The story behind making of IPC
Introduction
As we know that the Indian Penal Code (IPC) is the official criminal code of India that covers all substantive aspects of criminal law. In its basic structure it is a document that consists of the list of all the punishments and cases this includes every Indian person or entity of Indian descent. The exception to this text is that it is not possible to prosecute any sort of military or any other forces offences on the basis of IPC, they have separate dedicated list of rules. The major criminal code of India is the Indian Penal Code except for the state of Jammu and Kashmir; this applies to the entire of India. In the year 1860, the introductory draught of the IPC was formulated and this was achieved under the guidance of Lord Macaulay’s first law commission. So, in this Article I will see that how IPC was drafted and I will also look into the recent amendments made to this code.
History of IPC
So, this all started in 1558 when Queen Elizabeth-I assumed the throne in England at that time the penal laws grew out of the English Reformation and from the specific acts established by the Church. During that time the concept of incarcerating was completely new at that time. If any person has committed any offence against the state “then the most grievous punishment that would be given to them was placing them upon a sled and on that they are hanged till they be half dead and then they were quartered alive. So English law is a conglomeration of rules that are based upon ancient, common law of England, as time elapsed these laws were modified and added the decisions given by the judges and also the statutory enactments that were made by parliament”.
This process of law reform is a continuing process specially when religion and customary law is prevailing, during the 19th century the British Government started to constitute Law Commissions from time to time and to codify laws wherever necessary and also to legislate reforms in the field of law. In the earlier days the agency that inflicts punishment on the wrong doer is the kin group, when the family or clans used to seek satisfaction from the offender’s kin group, so the punishment related to crimes such as murder, etc were the responsibility of in the group whereas crime like witchcraft and treason were the responsibility of the tribe. Compensation was also given to the family of the victim in the form of kind and a compromise was brough between them to prevent the blood feus between the clans, tribes. Later we see kings to be playing those roles and then came the idea of court where it has the responsibility of all offence which comes under its jurisdiction.
A country’s penal law will change according to the view, and wishes of the rulers of that country that are based on situations and the needs of their nation, the same may also happen when there is a change in the rulers or even when the same government is having different views at different points of time which may lead to the recognition of an act as an offence and the severity of the punishment may also change with the time. We can also find a change in the law of crime when the rules framed by one government differs with their successors in the basic structure of law (fundamental aspects) that may also have an effect in the administration of criminal laws. This basic or fundamental change took place in history in between the years of 1771 and 1861 in India.
1.1 Criminal Law system in Ancient Period
Hindu criminal law was the one which governed India before Muslim Rulers occupied India. In the Vedic Period there was no formation of state, so Dharma was the primary source of law and the 4 legs of Law were: Dharma (Sacred Law), History (Charitra), Edicts of Kings (Rajasasana), Vyavahara (Evidence). The law was mostly taken from Manu, Yagnavalkya and Brihaspati which had a wide range of knowledge on the subject of punishment for the purpose of punishing criminals.
“In ancient communities, the penal law is not the law of crimes, but it is law of the wrongs this, is because of no classification between a tort and crime. Depending upon the nature of the offence the punishments were awarded separately or combinedly along with this the purpose of awarding these punishments were also enumerated in it. It is remarkable for us to know that the criminal law and the civil law systems of India date back to 3000 B.C.E to 1001 C.E, at that our Indian Sub-continent was ruled by kings and this same system was prevalent for the next 4000 years. The term that was commonly used for the term law Neethi or Dharma that was propounded by Manu. Even the Kautilya’s Arthashastra and Dharma Sutras have a more elaborative and well define criminal law systems” . In the very early stages as there was no proper establishment of the state nor there were rulers so the victim himself used to punish the wrong doer by using the retaliatory methods, but slowly there was formation of rules of behaviour that was to be followed by the people that came to be known as Law.
1.2 Changes brought in India (The shift from Mohammedan Penal Law to English Penal Law).
With the advent of British into India they laid their rules and regulation on Indians and captured people according to their words and English law was prevailing in the country, but before their advent Mohammedan Penal Law was prevailing in most of the parts which was because of the conquest by Muslim rulers by which they imposed their criminal law. The primary source of the Muslim rulers was ‘Quran’ but the laws in it were inadequate to supply the needs of large civilized community due to which they had brough the Sunna or rules of conduct. Cruel and severe punishments were imposed by the Muslim rulers which were broadly classified into 4 Kisas, or retaliations, Diyut or blood money, Hadd or fixed punishment and Tazeer and Siyasa or discretionary or exemplary punishments. The evidence rules were also difficult to prove to make a person to get convicted. The severity of the punishments is such that Warren Hastings opined that such punishments from Mohammedan Penal Law were not being continued basing on the grounds of justice and humanity. Only in few cases the Mohammaden law prevailed over the English Penal Code. The Muslim Criminal Law System is broadly classified into:
a) “Crime against the Sovereign
b) Crime against a private individual (Robbery, theft etc,)
c) Crime against the God: This class of crime included consuming intoxicants, adultery etc”,
In the initial years there was no interference by the East India Company onto the criminal Law, but with Warren Hastings administration, Company interfered and altered Mohammedan law up to 1862- which was the year in which the Indian Penal Code came into operation. So, the British Government eventually modified Muslim Penal System by exercising their powers to make regulations.
