‘Conundrum’ of Penal law in India: An overview of lacuna and its possible reforms

I. Introduction

In a civilized society, whenever a crime happens there is an apprehension of fear and insecurities among the public. Crime affects society at large, but no society can survive without effective law and order. In a pre-independence era, when East India Company came to India, Mohammedan criminal law was in force. Gradually, defects in the law were visible and the need to change was felt. There were inconsistencies related to the application of the law in different presidencies. First, defects were attempted to taken away by Lord Warren Hastings, he tried to proportionate the punishment with crime and attempted to made it more rational.

Later, the first Law Commission of India was formed in 1834 chaired by Lord Babington Macaulay, the then Law Minister, Sarvshri Macleod, Anderson and Millet were the other members of the commission. This committee drafted the code and given for consideration to Governor-General of India on 14th October 1837. It was revised by Sir Barnes Peacock and was completed in 1850. It was presented to the legislative council in 1856 and eventually passed on 1st October 1860. It received the assent of Governor-General on 1st October 1860, thus became the Indian Penal Code 1860. It has been subject to many amendments later, but it creates lacunae for liberal democracy and demands revision of law which are not relevant in the post-colonial era. There are many areas which are need of the hour and demand an intensive change in this draconian law, which haunt us in present and can be easily used as per the wishes of governing bodies and turning law into their favour. There is a dire need to discuss laws, which demand thorough changes keeping in mind the prevalent situation in India.

Many offences which need reforms in present days, and need to come out of their outdated Victorian- age law. The present article deals with the following issues:

(i) Offence related to state, i.e. Sedition and its colonial overview in present times.

(ii) Unconstitutionality of Adultery law, whether it is relevant to scrape it down.

(iii) Extra-judicial killings and its lacunae.

(iv) Sexual offences and gender neutrality.

II. Analysis

(A) Sedition: A colonial legacy

“Freedom is the freedom to say that two plus two make four. If that is granted, all else follows”

-George Orwell-(1984)

It somewhere goes correct in regard to the present scenarios. However, curtailment of freedom of speech has been unarguably used to suppress the voice of dissent in the past also. It is not a new concept of the society, sedition has been one of them. Sedition was not initially introduced in 1860 penal code, it was later Added as section 124-A of the Penal Code after the amendment made in 1870, in response to Wahabi Movement. At first, colonial judges interpreted words disaffection, two acts and speeches that incited people to disobey the government. When nationalist realised loopholes in the act, they added words ‘hatred and ‘contempt’, to control free speeches, and eventually turning free speech into a crime. The colonial government persecuted politicians, poets and journalists and well as book writers.

In colonial era, two of the most famous sedition cases where the trial of ‘Bal Gangadhar Tilak’ trial and ‘Mahatma Gandhi’. Tilak was charged under sedition for his alleged speeches in which he describes the war between Shivaji killing Afzal, which reportedly instigated the murder of then Plague commissioner Rand and another British officer Lieutenant Ayherst, which happened a week later. Eventually, the British parliament in 1897 came with the words “hatred” and “contempt” along with the word Disaffection, which also included “disloyalty and all feeling of enmity. These rules were later followed by the Bombay presidency court against the newspaper publication. In 1922 Mahatma Gandhi was prosecuted for sedition along with the proprietor of ‘Young India’ magazine Shankerlal Banker².When, first article 19 (1)-(a) of the constitution of India finally came, sedition was not among the permissible restriction under Article 19 (2). When constitution came into force in 1950, the Supreme Court struck down communist magazine Cross Roads and Rashtriya Swayamsevak Sangh case. Immediately in the wake of events, the first Parliament amended Article 19 (2),

broadening its scope by including “public order" within the permissible grounds of restriction of free speech, while narrowing its application by adding the word “reasonable" before “restrictions".

In a landmark judgement in the Kedar Nath Singh vs. State of Bihar³, five judges bench of the honourable Supreme Court upheld sedition as constitutional. Kedar Nath Singh had been brought to court for making seditious speeches against the then government of Congress. His case went to the Supreme Court and challenged its constitutionality. Supreme Court while upholding his conviction held that it is constitutional. The Supreme Court relied on the dominant view of public disorder, in so far, as it was enough to incite public disorder, it will cover under section 124-A of Indian Penal Code.

