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Report No. 42

Note By Shri R.L. Narasimham


The Indian Penal Code, 1860, is based on the original draft prepared by Lord Macaulay and the colleagues in 1837 and it retains its pre-eminent position as one of the great Codes of the world. It has been widely adopted (with modifications) in several countries and has undergone very few amendments during its long existence for more than a century. But its pre-eminence amongst codified laws should not, by itself, be taken as a good reason for not recommending suitable amendments and additions to bring it into conformity with the modern view on penology.

Even in some well informed quarter an erroneous view still persists that apart from minor drafting changes to some of the sections with a view to reconcile conflicting decisions of the High Courts and to give legislative recognition to some of the decisions of the Supreme Court, the Code should not undergo a thorough revision. This view overlooks the following obvious defects from which the Code suffers.

(1) Macaulay seems to have ignored some of the principles of Hindu criminal jurisprudence which though laid down in the Smritis made between the 1st and 6th centuries are applicable even now.

(2) Macaulay drafted the Code to suit the needs of India at a time when it was a mere police State with purely agricultural economy whereas Independent India is now a "Welfare State" with an appreciable percentage of industrial Society.

(3) Macaulay was a liberal following the school of Bentham and J.S. Mill and for him the principle of Laissez faire was almost sacrosanct. But India is now a socialist State with extensive State powers and control of personal liberties and economic rights and the penal law (like other laws) must be modified, especially as regards nature of punishment, classification of new crimes, rehabilitation of a convict etc. to suit the prevailing economic theory.

(4) Subsequent to Macaulay, the science of Penology (Crime and Punishment) has undergone a drastic change at the hands of world jurists and some of their ideas have been incorporated in the U.N. Charter and in the Penal Codes of several foreign countries.

2. The social consciousness of society is generally reflected in the state of the criminal law. As pointed out by an eminent American authority.-

"The purpose of the penal law is to express a formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it." (Wechalor "The Criteria of Criminal Responsibility" 22 University of Chicago L.R. at p. 374).

"Social change affects criminal law in many ways: through developments in science especially in biology and medicine, through changes in the predominant moral and social philosophy; through changes in the structure of society, especially in its transition from a moral self-contained and relatively sparsely populated, to a highly urbanised and industrialised pattern". (Law in a Changing Society by W. Friedmann, p. 166).

"Criminal law has, quite rightly been called one of the most faithful mirrors of a given civilisation reflecting the fundamental values on which the latter rests. Whenever these values change, the criminal law must follow suit". (Criminal law by Richard C. Donnelly, Joseph Goldstein, and Richard D. Schwartz, P. 524).

3. By the end of the last century, there was a striking change in the concept of crime and punishment, brought about mainly by the Italian jurist Ferri and his followers. The classical school of criminology which prevailed till then believed that the greatest happiness of the greatest number was the primary object of punishment and that special emphasis should be given to the restrictive and repressive functions of punishment. Ferri, however, maintained that the rehabilitation aspect of punishment should be the guiding principle in the prevention of criminal behaviour and in the handling of the criminal, and became the leading exponent of the positive school of punishment. Ferris ideas have gradually received world recognition and in the recent U.N. Covenant adopted by the General Assembly of U.N.O. on 16-12-1966, the following resolution was unanimously passed.-

Article 10:

(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.


(3) The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation".

It is now well recognised in all civilised countries that sentences should be based on the nature of the criminal personality and not exclusively on the nature of the crime committed. In the report of the Study Group of the British Labour Party (Crim.-A Challenge to us all) there is this significant passage.-

"Although society may be justified in demanding a measure of retribution to deter the criminal, this is a negative approach. Something more is needed for the true protection of the citizen: the prevention of crime by the care of the inadequate and immature, the healing of the sick, the rehabilitation of the offender, the restoration of his self-respect and his training in respect for the rights of others".

These are positive aspects of penal practice and penal reform.

4. By the middle of the 20th century, the term "Welfare State" has become the commonly accepted description of the society in several western countries and in the recent edition of the Oxford Dictionary the term has been explained as "a polity so organised that every member of the community is assured of his due maintenance with the most advantageous conditions possible for all". In such a State, it is recognised that fundamentally crime is a sign of sickness in the individuals and sickness in the society that breeds him. Thus, as it is no good condemning plants for not growing and blossoming as they should, if the soil is sour, similarly the society should not, when there is prevalence of crime put the entire blame on the criminals and assume a wholly innocent attitude. The same idea was conveyed in Manu, Book viii, sloka 304:

"A king who (duly) protects (his subjects) receives from each and all the sixth part of their spiritual merit; if he does not protect them then the sixth part of their demerit (sin) also (will fall on him)."

