Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform
Abstract
Enacted in 1860, the Indian Penal Code is the longest serving and one of the most influential criminal codes in the common law world. This book commemorates its one hundred and fiftieth anniversary and honours the law reform legacy of Thomas Macaulay, the principal drafter of the Code. The book comprises chapters which examine the general principles of criminal responsibility from the perspective of Macaulay, and from more recent accounts by lawmakers and reformers. These are framed by chapters that examine the history and conceptual underpinnings of Macaulay's Code, consider the need to revitalize the Indian Penal Code, and review the current challenges of principled criminal law reform and codification. This book is a valuable reference on the Indian Penal Code, and current debates about general principles of criminal law for legal academics, judges, legal practitioners and criminal law reformers. It also promises to have wider scholarly appeal, of interest to legal theorists, historians and policy specialists. © Wing-Cheong Chan, Barry Wright and Stanley Yeo 2011. All rights reserved.
... Sixth, in the legal field itself, due to decades of colonialism, several jurisprudence theories that originated in the West have found a place in Indian jurisprudence. Moreover, the Indian legal system is based on the enactments and interpretation of local customs and practices by the colonial rulers, while the Indian legal system was developed based on the Victorian morality that prevailed then 13 . Also, debates and discussions around the making of laws against Sati, widow remarriage, child marriage, the Age of Consent Bill, and many others were initiated during the colonial era, when the imperial rulers shaped the laws and policies. ...
Much is being written about feminist lawyering in the West; however, this work examines this idea in the Indian context, its elements, dimensions, challenges one may face, and the way it is being practiced. While reflecting on case laws and activism, this work suggests that 1) Feminist lawyering in a profoundly hierarchical society is a much broader concept than that of traditional lawyering, where a lawyer works not to `win the case' but aims at the larger goals of eliminating inequalities, contesting patriarchy, challenging sexist stereotypes, and addressing structural and systemic conditions that perpetuate male-domination. 2) Feminist lawyering demands affirmative actions besides survivor-centric or victim-centric justice, which entails understanding the situation using the intersectionality paradigm. 3) The purpose of feminist lawyering is to negotiate and contest women's rights at various levels, where the lawyers strive to transform the androcentric systems to enforce the constitutional provisions of equality, liberty, and social justice. 4) Feminist lawyering questions the unjust norms within and outside the courtrooms, asking the legal system, courts, and society to be sensitive about gender concerns. It passionately demands the enforcement of the citizenship rights of half of humanity.
... With most of the available information about children of incarcerated parents in Kashmir reaching us through studies conducted on conflictlinked incarceration (it may or may not reflect what the children of parents incarcerated for criminal acts experience and feel), this study explores nonpolitical nature of crimes (crimes that fall under the purview of the IPC) and the impact of parental incarceration on the children left behind, as understood through their voices and perspectives. IPC is the longest serving criminal code in the common law world (Wright, 2016). It is the official criminal code of India; a complete code intended to cover all aspects of criminal law. ...
... Codification has frequently been used as a weapon of imperialism (Elizabeth Kolsky, 2005). Many English experts criticized the IPC 1860 as "suitable only for backward overseas colonies" (Wing-Cheong, 2013). Partha Chatterjee argues in his book The Nation and Its Fragments that such a stereotypical separation exists between the colonizer and the colonized, which he thinks is the source of colonial authoritarian behavior. ...
The main characteristics of colonialism can be demonstrated as such; political and legal
domination over a foreign society and practice of imperial power exploitation over that
society. The aberration of colonialism is still practiced in the administrative and judicial
system of Bangladesh as there exists a politics-administration dichotomy (Panday, 2020). As
a result, the powerheads are exercising power politics which enable them to get away with
crimes as heinous as rape. The presumption of Criminal Law is that the accused is innocent
until proven guilty which has been the cornerstone for many high-profile rape cases to bar
justice. The colonial definition of ‘rape’ in the Penal Code of 1860 does not elaborate on the
act of penetration where it does not include men and the third gender as rape victims (Kabir,
2014). The law does not cover marital rape over the age of 14 without consent. There are
many other loopholes that are used as getaways for the powerful to date. The objective of
this study is to investigate the characteristics of the current rape law and its execution in
relation to the colonial bureaucracy. The study aims at excavating the cause of the
persistence of century-old rape law and scrutinizing the powers that get benefitted from the
faulty laws. It also focuses on both positive and negative aspects of the modification of rape
law in times of decolonization. The study has been conducted by analyzing 10 high-profile
rape cases in Bangladesh. In addition, secondary materials from various journals,
newspapers, and reports have been extensively checked for ensuring the high validity of the
research.
