Macaulay revisited

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. 1,Codification, Macaulay and the Indian Penal
Code: The Legacies and Modern Challenges of Criminal Law Reform
  edited by Wing-Cheong Chan, Barry Wright and
Stanley Yeo, Ashgate, 2011. (hereafter referred to as Codification in
this review).  Book details available here.

.  2.  MACAULAY: Pioneer of India’s Modernization by
Zareer Masani, Random House India, 2012.Rs.450, Pages 269. (hereafter referred
to as Macaulay in this review). Details here.

   3. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, As amended by the Criminal Law (Amendment) Act, 2013, 34th
edition, by Justice K.T.Thomas, and M.A.Rashid, LexisNexis, 2013. Rs.650, Pages
1397. (hereafter referred to as R&D IPC in this review).  .
Reading these three books together, for the purpose of this
review, has been a source of exhilaration, of one leading to the other, that
is,  the three books in quick succession,
not necessarily in the order, I have placed them above.  Of these, Macaulay has been with me
for quite some time, but it required some compulsion to finish it, while I
happened to notice Codification at a library and evinced interest in its
contents, but again, for lack of compulsion, postponed reading it.  I, therefore, thank M.A.Rashid, the co-author
of R&D IPC, for alerting me to the recent publication of his book,
which provided me the occasion for doing justice to the other two.

Together, these three books represent a surge of interest in
Thomas Babington Macaulay and his Indian Penal Code, ever since the Code
completed its 150 years in 2010 – an event which went almost unnoticed and
uncelebrated in India as well as on this blog. 
This is not surprising as we take many things for granted, IPC included.

IPC was the first codification of criminal law in the
British empire and is the longest serving criminal code in the common law
world.  The editors of Codification
organized a three-day symposium from June 9 to 11 2010 at the National
University of Singapore.  IPC was
introduced into Singapore by the 19th century British colonial
administrators.  The code remains its
principal criminal law statute. 
Participants of this symposium included 10 specially invited
international researchers from Australia, Canada, England, India and Malaysia.

I read the first chapter of Codification with
interest, as it provides the justification for the book, and for the need to
revitalize IPC. Readers may get a glimpse of the other chapters from the
Ashgate’s website, and choose to read those which interest them, when they
access the hard copy.
There are several things about Macaulay which are of
interest to the readers.  He was the
chairman of the first Indian Law Commission. 
He lived just for 59 years, but wore several caps during his life time:
author, historian, voracious reader, very affectionate sibling (he remained a
bachelor) to his sisters, a representative of the British Empire, as well as
its faithful critic, and a person who was deeply sympathetic to the
underdog. 
Macaulay gives a fascinating account of his brief
life, interspersed with Masani’s counterfactual historical comments, that is,
whether Macaulay would have approved this or that aspect of our contemporary
times.  Macaulay’s contribution to the
making of IPC forms just one chapter in his book, (Chapter 8: The Law-giver),
leaving the reader to wonder whether the author could have provided a more
lengthy treatment of this phase, than what was possible in the book.  In Epilogue too, Masani skips his
counterfactualism with regard to the IPC, giving more space to Ambedkar as his
political heir, and to Macaulay’s possible surprise over English becoming the
popular language, despite many challenges.

An interesting aspect was the fact that there was a gap of
two decades between Macaulay’s writing the Code, and its actual inauguration,
and that he died just one year before its enactment.   There
is no doubt that Macaulay wanted to see his code being implemented during his
lifetime, but would he have approved the manner, we clung to it without any
major attempt to legislatively revise it in accordance with the changing
times?  It is here Codification
helps the reader to understand the issues at stake.  At a time when the Narendra Modi Government
talks about the need to dump outdated laws, and reform the existing ones, the
editors’ call for a fresh approach to understand the IPC is refreshing.  I am surprised that the book’s persuasive
plea to reform the IPC has not been the subject of debate at all in India.

As Codification shows, the IPC was intended by
Macaulay, to be regularly revised by legislative amendment whenever gaps or
ambiguities were found.  As this did not
occur, courts had largely undertaken this task, sometimes with unsatisfactory
outcomes.  This was in part due to the
failure of the courts to recognize or follow the drafting philosophy that
underpins the IPC. 

Codification further reveals that many courts have
instead been influenced by English common law developments or have followed the
decisions of other jurisdictions in an inconsistent  fashion.  
Legislative amendments have tended to be ad hoc and reactive, responding
to local circumstances and pressing policy challenges rather than involving
systematic attempts to combine local needs with attention to Macaulay’s general
codifying principles, the book says.

The editors recognize that the philosophical stance and
basic principles of the original IPC framers are the product of a particular
time, culture and policy context.  

