Most major Indian laws are legacies of the British, the results of a great codification movement that failed to make much headway in the colonial metropolis, and therefore chose India as its laboratory.
- Such laws include the Indian Penal Code or IPC (1860), the Indian Evidence Act (1872), the Indian Contract Act (1872), the Transfer of Property Act (1882), the General Clauses Act (1897), the Code of Civil Procedure (1908), and — until its overhaul in 1973 — the Code of Criminal Procedure (1898).
- Among these, Sections 377 and 124A of the Indian Penal Code have received much attention in the recent times. These sections highlight how the British left their stamp upon India’s criminal law in a manner entirely inconsistent with a democratic, constitutional republic.
- Section 377:
Section 377 was in news recently, when the Supreme Court agreed to refer the curative petition against its earlier decision upholding its constitutional validity to a bench of five judges. Section 377 is one of the clearest examples of the then colonial morality that pervades the IPC.
What is it all about?
Section 377 of IPC which came into force in 1862 defines unnatural offences. It says, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”
- Section 124A:
Section 124A is about the offence of sedition. This nineteenth century law, enacted to silence the Indian people by the colonial rulers, has been retained by the democratic government in free India. Not only that, it has perhaps been used more often by free India’s governments than the colonial government did during the 77 years of its presence in the Penal Code.
- Sedition was not a part of the original Indian Penal Code (IPC) enacted in 1860 and was introduced in 1870. Created to deal with the rising Wahhabi movement in the 1870s, used against Gandhi, Tilak, Besant and many other stalwarts of the freedom movement, and in its latest avatar, invoked against sloganeering university students, the law of sedition is perhaps amongst the most recognisable — and notorious — provisions of the IPC.
- Section 124A reflects a colonial logic, predicated upon a subject-ruler relationship between the Indians and the British. Its prohibition upon spreading “disaffection” against the government, and the manner of its use, makes it clear that it was enacted to preserve the reputation of the colonial government in the eyes of its subjects.
How these laws have been impacting?
The colonial context of these laws, and the manner of their use, has often left the courts in a bind. These laws have been forced into a number of unconvincing contortions to try and reconcile the colonial law with the constitutional republic. The government has also been unwilling to strike down these laws.
- While upholding the constitutionality of sedition, the Supreme Court has restricted its operation to incidents inciting towards, or leading to, public disorder. However, this is directly at odds with the language of Section 124A, and has failed entirely to prevent abuse at the level of the police and lower judiciary.
What can be done now?
- It can be concluded that the problems with the IPC cannot be solved in a piecemeal manner by taking isolated sections of the code and attempting to modernise them (as the Verma Committee tried to do with the laws of sexual assault, in the aftermath of the Nirbhaya case). Therefore, a comprehensive relook is necessary.
- Besides, this is not a task that the judiciary can accomplish. It is for the legislature to take a comprehensive relook at the IPC for the first time in its 156-year history and introduce reforms that do not merely tinker at the edges but transform the very philosophy of the penal law in a manner that is consistent with our constitutional principles.
- Also, any such reform would have to be carried out in conformity with the basic principles of the Constitution.
Change has never been more overdue, or more urgently required. Even the criminal law of the United Kingdom was comprehensively reviewed and changed as recently as 2003, via the Criminal Justice Act. Also, laws that claim to protect individuals from moral degradation and corruption, that privilege community sentiment over the individual right of speech and conscience, and that are based upon stereotypical assumptions about men and women, must be reviewed and modernised in a manner that is consistent with the Constitution in the Indian cont