Open Access Research Article
Revisiting Indian Penal Code, 1860- The need of the hour? (By- Gazal Gupta & Akshay Sharma)
Abstract
Revisiting Indian Penal Code, 1860-
The need of the hour?
Authored By- Gazal Gupta &
Abstract
After the construction of Indian
Penal Code in 1834, the times have immensely changed. Therefore, more than 160
years later, the IPC needs to be restructured because crime does not always
remain the same and amendments can only be made to an extent. The IPC needs to
be restructured since many of its provisions have become obsolete as a result
of changing state of the economy and technological developments.
The following research addresses the
history of Indian Penal Code and how various amendments like the 2013 and the
2018 amendments have shaped our penal code. Further, it also throws light upon
the criticisms of the amendments and how even the amendments fail to solve the
current problems existing in the society. Hence, the need to revamp the code
arises.
Additionally, focus is also placed
on various sections and chapters like the Section 375, 376A, 124A, Section 294
and Chapter 3 that have failed to fulfill its purpose. Judicial decisions where
the requirement to amend a section has been emphasized upon has also been
highlighted.
Keywords:
Penal, Amend, Judicial Decisions, Restructure
Introduction
The Indian Penal Code, as well as
its subsidiary laws, the Indian Evidence Act and the Code of Criminal
Procedure, were all adopted in the 1800s and 1900s, despite previous
recommendations and suggestions, have never been comprehensively revised. The
Indian Penal Code is the country's official criminal code (IPC). It is an
all-encompassing code that seeks to address every aspect of criminal law. The
code was based on the recommendations of India's first law commission, chaired
by Lord Thomas Babington Macaulay and established in 1834 under the Charter Act
of 1833.[1] As a
result, a revision of the IPC is necessary to transfer authority from the
leaders to the people. The IPC has to be restructured since many of its
provisions have become obsolete as a result of changing state of the economy
and technological developments. Some of the examples can be, firstly, the
definition of rape under Section 375 of the Indian Penal Code encompasses all
forms of sexual assault including nonconsensual contact with a woman
("IPC"). Exception 2 to Section 375, on the other hand, exempts
unwilling sexual intercourse between a husband and a wife above the age of
fifteen from Section 375's definition of "rape," and therefore
shields such acts from prosecution. A woman is said to offer her husband an
eternal commitment to have sex with her once they engage in marital
intercourse. India is one of the thirty six countries where Marital rape is not
a crime because unwanted sexual contact between a husband and a wife is illegal
in almost every country on the planet.[2]
Secondly, as pointed out by Justice VG Arun that there are no legal penalties
for 'road rage' in India. This must be noted by legislators, with appropriate
modifications should be made in this direction to close the gaping breach.[3] While it
took 158 years for the courts to decriminalise homosexuality and adultery, now
is the time to revisit the legislation, modernise it, and implement it in
accordance with 21st-century standards.
Research Objective
An effort has been made in this
paper to examine the Indian Penal Code, 1860, in light of 21st-century norms.
The paper explores why the need to revisit the code emerges, with a focus on
past amendments and its criticisms in this extensive code. This paper will also
look at the various modifications that may be made to this code. The goal is to
look into areas of the code that are currently unwelcome.
Research Methodology
This paper probes into the analysis
of the changes that can be brought to the Indian Penal Code. The primary data
have been taken from legitimate government sources. The Indian Penal Code and
the Criminal Law amendments of 2013 and 2018 have been analyzed. The various
judgments related to revamping of code have been taken from Manupatra and SCC.
The secondary data have been taken from secondary sources like previous
research, National and State commission reports, legal journals and newspapers.
The statistics and detailed information has been taken from various newspaper
sources like India Today and Tribune India.
History Of Crime And Indian Penal
Code In India
Before Muslim monarchs conquered
India, the nation was ruled by Hindu criminal law. Because there was no state
during the Vedic Period, Dharma was the primary source of law, with Dharma
(Sacred Law), History (Charitra), King's Edicts (Rajasasana), and Vyavahara as
the four parts of law (Evidence). Manu, Yagnavalkya, and Brihaspati were the
main sources of the law, as they all had a deep grasp of retribution and how to
use it to punish criminals. Because there was no formal state creation and no
rulers in the early stages, the victim would utilize vengeful ways to punish the perpetrator.
