Faizan Mustafa writes: New penal code falls short of its laudable objectives


Criminal law’s promise as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens. In no other branch of law is more at stake not only for the individual but also the community. Only the coming decades can tell to what extent the three new Bills meet the stated objectives of improving law and order, simplifying the criminal justice process and achieving the laudable goal of “ease of life”. Ideally, making criminal law compatible with the constitutional vision should have been the foremost object of the new codes.

Home Minister Amit Shah, like Macaulay, will be remembered for initiating a sea change in Indian criminal law. The 42nd report of the Law Commission, 1971 had proposed a revision of the Indian Penal Code (IPC). But the amendments in 1972 and 1978 lapsed due to the dissolution of Lok Sabha.

There is no denying the fact that the philosophical stance and fundamental principles of Macaulay’s code were the product of a particular time and culture, and the imperialist policy of the British empire. The Home Minister is right in asserting that some of the concepts underlying the code were either problematic or had become obsolete and, therefore, there was a need for reforms.

In 1860, when the IPC was enforced, it was certainly ahead of its time. Macaulay had himself favoured regular revision of the IPC. It is widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the entire British Empire. Today it is the longest-serving penal code in the common law world. James Stephen, who drafted the Evidence Act, 1872, had remarked, “The Indian Penal Code is to the English criminal law what a manufactured article ready for use is to the materials out of which it is made. It is to the French Penal Code and, I may add, to the North German Code of 1871, what a finished picture is to a sketch. It is far simpler, and much better expressed than Livingston’s Code for Louisiana; and its practical success has been complete.”

The Modi government has taken the extremely difficult task of improving the IPC in terms of precision, comprehensibility, and accessibility. Unfortunately, for most crimes, the new code has not been able to improve the definition clauses and has merely clubbed penal sections with the definition sections. It has certainly widened a few definitions in cases like rape and sedition though the word “sedition” has been dropped. The requirement of mens rea or guilty mind with the use of the expression “purposely or knowingly” and “secession or armed rebellion” and removal of “disaffection towards government” are welcome changes. Yet, the term “subversive activities” again widens the scope with no definition of subversive activities given in the code. The inclusion of financial means in this section is unnecessary as terror financing has been included in the offence of terrorist acts, where the stringent special law of UAPA has been incorporated in the general code itself. Even Sardar Patel had opposed “sedition” as a ground for restricting freedom of speech under Article 19.

The distinction between “culpable homicide” and “murder” in the IPC was criticised even by Stephen as the “weakest part of the code” as their definitions were obscure. “Culpable homicide” was first defined, but “homicide” was not defined at all. Indeed, “culpable homicide”, the genus, and “murder”, the species, were defined in terms so closely resembling each other that it was difficult to distinguish them. The new Code does not improve these definitions except for punishing killings in mob lynching by five or more persons without using the term “mob lynching”. The retention of the death penalty too shows that the government continues to believe in the dated ideas of retribution and deterrence. The death penalty has been provided for the rape of a minor. The much-abused crime of cruelty has not been made gender-neutral, despite this being one of the rationales for the new code. The insanity provision has replaced the wider idea of “unsoundness of mind” with just “mental illness”. Section 143, which punishes the habitual export, import and selling of slaves, is a surprise inclusion as slavery has already been abolished. It is disheartening to see that the new code has neither made marital rape an offence nor made any improvements on the inadequate hate speech provisions of Sections 153A and 153B. The offence of adultery reappears in a new avatar as the offence of having sex on the false promise of marriage or promotion etc.

Criminal conspiracy was made a substantive offence only in 1913. There are doubts about the need to continue in the new code the type of conspiracy which is punishable even when two people merely agree to commit an offence without any overt act following the agreement. The offence is objectionable because it was added to the code by the colonial masters to deal with political conspiracies and a code committed to the constitutional ideals of the rule of law and democracy should not retain it. Justice T R Fitzgerald had observed: “The law of conspiracy is a branch of our jurisprudence to be narrowly watched, to be zealously regarded and never to be pressed beyond its true limits.”

Criminal defamation has a chilling effect on free speech and should have been decriminalised. Unfortunately, even the punishment of two years imprisonment has been retained by Section 354(2), though community service has been added as an alternative punishment. In a welcome move, community service has also been provided for first offenders in cases of theft that involve values of less than Rs 5,000 and for the misconduct of drunken people in public places.

Similarly, the offence of blasphemy has been retained though most countries in the world have decriminalised it. Liberal India should not be seen in the company of regressive Islamic states. The new code has also retained membership of an assembly without any participation in the actual crime as an offence. There have been instances when people have been sentenced to death and hanged, despite not even being present at the actual scene of the crime. Attempt to commit suicide has been retained only when it is done to put pressure on a public servant.

Criminal justice policy is largely irrelevant in reducing the incidence of crime. Achieving higher conviction rates may be a good goal but it simply requires that innocent people not be prosecuted. The inclusion of forensic investigations in major crimes is to be appreciated. A good criminal justice system must be accused-centric as in it one little man is pitted against the might of the state.

The author is Vice-Chancellor, Chanakya National Law University, Patna. The views are personal





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