Shubhangi Rajora & Divya Singh Rana (BA LLB, The Maharaja Sayajirao University, Baroda)
The encounter of alleged rapists in the Priyanka Reddy case or the social media outrage that led to a complaint being filed on the Boy’s Locker Room case are examples of the new found route of justice that the common man, the youth support since it not only is speedy but also fills the void between the colonial penal code that exists vs the amended penal code that is sought after for over a decade now. Rape is one of the many crimes in India that gives a death sentence only in the rarest of rare cases. On the other hand, countries like China punish rape with castration, Saudi Arabia with beheading and North Korea by killing the accused by firing squad. It is only with similar deterrent approach that such heinous crimes can be reduced in our country. The punishment for voluntarily causing grievous hurt with acid is imprisonment for a term of 10 years with fine provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim. Irrespective of the trauma or the funding that went into the legal expenses or therapy sessions. There are many such sections in the IPC that need an amendment given the punishment does not justify the trauma caused to the victim and their family. On the issue of lynching, Minister of State for Home Affairs Nityanand Rai (2019) said there is "no separate" definition for mob lynching incidents under the existing IPC. Lynching incidents can be dealt with under Section 300 and 302 of IPC. This strongly highlights the need to have separate and specific section dealing with lynching.
Moreover, in India, marital rape is not defined in any statute or law. The definition of rape is codified under section 375 of Indian Penal Code 1860 includes all forms of sexual assaults involving non-consensual intercourse with a woman. However exception 2 to Section 375 IPC, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. However this was read down in the case of INDEPENDENT THOUGHT V. UNION OF INDIA. Instead, Indian laws still date back to the 1700s, when Matthew Hale of England had declared that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given herself up in this kind unto her husband which she cannot retract.”
The Indian Penal Code update will have to take into consideration as well as deal with reorganisation of chapters, severity of crime and punishments, free will, identification of new offences, improved victim compensation policy, and simplification of language.
The IPC has had the need to be relooked for over decades now, given it came into existence along with the British colonial era of justice about 150 years ago. As a result of which we have age old laws that do not justify the punishments in a modern society and it ends up coming out as ignorant to the nature and extent of crimes against victims and the society as a whole. This also includes provisions punishing adultery, gambling/betting and attempt to suicide. Though the Mental Health Care Act (MHCA) 2018 is believed to have decriminalised attempt to suicide, however it still remains a part of the books as Section 309 that criminalises it. Owing to such small but important examples it can be pointed out that no revision of the sections and punishments of the IPC has taken place.
The Indian Penal Code of 1860 is sub-divided into 23 chapters that comprise of 511 sections.
The draft of the Indian Penal Code was prepared by the First Law Commission, chaired by Thomas Babington Macaulay in 1835. The draft was based on the simple codification laws of England however it borrowed certain provisions from the Napoleonic Code and Louisiana Civil Code of 1825.
Structure Post Independence:
The IPC has been amended more than 75 times since its existence however most of its amendments have been ad hoc in nature and not a complete revision of the sections with respect to the current times. The nature of the Indian Penal Code has been referred to as that of a ‘Master and Servant’ but this relationship has made both the master and servant lose faith in each other owing to how colonial their relation is with certain sections not having any place in an independent country.
Further the 42nd report of the law commission in 1971, suggested necessary amendments in the penal code however that did not bear any fruit owing to the dissolution of the Lok Sabha. In 2003, the then home minister LK Advani set up the Malimath committee to make suggestions on reforming the IPC. After which in 2016, the then PresidentPranab Mukherjee suggested we update the IPC in accordance to the 21st century for a better judicial system. It was recently in 2019 that home minister Amit Shah pursued a statement entrusting the revision of IPC and CrPC to the Bureau of Police Research & Development (BRPD).
The original premise of the IPC came much earlier than the Indian Constitution as a result of which even after several amendments there are continuous and evident legal and constitutional mismatches. More than 40% of the penal code consists of provisions and punishments related to offences against the human body and offences against property leaving a mere 3-5% for offences relating to public order, sexual act and economic crime.
Some of the many sections that were suggested undergo an update in the IPC are as follows:
A re-examination of the sedition law, inserted in 1898.
A criminal conspiracy was made a substantive offence in 1913. The offence is objectionable because it was added to the code by the colonial authorities to deal with political conspiracies.
Sexual offences under the code reveal patriarchal values and outdated Victorian morality.
The main aim behind seeking an update or revision of the Indian Penal Code is to make sure speedy justice is delivered to men, women as well as the weaker sections of the society and to have a penal code that is in accordance to the present times and conditions of the society for which suggestions are to be taken from the states and union territories as well as the appointment of a committee to carry out the process.
Among such suggestions under examination is the use of the ‘inquisitorial system’ followed in France and Germany where the investigation is supervised by a judicial magistrate. This leads to a high rate of conviction, instead of the ‘adversarial system’ followed in India where lawyers represent their parties’ case. In France, where the inquisitorial system is followed the proceeding has 2 judges, one who known as the investigating judge who is in charge of police supervision and investigation while the second judge known as the residing judge is in charge of overseeing the trial and of calling and questioning a witness .
The inquisitorial system happens to be more appropriate at investigating the relevant facts and ensuring that they are taken into account when deciding to proceed with a trial. As such, it seems to be a more cost-effective method of conducting a criminal trial. Officials said some of the features of the inquisitorial system could also be made to co-exist along with the adversarial system to strengthen our judiciary.
It has also been suggested that the crimes be divided into green collar crimes like illegal logging, poaching of wildlife, dumping toxic waste harming the environment, white collar crimes like bribery, bank fraud, cybercrime, and black collar crimes that involve illegal activities involving or related to religion by religious figures. So that it makes it easier for the police to work on the crimes in accordance to their complexity. Moreover establishment of bureaus to study the techniques and mentality of criminals at state and national levels has also been suggested.
The IPC cannot be revised overnight however it cannot wait another 10 years as well given our judicial system is now known for no tough punishments, slow delivery of justice and a colonial era penal code. Since then there have been new and more prevalent forms of crime like such as corruption, money-laundering, organised crime, drugs, domestic violence, sexual assault against children, offence against lower, weaker classes etc.
The revision of the Indian Penal Code will just make the judicial machinery more efficient making the country a legally reliable and safe place for the people living in it irrespective of their class, it is then that the police won’t have to take matters of serving quick justice.