, wrongful restraint, criminal force and assault, kidnapping, abduction, slavery, forced labor, rape and sodomy), against property (theft, extortion, robbery, criminal breach of trust, cheating, fraudulent deeds and disposition of property, mischief and criminal trespass), relating to property marks and documents (including bank currency notes), criminal breach of contract of services, relating to marriage, cruelty by husband or relative of husband, defamation, criminal intimidation, insult and annoyance.

Chapters XXIII is residuary in nature and establishes principles of punishment for attempting to commit an offence where no specific provision has been made. It includes section 511 which deals with attempt to commit offences.

Significance Of Indian Penal Code

The Charter Act of 1833 established a single legislature for entire country to have a uniformity of laws and judicial system in British India. The laws were so appropriate that even now they are being used and is independent India's main criminal code, giving all the necessary elements.

The code basically tells the crimes and the penalties for committing a crime. It is a guide for all the rules governing decision making and punishment in cases of fraudulent activity or misconduct. It focuses on all the major crimes which are prevalent in the society dealing with the crimes against state, public offences, armed forces offences, kidnapping, rape, murder etc.

It also includes the religious and property offences with marriage offences, cruelty from husbands or relatives, defamation etc.

The IPC's introduction chapter includes that the penal code provisions apply to any offence committed by: any Indian citizen outside or beyond Indian boundaries and any person on any ship or aircraft in India, regardless of the location.

The punishments of offences as per IPC have been classified into five categories included in Section 53 to 75 of the document in Chapter III, the punishment are- death, life imprisonment, general imprisonment, forfeiture of property and fine.

The Central and State legislations have passed numerous laws to address some particular issues, these are part of the penal code. These legislations are- Information Technology Act, Narcotics and Psychotropic Substances Act, Prevention of Corruption Act, Indecent Representation of Women Act etc.

The document acts as a bench mark for all the decision making and punishment in cases of wrongdoing or misconduct. The mast significant aspect of the code is impartiality in its judgments. No special person or position is exempted from the penal code.

Criticism Of Indian Penal Code

The penal code is a 163 year old official criminal code of India, established in 1860. It is based on the principle of 'master and servant,' as defined in many laws, but this does not have any relation with the independent India where everyone is equal. The Code has not been completely amended since its introduction, only parts of code were amended.

For the promotion of enmity in society of a criminal offence, there are several sections like 153A, 153B, 295A and 505. But there have been great misuse of these against creative, literary and educational work.

The 'use and misuse sedition law (Section 124A of the IPC)' is a colonial era relic which is considered to be unfit for the Indian Democracy in the contemporary times.

Another criticism is about the repealing of Section 295A, which was added in 1927. Section 295A lays own the punishment for deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, it is one of the Hate Speech laws in India and prohibits blasphemy against all religions in India. But the repealing was in arguments as they felt that blasphemy is an offence which has no place in liberal democracy.

Another one is for the compatibility of Section 149 of the IPC, which talks about the unlawful assembly in prosecution of common object of assembly, every person who was part of the assembly at time of offence is guilty of the offence. The argument is about the compatibility of the section with Fundamental Rights.

Another criticism is that it does not legalize marital rape. Marital rape means sexual acts committed without a wife's consent and/ or against her will by the women's husband. This should have been covered in the IPC as even with the contract of marriage 'consent' to have sexual intercourse is important.

Critics also believe that most of the serious offences listed in IPC do not have appropriate punishment resulting in inequity. The crimes even of the heinous nature have punishments which are not at the same level.

The code stipulates certain offences like murder, rape and wars against state as punishable by death penalty but several human rights organizations have urged for death sentence to be abolished considering it as an offender of basic human rights, one of them being 'to live'.

The code even after several years has not been able to get rid of the colonial sounding clauses. A committee called the Malimath Committee was constituted to suggest reforms in the criminal justice system, formed in 2000 with the panel including the Chief Justice of Kerala and Karnataka, Justice V.S Malimath. The committee's main aim was to suggest improvements to India's century old criminal justice system. The findings of the committee were that the legal system did not effectively serve victims of crime and was biased in favor of criminal. The report gave the parliament the chance to amend the code and other criminal statutes while promoting the improvements to criminal justice system.

But since the report was given, 23 years ago, no significant action has been taken in this direction, which should have been done to reflect the current society instead of British colonization.