After the Muslims came to India, Mohammedan Penal Law was in effect in most of
the country, owing to Muslim rulers' conquest and imposition of their criminal
law. The Quran was the Muslim rulers' major source of law, but the laws in it
were insufficient to meet the demands of a vast civilised society, so they
introduced the Sunna, or code of behaviour.
After the rule of Britishers, the
Indian Penal Code was drafted by the First Law Commission, which was chaired by
Thomas Babington Macaulay. The plan was based on a simple codification of
English law, plus elements from the Napoleonic Code and the Louisiana Civil
Code of 1825.
The first version of the Code was
presented to the Governor-General in Council in 1837, but it took another two
decades for it to be finalized. The whole code was finished in 1850 and presented
to the Legislative Council in 1856. It took longer to be incorporated into
British Indian law due to the Indian Revolt of 1857. The draft then underwent a
very careful revision at the hands of Barnes Peacock, who later became the
first Chief Justice of the Calcutta High Court, and the future judges of the
Calcutta High Court, who were members of the Legislative Council, and was
passed into law on 6 October 1860. The objective of this Act is to provide a
general penal code for India.[4] Post
independence, various conceptions of criminal law have been established by
jurists and philosophers. According to Professor KD Gaur, there are four
theories that have evolved in criminal law: the civil wrong theory, the social
wrong theory, the moral wrong theory, and the group conflict theory. Till date,
there have been amendments 77 times in the code. The very recent ones being The
Criminal Law (Amendment) Act, 2013 and The Criminal Law (Amendment) Act, 2018.
Past Key Amendments To Indian Penal
Code, 1860
-
Criminal Law (Amendment) Act, 2013
The Criminal Law (Amendment) Act,
2013, which took effect on February 3, 2013, modified and added new provisions
to the IPC relating to different sexual offences. Certain activities were
specifically recognised as offenses under the new Act, which were previously
dealt with under related legislation. The Indian Penal Code has been amended to
include new offences such as acid attack, voyeurism, stalking and sexual
harassment. The amendments made are:
? The amendment created a new section
376 A for rape that results in the victim's death or permanent vegetative
condition.
? By adding an explanation to section
375, consent was defined as "unequivocal voluntary agreement"
indicating the woman's desire to participate in the sexual act by "words,
gestures, or any form of verbal or nonverbal signals." This definition
makes it clear that a woman's silence or lack of a "no" cannot be
interpreted as a "yes."
? The modification included a new
section 166 A to penalise public employees who decline to file a FIR in
situations of specific crimes against women, such as rape.
? Previously, section 376A
(intercourse by a man with his wife) carried a penalty of imprisonment for a
term up to two years. The penalty for sexual intercourse by a husband on his
wife during separation without her permission (section 376B, replacing section
376A) was increased to seven years with the 2013 modification, with a minimum
penalty of two years.
? In section 375, acts other than
forcible peno-vaginal penetration or sexual intercourse were added to the
definition of rape. Perforation of a woman's vagina, mouth, urethra, or anus by
a man's penis, any part of his body, or any object, or forcing her to do so
with him or anyone else; manipulation of any part of a woman's body to produce
penetration into her vagina, urethra, or anus, or forcing her to do so with him
or another person; and putting his penis, any part of his body, to a woman's
vagina, urethra, or anus, or forcing her to do so with him or another person.
? Section 376 (2) was also amended to
include rape of a woman under the age of 16 as an aggravated offence with a
higher penalty.
? Under section 166 B, the amendment
added a new proviso penalising individuals in charge of a public or private
hospital who refuse to give free medical treatment to rape victims.
? The consent age has been raised from
16 to 18 years.
? The definition of Section 376 C was
broadened to encompass the use of a position of power or a fiduciary connection
by certain people to persuade or entice any woman in their custody or charge to
have sexual relations with them.
? The amendment also introduced a
section 376E for repeat offenders, which imposed harsher penalties on anyone
convicted under it. The death sentence, as well as life without parole, were
adopted as punishments in this section.
? The definition of rape perpetrated
by a member of the armed forces deployed in an area by the Central or State
Government was enlarged to include rape committed by a member of the armed
forces deployed in that area by the Central or State Government.
