ABSTRACT
India introduced 3 criminal laws which were to replace the colonial laws, i.e Bhartiya Nyaya Sanhita replacing the Indian Penal Code, Bhartiya Nagrik Suraksha Sanhita replacing the Code of Criminal Procedure and Bhartiya Sakshya Adhiniyam replacing the Indian Evidence Act. The reason behind this replacement was that all these laws were enacted during the British colonial rule and they were contrary to the contemporary India and the requirements of the vibrant society.
The IPC is a legislation coming into effect in 1860 and covers all the laws related to crime in India. The IPC aimed at consolidating and unifying the administration of criminal justice throughout British India by replacing a host of local statutes with one uniform system. It ensures uniformity in applying and interpreting the law. It has to protect the rights and freedoms of people by defining criminal offences and the legal redress available to victims. The IPC looks to, in a way, ensure accountability, thus acting as a disincentive to illicit activity in society. The Indian Penal Code helps to maintain justice and equity in society through the act of providing the legal backing required when tackling criminal offences. It tends to protect marginalized people and ensure that offenders are punished for crimes against them.
The Indian Penal Code certainly holds the place of one of the cardinal pillars within the Indian legal system and manifests a full-bodied and uniform system of criminal law. Its importance springs from historical underpinnings, legal principles, social implications, and practical implementations in maintenance of law and order in India and dispensation of justice. The Indian Penal Code, although harnessed and based on colonial edicts, reflects a dynamic legal system that keeps changing diachronically with the Winds of change blowing across Indian society.
Certain changes and additions were made in the IPC to form the BNS, now there is no specific offence for organized crime, mob lynching is a new offence which is punishable with death penalty. In the BNS, sedition is replaced with treason and Section 69 criminalizes sexual intercourse under “deceitful means”, and Section 103 categorizes murder as a different offence if it was committed on the grounds of caste, race or community.
Key words: Indian Penal Code, Bhartiya Nyaya Sanhita, Colonial Laws, British India, Justice, Criminal law
INTRODUCTION
The colonial law refers to the establishment of a legal framework by the colonial powers to rule and govern their acquired colonies. Such laws were ever made to favor the colonizers in order for them to accrue power and dominance over their colonies. They were designed for the purpose of controlling and exploiting the resources of the colonies, disregarding their customs. These laws often resulted in racial segregation and discrimination. These colonial laws do not represent the reality in the present times for the nation, therefore a dire need arises to change and modify the pre-existing laws to cater to the needs of the dynamic society.
The legal basis of contemporary India is intimately related to its colonial past, and most of the laws put into effect during the Raj continue to play an important role in the country’s legal system. In this regard, one important aspect of that legacy is the IPC, which forms the basic ingredients for criminal law in India. Implemented in 1860, the IPC was formulated by the British colonial government for the then existing diverse and expansive Indian subcontinent. It was primarily aimed at integrating several local laws to provide overall legal structure that shall be uniformly applied across the British Indian dominion.
The IPC has been under increasing criticism as it is not possible to underestimate the historical importance it had in the shaping of India’s legal system; many of its provisions are archaic, culturally inappropriate, and at variance with modern democratic values. With the rapidly changing Indian society, the evolution of technology, and change in standards of social behavior, the necessity of major reforms in this colonial-era legal code has been very strongly felt.
The reason for conducting this research is to definitely show the need to refurbish the colonial legislations of India, particularly the IPC. The present paper endeavours to shed light, after having located the historical background and framework of IPC and the impact which it still continues to have in the legal framework in India. Moreover, recent modifications within IPC will be analyzed for their impacts and the ceaseless need for further reform to modernize the Indian legal system with contemporary values and principles of human rights.
The paper is an attempt at an in-depth analysis of the need for restructuring colonial laws like the IPC to ensure equity and fairness in the Indian legal system. It shall delve into case studies of successful reforms and public and legal perspectives about such amendments. Recommendations for reform in the future will also be forwarded to address the more tenacious problems set within IPC. The prime objectives of this study are intended to underline movements beyond the colonial legacy of law and to build a more contemporary and representative legal structure with its roots in the values and changing dynamics of Indian society today.
RESEARCH METHODOLOGY
This research consists of information taken from primary and secondary sources such as official government websites, articles, and journals.
REVIEW OF LITERATURE
The paper throws some light on an introduction related to the colonial legal system and how the British implemented it to create control over divergent regions. The historical context and prominent features of those laws have been discussed, followed by an examination of the development of IPC and its continuing influence. The paper criticizes the obsolete and autocratic content of many IPC provisions and points out recent reforms like decriminalizing homosexuality and revising sexual offense laws. It further goes on to assess public and legal opinions on the need for further reforms, bringing out an update of IPC in tune with modern democratic values and human rights standards. Comparative studies with other former British colonies go on to heighten this imperative: for comprehensive legal reforms to build a more just and equitable legal system in India.
