According to a report in The Hindu Sunday, Home Minister Amit Shah has asked the Bureau of Police Research and Development to move ahead on reforming the Indian Penal Code and the Code of Criminal Procedure. It has few details, but mentions that the ministry has constituted two expert committees and has sought suggestions from state governments on amendments to these colonial-era statutes. It quotes a government official as saying that the “idea behind the overhaul is that the master-servant concept envisaged in IPC should change”.
If done, and done properly, this could be a major reform with profound consequences.
Not a policy priority
As it stands, like many reforms that most people agree are necessary and important, an overhaul of the IPC has been long pending. Faizan Mustafa, legal scholar and vice-chancellor of NALSAR, points out that “no comprehensive revision (of the IPC) has been undertaken in spite of the 42nd report of the law commission in 1971 recommending it”. More recently, in February 2016, then-President Pranab Mukherjee raised the issue, underlining the need to update the 19th century code and make it relevant to the 21st century. Nothing much happened.
One of the bewildering things about Indian democracy is how things that ought to be high priority are ignored by all political parties, the media and the public discourse. Updating the penal code is one of them. The IPC touches the lives of citizens far more than any other statute, has long been identified as needing change, but has just not been on the top of any government’s policy priorities.
As my former colleague Jhelum Chowdhury says, “Since independence, law-makers seemed to have had little time to craft just and good laws relevant to the requirements of a free people. This indeed makes the Constitution of 1950 the exotic icing on a cake whose crust comprises of the musty Indian Penal Code of 1860, the Indian Police Act of 1861, the Criminal Procedure Code of 1898 (amended piecemeal since then), the Indian Evidence Act of 1872 and the Civil Procedure Code of circa 1908. These pieces of legislation surely were good laws in their times for colonial rulers and local elites, but have outlived their relevance and scope in changed times and circumstances.”
Stuck in a time warp
To be sure, when Thomas Babington Macaulay — yes, the same — drafted it in the 1830s, it was an exceptional piece of work. It replaced numerous, mostly religious, criminal laws. Macaulay proposed a uniform criminal code that was both clear and comprehensive and would serve as a model for codifying criminal law back home in England. What made it revolutionary at that time was that it treated Europeans and Indians as equal under the law, revealing the influence of classical liberalism that was taking shape in Britain in the early 19th century.
For this, Macaulay was ostracised by the European community in the Bengal presidency and his career in India was cut short. Macaulay’s IPC languished in the bureaucracy of the East India Company and the Board of Control for over two decades before being finally enacted in 1860. In the following decades, the colonial government modified it to serve the interests of those ruling over Indians.
Sedition, blasphemy, and criminal conspiracy, for instance, came to be criminalised, and remain on the statute books to this day. It’s absurd to criminalise them in a secular, liberal democracy. When fundamental rights protect free speech, how can sowing disaffection be a crime? When the state is secular, how can blasphemy be a crime? If people merely discuss committing a crime, how can it be a crime? Criminalising certain sexual acts and homosexuality are unjustified assaults on individual liberty. The list goes on.
While courts and legislatures have made many changes to the IPC over the past century, it now lacks overall coherence and comprehensiveness. It needs a thorough overhaul.
Changes to the IPC are warranted from three directions. First, it must, as the government official quoted by The Hindu says, take into account that the Indian state is not the master of the citizen. This means shifting the balance of power towards the citizen and making individual liberty the default setting. Second, it must discard a conservative patriarchal approach and affirm gender equality. Third, it must incorporate entire classes of crimes that just didn’t exist in 1860, from “white collar crime”, to cyber crime to those emerging from networked societies.
While the case for reforming the IPC is clear, the question of how it should be reformed, and the implementation of the changes are fraught with risk. Will our deeply compromised system – with its corrupt politicians, incompetent academics, controversial judges and the overall tendency to surrender to populism – throw up a statute that is ‘better’ than what we have now? And if we do come up with something, can our judicial system manage the transition from old to new without grinding to a chaotic halt? Can the new penal code be enforced by the same police structures as we have now, and if not, what about police reforms?
Because these questions go beyond issues of legal principle and into the domain of public administration, they are likely to be ignored by jurists and the legal community until it’s too late. The union government must cover a lot of bases for the IPC reforms to be successful.
The author is the director of the Takshashila Institution, an independent centre for research and education in public policy. Views are personal.