Keywords: Colonization, Rape Laws, Power politics
... Codification has frequently been used as a weapon of imperialism (Elizabeth Kolsky, 2005). Many English experts criticized the IPC 1860 as "suitable only for backward overseas colonies" (Wing-Cheong, 2013). Partha Chatterjee argues in his book The Nation and Its Fragments that such a stereotypical separation exists between the colonizer and the colonized, which he thinks is the source of colonial authoritarian behavior. ...
Recent efforts to 'decolonize' knowledge frameworks and social structures within postcolonial appears to be a part of a decades-long movement to reform ancient colonial ideological foundations of knowledge and adapt colonial institutions to contemporary contexts. Bangladesh, India, Pakistan, post-colonial regions of the Southern part of Asia, have legal frameworks and penal codes that reflect this significantly more clearly than anywhere else. The legal framework also has an effect on the parameters of criminology within a particular country; from defining crime in terms of legislation, the overall crime prevention strategy, and the law enforcement forces that protects it. Colonizers enacted laws primarily to establish their own identity, as well as a means of regulating the most dangerous aspects of a seemingly rebellious community. If, on the other hand, a country's laws proceed to be centered on those enacted during the colonial period, which placed a focus on controlling the masses of the occupied country, post-colonial countries risk being misled in their efforts to maintain control over their own citizens, rather than choosing to focus on rehabilitation and other advanced and modern criminological perspectives.
... 28 In this functional and correspondent conception, language is thought of as exterior to reality, as a representational mirror (Rorty 1980). This propositional conception of language was pivotal to the utilitarian nineteenth-century project of codification, of which the Indian Penal Code is the most celebrated example (Ahmed 2010;Stokes 1959;Clive 1975;Chan et al. 2011). ...
This paper examines how the discursive practices and language ideologies of Pakistani criminal courts, which presuppose an autonomous legal subject with command over language, are confounded when confronted by a Sufi, charged with ‘blasphemy’, who does not share similar conceptions of self and signs. I situate the trial within a broader socio-linguistic context of Urdu and English speaking publics which are usually thought of as oppositional in terms of political ideologies. Despite these differences they share a positivist epistemology which marks those with alternative epistemological frameworks, such as Sufis, as the site of radical ontological difference. Through close textual analysis of practices of interrogation, translation and transcription I demonstrate how the linguistic, textual and legal ideologies that structure court-room processes construe non-liberal forms of sociality and subjectivity as always already suspect and map truth and fraud onto court and defendant respectively.
... 5 In England, the association of popular juries with a coroner whose prerogatives would not solely be based on a medical expertise -thus not weighing excessively on juries' perceptions and decisions -was considered a cornerstone of democracy, 6 but the model of governance considered necessary for India was more that of an 'enlightened despotism' than that of a democracy. 7 Seen as 'antiquated, expensive, cumbersome and altogether unsuitable for Indian conditions' as well as 'politically dominated and corrupt' in its experience of the presidencies, 8 the coroners' system was never transposed to the full scale of the British Raj and was progressively annulled in Madras, Calcutta and Bombay. ...
In contemporary forensic medicine, in India, the label of complete autopsy applies to a whole range of post-mortem examinations which can present consid- erable differences in view of the intellectual resources, time, personnel and material means they involve. From various sources available in India and elsewhere, stems the idea that, whatever the type of case and its apparent obviousness, a complete autopsy implies opening the abdomen, the thorax and the skull and dissecting the organs they contain. Since the nineteenth century, procedural approaches of complete autopsies have competed with a practical sense of completeness which requires doctors to think their cases according to their history. Relying on two case studies observed in the frame of an ethnographic study of eleven months in medical colleges of North India, the article suggests that the practical completeness of autopsies is attained when all aspects of the history of the case are made sense of with regard to the observation of the body. Whereas certain autopsies are considered obvious and imply a reduced amount of time in the autopsy room, certain others imply successive redefinitions of what complete implies and the realisation of certain actions which would not have been performed otherwise.
