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Colonial Veil Over the Indian Penal Code: Time for Reform?

While delivering a speech in the House of Commons on 10 July, 1833, Lord Thomas Babington Macaulay said that the role of British colonisers was to give good government to those to whom they could not give free government.[1] What Lord Macaulay saw as good government was giving people the rule of law. In the following months after the speech, Lord Macaulay set sail to India on an expeditious task of codifying the laws of India.

It appears that he had drafted the Indian Penal Code (IPC) by 1837, the enactment of which was only paid attention to after the Sepoy Mutiny of 1857 which had acted as a wakeup call for the British in India.[2] After the mutiny, the administration of British India shifted to the Crown and from 1862 onwards the IPC was speedily implemented in India. 
 
For more than one hundred and fifty years, the IPC has served India eminently through its crisp and comprehensive provisions. Yet the uncertainty around its colonial character looms. The IPC was well ahead of its time and has served India majestically. However, with evolving times, the changes in Indian society along with its overall outlook towards crime need representation in the IPC. The suggested changes discussed ahead in the paper have been compared to contemporary situations on the same matters prevailing in the UK and the USA to give the arguments a persuasive taste.
 
Suggested Changes
On a list of changes that need to be incorporated, foremost is the challenge posed by the draconian provision of sedition. Sedition, which has been present in the IPC since colonial times, has faced flak from the public for a long time as it is used to suppress voices of dissent against the actions of the government and its agencies, which use it to further their political agendas; serving a purpose akin to that which was intended by the British who wanted to vanquish the ideas of freedom and independence of the native Indians. 
 
A government that has been voted to power in a free democracy must be prepared to face fair and honest criticism, made in good faith, by its citizens. The citizens have the right to freedom of speech and expression in India by the Constitution of India and they should be allowed to exercise their right freely when they bravely point out flaws in the policy of the government without intending to bring into hatred or contempt, the government established by law in India.

Even exceptions attached to the section on sedition accommodate fair and honest criticism of the government and its policies. However, by misusing the provision, the government cracks down on people when the opinions expressed are against its political ideology. 
 
Sedition, as a criminal offence, has been abolished in the UK against citizens but has been retained for aliens. In the USA, under the US Code (2385), sedition is still an offence, but in light of freedom of speech, its interpretation has been narrowed by the courts. It is high time that in India, this colonial-era relic is either abolished or struck down to stop its misuse to punish those who fairly criticise the government.
 
The next most contested issue regarding the criminal justice system in India is the question of removing death as a punishment from IPC. Many argue that capital punishment is violative of human rights and does not have the deterrent effect that is expected of it. Whereas those in support assert that certain offences which are so barbarous and beyond regard for humanity should be punished with a death sentence as retribution for the crime is necessary. 
 
In the UK, capital punishment has been abolished for all crimes since 1998. Whereas in the USA, capital punishment is still awarded for criminal offences and has not been completely abolished. In India, it has been assigned only for offences like inter-alia murder, waging war, abetting mutiny in the armed forces, and in certain cases of rape. 
 
The courts in India have moved away from the hard stance and award death sentences only in the rarest of rare cases, which are cases where the act of crime is so exceptional and brutal that death sentence seems to be the only punishment equivalent to the cruel offence. However, the country is slowly treading on the path where courts prefer life imprisonment over death sentences.

As a punishment, the death sentence is becoming obsolete and soon it is hopeful that it would be removed as a punishment from the IPC as retribution should not be the guiding principle for giving punishment. In place of capital punishment, strict life imprisonment without any commutation can be provided as punishment for offences. New kinds of punishments that focus on reformation rather than retribution, like doing community service, probation, electronic monitoring and others, can be incorporated into the IPC for less severe offences. 
 
Another contention considering the reformation of the IPC has been of having a gender-neutral section 375 which defines the offence of rape. The IPC makes use of the term man, thereby representing that the offender in the sexual offence of rape is a male and the victim is a female.

The demand of making the definition of rape gender-neutral has been going around for some time as people debate that males and people from the transgender community have also been victims of the ghastly offence, but the definition of rape in IPC bars them from seeking justice. The foregoing argument is correct and is one for the right cause. Making rape laws gender-neutral would ensure that every victim, whether a female, male or transgender, gets equal protection from the horrible offence. This would safeguard everyone's right to justice. 
 
