- Recently the Home Ministry is all set to overhaul the Indian Penal Code (IPC) designed by the British. A senior government official said rebooting the code introduced by the British in 1860 was necessary as it is primarily based on the spirit of “master and servant.”
Historical Background Position of Law
- Indian history reveals that since from ancient times the position of the law of crime was already in existence. The ancient Hindu law as laid down in Smritis, the code of Manu and Yajnavalka the commentaries by Narada, Vyas, Brahaspati and Katyayana gives detailed study on account of law of wrongs, both civil and criminal.
- Manu has described the entire scheme of civil and criminal law he also classified offences like an assault, defamation, theft, robbery trespass.
- In Indian Criminal justice system has no scope for private vengeance or retaliation. In the authoritative text of Dharma-shastras the administrative of justice in which the king who looked after his subject and maintained Dharma in his kingdom.
- The only King was empowered to punish the offenders and his duty is to maintain and uphold the law in society. In the Hindu Dharma Shastra the Hindu law of crime, especially the law of Prayaschitta or punishment is of importance.
- The Manu smritis is an important complete code dealing with the laws, custom and usages of the day. At the times of Yagnavalka and Brihspathi the rigorous punishment was lessened and even the soften fine even for the ordinary offences the ordinary punishment was given. The Hindus had well developed and systematic Criminal law in India.
- In the Kautilya’s Arthashatra which define different form of criminal law violations during his time. From above it is clear the Hindu rulers followed the criminal law and procedure for dispensation of Criminal justice
During the Medieval Period
- After the conquest of the Muslims who invade and conquer a large part of Indian territory and impose these own laws rules and regulation for administrating Criminal justice to regulate the society.
- Those who popularly known as Moghul who always follows the Mohammedan law of crime which totally based on Quran.
- These the Quranic criminal law was inadequate. They are supplemented by Sunna. Hence certain modification were made in Sunna i.e. rule of conduct.
- Here Hidaya which describe principles of Muslim Criminal law for collection of case law the Fatwa-i-alamgiri.
During the British Period
- The British ruler has started certain reforms from time to time as per the need and rule for the benefit for their own purpose.
- The courts were established under Royal charter. The criminal law reform during the year 1828 to 1834 was done.
- The Criminal law in Madras Presidency which was similar to that of Bengal and such Mohammedan law of crimes.
- The Presidency of Madras was subordinate to Governor general in council at fort William (Calcutta, now Kolkata) by the Regulating Act of 1773.
- The Elphinstone code of 1827 introduce a uniform scheme of criminal law
- After six years in 1833 an Act was passed providing for the enactment of laws and the first law commission was appointed with the law member of the Governor general in council. Lord Macaulay as its President made uniform Penal code applicable in all country.
- When Thomas Babington Macaulay 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.
During the Post Independence
- The Indian penal Code which was basically a colonial legislation it was as the main penal law of the country even after Indian Independence in 1947
- IPC has been 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
Need of the Hour:
- 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.
- It must discard a conservative patriarchal approach and affirm gender equality.
- 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.
- Scheme of chapters and classification of offences should be reworked. Offences like criminal conspiracy, sedition, offences against coin and stamps etc. must be abolished or replaced
- Chapters of the IPC are overloaded at several places. Classification of offences must be done in a manner conducive to management of crimes in the future.
Source: Indian Express