This paper explores how colonialism still influences the laws and their application regarding sex trafficking and slave trade in India, tracing its developments from the British era to its present-day implications in the current anti-trafficking legislation. In colonial India, prostitution was predominantly perceived as an organised trade requiring regulation driven by concerns for the British soldiers’ well-being. The Cantonment Act of 1864 and the Contagious Diseases Act of 1868 exemplified this approach, treating sex workers as moral transgressors and subjecting them to intrusive medical examinations. The colonial influence can be discerned in India’s present anti-trafficking legislation, viz: The Immoral Traffic Prevention Act of 1956, where the legislators conflate prostitution with sex trafficking by criminalizing solicitation without distinguishing voluntary sex workers from trafficking victims, leading to the criminalization of the very individuals the law aims to protect and misidentifying voluntary sex workers as needing rehabilitation. The current anti-trafficking discourse in India oversimplifies sex work by categorizing it as either exploitation or choice, while neglecting the complex realities of labour exploitation, poverty, and gender inequality in a developing world. This stance is corroborated by research that revealed a tendency among criminal justice stakeholders to underutilise specific provisions of the 1956 Act against traffickers while disproportionately prosecuting prostitutes. We contend that this skewed emphasis on criminalisation and ambiguity regarding victims’ rights is directly linked to the colonial state’s perceptions of prostitution. Though in tune with the international efforts to eradicate modern day slavery, the 1956 Act is an imprint of a criminalizing legacy left by British colonialism in India. This paper concludes by advocating for re-evaluating the Indian anti-trafficking law and suggests a radical shift rooted in human rights principles, in which victims are at the centre of all legal and policy considerations.
The substantive criminal law has witnessed frequent changes at the hand of the Parliament in the recent past. However, the changes made by the Parliament through criminal law amendments have not been received well by the criminal justice system of the country. With many jurists labelling these changes as inadequate and misplaced, it is important to identify the basic principles of criminal law which should guide the process of drafting an amendment in the criminal law. This paper will focus on the importance of planned changes in the criminal law. This paper traces six major factors of planned change in law influencing the crime rate, conviction rate, reporting of crime or change in mind set of the society. It gives an account of the issues which affect the criminal justice policy. Practical consequences of such amendments have been discussed to explain how to achieve positive results through a planned amendment.
Everybody has the right to protect his body and property, and sometimes those of others. This right is recognized by the long-standing social norms as well as the Penal Code, 1860 and the Constitution of the Peoples' Republic of Bangladesh, 1972. However, invoking of this right must be conditioned by some legal principles. Bangladesh Supreme Court has delivered a series of decisions regarding the application of right of private defence in different cases considering the attending situations and circumstances. The claimant of such right will prove the relevant facts and circumstances that have led him to exercise the right of private defence in a particular case. Besides, it is the duty of the Court to voluntarily grant the right of private defence in favour of the accused in a fit case in which he does not plead the plea of that right.
Esaminando un caso indiano di habeas corpus del 1828, il saggio si focalizza sulle forme di manifestazione della sovranità in India britannica nel primo Ottocento e sul rapporto tra rule of law e costituzione coloniale, caratterizzato dalla continua ricerca in colonia di spazi politici eccezionali. Il caso, che vide contrapporsi i giudici coloniali al governo della East India Company rispetto all’operatività delle tradizionali garanzie di common law in favore dei sudditi indiani, contribuisce a mostrare il diverso grado di interesse da parte delle autorità coloniali relativamente al controllo della società locale e dei colonizzati.
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This book critically examines domestic violence law in India. It focuses on women’s experiences and perspectives as victims and litigants with regard to accessibility to law and justice. It also reflects on the manner in which the legal process reproduces gender hierarchies. This volume:
• Analyzes the legal framework from a gender perspective to pinpoint the inherent stereotypes, prejudices and discriminatory practices that come into play while interpreting the law;
• Includes in-depth interviews and case studies, and explores critical
themes such as marriage, rights, family, violence, property and the state;
• Presents alternatives beyond the domain of law, such as qualitative
medical care and legal aid facilities, shelter homes, short-stay homes,
childcare facilities, and economic and social security provisions to
survivors and their children.
Drawing on extensive testimonies and ethnographic studies situated in a theoretical framework of law, this book will be of great interest to scholars and researchers of law, gender, human rights, women’s studies, sociology and social anthropology and South Asian studies.
As the oldest functioning criminal code in the world, the Indian Penal Code (IPC) is to be admired for containing many features which remain attractive to this day. Nonetheless, the Code has deficiencies which the courts have periodically been called upon to rectify. This chapter contends that, when doing so, the courts should first and foremost seek to find the remedy from the internal and underlying principles of the IPC through a study of legal history, and careful examination of the provision in question and closely related provisions. Only then might they proceed to search the common law for a possible solution. Case examples from India, Malaysia, Myanmar and Singapore will be used to illustrate this contention.
The article considers the history of colonial criminal law system of the British India at the
end of the 18th and 19th century. The authors investigate the role of the Law Commission at
the governor general and a personal contribution of its chairperson T. B. Macaulay during
the criminal law codification in India. This article analyses the sources and structure of
the Indian Penal Code of 1860, its doctrinal and practical value up to the present day.
