Making of Indian Penal Code - Historical Background (History of IPC) - The Red Carpet

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Monday, May 31, 2021

Making of Indian Penal Code - Historical Background (History of IPC)


 

The Charter Act of 1833, plausibly to achieve uniformity of laws and judicial systems in all the parts of British India, introduced a single legislature for the whole of British India. It made the Governor-General of India, for the first time, solely responsible for promulgating laws for all persons and the Presidency towns as well as for the mofussil. This 'legislature' was authorised to enact all laws, whether of provincial or all-India application. The Governor-General was assisted by an Executive Council. The Charter Act of 1833, however, provided for the appointment of a 'law member' to the Council of the Governor-General, who was only allowed to sit and vote 'at meetings for making laws and regulations'. Thomas Babington Macaulay, who had a firm conviction that India's salvation lay in her complete anglicisation, was appointed as the first law member on the Council. He assumed charge of his office on 27 June 1834.


The Charter Act of 1833 also provided for the appointment of a 'Law Commission' for inquiring fully into, and reporting on, the state of laws in force in British India and the administration of justice. Accordingly, in 1834, the First Indian Law Commission comprising Thomas Babington Macaulay, Sir John Macpherson Macleod, George William Anderson and F Millett as Commissioners was constituted. During 1834-36, the Law Commission, under TB Macaulay's supervision, prepared the Draft Penal Code. In pursuance of orders of the Government of 15 June 1835, the Commission on 2 May 1837, submitted the Draft Penal Code to the Governor-General-in-Council, who on 5 June 1837 returned it to the Law Commission with an order to get it printed under its superintendence. The Commission printed the Draft under its supervision. The Commis- sion also carefully revised and corrected the Code, along with the Notes, while it was in the press.


It is pertinent to note that the Law Commission did not base its Draft Penal Code on either the then penal law prevailing in different provinces or the penal law system premised on the Mohammedan or Hindu law. The Commission reasoned:

“The criminal law of the Hindus was long ago superseded...by that of the Mohammedans...The Mohammedan criminal law has in its turn been superseded, to a great extent, by the Regulations. Indeed, in the Territories subject to the Presidencies of Bombay, the criminal law of the Mohammedans, as well as that of the Hindus, has been altogether discarded, except in one particular class of cases; and even in such cases, it is not imperative on the Judge to pay any attention to it. The British Regulations, having been made by three different legislatures, contain, as might be expected, very different provisions.”


'It appears to us', wrote the Commissioners to Lord Auckland on 14 October 1837, 'that none of the systems of penal law established in British India has any claim to our attention except what it may derive from its own internal excellence'. The Commission also did not think it fit to use the Bombay Code, owing to lack of its 'superiority' over the penal law of the Bengal and of the Madras Presidencies. Justifying its stand and dis- closing its sources in preparing the Draft Code, the Commission observed:

“...[W]e have not thought it desirable to take as groundwork of the Code any of [these] systems of law now in force in any part of India. We have, indeed, to the best of our ability compared the Code with all those systems, and we have taken suggestions from all; but we have not adopted a single provision merely because it formed a part of any of those systems. We have also compared our work with most celebrated systems of Western jurisprudence, as far as the very scanty means of information which were accessible to us in this country enabled us to do. We have derived much valuable assistance from the French Code, and from decisions of the French Courts of Justice on questions touching the construction of that Code. We have derived assistance still more valuable from the Code of Louisiana prepared by the late Mr. Livingston. We are the more desirous to acknowledge our obligation to that eminent jurist, because we have found ourselves under the necessity of combating his opinions on some important questions.”


On 14 October 1837, the Law Commission submitted the printed Draft Penal Code, along with Notes, to Lord Auckland, the then Governor-General-in-Council. The Governor-General-in-Council, who had a strong desire to take some steps to revise the Draft Penal Code, referred to the Law Commission opinions received from Presidencies for its careful consideration.The Draft Code Was revised clause by clause by the Commissioners, Charles Hay Cameron and D Elliot, who submitted their first report on 23 July 1846. These Commissioners submitted their second and concluding report on 24 June 1847.


The Draft Penal Code was then in 1851 referred to the judges of the Supreme Court of the three presidencies, the Advocate-General of Madras and other judges and jurists for their opinion. Meanwhile, the Court of Directors in London, which was anxious to see the Penal Code enacted as early as possible, added a fourth member, Sir Barnes Peacock, to the Commission. The Code was sent to a committee consisting of JP Grant, Sir Barnes Peacock, James William Colvile, D Elliot and UI Moffatt Willes. The Committee, after intensive deliberations in a series of meetings, decided to recommend to the legislative council that the Penal Codeoriginally proposed by the Commissioners under TB Macaulay should form the basis of the system of penal law to be enacted for India. However, the Committee considered all the suggestions and alterations proposed which they incorporated in the Draft Penal Code. But it did not intend to recommend any substantial alterations in either the framework or phraseology of the original. The final and revisedPenal Code was prepared and brought in by JP Grant, Sir Barnes Peacock, James William Colvile, D Elliot and Arthur Buller.