However, that point of view has been changed by subsequent judicial decisions. Subsequently, judgements emphasised on free speech, and don't rely on the state too much regards to the power it has, insisted on clear link between the suppressed speech and the public disorder. For instance, in a case of S.Rangarajan Etc vs. P.Jagjivan Ram⁴, the Supreme Court declared that the relationship between speech and disorder be like that of a “spark in a powder keg". Most recently, in 2015, the famous Shreya Singhal vs. Union of India ⁵ case, the court differentiates between “advocacy" and “incitement", and held that only the latter could be punished consistent with Article 19 (2).

1. Change it needs:

However, the surge in the cases based on sedition has been at its peak. During the period of 2018, according to the data of NCRB report, it included a separate chart under section 124A of IPC in 65 years. The total number of sedition cases has been over a year, increased from 35 in 2016 to 51 in 2017, 228 persons were arrested by the police, as compared to 48 in 2016. Assam, which had no case of sedition in 2016, registered 19 cases in 2018 and 13 registers in Haryana. In 2017 four persons were charged under sedition, the NCRB data show that three juveniles and nine women were among the 228 arrested⁶.

In Recent days, many people were slapped with the case of Sedition. In 2019, a Principal of school along with the parents of the children were allegedly charged under sedition over a school play on ‘Babri Mosque Demolition’ in Karnataka. Many students and professors were allegedly booked under sedition for Protesting against ‘Citizenship Amendment Act’. Moreover, people have been charged under this section by the police in order to keep them away from protesting against the government and in many cases, the government did not give sanction in order to create fear in their mind.

Law commission of India in its 21st Report, issued a consultation paper asking views on revoking sedition as an offence, but the commission’s term ended before it could deliver its recommendations. In the wake of these instances, it really needs to concentrate on the reformation on sedition law. From past to present governments has been using this provision to suppress the power of dissent. Whenever, any protest or demonstration takes place, and where the section of people are not satisfied with the decision of government, it should be limited to that extent which will not encroach upon the right of individual or people’s rights guaranteed in Article 19 of the Constitution of India. There is a need to change the draconian law, which has no relevance in the present context, can be a misuse of the people in power, which eventually does not ‘fit in the shoes’ of present liberal democracy in India.

(B) Unconstitutionality of Adultery: whether justify?

Generally, ‘Adultery’ law has its origin from Latin word Aduletrium, which means ad (towards) and alter (other). Common law countries consider Adultery as “sexual intercourse between a married woman and a man, whether he is married or not. In India Adultery was provided under section 497 of Indian Penal Code before being decriminalised in 2018.

Its constitutionality was first challenged by Yusuf Abdul Aziz vs. State of Bombay⁷, it was challenged by the husband, charged under this section to Bombay High Court, for declaring its unconstitutionality. The High Court decided the case against the petitioner. However, the challenged was based on to declare treating wife as an abettor. It was considered as a violation of Article 14 of the Constitution of India. However, the court held that this provision is saved by Article 15 (3) of the Constitution of India, which provides special provision for Women and children.

The historical aspect of this section refers to Adultery as a patriarchal notion, aimed to prevent the sexual autonomy of women. If, a husband gives his content to another person to enter into adultery with his wife, it would not be considered as a crime. In Soumithri Vishnu vs. Union of India⁸ , It was challenged on the basis that, it gives right to the husband to file a case against a man who has entered into adultery with his wife. It does not create any right related to woman to file a case against his husband for his relation with any unmarried woman or widow, thus makes clear violation of Art.14 &15, under unreasonable classification. However, the honourable apex Court previously rejected this contention and held that while defining adultery, so as to restrict the class of men, does not infringe the provision of equality. Previously, it had been accepted that it is the men who is a seducer and not women.

The Supreme Court observed that the position might have changed with the passage of time and the women may have started to seduce men, it is for the legislature to amend this transformation. Later, it was challenged that it is a violation of article 21 as it does not give equal opportunity to hear a wife, but Supreme Court laid down that it is not in violation of Article 21 of the Constitution, although does not give opportunity to wife to be heard, she can approach to the trial court and file an application to the trial court that she should have given an opportunity of being heard.