The outlook of law in the subcontinent changed drastically when the British Empire colonized India. Before British Rule, India was the land of heterogeneous local customs, traditions, and systems of law varying under different regions, communities, and kingdoms. In general, the indigenous systems were essentially based on customary law, religious doctrines, or pronouncements of local rulers.
It was intended by the British colonial administration to establish a legal regime that would introduce some consistency in their extensive and varied colony. Indeed, the introduction of a centralized legal regime-similar to the British model of law-began to take real form in the late 18th and early 19th centuries through the creation of various legal codes and institutions.
This centralization of the colonial legal system in India had resultant purposes for an effective machinery of governance and control over the subjects. The British wanted to create a system that would suit their economic, political, and administrative ends.
Some of the main features of colonial laws in India reflect the imprint of priorities and attitudes of the British colonial administration. This has been remarked upon by some writers, where power was centralized in the hands of the colonial administration at the expense of local autonomy and self-government, where it held precedence over the sustenance of the rights of the population colonized for the maintenance of authority of the ruling colonials. Another range of colonial laws aimed at suppressing dissent and resistance against colonial rule by criminalizing political activism and free speech that challenged the legitimacy of British authority, such as the Sedition Act. The legal system was invidious in further entrenching racial discrimination by favoring the British at the expense of the marginalization of the indigenous population through laws and policies. This bias was observable in civil and criminal law and also in the dispensation of justice.
These colonial laws were meant to enable economic exploitation of India, including laws on land tenures, labor, trade, and taxation—all calculated to benefit the colonial economy at the expense of the local population.
Even when India gained independence in 1947, there were a number of laws that were in effect in the country and were enacted by the colonial masters, which took hold within its legal framework. For instance, the IPC was enacted as far back as 1860 and is still the main criminal code in India, even though it has undergone many amendments, most of whose provisions are still in force. The Indian Evidence Act, 1872, enacted by the British rulers, is still an integral part of the Indian legal system and governs the admissibility of evidence before courts in India. Similarly, the Indian Contract Act, 1872, which codifies the contractual relationship and resultant obligations, is another very important and costly legacy of the colonial era, continuing to be in force in India. Moreover, it is the Criminal Procedure Code, promulgated by the colonials and undergone amendments, that still forms the backbone of criminal procedure in India.
Impact of Colonial laws
The continuity of the colonial laws has had an enormous impact on the legal and social fabric of India:
Continuation of Legal System: Drawing on colonial legislation provided, on the one hand, a sense of legal continuity and stability during the transition from colonial rule to independence and, on the other hand, perpetuated hundreds of archaic and repressive pieces of legislation.
Challenges of Adaptation: With the social, economic, and political evolution of India, most of the laws enacted during the colonial period proved inadequate to tackle current problems. This ultimately resulted in legal reforms that were meant to update the system of law and make it more responsive.
Social Justice: The colonial laws have also, at times, come in the way of pursuing social justice because these laws were not designed to satisfy the aspirations and rights of a sovereign democratic country. Reforms in these laws are thus necessary to promote equity and justice in Indian society.
Change in Provisions
The provisions changed in the Indian Penal Code further fortified the criminal justice system.
The definition of terrorism as given in Section 113 of the amended Bill has been borrowed in toto from the definition of the word in Section 15 of UAPA, 1967. Under the UAPA, any “action done with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or intent to strike terror or likely to strike terror in the people or any section of the people thereof or in any foreign country” falls within the definition of a terrorist act—though sometimes it has been criticized for being draconian. In the original draft of the Bill, acts as vaguely defined as intimidating the public or a section of it, upsetting public order, inciting fear or creating a fear-based environment, upending or destabilising the nation’s political, economic, or social structures, declaring a public emergency, or threatening public safety were included in the definition of a terrorist act. Using such a definition, an act of speech that is otherwise not violent could be easily labeled as a terrorist act.
Cruelty
The revised bill suggests that the maximum imprisonment for such an offense shall be three years and defines a clause explaining “cruelty” against a woman by her husband and his family.
The new section 86 has defined “cruelty” as
“(a) wilful act which causes the women to commit suicide or which involves her in actions that are harmful to their life, limb or health whether physical or mental); or
(b) Any other acts, which amount to coercive harassment of a woman with a view to compelling her or any person related to her to meet an illegal demand of any property or valuable security. Publishing court proceedings without authority
The newly inserted section 73 says that whoever prints or publishes “any matter” relating to a rape or sexual assault court proceeding without authorization shall be punishable with imprisonment for two years in addition to a fine. The appended explanation, however, makes it clear that the reporting of any decisions of the Supreme Court or the High Court does not fall within the mischief of this clause.