The revised Penal Code was read for the first time in the legislative council on 28 December 1856. The Indian Penal Code Bill was read a second time on 3 January 1857. Thereafter it was referred to a select committee, which was to report thereon after 21 April 1857. The Indian Penal Code Bill, after its second reading, was published in the Calcutta Supplementary Gazette on 21, 24 and 28 January 1857. It was then passed by the Legislative Council of India, and received assent of the Governor-General-in-Council on 6 October 1860. It was scheduled to come into force on 1 May 1861.28 It was published in the Calcutta Gazetteon 13, 17 and 20 October 1860. However, the date of its enforcement, with a view to enabling the people, the judges and administrators to know the provisions of the new Penal Code, was deferred till 1 January 1862 by the Amending Act VI of 1861.


Thus, it is evident that the Indian Penal Code 1860,29 which is an outcome of vision, and laborious efforts of about three decades (1834-1860) of the law commissioners, particularly of Lord TB Macaulay, the main architect of the Code, emerged as a codified the then prevailing English criminal law. Sir James Fitzjames Stephen, paying tribute to Lord Macaulay and his co-commissioners for their efforts in designing the Indian Penal Code, observed:

“ I am conscious of being partial critic of this work for many reasons. But it seems to me to be the most remarkable, as I think it bids fair to be the most lasting, monument of its principal author.--[T]he Penal Code has triumphantly supported the test of experience for upwards of twenty-one years [in 1883] during which time it has met with a degree of success which can hardly be ascribed to any other statute of anything approaching to the same dimensions. It is, moreover, the work of a man who, though nominally a barrister, had hardly ever (if ever) held a brief, and whose time and thoughts had been devoted almost entirely to politics and literature.--[I]t (Code) deserves notice as a proof of the degree in which the leading features of human nature and human conduct resemble each other in different countries.”


'The Draft and the revision', in his view, 'are both eminently creditable to their authors; and the result of their successive efforts has been to reproduce in a concise and even beautiful form the spirit of the law of England; the most technical, the most clumsy, and the most bewildering of all systems of criminal law'.


None other than Sir Henry Maine felt that 'the admirable Penal Code ' was 'not the least achievement of Lord Macaulay's genius' and hoped that it (Code) 'undoubtedly destined to serve someday as a model for the criminal law of England'.


However, its 'alien character' made some Indian scholars to resent the importation of the 'foreign penal law' in India. Sir Hari Singh Gour, in his Penal Law of British India, though appreciating the fact that the Indian Penal Code is 'the most important piece of Indian legislation, was unwilling to join Sir James Fitzjames Stephen in giving tribute to Lord Macaulay, the main architect of the Code, and to thePenal Code . He felt that the 'praise' was 'lavished upon it by discriminating critics without close examination', and 'solely from the charm of the great name of its reputed author'. In 1929, he observed elsewhere:

“The Penal Code is one of the much praised Act s of Indian Legislature and in spite of its many defects has served its purpose fairly well. Its sentences can hardly be said to be other than monstrous. No civilised country today imposes such heavy sentences as does the Penal Code. Heavy sentences have long gone out of fashion in England and the odour of sanctity and perfection attaching to the Penal Code should not deter indigenous legislatures to thoroughly revise the sentences and bring them into conformity with modern civilised standards.”


The contemporary public opinion of Indians was not favorable to the Code. The drafters of the Code, Indians accused, failed to honor their 'promises of simplicity, completeness and general intelligibility' of the Code, when it was brought to the 'test of' its 'practical application'. But interestingly, this opinion seems to be unfounded when one recalls the following observation of Sir James Fitzjames Stephen made in 1883. He remarked:

“Till I had been in India I could not have believed it be to be possible that so extensive a body of law could be made so generally known to all whom it concerned in its minutest details. I do not believe that any English lawyer or judge has anything like so accurate and comprehensive and distinct knowledge of the criminal law of England as average Indian civilians have of the Penal Code. It is hardly an exaggeration to say that they know it by heart. Nor has all the ingenuity of commentators been able to introduce any serious difficulty into the subject. After twenty years' use it is still true that anyone who wants to know what the criminal law of India is has only to read the Penal Code with a common use of memory and attention.”


It is pertinent to note that the Indian Penal Code 1860, which has been amended only sparingly since its enactment in the post-British era, is in operation as a major substantive penal law of India since more than 150 years. Only three chapters, namely, offences relating to criminal conspiracy, election and cruelty to married women, have been added to its original 23 chapters.

Thematically, the Code may broadly be divided into four segments. Chapters I to V contain general matters relating to the extent, definitions, punishment, general exceptions, and principles of liability. Chapters VI to XV deal with public matters between individuals and the state. Chapters XVI to XXII are primarily concerned with offences committed by individuals against individuals or legal persons other than the state. The last chapter, ch XXIII, is residuary in nature, laying down the principle of punishment for attempt to commit an offence if no specific provision has been made therefore.




(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)

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