The first thing, which should be learnt about the Indian Penal Code, is that it is not ?Indian?. It is a worthless copy of the English Common Law, which was imposed on the Indian people by the British Government as far back as 1860 and has been plaguing them since then without a respite.
The so-called Indian Penal Code was framed by T.B. Macaulay as chairman of Indian Law Commission with the help of four other members, all of whom were Englishmen and were totally ignorant about India'snative laws and customs. The draft of this Penal Code was ready on May 2, 1937 and on the same day was presented to Lord Aukland, the then Governor General. In the forwarding letter the Commission had admitted that the Penal Code lacked clarity and explicitness.
This aberrant legal instrument running into 23 chapters and 511 sections, many of which are the carbon copies of the British laws, had to remain in abeyance for more than 23 years before it could be made effective in India. The hesitation of the persons in power in making the Penal Code a law for our country speaks to the truth that it was not just and proper to impose an alien law on a vassal state which had its own glorious legal tradition. In fact, the Second Law Commission of India appointed under the charter of 1853 had realised that since Hindu law was based on Hindu dharma it was not within the competence of the British Legislature to make laws for the Hindus. As a corollary of this proposition it follows that the codification of penal laws for India by the British was not just and proper.
It is rightly said that the British came to India not to help Indians but to help themselves. The East India Company had come here as a trading establishment. It was granted a charter on December 31, 1600 to trade, inter alia, into and from India. The powers conferred on the Company by the charter of queen Elizabeth were enhanced by a fresh charter of James I. This new charter empowered the Company to make and constitute laws for the governance of its own factories. What is significant to note here is the fact that the company had been forewarned not to frame any law which was contrary to the customs and statutes of England. The East India Company as a juristic person was authorised to issue orders and ordinances in accordance with the common law and customs of England, but it was not permitted to pay any heed to the laws and customs of India.
The company'spowers grew manifold when it entered into a treaty with the then Mughal Emperor Jahangir. It was a treaty between two aliens who had neither any respect nor any knowledge of our native laws and administration of justice in the country.
The Mughal ruler granted several concessions to the English people who had settled in India as traders. One of these concessions was that they were free to act in accordance with their own laws and customs. Like the British Government the Mughal administration showed no concern for the native laws and customs of the Hindus. This was how the English Common Law was directly imported into India under the patronage of two alien powers referred to above.
When the Penal Code framed by Macaulay was made the law of the land in 1860, several Acts came into existence one after the other but all of them were based on English notions of law. Take for example, the Indian Evidence Act drawn up by James Fitzjames Stephen in 1872. It incorporates English notions related to written and spoken testimony. It may be mentioned here that in ancient India intelligence played the most important role in collecting information about the criminals and enemies of the State. Cases were decided on the basis of the evidences adduced by secret agencies. The Mahabharat which is called the fifth Veda attaches greatest importance to intelligence in the maintenance of law and order in the state. It says??Rajyam Pranidhi moolam hi mantrasaram prachakchathe? (Shanti Parva 83:51), which means that ?according to those who have great knowledge of intelligence is the foundation of the state and secret consultation is the essence of intelligence.? It clearly means that without developing best possible intelligence network no state can successfully cope with the problem of crime which has registered a sharp increase in recent years.
Fitzjames Stephen'sEvidence Act is divided into 11 chapters and 167 sections. There are separate chapters on oral evidence, evidence of witnesses, etc., but there is not a single chapter devoted to the gathering of complete information related to crimes particularly major offences like rape, kidnapping, murder, bribery, scam, etc., through intelligence. This has led to a spurt in crime as a result of which no one feels secure and fear stalks every home in the country. The procedures contained in the Criminal Procedure Code introduced by the British into our country are too dilatory to enable the trial court to decide cases quickly. The provisions made by Macaulay in the Indian Penal Code for the award of punishment are dangerously flawed and cannot give real relief to the victims. The graph of crimes in India, therefore, remains either stable or shows an upward trend.
The rate of conviction in our country today is only 6 per cent. What is more painful is the fact that innumerable undertrials are left to rot in jails without proper trial. Hard-core criminals whose guilt has been proved beyond all reasonable doubts and who deserve death sentence, are, in the majority of cases, awarded life imprisonment substituted by an Act of 1955 for transportation of life. This is the clearest proof of legislative leniency in favour of the outlaws who have turned our great country into a veritable hell.
Why should the punishment of life imprisonment be given to a person who deserves only capital punishment? Such anomalies arise only because of the loopholes in the law.
Since India'snative penal laws which are scientific and quite superior to western laws were not taken into consideration by Macaulay and other members of the First Law Commission who prepared the draft Penal Code, the codification was vitiated to a very damaging extent. Even after India achieved so-called independence, no effort was made to replace bogus British laws by native laws which had proved their efficacy in the past and can be efficacious even today if modified and improved wherever necessary, in accordance with the needs of present time.
Even before the IPC came into existence the judges appointed to decide civil and criminal cases in India applied English common law discarding own native laws completely. The well-known trial of Raja Nand Kumar who was the Governor of Hugli under Nawab Siraj-ud-Daulah bears eloquent testimony to it. It was the time when Judges of the Supreme Court introduced English principles of law into India which were not in consonance with the legal ethos of our country. The obvious result was the miscarriage of justice. The fact of the case in brief is that Raja Nand Kumar had addressed a letter to Francis, a member of the Council on March 11, 1775. In the said letter he had complained that Warren Hastings had accepted a bribe of
Rs. 3,54,105 from him and Munni Begam. There were overwhelming evidences on record to prove the allegation, but Warren Hastings who was Governor General made it a prestige issue and after involving him in a false case of forgery got him executed with the help of Elijah Impey, the Chief Justice of the Supreme Court. Raja Nand Kumar was hanged to death on August 5, 1775 at Cooly Bazar near Fort William.
What is most significant to note here is the fact that forgery has never been a capital offence in our country. Nand Kumar could not have been executed on the charge of forgery had his trial been conducted under India'sown law. Not only the charges were not proved satisfactorily, Raja Nand Kumar had been tried under an imported law by twelve members of the Jury all of whom were foreigners and had absolutely no knowledge of Indian laws. Even enlightened Englishmen called Nand Kumar'sexecution a judicial murder.
What can be more shameful than the fact that even after Independence the laws made by the Britishers and imposed on us arbitrarily have not been changed? India has been reeling under Macaulayan Laws for more than 150 years without any respite. While drafting the Penal Code for India, Macaulay and other members of the First Law Commission looked for guidance not to our great jurists but to the French Penal Code and Livingston'sCode of Louisiana. Macaulay'sideal was Jeremy Bentham, the English jurist. This is evident from the instructions he had given to the Commissioners. Macaulay had advised them to follow Bentham'sprinciples of punishment and his criteria for a code. The result was disastrous. When the draft of the Penal Code was circulated for opinion, even English scholars opposed it. Stephen is quoted as having expressed the view that the Indian Penal Code may be described as the criminal law of England. In the words of the Commission itself ?the Penal Code cannot be clear and explicit while the substantive civil law and the law of procedure are dark and confused.?
What the Commission said is true of the Civil Procedure Code and the Criminal Procedure Code also besides the Penal Code introduced into India. All the three Codes are not only most confusing and contradictory; they betray a lack of basic knowledge about Indian polity in their framers.
(To be continued)
(The writer is a senior advocate and can be contacted at 207A, Kalyani Apartments, Sector 6, Vasundhara, Ghaziabad-U.P.)
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