In the UK, the Sexual Offences Act, 2003, only punishes men as the perpetrators of rape. On the other hand, in the USA, the US Code (Title 18), the California Penal Code, the Washington Criminal Code and penal codes of other States have gender-neutral definitions of rape and everyone, irrespective of gender, is protected by the laws. Therefore, in order to provide justice and safety to all, India too, must amend the IPC and use gender-neutral language while defining and punishing sexual offences.
 
There has been a rising clamour around the question of criminalising marital rape in India. Section 375 of IPC which defines rape has an exception which states that sexual intercourse or sexual acts by a husband with his own wife, who is not under eighteen years of age[3], is not rape. This means that forced sexual intercourse without the wife's consent, within the marriage, would be legal as per the IPC. Such a provision is a blot on the Indian legal system and is violative of Articles 14 and 21 of the Constitution of India.

Protecting women below eighteen from marital rape, but not women above eighteen cannot pass the test of intelligible differentia of classification under Article 14 and would hence be violative of it. At the same time, it is violative of Article 21, which provides that no person should be denied the right to life and personal liberty except according to procedure established by law, as a wife is deprived of her liberty, free will and dignity when she is forced into marital sexual intercourse. 
 
Marriage is a union of two beings. It is an association of individuals and by marriage, the individuals do not lose their individuality, dignity, liberty or equality. They simply come together to benefit from mutual companionship. The institution of marriage was developed to bolster the collective prosperity of individuals. Using it as a ground to sanction forceful marital sexual intercourse goes against the very tenets that marriage as an institution aspires to uphold.

In comparison, the UK recognised marital rape as an offence in 1991 and moved away from the rigid common law stance that sexual intercourse within marriage, if non-consensual is not unlawful. In the USA, since 1979 all States have criminalised marital rape, and today it is a crime throughout the country.
 
Thus, it has been long due for a democratic country like India, which carries the ideals of equality, freedom, dignity and liberty as sacred to its citizens, to criminalise the monstrous offence of marital rape. The exception from Section 375 of the IPC needs to be removed and justice shall be given to marital rape victims.
 
Conclusion
These are only a few suggestions, but greater work needs to be done to carry forward the idea of reforming the IPC. Reformation of the IPC would call for its in-depth study in light of the present requirements of, and standards prevailing in, India. Over the years, Indian, English and American laws which share the same common law roots, have been diverging. English and American laws have been enacted, amended or repealed considering the sea of social changes through which the countries underwent.

Laws have been changed to better suit the contemporary social conditions of these countries, even if that required departure from common law principles and traditional legal jurisprudence. By the same token, India should push forward and recognise the 'Indianness' of its society, culture and people and amend the IPC along the lines of 'Indianness'. 
 
Hence, there is a need for revising some provisions in the colonial era IPC to align them with the present-day Indian society. For example, Section 229 which punishes the personation of a juror or assessor has become redundant today as the jury system has been abolished in India. New offences (for example, mob lynching) and new punishments (probation, community service and others) need to be added and existing provisions changed.
 
It is reiterated that the comparative study of the UK and the USA was undertaken only for persuasive purposes and to understand how the criminal law has diverged from the common law in these two countries. What is expected of the comparison, is that India must carve out its own path of development in criminal law, just like these two countries have done over the years.
 
As the honourable Chief Justice of India N. V. Ramana had recently said, The need of the hour is Indianisation of our legal system.[4] The IPC needs to be amended to reform and restructure its outdated provisions along the lines of contemporary Indian thought, standards and social development. By amendment, the IPC would better fit the current trends, social situations and the circumstances of India and its practical realities, thereby building a synergy with the judiciary to overlook improved administration of criminal justice in India.

End-Notes:
  1. Elizabeth Kolsky, Codification and The Rule of Colonial Difference: Criminal Procedure in British India, 23 Law and History Review 631, 631 (2005).
  2. M C Setalvad, The Common Law in India, 123-124 (1960) Stevens & Sons Limited.
  3. Independent Thought v. Union of India, (2017) 10 SCC 800.
  4. Krishnadas Rajagopal, Need to 'Indianise' Legal System to Suit Our Society: CJI, The Hindu, Sept. 18, 2021, https://www.thehindu.com/news/national/need-to-indianise-legal-system-to-suit-our-society-cji/article36532676.ece

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