Analysis: Does the IPC need overhauling?

Reading time: 6-8 minutes.

Revamping of the Indian Penal Code by the current government has been in the headlines for a while. Recently, the Home Minister in a statement enunciated that the Indian Penal Code, 1860, that has been followed since the British era, has many loopholes and it needs to be amended and represented in order to increase the efficacy of the act.

Further, it was contended by the Ministry that rebooting the code introduced by the British in 1860 was necessary as it is primarily based on the spirit of “master and servant”.  Many grievous offences mentioned in IPC do not provide with the appropriate punishments which leads to unevenness. Secondly, IPC has not been amended wholly ever since it was enacted.

Hence, it becomes important to discuss the effectiveness and the capability of the Indian Penal Code in today’s scenario in which, various new forms of crime have originated, and where the antiquated law s seems obsolete.

Background of drafting of IPC:

Thomas Babington Macaulay, who was the chairman of the First Law Commission, prepared the draft of the Indian Penal code in 1837. The idea of the same was based upon the English Laws along with Napoleonic Code and Edward Livingston’s Louisiana Civil Code of 1825.

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 puisne judges of the Calcutta High Court, who were members of the Legislative Council, and was passed into law on 6 October, 1860.

The Law Commission in its 42nd Report in 1971, revised the IPC. Suggestions were welcomed even by the general public and accordingly, several changes were made in it. A questionnaire was prepared and sent to various High Courts and Bar Associations and other legal bodies along with the state governments. Each and every legal section was scrutinized in order to remove discrepancies if any.

Does an old law be construed as ineffective?

A law that has been enacted centuries ago definitely needs some changes as the time goes by. The Act may not have become ineffective with the time but yet, its value may have deteriorated. Hence, in order to regain the actual essence of the existing law, it is important to amend those laws, rules, regulations or procedures.

There are many reasons as to why the value of the law may have deteriorated with time:

  • Change in the perspective of the people as to how they perceive those laws.
  • Change in other laws/introduction of other laws that overshadows the existing laws.
  • Change in nature of the state leading to non-acceptance of those laws.
  • Laws existing for those issues which have been abolished for a very long period of time and have been eradicated from the society.

Ineffectiveness of the law cannot be made out from its age as even a new law being introduced may remain ineffective, until and unless the people of the state are aware, and morally accept that law.

Is IPC incapable of serving the needs of modern times?

It is rightly said that modern times have modern problems and requires contemporary solutions. The Indian Penal Code, on one hand, stands trustworthy on the ground of providing ethical punishments and stands strong in its framework, however, on the other hand, there are many pros and cons of this act which are discussed in detail as follows.

  • Section – 309: Committing suicide in India is a criminal offence which means that if one tries to end his life and if survives, he/she will be sent to jail. The provision is absurd as it serves no purpose and contradicts Article-21 of the Constitution of India which ensures right to life and right to die.

However, this section is no more effective after the passing of Mental health Care Bill.

  • Section-294: It states that whoever to the annoyance of others does any obscene act in the public places shall be punished with imprisonment which may extend to 3 months or fine.

This section provides extensive powers to the police to harass the couples sitting in a park or spending time together at a public place. The term ‘Obscene’ has not been defined in the Act and hence, it is misused.

Section- 294 must be attracted only when annoyance is caused to others.

  • Section-57: Life Imprisonment as a punishment is at the discretion of the court as to the number of years. It depends more upon the nature of crime that has been committed. But, when it comes to the calculation of fractions of punishment, it is fixed for 20 years. This takes away the discretionary power of a judge and differences arose as to the approach of giving punishments.
  • Earlier, deterrent theory was prevalent and it can be said that the provisions that were enacted in 1860 were in accordance with the need and requirements of that time. With the change in time, our society has also shifted from deterrent to reformative theory of punishments.

These are some examples which establishes the need of amendment in the current Code.

The fact cannot be denied that the code has been beautifully drafted and credit should be given to the makers of the act. It is divided into various chapters and bifurcated by the offences affecting Human body and offences affecting the property.

It also includes provisions relating to marriage which makes it a complete act in itself in terms of Public Health, Safety, Convenience, decency and moral.

Flaws were not present in the act but have arisen with the change in era which now demands more specific and to the point provisions.

Conclusion: Probable future

The Indian penal Code is a comprehensive code and covers almost all the substantive aspects of criminal law. It is an act which stand holds the criminal justice system in India. Hence, it is important that the act is free from any discrepancies.

The Malimath Committee in 2003 in its report suggested many penal reforms that needs to be ratified in order to fulfil the aspirations of the citizens and accommodate it with the changing nature of the crime.

Coming back to the main issue, whether or not, there is a need to amend the Indian Penal Code, it definitely needs to be studied by the legal experts in order to form an opinion and act accordingly so that the Justice is not back-pedalled.

–This article is brought to you in collaboration with Aniket Vashisth Maharaja Agarsen Institute of Management Studies, New Delhi.

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