? For the crime of gang rape, a
special section 376 D was created with a harsher penalty. The section states
that if a woman is raped by one or more people acting as a group or with a
common goal, each of those people will be deemed to have committed rape and
will be punished with rigorous imprisonment for a term of not less than twenty
years, but which may extend to life, meaning they will be imprisoned for the
rest of their lives.
?
The
amendment included the death sentence as a punishment for rape that results in
a vegetative condition or death.
Criticism Of The Criminal Law
(Amendment) Act, 2013
Although this amendment was a step forward, numerous
procedural concerns that are important to making the criminal justice system
effective in the event of rape and functioning as a deterrence to future crime
were not addressed. Furthermore, the amendment act does not include certain
recommendations made by the Verma Committee Report, such as criminalization of
marital rape, politicians accused of sexual offences barred from running for
office, lowering the age of consent, and amending the Armed Forces (Special
Powers) Act to eliminate the need for a sanction to prosecute an armed force
personnel accused of a crime against a woman. This amendment was partially successful,
but it failed to address numerous key issues.
The Criminal Law (Amendment) Act,
2018
? Section 376(1): The punishment for
rape of a woman should be a minimum of ten years in jail, with the possibility
of life imprisonment. As a result, the minimum term of imprisonment was
elevated from seven to ten years.
? Section 376(3): The amendment now
includes a penalty for rape on a woman under the age of sixteen. In such
situations, the punishment must be a least of twenty years in jail, with the
possibility of life imprisonment.
? Section 376AB: The amendment also
includes a penalty for rape on a woman under the age of twelve. In such
situations, the sentence is set at a minimum of twenty years of rigorous
imprisonment, with the possibility of life imprisonment. In such circumstances,
the perpetrator may possibly face the death penalty.
? The amendment introduced sections
376DA and 376DB, which deal with the penalties for gang rape on a woman under
the age of sixteen and twelve, respectively. In such situations, the sentence
must always be life imprisonment. However, gang rape on a lady under the age of
twelve can result in the death sentence.
? Section 376(2) (i) has been
removed.
Criticism Of The Criminal Law
(Amendment) Act, 2018
There have been several criticisms
of this amendment act. Firstly, murder is punishable by death or life
imprisonment under Section 302 of the Indian Penal Code. As a result, the
penalties for rape on a minor girl and murder have practically become the same. As a result, the chances of the perpetrator
ensuring the victim's death are now quite high. The Delhi High Court addressed
this issue when a Bench consisting of Acting Chief Justice Gita Mittal and
Justice C. Hari Shankar asked, "Have you considered the victim's
consequences? How many criminals would let their victims to live now that rape
and murder are both punishable by the same law?[5]”
Secondly, The 2013 Criminal Law Amendment was aimed with the same goal, namely,
to make the laws more harsh in order to establish a deterrence in the minds of
criminals. However, data reveal that the strict regulations have had little
impact on reducing crime rates.[6] Therefore,
making laws harsh is not the answer to reduce crime. Thirdly, Prior to the
change, the minimum sentence under Section 376 (1) was seven years in jail and
ten years in prison under Section 376(2). This distinction was made because the
crime became more severe. Nevertheless, following the amendment, the minimum
penalty in both subsections is now ten years in jail, thus there is no
difference. Lastly, The victim of rape of minors can be either male or female,
according to the POCSO Act. Adults, on the other hand, can only be prosecuted
with rape if the perpetrator is a man and the victim is a woman, according to
the Indian Penal Code, 1860. The Indian Law Commission (2000)[7] and the
Justice Verma Committee (2013)[8] have
suggested that the definition of rape be changed to be gender-neutral and apply
to both male and female victims. The Criminal Legislation (Amendment) Act of
2018 has made major modifications to the nation's criminal law. However, for
overall successful results, these adjustments must be combined with other
improvements in the criminal justice system.
Why Is There A Need To Revisit
Indian Penal Code?
The IPC is founded on the concepts
of free choice, contractual foundations, and constitutional grounding.[9] The IPC's
resilience necessitates significant modifications based on these principles.
The initial premises and provisions of the IPC were orientated differently
since the Constitution emerged considerably later than the code and, as a
result, lacked its fundamental approach.
The code's four goals were outlined by McCauley: One, the code should be
more than a simple digest covering all provisions of the law; two, the code
should suppress crime with the least level of pain and enable for the most
effective finding of reality; three, the code should be unambiguous and
precise; and four, uniformity in definition and procedure must be of vital importance.