Hence according to Manu, the Government (King) shares 1/6th of the sin committed by a criminal. This shows that the Government also should share, to some extent, the responsibility for the prevalence of crime. In Valmiki's Ramayana also, the close relationship between the King (now Government) and the prevalence of crime in a country is brought out while describing Ram Rajya:

(Yuddha Kanda - Ch. 128, sloka 100).

"The subjects followed the example set up by Rama (their Ruler) and did not commit crimes against one another"

5. This change in the attitude towards crime and punishment is reflected in some of the Articles of the United Nations Organisation. Thus in the U.N. Charter it was stated that one of the main purposes of the United Nations was to promote and encourage respect for human rights. In pursuance of this objective, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights unanimously on the 10th December, 1948. This Declaration has considerable indirect legal effect and is regarded by some jurists as a part of the "Law of United Nations". Those articles of the Declaration which have a bearing on the reform of the Indian Penal Code are given below:

Article 5:

No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.

Sections 73 and 74 of the I.P.C. which deal with solitary confinement will have to be omitted from the Code in pursuance of this Article. Again, for the same reason, the punishment of whipping cannot be provided in the Code as suggested to us by some sections of the Bar and the judiciary.

Article 12:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

For implementing this article new offences dealing with the unauthorised invasion of privacy have been provided in the Penal Codes of some countries. In the Indian Penal Code also a new chapter dealing with offences affecting the right of privacy will have to be provided.

On the 16th December, 1966, the General Assembly of the U.N.O. unanimously adopted the International Covenants on Human Rights in which the aforesaid Articles of the Declaration were reiterated. (See Articles 7 and 17). In addition, the Covenants lay down certain principles relating to punishments for crimes. Thus, Article 6, para. 5 says that sentences of death shall not be imposed for crime committed by persons below 18 years of age.

6. There is an unfortunate tendency, in some circles, to ignore or to belittle the Hindu criminal jurisprudence on the main ground that it provides for barbarous punishments such as mutilation for some offences. These critics overlook the obvious fact that the Smritis were written between the 1st and 6th centuries A.D. and the punishments provided in them were less barbarous than those provided in the criminal laws of western countries as late as the end of the 17th century when petty theft was punishable with death and burning of witches and heretics was sanctioned by law.

Hindu criminal law was more humane in the treatment of offenders than the laws of other countries of the same and even later period. Moreover, punishments such as externment from a locality, direct payment of compensation to the victim of the crime, wide publication of the name of the offender (social censure) which are now found in the penal laws of some of the Foreign countries, have been provided in the Hindu Smritis. As regards complete social rehabilitation of convicts after they have undergone the sentences, Smritis were more liberal (as will be shown subsequently) than modern penal law.

7. In my opinion, while considering the reform of Penal Law in India, the Law Commission, should approach the subject with a juristic outlook keeping in view the modern development in penal law of the leading Welfare States of the world and the norms laid down by the U.N.O. Proposals for penal law reform should not be scrutinised with the typical bureaucratic mistrust of new and experimental schemes nor should undue importance be attached to the absence of enthusiasm for reform in India, or to financial and other practical difficulties that may be anticipated.

All sound reform.-whether legal or political or socia.-include an ideal element. Practical difficulties should undoubtedly be carefully considered and overcome at the time of implementing the reform but they should not be used as an excuse for not initiating reform altogether. There should be no hesitation in freely borrowing ideas from the Hindu criminal jurisprudence as laid down in the Smritis of Manu, Narada and Brihaspati.

8. A study of the Penal Codes of several countries of the world (as far as available here) shows that in most of the Welfare States the penal law provides for1.-

(1) Several intermediate types of punishments between "fine" and "imprisonment".

(2) Law of limitation for the initiation of prosecution against the offenders and the execution of sentences.

(3) Complete rehabilitation of some classes of convicts under certain conditions either by judicial pardon, expunging or cancellation of convictions and sentences.

(4) Relaxing the rigour of the old maxim "ignorantia inns non excusat" by providing even for complete acquittal where notwithstanding due diligence, the law on a particular subject could not be ascertained.

In my opinion all the aforesaid subjects should be included in the revised Indian Penal Code and where I have been unable to persuade my colleagues to agree with my views, I have prepared a separate minute.

1. I have been much handicapped in my study of the Foreign Penal Codes, due to the non-availability of complete and up-to-date texts. The Commission was denied an opportunity for an intensive study tour in some of the leading Welfare States of the World for the purpose of examining the actual working of the Penal Laws, in those countries. Hence any observation in these minutes about the penal laws of foreign countries should be taken as subject to the limitation of being either incomplete or not up-to-date.

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