Replacement of the term “unsoundness of mind”
Consequently, the revised Bill has, in most of its provisions changed “mental illness” to read as “unsoundness of mind.” Besides, it amended sec 367 to incorporate “intellectual disability” alongside “unsoundness of mind.”
Amendment to Mob Lynching
The minimum punishment which was seven years of imprisonment has been taken away, now it penalizes mob lynching at par murder.
Section 377 and Adultry
The two major recommendations of the committee are missing in the proposed Bill a provision that makes non-consensual sex between man and man, woman and man, man and transperson, as well as acts of bestiality cognizable offences and a gender-neutral provision criminalising adultery.
In 2018, Constitution Bench of the SC had taken a unanimous decision to decriminalise adultery as it is discriminatory and an offence against the autonomy of a woman. However, the committee held that, to retain the pristine purity of the institution of marriage, adultery had to be criminalised in a gender-neutral manner. In Re: Navtej Singh Johar v. Union of India, 2018. The apex court opined that the scope of section 377 penalised the consensual same-sex relationships between adults.
Definition of Petty Organised Crime
In the previous draft, petty organized crime was vaguely defined. The present bill is clear in its definition and is to a great extent exhaustive.
Court Proceedings using Audio- Visual means
In correspondence with the rapid development in technology, the first Bill had visualized audio visual means of holding court hearings. Nevertheless, such eliminations kinds of proceedings as stipulated in the old version are thoroughly eliminated like inquiries, trials held in court of sessions, summary cases proceedings, plea bargaining proceedings or trials held in High Courts. The amendments embrace the wider ambit of proceedings that could be conducted through audio-visual means under the new legal climate.
Introduction of Community Service
The draft Bill was pathbreaking as, for the first time, it mooted the concept of ‘community service’ as a punishment for petty offences such as attempting suicide, unauthorized trading by public servants, theft of property less than Rs 5,000, drunkenness in public, and defamation.
It is this new pioneering concept that now finds a niche in the revised Bill under Section 23, in compliance with comprehensive recommendations made by the panel. Community service is explicitly defined as ‘tasks that the Court may mandate a person convicted to undertake as a means of reparation to the community, for which no remuneration shall be provided.
Police Custody
This provision works to provide offenders not only with a sense of responsibility but also to make constructive reparation towards the society they have offended. Reforms in Police Custody
The revamped Bill simply ignored the objections that the committee had raised against a clause in the old draft under which it provided for police remand after the first fifteen days following an arrest.
Though “otherwise than in the custody of the police” has no place in Sec. 187(3) of the Bill corresponding to Sec. 167(2)(a) of the CrPC, it would mean that while what was compulsorily required to be 15 days of police custody may now be aggregately of shorter periods of custody sought periodically during the course of an investigation which may last 60 or 90 days depending on the nature of the offence.
However, the Enforcement Directorate has turned its nose up at the Supreme Court judgment in the 1992 case of Central Bureau of Investigation v. Anupam J. Kulkarni limiting police custody to the first 15 days from the date of arrest and sought referring it to a larger bench to reconsider.
The judgment also dismissed an appeal by Tamil Nadu Minister V. Senthilbalaji. It has been laid down by the Supreme Court in the case of Kulkarni that a remand during investigation in excess of the initial period of 15 days from the date of arrest can only be in judicial custody.
Preventive Detention
Section 172 of the original Bill had provided for police detention to prevent a person from committing an offence punishable under the law. But owing to the vagueness of this clause, such preventive detention could continue till the individual appeared before a magistrate or till “the occasion is past.”
Challenges faced
The different challenges in the introduction of new criminal laws in India, like the Bhartiya Nyaya Sanhita, lie in the reconciliation of modern legal principles with the Indian social situation, existing legal infrastructure, and diverse opinions expressed by different stakeholders. The key challenges are as follow:
Implementation Challenges
Transition from IPC to BNS: The legal procedures, documentation and execution need a wholesale change so that a well-established IPC can be replaced by the new Bhartiya Nyaya Sanhita.
Training of Legal Professionals: Extensive trainings are required for Judges, lawyers, police and other law enforcement machinery so that they can understand and implement the new laws effectively.
Awareness Amongst People: The awareness amongst the general public about the new laws and their rights and duties flowing from these kinds of laws has to be spread far and wide.
Legislative and Bureaucratic Hurdles
Legislative Approval: Getting approval from the legislature is a time-consuming and highly controversial process with debates running for a long time and potential resistance from opposition parties who might not support a particular policy.
Bureaucratic Resistance: Habitual IPC bureaucrats will resist the changes either due to inertia or because of lack of clarity about the new provisions.