Bharatiya Nyaya Sanhita Bill, 2023

The bill seeks to revoke and substitute the current IPC. It introduces numerous modifications to prevailing clauses encompassing matters such as defamation, crime against women and acts of attempted suicide. The IPC encompasses 511 sections while the BNS bill presents 356 provisions.

The key highlights to the BNS bill, 2023 are- Sedition (use of words or acts that are intended to encourage people to be or act against the government and to encourage feelings of separatist activities), in the IPC section 124A addresses the offences of sedition, carrying punishment of life imprisonment or imprisonment for up to three years, with a possibility of a fine. But the BNS introduces provision 150 under the 'offences against the State' chapter focusing on the acts that endangers the sovereignty, unity and integrity of India.

In the BNS bill, terrorism as a concept is defined, which was absent in the IPC. The BNS bill defines a terrorist as an individual who commits acts within India or abroad with the intent to threaten India's unity, integrity, security, intimidate the public or disrupt public order.

In the BNS bill, the offence of defamation carries a maximum imprisonment of two years with a fine or community service.

There is a significant introduction of capital punishment for the offence of mob lynching (act of collective violence perpetrated by large group involving attacks on either a person's body or property), with the option of seven years imprisonment or life imprisonment in the BNS bill.

The BNS bill considers sexual exploitation of women in pretext of marriage, job, promotions or identity concealment as a crime.

In the IPC, section 497 talks about adultery which was a criminal act, it imposed on a man who engages in sexual intercourse with another man's wife. The offence was punishable with a maximum imprisonment of five years. Women though were exempted from prosecution. The Supreme Court of India in the case of Joseph Shine v. Union of India on 27 September 2018 bought down the 158 years old Victorian morality law on adultery. Thus the BNS bill eliminates the provision for offence of adultery.

The Supreme Court of India decriminalised all consensual sex among adults, even homosexual sex with the Navtej Singh Johar v. Union of India case (the Supreme Court of India's bench unanimously found that criminalization of sexual acts between two consenting adults to be in violation to the article 14, 15, 19 and 21 of the Constitution of India). The BNS bill aligning with this does not include penalties for 'unnatural sexual offences against men.'

The bill maintains a provision to legalise marital rape, retaining the exception for 'consensual' intercourse between husband and wife.

One of the most important points the BNS bill is introducing is having strict timelines for legal proceedings, requiring a charge sheet to be filed within 90 days and possibility of extension for another 90 days. The investigation of the crime should be completed within 180 days by a trial and judgment within the next 30 days.

These reforms are driven by government commitment to transparency, accountability and justice. They focus on reshaping legal proceedings, empowering victims and ensuring a more equitable legal environment.

Criticism Of The Bharatiya Nyaya Sanhita Bill

While some of the modifications of BNS are beneficial, some have given rise to serious issues which are still untouched. Community Service was introduced as a punishment in the BNS but it fails to define Community Service and what it entails. There can be many religious overtone or other harmful standards which can be included in the service. Here, as a solution a list of possible community service activity or guidelines for conduct may be useful.

There is also no proper step towards gender neutrality in rape and sexual assault. Though in 2019, the criminal law amendment bill was introduced as private member's bill which suggested major changes to make Indian Criminal laws gender neutral. The BNS like IPC recognizes only women as victim of rape and sexual assault while men as perpetrators in the same.

The BNS also does not include any major changes in the sedition law. Almost everything in Section 124A of IPC classifies as sedition is covered under Section 150 of BNS including newspaper articles, books and plays.

The IPC was formulated in 1860 by Thomas Babington Macaulay and others, and it came into force in 1862. Though formulated in the British Raj, it has served the purpose of code for the criminal punishments and penalties with the Code of Criminal Procedure 1973 and Indian Evidence Act 1872.

It was prevalent for the last 163 years and with 77 amendments (after India's independence) the various governments made it in congruence to the changes happening in the nation. But as of 11 August 2023, the Central Government has proposed a bill to replace the IPC with BNS.

Though IPC was a well developed document, the BNS has focused on many important things, it defines the term 'terrorism,' it introduces capital punishment for mob lynching, eliminates adultery, decriminalization of consensual sex even homosexual sex, legalizes marital rape, sexual exploitation as a crime and have a strict timeline for legal proceedings.

The only question now remains- Is the Bharatiya Nyaya Sanhita bill more likely to serve as a superior and efficient legal framework for criminal matters compared to the Indian Penal Code?

Written By: Vidya Taneja

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