Macaulay had once said ?Our principle is simply this?Uniformity where you can have it?Diversity where you must have it?but in all cases certainty?. Despite his tall claim of uniformity, diversity and certainty, the Indian Penal Code is deficient in all the three attributes of law. If anything is certain about the Macaulayan Penal Code, it is this that it lacks certainty to a marked degree.
There is a basic difference between Indian notion of morality and its western counterpart. Macaulay took this aspect of law lightly and went on committing one blunder after another. He provides stringent punishment to a man who has carnal intercourse with an animal, but exempts a rapist from punishment if he has sexual intercourse with another man'swife above sixteen years of age with her consent. Can there be any law more unreasonable, unjust and objectionable than this? See Section 375 of the IPC and read it with Section 377. According to Macaulay it is a great crime if a man ?Voluntarily has carnal intercourse against the order of nature with any man, woman or animal,? and shall be punished with imprisonment as provided in the Penal Code, and shall also be liable to fine. But if the same man has sexual intercourse with a woman above sixteen years of age with her consent Macaulay'sIPC provides no punishment to him.
Due to this extremely faulty law courts in our country have been exonerating criminals who deserve severe punishment. Sex before marriage is a serious moral aberration and ought not to be viewed lightly.
Like rape Macaulay had a queer nation of adultery. According to Section 497 of the Indian Penal Code if a man has sexual intercourse with another man'swife with his consent or connivance he cannot be punished for adultery. Macaulay exonerates the adulteress in all such cases, which is clearly against our traditional laws and age – old customs. Even the lexicon defines ?adultery? as sexual intercourse willingly undertaken between a married person and a person who is not their spouse. All true religious are unanimous in condemning adultery which is one of deadliest sins, but Macalay'sIPC protects it and the State has closed its eyes to it. Can there be anything more unfortunate than this?
Due to faulty western laws imported into India and growing perverted ideas about sex and morality coupled with the scandalous neglect of our own scriptural laws sexual offences have increased to such an extent that it has become extremely difficult to control them.
Our great tradition has always stood against the offence of adultery. According to it even a woman, if found guilty of adultery, must be awarded adequate punishment. According to our great sage and law-giver Manu if a woman proud of her parental wealth and beauty shows disrespect to her Lord by defiling her matrimonial bed, the Ruler must cause her to be devoured by dogs at a place frequented by many. (Manusmriti 08:371)
In the following verse Manu prescribes severe punishment to adulter too. He commands the king to cause the male guilty of adultery to be burnt on a red-hot iron-bed. He is further commanded to place logs under it until the sinner is burnt to death.
It was the most foolish decision on the part of the Sovereign Indian State to continue with Macaulay in preference to Manu even after the British rulers had gone back to England with their bag and baggage.
A tree is known by the fruits it bears. The unprecedented rise in crime in India speaks to the falsity of foreign laws introduced by Mughal marauders and British settlers. Look at the incidence of rape alone. In Delhi itself 599 cases of rape were registered with the police in 2006. According to National Crime Record Bureau a total of 1,55,553 incidents of crime against women were reported in our country in the year before last. Thousands of cases of child rape are reported every year.
Rape is a more serious crime than murder because in murder a person is killed only once, but in rape the victim is made to die many times before her death. The helpless woman who may be the wife or daughter of someone is ravished like an insignificant creature by the dominant male only because he has no fear of punishment.
Manu provides most stringent punishment to the adulterer and the adulteress both, but what does Macaulay do? His Penal Code exonerates the accused male if he has sex with the wife of another man with his consent or connivance. Not only this, the IPC declares in no uncertain words that in such cases wife shall not be punishable as an abettor. Can there be a more hateful and objectional law than this?
The weakness of the Indian Penal Code is bound to encourage gender crime which is already on the rise. Rape in running cars, trains, across the road as recently happened in Noida and railway platform in broad daylight as reported by the media a few months back prove beyond all shadows of doubt that the justice delivery system introduced by the British into India has collapsed and its further continuance will only aggravate the situation.