Consideration of an IPC modification project would be a recognition of the
impact of non-legal elements on the code's functioning. The IPC was primarily a
cultural artefact that reflected a European heritage that many indigenous
colonial cultures found alienating. Macaulay was also limited in his grasp of
the region's cultural subtleties.[10]
Therefore, it is the need of the hour to revisit Indian Penal Code and form
provisions as per the developments of 21st Century. Many changes have been made
in the past to guarantee that the IPC evolves with time, although it has not
been completely altered since its inception. Despite the fact that some
modifications to the provisions of the IPC have been made, as evidenced by
court rulings, it is time to revamp the whole act to ensure criminal justice
for one and for all.
Amendments That Can Be Brought To
The Indian Penal Code Are As Follows:
1. Section 375:
Exception under Section 375 needs to
be deleted as Sexual intercourse without the consent of woman has very devasting
effect on that woman whether intercourse done by her own husband or any other
person. Marriage is a fiduciary relationship of husband and wife, and when a
husband commits such an act it will definitely injure the woman who sacrificed
everything for him. Definitely, in the conjugal context there is supposed to be
a fiduciary relationship and the expectancy of respect for self-sufficiency of
decision is supposed to be higher.
The marital rape exemption is
grounded in the ancient announcement by Hale in around 1676, which was
published in around 1736 that “the husband cannot be guilty of a rape committed
by himself upon his lawful wife, for by their mutual matrimonial consent and
contract the wife hath given up herself in this kind unto her husband which she
cannot retract”[11] This resulted in exemption of the marital
rape in USA and UK from which India updated its laws.
With the growing of law and span of
time US and UK understood that Marriage and consent are not same they are
different and there is need to revamp the exemption of marital rape. A famous
philosopher Lord Lane quantified that the marital exemption rule arranged by
Hale did not serve any purpose in modern society. His saying is that “there
always a time when the changes are really unexpected that it is no longer
enough to create further exceptions restricting the effect of the proposition,
a time when the proposition itself requires examination to see whether its
terms are in accord with what is generally regarded today as acceptable behavior”.
He lastly specified that the declaration by Hale was not law; that it was a
common law fiction that had become repulsive and redundant in modern society.
Thus, it can be seen that the
marital rape exemption was done away explicitly in the United Kingdom and in
Scotland. But, the laws in India remain unchanged, even when the premise it was
based on, has vanished. The foundation for the marital rape exemption in India
is that wives are treated as the property of the husband and are assumed as
under the legal personality of the husband. This is a legal fault that has long
since been done away with.
2. Section 376 A:
Sexual intercourse by husband upon
his wife during separation.—Whoever has sexual intercourse with his own wife,
who is living separately, whether under a decree of separation or otherwise,
without her consent, shall be punished with imprisonment of either description
for a term which shall not be less than two years but which may extend to seven
years, and shall also be liable to fine.
Suggestion:As in the above
suggestion authors suggested that Exemption of Marital rape should be exempted
then need of this provision also comes to end as an offence will not be
affected by marital status of accused and victim.
3. Section 124 A:
Section 124 A of the Indian Penal
Code, 1860 was inserted by the Britishers in 1898 to control the revolts
against them and to overpower the freedom movements. But, in the current
situation this provision is usually misused by the government against those
people who criticize the government.
Suggestion: Section 124 A of Indian
Penal Code, 1860 gives ample power to the government to punish the person who
speaks against the government. India is a democratic country and we the people
of India choose the government by different ways of election. This provision
should be amended in such a way that the arbitrariness of the government can be
reduced. As our constitution of India provides us freedom of speech and
expression and if someone uses that constitutional right and criticizes the
government for any act of the same and then the government charges the person
with sedition under section 124A of the Indian Penal Code, 1860. Here are some
arguments against the provision of sedition defined under are as follows:
? Section 124A is an artifact of
colonist inheritance and unsuitable in a democracy. It is a limit on the
genuine use of Right of freedom of speech and expression provided by the
constitution of India.
? Criticism of the government is an
important element of healthy public discussion in an exciting democracy.