An interesting observation in Codification is that as
a manufactured article, the IPC has not even been serviced, let alone
remodeled, since leaving the codifier’s desk. As a result, the IPC struggles to
remain the principal repository of the foundational principles of criminal
responsibility in India and other jurisdictions like Malaysia, Nigeria,
Pakistan, Singapore, Sri Lanka and the Sudan which have adopted it, having had
hardly any influence on the development of subsequent penal legislation.

IPC, the editors of Codification point out, has left
many unintended problems of interpretation for the courts which have had the
unenviable task of finding ways, not always successful, of applying the 19th
century attitudes and approaches embodied in the Code to social and moral
situations in the 20th and 21st centuries.  They, therefore, suggest enactment of a
General Part which will significantly revitalize the IPC and restore many of
its original technical attributes. 

According to Macaulay, a good code should have the qualities
of precision and comprehensibility, and should reflect legislative rather than
judicial law-making, with associated features of comprehensiveness and
accessibility.   The three general
principles of precision, comprehensibility and active legislative lawmaking
have stood the test of time and remain as progressive general aims for law
reform in the 21st century.  Codification
throws light on each of these principles, and it is better to their essence, as
explained in the book.

Precision: While most of the provisions of Macaulay’s code
have this quality, there are some which are ambiguous. The enacted version
added complexities and ambiguities.  Many
more gaps and inconsistencies showed up and required the attention of the
courts.

Comprehensibility: IPC may have been understood by the
ordinary people of Macaulay’s time who were familiar with the words used and
could relate well to the many factual illustrations which he used to help
explain the law.  But ever since its
inception, there have been parts of the code which have necessitated
clarification by the courts on account of their incomprehensibility.  There are many words or concepts which are
likely to cause puzzlement: Examples are as follows: wantonly (s.153),
maliciously (s.219), malignantly (s.270) common intention (s.34), unsoundness
of mind (s.84), sufficient in the ordinary course of nature (s.300) and cruel
or unusual manner (ex.4 to s.300).

Active legislative engagement:  Since the criminal law is arguably the most
direct expression of the relationship between a State and its citizens, it is
right as a matter of constitutional principle that the relationship should be
clearly stated in a criminal code the terms of which have been deliberated upon
by a democratically elected legislature.

The  ad hoc nature of legislative amendment, instead of
systematic legislative review as contemplated by Macaulay, is illustrated in Codification.
  The fact that so many parts of the IPC
have been subjected to judicial interpretation and elaboration runs counter to
Macaulay’s insistence that the Code should be the creation of the legislature,
by those who make the law, and who must know more certainly than any judge can
know what the law is which they mean to make.

Macaulay also proposed that each member of the population
should be furnished with a copy of the code in their own native language. Most
certainly, a person has more ready access to a copy of the Code than ever
before, thanks to the internet.  But the
point, as the book rightly points out, is that the Code is no longer the sole
repository of the law which it purports to cover, but has to be read together
with a very large body of case law.  

Any Indian criminal law commentary, for instance, no less
than its counterparts from common law jurisdictions such as Australia, Canada
and England, devotes more number of pages to the discussion of case law.  H.S.Gour’s The Penal Law of India (11th
edn, 2000) has 4900 plus pages. R.Ratanlal and K.T.Dhirajlal, (32nd
edn,2010) has 2900 pages.  Justice Thomas
and Rashid’s R&D IPC has 1397 pages, but the size of the book is
bigger than the earlier editions.

Codification rightly suggests that it would be an immense
surprise if the many pronouncements concerning criminal responsibility in a
criminal code enacted for the 19th century British subjects in India
accurately reflected the values and views of Indian citizens in the 21st
century.  Values, ways of thinking about
criminal responsibility and policies inevitably change according to time and
place, and it is incumbent upon legislative authority to keep abreast with
these changes, assisted by specialist law reform commissions, in order to
actively update the Code and maintain its effectiveness.

The IPC, as it stands today, fails to satisfy any of the
attributes which Macaulay regarded as essential for a good code, and presents
the danger of perpetuating the moral judgments, values and policies of a bygone
era, Codification believes.

In line with his
insistence that the Code should be the work of the legislature and not of the
Courts, Macaualy proposed putting in place a revision mechanism.  It was that, whenever an appellate court
reversed a lower court decision on a point of law not previously determined or
whenever two judges of a higher court disagreed 
on the interpretation of a provision of the Code, the matter should be
automatically referred to the legislature which should decide the point, and if
necessary, amend the code.  Codification
regrets that this mechanism was not adopted in India or in any other
jurisdictions which have adopted the Code, leaving any ambiguities in the Code
to be rectified by the legislature as it saw fit, or else to be dealt with by
the courts as best they could.
It deplores what  the
general pattern of inattention to the IPC in India. There has been a
proliferation of penal laws outside the IPC. 
Most changes are the result of judicial interpretation, drawing
unevenly, sometimes inappropriately and certainly contrary to Macaulay’s
intent,  from precedents in other common
law jurisdictions. 

