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India: Government Begins Discussions on Overhauling Colonial-Era Penal Code

(Dec. 9, 2019) On October 20, 2019, the Indian central government began discussions on overhauling the Indian Penal Code (IPC), which was adopted during the British colonial era. According to a senior government official, the Code requires major revisions because the “idea behind the overhaul is that the master-servant concept envisaged in [the] IPC should change.” Ministry of Home Affairs (MHA) sources have indicated that “the new structure and content of criminal laws will be citizen-centric and will reflect the aspirations of modern democracy and provide for speedy justice especially to the weaker sections of society.”

In late August 2019, the Minister of Home Affairs, Amit Shah, while speaking at an event on the 49th Foundation Day of the Bureau of Police Research and Development (BPRD), a government body focused on training, research, and modernization of India’s police force, emphasized that the BPRD should take a leadership role in starting “a countrywide consultative process to make changes in [the] IPC and CrPC [Code of Criminal Procedure].” The MHA has reportedly written to all states and union territories recently seeking suggestions on changes and amendments to the IPC, and “two committees comprising legal luminaries have also been constituted by the Ministry.” In early December 2019, it was reported that the Director General of the BPRD has been given the mandate “to carry out a review of the suggestions on the review of [the] IPC, Criminal Procedure Code (CrPC), Indian Evidence Act and Narcotic Drugs and Psychotropic Substances Act (NDPS).” Also MHA sources have said that “BPRD has been authorised to constitute a suitable working or consultative group and submit a report.”

The IPC was originally drafted in 1837 by the First Law Commission, chaired by Thomas Babington Macaulay, but wasn’t enacted until 1860. Although the Penal Code has been amended several times, there has never been a major overhaul of the Code. Thus, in the view of legal experts, the Code has become an antiquated and problematic legacy of the British colonial administration. The issue of amending the IPC with regard to the use of the sedition section of the Code is also currently pending before the Law Commission of India. An MHA press release from July 18, 2018, noted that the Ministry had written to the Ministry of Law and Justice to request that the Commission “study the usage of the provisions of Section 124A (Sedition) of the IPC” over concerns of abuse and arbitrary use of the law. The Law Commission is examining the provisions and considering “the scope and ambit of the law on sedition, in order to ascertain under what circumstances it can legitimately be invoked.” On August 30, 2018, the Commission released a consultation paper to invite more public discussions and suggestions on changes to the law. At this point the Commission has prepared a draft of a final report that is currently under discussion and review. Experts have also highlighted that other provisions in the Code, such as criminal defamation and blasphemy, also require repeal or amendments. In the opinion of the director of the Takshashila Institution, an independent think tank based in India, a shift away from a “master-servant” approach to criminal justice would mean

shifting the balance of power towards the citizen and making individual liberty the default setting. Second, it must discard a conservative patriarchal approach and affirm gender equality. Third, it must incorporate entire classes of crimes that just didn’t exist in 1860, from “white collar crime”, to cyber crime to those emerging from networked societies.