The British Government represented by Macaulay and his associates in the First Law Commission had legalised adultery which is one of the deadliest sins a human can commit. Our own traditional Penal laws have prescribed physical punishment not only to the adulterer but also to the adulteress at public places. Macaulay'sIPC provides no punishment to a person who has sexual intercourse with another man'swife with his consent or connivance. Even the Supreme Court has been quoted as ruling that section 497 is not ultra vires the Constitution (AIR 1985 SC 1618). Thus instead of providing severe punishment to both man and woman who are guilty of adultery Macaulay'sPenal Code exonerates them and encourages corruption and lawlessness in society. Even the Constitution which has been modelled on western notions of law and morality is of no avail according to the above decision of the highest court of the so-called independent India.
A history of all the four Law Commissions appointed by the British Government for India shows that the purpose of the Britishers in constituting these commissions was not to help the British Government. Indian people but to help. It is evident, inter alia, from the fact that not a single Indian scholar who had in – depth knowledge of Hindu Law and customs was appointed a member of the aforesaid Law Commissions. The British Government imposed its own laws on us arbitrarily to our great detriment.
When Queen Elizabeth granted the First Charter of 1601 to the East India Company, the latter could not even have an inkling of forming a British Empire in India, but after the battle of Plassey the Company started thinking of taking political mileage out of the improved situation. In 1765 the Company started framing rules and regulations for the people of Bengal which was its stronghold at that time, and gradually spread its net to cover a wider area.
Even before the first draft of the IPC was made ready on 2nd May 1837 Warren Hasting'sPlan of 1772 introduced British India Code dealing with Civil and Criminal law. It was the first British law introduced into our country.
The charter Act of 1833, which, in the words of Rankin, forms a watershed in the legal history of India, set the defunct British legislative machinery in motion. It was at its behest that the First Law Commission was appointed under the chairmanship of Thomas Balington Macaulay. Even before Macaulay tried to destroy our great cultural values and excellent legal system English administrators had made inroads in own judicial set up based on Dharma. Instead of modifying English notions of justice on the basis of Hindu Criminal Law, they committed the mischief of modifying our criminal law on the basis of their own notions of justice. This led to chaos and confusion.
The IPC proved to be a dangerously flawed piece of legislation. Even today the application of its Penal Provisions result in miscarriage of justice.
The inordinate delay in the disposal of cases by courts in India can be directly linked to faulty legislation. According to a reliable report 2,49,56,919 cases were pending in various district and subordinate courts of India on March 31 this year. The number of cases pending in 21 High Courts and the Supreme Court only a few months back was 36,78,043 and 43,580 respectively. The main cause of delay in justice in our country is the extremely bad foreign laws and a faulty judicial system introduced by the British Government into our country. Even when India was granted independence in 1947, the policymakers in power did absolutely nothing to repeal alien laws and replace them by native laws after suitable alterations. The British judicial system also remained intact causing us great harm. Even the Constitution was framed by slavishly copying foreign Constitutions and totally ignoring India'sown excellent laws which have no parallel in the world. The result is before our own eyes.
Macaulay'sPenal Code mis-called Indian Penal Code is, in reality, English Criminal Code which is evident from the fact that Macaulay had expressly instructed the members of the First Law Commission to be guided by the English jurist Jeremy Bentham'sprinciples of punishment and his criteria for a acode. In addition to English Criminal Code Macaulay drew inspiration from French Law, but he never tried to incorporate India'sown canons of criminal jurisprudence in his Penal Code.
Even English jurists had expressed their resentment over the continuance of the IPC in its Macaulyan shape in India. In 1887 Whitley Stokes had made recommendation for repealing this act of 1860 and for re-enacting it with necessary changes.
Although the IPC has been amended several times by legislation, the legislators have made no departure from Macaulay made laws. Even in serious matters like rape and adultery they have completely ignored the laws enunciated by Manu and other greatest sages of India and supported Macaulay in letter and spirit. What can be more deplorable than this?
India is in urgent need of promulgation of her own laws with necessary changes in accordance with the needs of time. The IPC and other laws introduced by the selfish Britishers in our country should be totally replaced by our own laws after additions and alterations wherever necessary. But this is not an easy task. It cannot be accomplished by ignorant legislators. Only a team of scholars well versed in scriptural laws and dedicated to the cause of human welfare can do it.
(Concluded)
(The writer is a senior advocate, and can be contacted at 207A, Kalyani Apartments, Sector-06, Vasundhara, Ghaziaabad-U.P.)
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