The Indian law was polysystemic and included two personal and religious systems: Hindu
and Islamic law. The official law codification in India became possible at the governor
general William Bentinck. His legal adviser T. B. Macaulay was drafting the Indian Penal
Code during the period from 1835 to 1837. Its content was influenced by Bentinck’s
tough criminal policy connected with counteraction to ritual crime — to the groups of
thugs (robbers stranglers) and Satie’s practice (self-immolation of widows). Members of
the Law Commission were under strong influence of the utilitarian philosophy of Jeremy
Bentham, supporter of the “universal codification of law”. The project was influenced by
the “Livingston Code” of 1826 in Louisiana where there was a consistent humanization
of punishments: abolition of the death penalty, delimitation of norms of criminal law and
criminal procedure, separation of the “general part” in the Codes’ structure. Systematization of the colonial law of India was complex and interdisciplinary, it contained both
codification and consolidation elements. Success of the IPC was connected with the
reformers’ systematic approach who have in parallel developed such basic codes as the
Civil Procedure Code of 1859, the Criminal Procedure Code of 1861, the consolidated
Act on Police of 1861 and Act of Proofs of 1872, etc. The good utilitarian reasons were
the cornerstone of the large-scale interdisciplinary systematization and unification of the
Indian law. Primarily, it was the need to provide a reliable management and legal order
within the extensive territory of unstable Indian presidencies.
KEYWORDS: codification of law, law reform, colonial legislation, criminal (penal) code,
Hindu law, Islamic law, sources of law.
Law and settler colonialism is not a self-evident, contained, or straightforward field of inquiry. Rather, it uneasily straddles two overlapping bodies of scholarship: legal histories of colonialism and settler colonial studies. In part one, I place these literatures into conversation to trace their contributions , overlaps, and incommensurabilities. In part two, I turn to maritime worlds as a method of speaking across their analytic divides. Here, I consider the Torrens as a system of land registry inaugurated in the colony of South Australia (1858) and as the last clipper ship to be built in Britain (1875). In its recurring and double life, the Torrens offers an illuminating nineteenth-century example of the interconnection and interdependence of land and sea that serves as a useful lesson today. The global exigencies that arise from the past, organize the present, and impinge on the future demand a shift from terrestrial thinking toward the aqueous and amphibian legalities of settler colonial power.
Despite public outrage over our global ?rape culture,? sexual offences continue to be characterised by low levels of reporting, prosecution, and conviction in many countries. Attrition rates for sexual assault internationally, although varying in pattern, are consistently high. As a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence against Women (DEVAW), the Indian Government acknowledges the need to afford better protection to victims of gender violence. Assessing the effect of rape law reform in India, using crime statistics and a survey of recent judgments from the Delhi District Courts, the author argues that the legislature has failed systematically to address the many injustices experienced by women who allege rape. The Indian Parliament responding to the moral panic generated by the Delhi gang rape case with knee-jerk reforms, focused mainly on increasing penalties, maintaining an outmoded view of rape as a crime against morality rather than as a violation of gender rights and human rights. By closely investigating the sociocultural context in which sexual crimes against women occur in India, the author reveals that India?s ?cultural? arguments for rejecting further reform (such as repeal of the marital rape immunity) are merely entrenched gender biases, bearing strong parallels to nineteenth century English common law perceptions of women who allege rape as a class of false complainants.
The offence of blasphemy and its implications is one of the critical issues in Pakistan
today. This research examines the historical setting and gradual amendment of
blasphemy laws and their impact on religious communities in Pakistan. The law of
blasphemy belongs to two historical periods. First, the era when the country was
under military rule by the British during the colonial period: they originally framed
Chapter XV of Offences Relating to Religion of the Indian Penal Code (IPC) in
1860. Secondly, its application in an independent subcontinent gradually moved
from its original intention in Pakistan after 1947. In 1980s Pakistan, both the
intentions of this law and its penalties were significantly altered, becoming the law
which people now known as the law of blasphemy. Since the law was amended, it
has made people in all religious communities, particularly minorities, critically
vulnerable to malicious or unfounded accusation and has been interpreted and
applied to varying effects.
This historical review shows how Pakistan, though claiming to be secular and
to protect all religions and communities, has actually become an exclusively Islamic
country. Amending Chapter XV of Offences Relating to Religion was one of the
important steps to Islamise Pakistan. This research considers a range of legal,
political and constitutional questions concerning the law of blasphemy and religious
communities both in pre and post-colonial periods, exploring how the law and
religious communities have been and are affected by politics and legislation. In so
doing, it will appraise politically significant religious laws, values and activities.
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