The real reason our penal code had to change (hint: not decolonisation)

The Indian Penal Code worked merrily for 150 years—but it must have had shortcomings, surely, if we needed to break its 'shackles' 75 years after Independence?

More than 140 opposition MPs had been suspended from the Lok Sabha and the Rajya Sabha at the time the new Nyaya Sanhita was tabled. A solid plan? (photo: National Herald)
More than 140 opposition MPs had been suspended from the Lok Sabha and the Rajya Sabha at the time the new Nyaya Sanhita was tabled. A solid plan? (photo: National Herald)

Aakar Patel

If it ain't broke, don't fix it.

The dictionary says this is a proverbial saying whose popularity is attributed to an official in former US  president Jimmy Carter’s administration. It is ‘used to say that one should not try to change something that is working well’.

The Indian Penal Code is 150 years old. It has worked not only in India but also in the rest of South Asia.

Though it calls itself an Islamic republic, almost all of post-1947 Pakistan’s laws have remained the same that the British had left behind, the same that are common to the Subcontinent—in this case, going back to the Penal Code written by Thomas Macaulay in the 1830s and enforced from 1862 onwards.

Even in 2023, the Indian Penal Code and the Pakistan Penal Code remained almost identical. The changes that came in after 1947 are few on either side. The natives of Lahore know what the number 144 means in law just as well as those of Chennai—it immediately recalls Section 144, which criminalises the assembly of people under certain circumstances.

These laws were familiar and they were functional. Everyone from the thanedar and the constable to the common citizen knew them. For Pakistanis, just as for Indians, the law that deals with punishing murder is called 302 and the one for cheating is 420.

And these numbers are familiar even to those who have not heard of 'Indian Penal Code'—because they have been in use on the Subcontinent for generations, for 75-odd years, even after Independence in 1947.

Why? Because the laws work.

If there is a problem of courts clogged with cases, it is not because the laws are flawed and the new laws will not change that. (In fact, to the contrary— as we will see.)

If the issue is that colonial laws are unsuitable for a free nation and we need a more liberal order, then also the Sanhita does not change that.

There was no demand in India that the laws be changed.

We are not referring to tinkering—meaning, removing and adding minor details as necessary to keep up with changing times and technologies.

We are referring to changes cut out from whole cloth. To taking down an edifice fully, to dismantling it without reason.

The question is, of course: Why change something that is working?

The answer to that we do not have and will not get.

The scriptwriters of Bollywood will need to change their dialogues and get their screen judges and cops to memorise some new numbers, yes, but deeper problems are anticipated.

First, the new laws would likely increase litigation.

Lawyer Sanjay Hegde has pointed out that after making bounced cheques a criminal offence, courts have been flooded with new litigation on this.

Lawyer Colin Gonsalves has asked why the police were being given more arbitrary power over the citizen than even in the colonial period.

Lawyer and Congressman Abhishek Manu Singhvi has asked why the non-existent (according to the government itself) phenomenon of ‘love jihad’ was being added to offences with a 10-year sentence.

Yet others have pointed out that sedition, under a new name, remains under the penal code.

The simplest way of understanding a 'masterstroke' is to accept they are 'masterstrokes' and not question their necessity or wisdom.

Former army chief M.M. Naravane has written his memoir. If it is allowed to be published, it may contain the revelation that the Agniveer scheme was a ‘bolt from the blue’.

Something modest that the army had proposed by way of a short service commission was first inverted. Then, instead of retaining three-fourths of the inductees, it was decided only one-fourth would be—and the rest put out to pasture, retired at ages as young as 22. And finally, the plan was extended to the navy and the air force, which had no inclination towards or need for this ‘reform’.

Meaning, the whole scheme was a top-down and unexpected stroke of genius from the prime minister (since nobody else counts).

It has changed the face of an army that has been functioning competently since the 18th century, meaning for over 200 years. Why agitate and disturb something that works?

That question could also be asked of the brilliant decision to abolish currency.

Who was asking for Rs 1,000 and Rs 500 notes to be banned? Not the Reserve Bank of India, which resisted and warned—correctly as it turned out—that this was a dumb move that would damage the economy. Not the economists, and not the business community, and certainly not the citizens.

Demonetisation came about because of whim. The same mentality is at work with the new criminal laws.

The new laws will not only require the judiciary, the police, the lawyers and the public to learn the new laws, but will also endanger settled jurisprudence on the old laws and open up all sorts of minor and major problems that currently do not exist.

Precedents—the basis of common law, which we follow—will come undone.

Who, then, was asking for this change? Not the judges or the police or the lawyers or the citizens.

Lawyer Sanjay Hegde has warned that once introduced, our new Sanhita will be even more disruptive than demonetisation.

One hopes that this is not the case, and hopes also—despite the evidence of the last decade—that adequate thought and preparation have gone into the introduction of this change where none was really required.

And for those who remain puzzled and still ask the question 'Why are we doing this?', the answer appears to lie in a mindset that believes ‘if it ain’t broke... then break it!’

Views are personal

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