The Constitution was adopted on November 26, 1949, by the Constituent Assembly and it came into force on January 26, 1950, declaring India as a republic. Article 372 provided that all laws in force immediately before the commencement of the Constitution will continue until altered and amended. With this, the Indian Penal Code (IPC), the draft of which prepared mainly by Lord Macaulay during his stay in India between 1834 and 1838, continued to deal with substantive aspects of criminal law.
In 1833, Macaulay moved the House of Commons to codify the whole criminal law in India and bring uniformity. It was reasoned by him in the House of Commons that Muslims were governed by the Quran and in the Bombay Presidency, the Hindus were treated as per the Manusmriti. Thus, the Pundits and the Kazis were to be consulted on points of law, and the subjects in certain respects had to face the decision of court, at times, grossly arbitrary. During that period, the laws were often uncertain and differed widely from province to province.
In the year 1833, the Charter Act was introduced as a single legislature for the whole of British India. Accordingly, the First Law Commission was constituted in 1834. Macaulay was president and Macleod, Anderson and Millet were commissioners.
Elucidating the task before the commission, Lord Macaulay observed: “I believe that no country ever stood in need of a code of law as India and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this–uniformity when you can have it, diversity when you must have it, but in all cases certainty.”
In preparing the code, the commission drew help not only upon the English and Indian rules and regulations but also took support from Livingstone’s Louisiana Code and Code of Napoleon. It is said that Macaulay was a follower of Bentham’s concept of “Hedonism”. So, according to him, the quantity of punishment may be such as to suppress the pleasure which the offenders might derive in committing an offence.
A draft code was submitted to the Governor General in Council on October 14, 1837. It was circulated to the judges and law advisers of the crown. The code remained as a mere draft for 22 years and it was not until 1860 that it became a law. During this interval, it was revised from time to time by Lord Macaulay’s successors, especially Sir Barnes Peacock, the last chief justice of the Supreme Court of Calcutta. According to James Fitzjames Stephen, who authored the Indian Evidence Act, 1872, “The long delay in the enactment of the IPC has thus been the singular but most beneficial result of reserving a work which has been drawn up by the most distinguished author of the day for a minutely careful revision by a professional lawyer, possessed of as great experience and as much technical knowledge as any man of his time.”
Subsequently, the draft code was revised by Bethune and Peacock who were law members of Governor General in Council. In 1856, the Bill was presented to the Legislative Council and was passed on October 6, 1860. Finally, the IPC came into force on January 1, 1862. Several princely states, however, remained out of its reach until the 1940s. The Act, at present, is applied to the country, except Jammu & Kashmir.
In this way, the IPC primarily framed by Lord Macaulay, continues to define offence and hand out punishment to the citizens. It enunciates offences like theft, loot, murder etc., and prescribes suitable punishment. Notably, it not only defines offences but also explains confusions that may arise in its application, by giving illustrations at appropriate places. After Independence, the penal code saw minor changes through different Criminal Law (Amendment) Acts in order to keep pace with the times. But the 1860 Code is still considered as a well-drafted law which has survived the ravages of time.
Pointing out the anachronism seen in the amendments, law researcher and advocate Pavan Kumar says: “Though India was under the British rule, the IPC did not recommend that citizens should become coward and timid. They introduced the provisions for private defence. Now look at the difference, the makers of the IPC defined deadly weapon as ‘anything which can be used for means of offences’ but our Parliament in 2010 inserted Section 153 AA which defines deadly weapon as ‘anything which can be used for means of offences and defence.”
At times, knee-jerk reactions led to particular amendments, rising apprehension for its gross misuse. Certain changes–like age of consent for girls from 16 to 18–were brought through provisions of the Criminal Law (Amendment) Act 2013 following clamour for tough action against the accused in the December 2012 gang-rape case. Experts fear that this may put a boy behind the bars for life despite the girl’s consent for sexual activity.
In 1833, Macaulay moved the House of Commons to codify the whole criminal law in India and bring uniformity. It was reasoned by him in the House of Commons that Muslims were governed by the Quran and in the Bombay Presidency, the Hindus were treated as per the Manusmriti. Thus, the Pundits and the Kazis were to be consulted on points of law, and the subjects in certain respects had to face the decision of court, at times, grossly arbitrary. During that period, the laws were often uncertain and differed widely from province to province.
In the year 1833, the Charter Act was introduced as a single legislature for the whole of British India. Accordingly, the First Law Commission was constituted in 1834. Macaulay was president and Macleod, Anderson and Millet were commissioners.
Elucidating the task before the commission, Lord Macaulay observed: “I believe that no country ever stood in need of a code of law as India and I believe also that there never was a country in which the want might be so easily supplied. Our principle is simply this–uniformity when you can have it, diversity when you must have it, but in all cases certainty.”
In preparing the code, the commission drew help not only upon the English and Indian rules and regulations but also took support from Livingstone’s Louisiana Code and Code of Napoleon. It is said that Macaulay was a follower of Bentham’s concept of “Hedonism”. So, according to him, the quantity of punishment may be such as to suppress the pleasure which the offenders might derive in committing an offence.
A draft code was submitted to the Governor General in Council on October 14, 1837. It was circulated to the judges and law advisers of the crown. The code remained as a mere draft for 22 years and it was not until 1860 that it became a law. During this interval, it was revised from time to time by Lord Macaulay’s successors, especially Sir Barnes Peacock, the last chief justice of the Supreme Court of Calcutta. According to James Fitzjames Stephen, who authored the Indian Evidence Act, 1872, “The long delay in the enactment of the IPC has thus been the singular but most beneficial result of reserving a work which has been drawn up by the most distinguished author of the day for a minutely careful revision by a professional lawyer, possessed of as great experience and as much technical knowledge as any man of his time.”
Subsequently, the draft code was revised by Bethune and Peacock who were law members of Governor General in Council. In 1856, the Bill was presented to the Legislative Council and was passed on October 6, 1860. Finally, the IPC came into force on January 1, 1862. Several princely states, however, remained out of its reach until the 1940s. The Act, at present, is applied to the country, except Jammu & Kashmir.
In this way, the IPC primarily framed by Lord Macaulay, continues to define offence and hand out punishment to the citizens. It enunciates offences like theft, loot, murder etc., and prescribes suitable punishment. Notably, it not only defines offences but also explains confusions that may arise in its application, by giving illustrations at appropriate places. After Independence, the penal code saw minor changes through different Criminal Law (Amendment) Acts in order to keep pace with the times. But the 1860 Code is still considered as a well-drafted law which has survived the ravages of time.
Pointing out the anachronism seen in the amendments, law researcher and advocate Pavan Kumar says: “Though India was under the British rule, the IPC did not recommend that citizens should become coward and timid. They introduced the provisions for private defence. Now look at the difference, the makers of the IPC defined deadly weapon as ‘anything which can be used for means of offences’ but our Parliament in 2010 inserted Section 153 AA which defines deadly weapon as ‘anything which can be used for means of offences and defence.”
At times, knee-jerk reactions led to particular amendments, rising apprehension for its gross misuse. Certain changes–like age of consent for girls from 16 to 18–were brought through provisions of the Criminal Law (Amendment) Act 2013 following clamour for tough action against the accused in the December 2012 gang-rape case. Experts fear that this may put a boy behind the bars for life despite the girl’s consent for sexual activity.