In V. Revathi vs. Union of India⁹, the constitutionality of section 198 (1) and 198 (2) of Criminal Procedure Code 1973, that it allows the husband of the adulteress has right to prosecute the adulterer, but does not have right to the wife of the adulterer to do so. The court held that, the law does not allow either the wife or the husband to prosecute each other under criminal law; a husband is not permitted because the wife will not be treated as an offender in the ‘eye of law’. The wife is not allowed to do so under section 198 (1) read with Section 198 (2) as it does not permit her to do so. Moreover, there is “reverse discrimination” in favour of women and there is no discrimination against women so far as she is not allowed to prosecute her own husband.

With the recent development in India, in 2018 the Honourable Supreme Court of India in Joseph Shine vs. Union of India ¹⁰court declared the provision of Section 497 of the IPC as Unconstitutional and the reasoning given by the court is as follows:

(i) Section 497, criminalise man who commits adultery, not the women who commits adultery, and involved in the act equally, thus making it not gender neutral and violates Article 14 of Constitution.

(ii) A woman , whether married or not has a right to have sex with whomever she wants as it is her right to dignity and privacy enshrined in article 21 of Constitution of India .

1. Analysis of Unconstitutionality:

The framers of the Constitution considered that in the twentieth century that no one would be discriminate on the ground of sex. However, it is clearly visible that the legislature is making discrimination on the grounds of sex and on the pretext of giving “protective discrimination” to the women. The special treatment given women under Article 15(3) should be restricted to such cases, which should be related to some disability or discrimination which are so peculiar that it differentiate women from men as a class¹¹.

In this decision of the case Supreme Court in Joseph Shrine dealt with the situation, though prevalent in India, regard being held into the circumstances as suitable in modern India. But, one should keep in mind that India is a country which still follows old notion and India is still a feudal country. Caste and Communalism still prevail in India and the people of India still consider Adultery as moral and ethical wrong, we cannot go by the mere notion of women’s dignity. So, in order to test the constitutionality social notion of Indian Society cannot be overlooked¹².

(C) Extra-judicial killing and its lacuna:

Every duty comes with responsibilities. Police, hough, comes under the authority of the state, has been responsible for the maintenance of ‘Law and Order’ in society. In recent developments and amendment in IPC has been failing to protect the area where the power of police exceeds. Law related to extra-judicial killing has defined under section 96 to 106 of IPC. Which provides the ground for the right of private defence, and also rights have been given to the police officer under Section 46 clause 3 of the Criminal Procedure Code, 1973. The police officers are often given the reason of private defence and use it as a weapon to get away with murder in the some heinous offences. There are less cases in which police officers have been charged-sheeted for their involvement in the grievous offences.

K. G. Kannabiran, in his article ‘Extra-judicial killing’ talks about that how the exercise of every human right is seen as a crime and how the adjudicatory system use its aid as a police and armed forces to create ‘fear of consequences’. He further stated that the system which is not prepared to take the risk of absence of state violence can never secure the human rights.¹³ The Nations Human Rights Council has laid down the guidelines relating to the extra-judicial killing. India’s affair with extra-judicial killings is not a new concept. In common parlance, these practices are referred to as ‘encounter killings’. Most glaring examples of police power misused by Punjab Police, where Punjab Documentation and Advocacy Project (PDAP) revealed some 8000 cases during the period when it was experiencing militancy. PDAP revealed the date of the illegal burying of dead bodies of innocent people. In present days, India has been criticised by international agency, in the wake of rising extra-judicial killing in Uttar Pradesh¹⁴. The present picture shows the custodial death has been consecutively for 7 years and no one has been convicted so far .

1. Guidelines by Supreme Court:

The honourable Supreme Court laid down some guidelines in ‘People’s Union for Civil Liberties & another Vs. State of Maharashtra and Ors’, which are as follows:

1. Information received from any intelligence and other sources by the police shall be reduced in writing or in any electronic form.

2. Pursuance of any information received any encounter death occurs, Fir shall be registered under the same, and report shall be forwarded under section 157 of Cr. PC.