The story behind the incorporation of 1860 IPC
From the year 1832 people belonging to Bombay, Orissa, Bengal, Bihar and Madras Presidencies were absolved from professing Mohammedan faith if they desired. The Britishers tried to have uniform control over British India, and then the Governor-General became the authority for promulgating laws for everyone. “At a later point of time a legislative council was established to enact all laws and this was continued until 1861 when the Government of Bombay and Madras restored the legislative power and due to the provincial governments, there was a growth of the heterogeneous system of laws that led to the difficulties in the administration of justice as a whole, to resolve this the statute of 1833 appointed law commissions to enquire into the state of laws and to make reports on them. The 1st Indian Law Commission under the president ship of T.B.Macaulay and J.M.Macleod, with members G.W. Andarson and F.Millet submitted their report on the Penal Code on 2nd day Pay 1837 as per the British Government orders” .
The Law Commission commented that the Mohammedans law was superseded by the Hindu Criminal Law long ago and the Commission drafted a draft penal code and submitted the same to the British India Government in 1937. This draft penal code was completed with slight modifications, which was then sent to the judges of the Supreme Court of Calcutta in the year 1851 for their observations and suggestions to bring any changes in the provisions of the code. Two eminent English judges of the Supreme Court gave their observations which were again revised in the year 1852. “This revised edition of Penal Code was sent to the company in London in 1851. Finally, a committee consisting of 5 members had given conclusion that the originally proposed penal code should form the basis of the penal law system which has to be enacted for India. Then Indian Penal Code was passed by the Legislative Council of India and got the assent of Hon’ble Governor General on 6th October, 1860 and came into force on May 1st 1862”.
Since then, we see the Penal Code as one of the much-praised Acts of the Indian Legislature that was serving its purpose well. Though the India Penal Code was enacted in the year 1860, from then many developments have taken place new forms of punishments, crimes came into existence. So due to its very long application from 1862 to till now in addition to the advent of technological developments and globalization taking place there is a need to bring reforms to the Penal Code.
2.1 Role of Law Commission and its members in Drafting IPC:
As the administrative structure was not satisfactory, so the local government has instructed the commission to take the first step in tackling these criminal justice administration issues.
2.1.1 Lord Macaulay:
To bring uniformity and to have a codified criminal law in India, in 1833 Lord Macaulay has moved it in the House of Commons and while speaking on it he said:
“I believe that no country ever stood so much in need of a Code as India, and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this-uniformity when you have it: diversity when you must have it” but in all cases, certainty”.
“He further contended that as Muslims and Hindus were governed by their personal laws Koran and Manu, so during a dispute the Khazis and Pandits were to be consulted on the point of the law which has led to the Court acting arbitrary in some cases”.
2.1.2 Other members:
To assist Lord Macaulay in his project a commission was constituted under his chairmanship
and included other members namely Mr. Millet and Sir John M’Leod. As the bill was passed
these members started working to draft in the years 1834-38. From the year 1838-60 this
remained as mere draft but after an elaborate revision by Legislative Council and under the
supervision of late Sir Barnes Peacock, the Bill was passed into law and became Act XLV, of
1860.
The members of the first commission have prepared a draft of the penal code that was later
submitted to Lord Auckland, the Governor General on 2th May, 1837. For the following
factors, it could not be enacted into a code immediately so they had to wait until 1860: a)
There was darkness and confusion swirling in the substantive civil law and the law of
procedure. b) Two members of the law commission were ill due to which the work was
burdened n Lord Macaulay. The Commission was supposed to be able to frame such a
report with these resources that could assist the Government of India in rendering a decision
on the merits of the Code at no distant time. More contribution in making this draft was of
Lord Macaulay’s, so on account of his work this is called “Macaulay’s Code”. Thus in 1860,
the draft code became a statute and the said code for the administration of criminal justice
still continues in India. At present the process of repealing IPC laws are in progress.
2.2 Structure, Extent and operation of Indian Penal Code
Indian Penal Code, 1860 is divided into 23 Chapters and it comprises of 511 Sections. The code starts with the explanation and exceptions that were used in it. IPC contains substantive criminal law while the procedural law is contained in the Criminal Procedure Act, 1973. IPC
This was the story of IPC and this 160 years old Code has gone through several amendments but there is a need for revamping this code completely and after several recommendations finally there was a decision to redraft IPC and this process is going on and many suggestions have been taken across the country from various departments and people in doing so.
By Goduguluri Venkata Sri Vidya, 2nd year
Damodaram Sanjivayya National Law University, Vizag.