Azaadi from a colonial rule book

Section 508 of the Indian Penal Code, 1860

Whoever voluntarily causes or attempts to cause any person to do anything… by inducing or attempting to induce that person to believe that he… will become… an object of Divine displeasure if he does not do [that] thing… shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

The Section 508 is placed next to Section 509, which is another antiquity , insulting the “modesty” of a woman, it is a stark reminder of the dissonance between India’s great criminal law code and the constitutional principles of autonomy and equality.

A relic of our colonial past

Most major Indian laws are legacies of the British that failed in colonial metropolis and therefore chose India as its laboratory. And, some are:

  • The Indian Penal Code or IPC (1860)
  • The Indian Evidence Act (1872)
  • The Indian Contract Act (1872)
  • The Transfer of Property Act (1882)
  • The General Clauses Act (1897)
  • The Code of Civil Procedure (1908) until its overhaul in 1973
  • The Code of Criminal Procedure (1898)

Crime, contract, property, and legal procedure — the upholders of any legal system, largely preserved since the time of their inception have come down to us, in 2016.

In recent times, two provisions of the IPC have been in the news. 

Section 377

  • Section 377was back in the headlines after two years, when the Supreme Court agreed to refer the curative petition against its earlier decision upholding its constitutional validity to a bench of five judges.
  • Section 377, which foisted the completely alien term “carnal intercourse against the order of nature” upon the Indian public, is one of the clearest examples of the Victorian morality that pervades the IPC.

The other provision is Section 124A

  • The offence of sedition.
  • Created to deal with the rising Wahhabi movement in the 1870s, used against Gandhi, Tilak, Besant and many other stalwarts of the freedom movement, and in its latest avatar, invoked against sloganeering university students
  • The law of sedition is perhaps amongst the most recognizable — and notorious — provisions of the IPC.

Victorian morality, imperial logic

Sections 377 and 124A reflect the two prominent ways in which the British left their stamp upon India’s criminal law, in a manner that is entirely inconsistent with a democratic, constitutional republic.

Section 377 embodies a form of colonial morality, drawn from Victorian England, famously repressed and repressive when it came to sex.

Section 497 of the IPC

punishes a man for adultery, but exempts the woman (who can be punished only as an “abettor”, and not as the primary offender)

Section 498

punishes “enticing” a married woman. It is a morality that views women as the passive partners in a sexual relationship, led astray by unscrupulous men, and unable to take responsibility for their own actions.

Section 375

places forced sexual intercourse between a husband and a wife outside the definition of “rape”, is based upon a belief that marriage entails a one-time, permanent and irrevocable consent to sex.

Section 292

criminalizes the sale of “obscene” books (the word “obscene” was not even defined until 1969)

Section 294

the performance of “obscene songs

Section 124A

On the other hand, reflects a colonial logic, predicated upon a subject-ruler relationship between the Indians and the British.

Its prohibition upon spreading “disaffection” against the government, and the manner of its use, makes it clear that it was enacted to preserve the reputation of the colonial government in the eyes of its subjects.

Two other speech-based offences follow a similar logic and they are Section 295A and 153A.

Section 295A

Criminalizes insulting the religious beliefs of any “class” of citizens (enacted in the aftermath of religious riots across north India in the 1920s,)

Section 153A

Criminalizes promoting “enmity” between different groups.

These provisions reflect the British strategy of dividing the subcontinent into clearly identifiable “groups”, and managing the relationships between them, qua groups, in a manner that it would become impossible for them to present a united front against colonial rule.

Reconciling the irreconcilable

The colonial context of these laws, and the earlier — as well as continuing — manner of their use, has often left the courts in a bind.

Unwilling to go so far as to strike down parts of the IPC, they have been forced into a number of unconvincing contortions to try and reconcile the colonial law with the constitutional republic.

While upholding the constitutionality of sedition, the Supreme Court restricted its operation to incidents inciting towards, or leading to, public disorder.

This is directly at odds with the language of Section 124A

has failed entirely to prevent abuse at the level of the police and lower judiciary.

While upholding Section 295A

insult to religious feelings — the court limited itself to intentional insults, which, it held, could not but have a tendency to lead to public disorder.

If the sedition case stretched the boundaries of language, then the 295A case did the same with facts!

Similarly, while upholding the constitutionality of obscenity in 1964:

  • the court adopted a Victorian definition of the term that has progressively been repudiated in the intervening years.
  • And most recently, in 2014, the Supreme Court was asked to issue directions prohibiting hate speech during election campaigns.
  • While declining to do so, on the ground that existing hate speech laws were sufficient to cover the issue, the court nonetheless expounded upon what hate speech meant, and why it had to be regulated.

The Supreme Court defined hate speech to be speech

that could lead to discrimination, hostility or violence against vulnerable groups.

odds with the language of Section 153A

which — as mentioned above — follows the colonial logic of keeping warring groups at arm’s length from each other while giving them the legal weapons to indulge in a competition of mutually hurt sentiments.

Unsurprisingly, the court’s interpretation has failed to check the misuse of Section 153A against dissident speech, in any meaningful way.

Comprehensive relook needed

This survey reveals two things.

  • First, the problems with the IPC cannot be solved in a piecemeal manner by taking isolated sections of the code and attempting to modernise them (as the Verma Committee tried to do with the laws of sexual assault, in the aftermath of the Nirbhaya case).
  • Second, this is not a task that the judiciary can accomplish, with all the will in the world and with the best of intentions.

It is for the legislature to take a comprehensive relook at the IPC for the first time in its 156-year history and introduce reforms that do not merely tinker at the edges but transform the very philosophy of the penal law in a manner that is consistent with our constitutional principles.

Such a move is not without precedent in the Commonwealth: as recently as 2003, the criminal law of the United Kingdom was comprehensively reviewed and changed, via the Criminal Justice Act.

Any such reform would have to be carried out in conformity with the basic principles of the Constitution.

Three of those principles

  • Individual autonomy
  • The freedom of speech and
  • Conscience, and equality

In light of these principles, laws that claim to protect individuals from moral degradation and corruption (the package of obscenity laws), that privilege community sentiment over the individual right of speech and conscience (the speech-restricting laws), and that are based upon stereotypical assumptions about men and women, must be reviewed and modernised in a manner that is consistent with the Constitution.

While we may choose to retain the already-existing, lucid and sensible definition of “murder”, and attempt to retain the precision of drafting that is the hallmark of colonial law, there is little doubt that significant swathes of the IPC have outlived their utility, whether moral or pragmatic.

Change has never been more overdue, or more urgently required.