View: India’s criminal justice system needs real decolonising, and must go beyond mere textual changes

Criminal law functions as society’s moral compass, reflecting values and upholding order. Crucially, it hands over the power to punish exclusively to the state. The Indian Penal Code (IPC), a colonial relic, was meant to, first and foremost, protect British interests. Last week, home minister Amit Shah, after introducing three new criminal codes – Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Bill (BSB) – emphasised the need to break free from colonial legacies. He accurately stated that the colonial criminal system focused on harsh punishments, lacking justice for Indians. Shah contended that the new codes prioritise citizen-centric justice over punishment. These codes, however, don’t live up to these contentions.

The introduction of IPC in 1837, guided by Thomas Macaulay as a leading member of the Law Commission, aimed to be a definitive solution to India’s scattered and complex penal law landscape. The pre-codification era encompassed parliamentary charters, Acts, Indian legislation, East India Company regulations, English common law, Hindu law, Muslim law and customary practices.

Macaulay’s inspiration was the utilitarian philosophy of Jeremy Bentham, seeking a concise legal reference for different crimes. This approach involved clear definitions, and numbered sections and chapters. At the heart of the code’s utilitarian principle is the idea that punishments should match crimes. It recognised that while punishment causes pain, it can also inspire positive outcomes through deterrence. In line with this, the primary goal of British India’s penal law was to discourage offences by implementing punishments.
Since 1947, India has instituted many special laws, with a significant emphasis on safeguarding women, children and the state from instances of violence and acts of terror. Legislation such as the Unlawful Activities (Prevention) Act 1967, Dowry Prohibition Act 1961, and the Protection of Children from Sexual Offences (Pocso) Act 2021 were enacted to address the gaps within IPC, which lacked specific offences dealing with such violations. The goal of these laws was to provide strict and deterrent punishments and a simplified procedure to ensure swifter convictions.

BNS similarly aims to streamline provisions related to offences against women, children and terrorism. To do this, it introduces a distinct chapter addressing offences against women and children, strategically positioned at the forefront of the Bill. But that is all it does – move the provisions around. The substance of these provisions remains unaltered from IPC.

BNS presents a conundrum. In the light of the original criminal codes’ overarching objective – crafting a one-stop solution for substantive criminal law, criminal procedure and evidentiary proceedings – the envisaged implementation of the new codes should logically supplant not only IPC but also all existing special legislation.More than 80% of BNS mirrors IPC, including illustrations that were part of the initial code. These illustrations were hypothetical scenarios, demonstrating how sections were operationalised. However, given the wealth of criminal law jurisprudence available, these illustrations are superfluous. Perhaps most strikingly, the strategy adopted by BNS continues to involve imposing stringent penalties to deter potential offenders – a paradigm rooted in utilitarian principles. The contention that the revised penal codes amount to a transformational leap falls flat when we uncover that the revisions largely maintain the status quo.A critical look at Germany’s criminal law reform offers lessons worth contemplating. The post-World War 2 era prompted Germany to move away from the excesses of the Third Reich and reflect on its penal philosophy.

This period of introspection led Germany to not only revamp its punitive measures but also fundamentally redefine its approach to criminal justice. Germany abolished the death penalty, shortened incarceration durations and broadened the range of offences that are subject to fines or probation.

The shift from punitive to rehabilitative approaches underscored a commitment to a just and evolving legal system. This had a profound impact on their criminal justice system, where fines and curtailed privileges, like suspended driver’s licences, constitute the crux of convictions. In stark contrast, India’s attempts at reform appear to lack the depth of contemplation needed for genuine change.

The historical roots of IPC unveil a narrative of colonial imposition. Macaulay’s presumption of Western legal (and civilisational) superiority led to the transplantation of ideals that failed to accommodate indigenous legal sensibilities. The purported simplification, while promising justice, inadvertently entangled us in a legacy of colonial and Victorian values.

There is no doubt that the Indian criminal justice system needs to be rehauled. We find ourselves at a crossroads, choosing between cosmetic adjustments that essentially mirror colonial values, or embarking on a journey of genuine decolonisation and transformation. For a nation that says it reveres justice and not punishment, the ongoing legal amendments must transcend rhetoric, aiming not just for textual changes but for the true decolonisation of our legal thought and practice.


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