Judicial Adjustment
Judicial Interpretation: New laws will need judicial interpretation, which can result in initial confusion and some rulings that may not be uniform until precedents settle.
Case Backlog: Already, there is huge case backlog in Indian courts. The new laws, at least initially, are likely to add to the woes as the judiciary gets adjusted to the same.
Social and Cultural Resistance
Conservative Views: Some sections in society will definitely resist changes to the age-old norms or new progressive reforms.
Regional Disparities: India’s diversified cultural background is such that, even while legal reforms may be greeted with open arms in some regions, it may be resisted in others.
Issues in Law Enforcement
Corruption and Misuse: How to ensure that these new laws are not misused or corrupted at the instance of law enforcement officials is a major concern.
Resource Constraints: The workings of new laws require adequate resources in terms of funds, infrastructure, and personnel.
Constitutional Challenges
Legal Challenges: The new laws are at liberty to be challenged in courts of law on grounds of constitutionality, particularly against provisions that are considered to be variance with fundamental rights.
Skepticism of Public Perception and Public Trust
Cynicism: The people are bound to be cynical about the potency of new laws, more so in case such past reforms have not returned tangible benefits.
Communication: Clearly the Government has to clearly and effectively communicate to the people how the benefits and provisions of the new laws are in order to gain their trust.
Comparative and International Standards
Alignment with International Norms: The new laws should be situated within the set of existing international human rights standards and the various treaties to which India has been a signatory.
Comparative Analysis: Drawing on experiences in countries that have undergone legal reform processes.
SUGGESTIONS/CONCLUSION
Colonial laws have left a lasting imprint on India’s legal system, and their continued presence highlights the need for significant reforms. These laws, originally designed to serve the interests of British colonial rulers, often conflict with the values and aspirations of a modern, democratic India.
The Indian Penal Code (IPC), enacted in 1860 during the British colonial rule, continues to be a prominent example of this colonial legacy. At its inception, the IPC aimed to provide a uniform legal framework across British India, but many of its provisions have become outdated and culturally insensitive in the present context. Over the years, various amendments have been introduced to the IPC to address the evolving societal norms and values of Indian society. Notable examples include the decriminalization of homosexuality and the revision of laws pertaining to sexual offenses, signaling progress in aligning the legal system with contemporary social values. However, several colonial-era provisions such as sedition laws and blasphemy regulations remain contentious and warrant further review and reform.
Reforming the IPC and other colonial laws is imperative to ensure that India’s legal system is in harmony with modern democratic principles and human rights standards. This reform process involves not only the elimination of outdated provisions but also the integration of modern legal concepts and protections for marginalized communities. The judiciary and legislature play a pivotal role in balancing the need for legal continuity with the necessity for progressive change.
The reform agenda is also influenced by public opinion and the perspectives of legal professionals. Surveys and studies indicate a growing awareness of the imperative to move beyond colonial legacies and establish a legal framework that authentically represents the diverse and dynamic nature of Indian society.
In conclusion, while the Indian Penal Code and other colonial laws have historically formed the foundation of India’s legal system, it is essential to critically evaluate their continued relevance. Comprehensive legal reforms are indispensable to address the deficiencies of these laws and establish a fair and equitable legal framework. Through these reforms, India can reinforce its commitment to democracy, safeguard individual rights, and advance social justice for all its citizens.
REFERENCES
Merry, Sally Engle. “Law and Colonialism.” Law & Society Review, vol. 25, no. 4, 1991, pp. 889–922. JSTOR, https://doi.org/10.2307/3053874. Accessed 29 July 2024.
Datta, S. (2014). History revision: Why India’s colonial laws haven’t changed. Index on Censorship, 43(2), 122-126. https://doi.org/10.1177/0306422014537155
Pandey, Anushka, Dash, Preeti Pratishruti, and Satish, Mrinal. “Bharatiya Nyaya Sanhita: Decolonising or Reinforcing Colonial Ideas?” National Law School of India University, 25 Jan. 2024, https://www.nls.ac.in/blog/bharatiya-nyaya-sanhita-decolonising-or-reinforcing-colonial-ideas/.
“The Colonial History of the Indian Penal Code and How Its Influence Extends to the BNS.” The Indian Express, 12 July 2023, https://indianexpress.com/article/research/the-colonial-history-of-the-indian-penal-code-and-how-its-influence-extends-to-the-bns-9448954/.
“BNS vs IPC: How Bhartiya Nyay Sanhita is Different from Old IPC Law; Legal Experts Break Down the Nitty-Gritties of Some Key Changes.” The Economic Times, 4 July 2023,
NIMISHA BERRY
NMIMS, CHANDIGARH CAMPUS