Codification, however, notes some exceptions.  Constitutionalism has led to some notable
striking down or judicial modification of elements of some offences, such as
the decriminalization of homosexuality in relation to s.377.  Here, the book approvingly refers to the Delhi
High Court’s judgment in Naz Foundation 
case, and the Supreme Court’s Mithu verdict, striking down S.303.  As the book was published prior to the
Supreme Court’s Kaushal decision, which restored S.377, as it originally stood,
readers can only infer that the editors would have disapproved it.  Justice Thomas and Rashid, in their preface
to the 34th edition of R & D IPC, however, feel it would
have been more appropriate if the two Judge Bench had been persuaded to refer
this momentous Constitutional question to a Bench of Five Judges.

Codification refers to the critical essays on
legislative and judicial developments, first published by the Indian Law
Institute in 1962, and updated in 2005. [Essays on the IPC, 2005.  Edited by K.N.C.Pillai and S.Aquil.]  While such initiatives have informed IPC
amendment bills, (1972 and 1978), the bills lapsed on the dissolution of
Parliament. 

Can an Indian reader take comfort from the book’s
observation that this narrative of neglect and uneven amendment is a familiar
one across IPC jurisdictions? 
Legislatures have rarely taken the initiative to rectify defects in the
Code which have come to the attention of the courts and commentators.  When they did, the results were far from
satisfactory, adding further confusion or complexity.

A likely explanation which Codification offers is
that the drafters of the legislative amendments have paid scant regard to the
relationship between their amendment on the one hand and existing provisions in
the Code and their philosophical underpinnings on the other.   Example: the word ‘rash’ in S.304A. The new
provision did not define what rash meant, leaving it to the courts to
define.  The legislature may be
criticized for effectively handing over its democratically ordained law-making
powers to the judiciary, Codification suggests.

However, Codification also defends the Judges saying
they are required to handle cases where criminality has taken new forms which
are difficult to cope with under old structures and under a philosophy which
binds judges to a strict and literal reading of prohibition.  The judges are left entirely in the dark
concerning the correct approach to take to resolve an ambiguity, gap or
inconsistency in the IPC.  The current
impoverished nature of the IPC cannot be rectified by the courts simply because
their involvement is antithetical to the formulation of the good code.

The book is correct in its prognosis that Macaulay’s three
principles, if followed meticulously by our legislature, will result in  less appeals, greater compliance and savings
and prevent crime through education. 
Sadly, there has been no debate about these principles within India,
which only underscores our inability to identify the real reasons for the ills
in our criminal justice system. 

Codification says that the IPC, when first
implemented, was well ahead of its time, thanks largely to the legislative
genius of Macaulay.  But like all good
things which are not regularly maintained and improved, it has become a pale
shadow of its former self.  Judges have
not been given any guidance from the Code as to which source of law they should
draw upon to resolve a problem of interpretation.  The result has been the growth of a huge body
of case law on the Code, including numerous conflicting judicial rulings
affecting the whole range of general principles of criminal responsibility.

According to Codification, a dedicated law reform
body working together with leading criminal law academics can fulfil this role
and introduce a General Part to revitalize the IPC.  Can the Indian Law Commission rise to this
challenge, and do it suo motu, as it had done on many occasions earlier?
The first edition of R&D IPC was published in
1896.  Both Ratanlal and Dhirajlal were
advocates of the Bombay High Court, and I have not been able to lay my hands on
the first edition.  The earliest edition
with the Supreme Court Judges Library is the 19th edition, published
in 1956 (titled then as ‘The Law of Crimes’). 
But the list of editions in the latest one shows 19th in
1948.  I am not able to explain this
discrepancy, but it will be of interest, to get access to the earlier editions.
Recently, a Madras High Court Judge favoured chopping of hands of accused found guilty of  forgery.  The judge’s observation drew critical comments.  Thanks to Macaulay, our Judges have not been able to play havoc with our punitive system, which is proportionate to the gravity of the crime.  I am relieved that R&D IPC, like Codification,  favours greater role by Parliament, in clarifying many provisions in IPC, which are in disarray, thanks to confusing judicial pronouncements.  R&D IPC’ s reference to death penalty jurisprudence is a case in point.

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