Government should not construct it as a sedition. Right to question, criticize
and change rulers is very fundamental to the idea of democracy and also given
to us the citizens of India by the Constitution of India. Britishers introduced
this provision to dominate over the Indians, they have even themselves stopped
the law of sedition as given under section 124A of Indian Penal Code, 1860 in
their own country. And hence there is no genuine reason which states that why should
not India eradicate this provision of sedition given under Section 124A. The
terms used under Section 124A of the Indian Penal Code, 1860 like
'disaffection' are ambiguous and subject to diverse interpretation to the whims
and fancies of the examining officers. It is a well known fact which we all
know or can see in the current scenario that the sedition law is being misused
as a tool to prosecute for political dissent.
Also, Indian Penal Code, 1860 and
Unlawful Activities Prevention Act have diverse provisions that penalizes
disrupting the public order or overthrowing the government with violence and
illegal means which are adequate to protect the national integrity of the
country and hence no requirement of Section 124A Indian Penal Code, 1860 to protect
the National Integrity. Therefore, the provision of section 124A should be
ejected from the Code.
4. Section 294 :
Under this provision, the act
of annoying someone by performing any obscene act in public places is
punishable. However, the word ‘obscene’ is nowhere defined under the Act and
this is often misused.
Suggestion:
The word Obscene is not defined in any provision of law and due to which it
causes a huge discretionary power to the court and the police to consider what
means obscenity. Usually we take reference of different sources to prove
anything as obscene and hence according to Black's Law
Dictionary obscenity means “character or quality of
being obscene, conduct, tending to corrupt the public merely by its indecency
or lewdness” while According to Webster's New International Dictionary, word
'obscene' means “disgusting to the senses, usually because of some
filthy grotesque or unnatural quality, grossly repugnant to the generally
accepted notions of what is appropriate.” And it is very difficult to reach a
conclusion about what obscenity actually is? So, it should be defined under
provision of law. It would reduce the ambiguity of its meaning and will also
help to seek quick and fair justice.
5. Chapter 3:
The
punishments provided under Chapter 3 of Indian Penal Code, 1860 are very
traditional. It only provides for imprisonment or fine. There is no reference
to community service or reforming the criminal in any way.
Suggestion:
Chapter 3 of Indian Penal
Code, 1860 talks about Punishment Imprisonment or fine which may or may not
help in reformation of the criminal. The main and major objective of our law is
to reduce the crime rate by reformation of the criminals. When we punish a
criminal, we must have an implied interest in reforming the criminal.
The
major object of this theory of punishment is to reform criminals. In State of
Gujarat v. Hon’ble High court of Gujarat[12], It
was held that Reformation should be the main objective of imprisonment and
during incarceration there should be an intention to make a good human being
out of convicted[13].
So, the Indian criminal justice system of modern time has adopted reformative
theory while awarding punishment to criminals instead affecting their
individual liberty in imprisonment. Community service by the convicted has been
recognized in our criminal justice system. Hence, Community Service is not
punishment in the actual term but the service to society which the convicted
person owes. And as a result of this social service society will appreciate the
person and also will give self- satisfaction and comfort to him, particularly
in the case where because of his deeds and acts society suffered and someone
lost life or injuries as the case may be.
Indian Penal Code (Amendment) Bill
1978 proposed to include community service as a way of punishment as given
under chapter 3 of Indian Penal code, 1860, but this proposal was rejected by
the Law Commission of India.
Community Service or corrective
labor is a form of punishment in which the convict is not deprived of his
liberty. This community service shall be served either at the workplace of the
accused or in a special place of work as authorized by the courts. Although
this form of punishment has not been incorporated in IPC, courts from time to
time through judgements have held this punishment as the most suitable form of
punishment instead of sending offenders to jail.
In case of State Tr. PS Lodhi
Colony, New Delhi v Sanjeev Nanda[14], six
humans lost their lives because of a hit and run case, held that community
service as a form of punishment instead incarcerating the convict further in
Jail. In R.K. Anand v Registrar High Court Delhi[15]The
court decided that in place of sending the convict to jail, it will be fruitful
if we keep him out and let him do the things that will be useful to society.
In solemn SK v State of West Bengal[16], court
ordered to plant 100 trees within a year to the accused person who was found to
be juvenile during the alleged offence of attempt to murder. The Court said
that instead of referring the person to the juvenile justice board as a
registered medical practitioner, he should perform community service. From this
case discussion we can conclude that the judiciary is inclined towards
community service orders instead of sentencing the accused person in prison.
Hence there is an urgent requirement to mention community service or reforming
the criminal in the Indian penal code, 1860.
Conclusion
Revisiting
the Indian Penal Code, 1860 and revising its provisions is a crucial step toward
modernizing the provisions of the Indian Penal Code, 1860, which forms the
foundation of India's criminal justice system. As previously said, the British
exploited the Indian Penal Code to their advantage and to silence anybody who
attempted to speak out against them, hence it was entirely founded on the
deterrence idea. However, it is past time to update certain clauses, such as
those mentioned above, to reflect current needs. Amendments to the Indian Penal
Legislation, 1860 would undoubtedly aid in providing justice to victims and
those who have been wrongfully accused owing to gaps in the code. It will also
ensure that certain provisions of the Indian Penal Code, 1860 that are no
longer relevant are repealed or amended to reflect the current situation. While
the legislature amended section 377 of the Indian Penal Code, 1860, there are
many other provisions that need to be amended, some of which we discussed
above. The changes to the code were ineffective as a whole. Amendments should
not be made in order to satisfy political objectives.
The Indian Penal Code, 1860, may be
summarized as a legislation in India that offers multiple classifications of
offenses as well as varied punishments. It is a comprehensive code that aims to
cover all aspects of criminal law. As is well known, the Indian Penal Code of
1860 was enacted in 1860, and now it is 2022, so the situation, their emotions,
and circumstances have naturally changed. It cannot be compared to the current
temporal environment.Revisiting the Indian Penal Code, 1860, does not imply
that there were any flaws in its creation; rather, as the population grew, so
did the need to amend certain provisions, which is also a main function of our
legislature, which is to amend the law in response to public demand or to
decide on any law in the public interest. There was a scenario at the time that
matched the rules, and laws were formed in light of that period of
circumstance, which did not always follow even after a century. This code has
been in effect for more than 160 years, and it is past time to update important
laws, as stated above, since it is urgent. This research paper was produced to
call attention to the urgent need to reexamine the Indian Penal Code, 1860, and
the preceding ideas are only meant to be used as a guideline for altering the
provisions of the Indian Penal Code, 1860.
References
1.
Law commission of India. Law Commission of India. (n.d.).
Retrieved January 3, 2022, from https://lawcommissionofindia.nic.in/
2.
Desk,
I. T. W. (2016, March 12). Marital rape
in India: 36 countries where marital rape is not a crime. India Today.
Retrieved January 3, 2022, from
https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12
3.
Sunny Thomas v. Kerala Bail Appl. No.2319
Of 2021
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from https://www.indiacode.nic.in/handle/123456789/2263?locale=en
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Staff Reporter, Was any study done before bringing out rape ordinance, The Hindu,
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Dutta,
P. K. (2020, January 10). NCRB 2018: Have
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7.
Report No. 172: Review of Rape Laws, Law
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Criminal Law, 2013, January 23, 2013.
9.
Service,
T. N. (n.d.). Criminal law amendments
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Time to revisit IPC. Deccan Herald. (2016, March 5).
Retrieved January 3, 2022, from
https://www.deccanherald.com/content/532874/time-revisit-ipc.html
11.
Quoted
in History of the Pleas of the Crown (1736) vol. 1, ch. 58, at p. 629. Sourced
from S.W. V. The United Kingdom
[1995] ECHR 52.
12.
AIR
1998 SC 3164
13.
Mohammad
Giasuddin v. State of Andhra Pradesh AIR 1977 SC 1926
14.
AIR
2012 SC 3104
15.
AIR
2013 SC 670
16.
MANU/SCOR/19904/2019
Published Paper
Author Details
Author Name: Gazal Gupta & Akshay
Sharma
Title: Revisiting Indian Penal Code, 1860- The need of the hour?
Email Id: guptagazal08@gmail.com
Article Information
Revisiting Indian Penal Code, 1860- The need of the hour? (By- Gazal Gupta & Akshay Sharma)
Authors: Author Name: Gazal Gupta, Akshay SharmaTitle: Revisiting Indian Penal Code, 1860- The need of the hour?
- Journal IJLRA
- ISSN 2582-6433
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