3. An independent investigation should be held by CID or by any police party of another station, at least above the rank of police involved in the encounter.

4. A Magisterial enquiry should be held in each case of an encounter and must be sent for cognizance under section 190 of Cr. PC.

5. Involvement of NHRC is not necessary unless there is a doubt about the impartiality in enquiry, report must be immediately sent to NHRC or State human rights council.

The Court held that these guidelines should be strictly followed while dealing with encounters, and must consider as law under Article 141 of the Constitution of India.

2. Possible Solution:

After, recent incident of Rape of Veterinary doctor in Hyderabad, sudden outrage emerged among the people. In the wake of this event, the four accused of Rape were killed by the police in the encounter. The glorification of the act by the police was high on its peak. In many cases there have been reports of fake encounter killings, but could be the possible solution. It is the duty of the legislature to narrow down the provision, regarding the law, which give them immunity under ‘Right of Private defence’. It could be possibly done, when three pillars of democracy discharge their duties correctly. Case related to severe degree disposed of by way of ‘Fast track justice’ system, which leaves no room for irrational rage.

(D) Sexual Offences And Gender Neutrality:

Section 376 of IPC, defines the provision related to Rape, section 354 of IPC, constitute the provision related to Sexual offences against women relating to outraging her modesty. These provisions specifically created for the women. As per the wide societal notion, only women can be availed of these provisions. In the 21st century, India has widely accepted the liberal democracy in which law has been modified according to its changing circumstances and how well people can accept the change. As the rape law are strictly favours that it relates to the crime against not only against the body but also to the integrity.

The most dimensional concepts of democracy regarding rape laws have been its ‘Gender Neutrality’. Gender neutrality relates to the concept that rape laws recognize the fact that both men, women and transgender can be both victims as well as perpetrators. It creates the wide dynamic to understand the effect of non-consensual, penetrative sex or non-penetrative sex on certain individual in society. Article 14, of the Constitution of India guarantees ‘Right to equality and equal protection of laws’, which basically does not differentiate as regards to the status, religion or gender. The law is equally applicable irrespective of gender. But, does it really equally applicable to the present rape laws, so as to not include male and the transgender. Clearly, rape law does not cover this equality enshrined under Art.14 of the Constitution.

1. Present Issues

In 2014, decision of the Apex Court in NALSA vs. Union of India¹⁵, granting third gender status to transgender had been widely applauded. Still, there is a long way ahead as Transgender Persons (Protection of Rights) Act, 2019 is still in contravention of 2014 judgement, and does not create a scope sexual offence against transgender. In NALSA judgement, the honourable court declared self declared identity as a fundamental right. Section 4 (2) of the 2019 Act, prescribes self- declared identity. Absence of clause regarding the government’s affirmative action towards offence related to the transgender community clearly does not accord with Article 15 and 16 of the Constitution, even the ruling in NALSA judgement grants the status of ‘Socially and Educationally backward’.

2. Possible Solution

It is an irony that sexual offence against the trans-people is considered as petty offences, for which a person may face an imprisonment up-to 6 months¹⁶. A 2007 study documented that in the past one year, the percentage of violence against transgender, those who reported: forced sex is 46%; physical abuse is 44%; verbal abuse is 56%; blackmail for money is 31%; and threat to life is 24%.¹⁷ This data shows the atrocities the community faces, still the lacuna in the act 2019 inadequate to provide the equal protection under Article 14 of the Constitution. Legislature need to fix the gap creating by the 2019 act. The insensitivity that prevails in society towards transgender, needs an urgent rectification in the legislature. The main problem lies in restricting the sexual offences to a particular gender and the prevalent notion of patriarchy attached to it and trans-phobic society's acceptance towards transgender. Gender neutrality is covered under Article 14 of the Constitution of India, it will provide equal protection of law irrespective of gender instead of restricted to a specific gender. As section 377 of IPC, partially struck down by the Supreme Court, clearly does not extend to the crime against the transgender. Thus, keeping in mind, the reforms need to be made into law.

III. Conclusion:

The potential reforms in IPC, needs scrutiny, keeping in mind the situation in India. Necessary implication of less imprisonment for the offence, instead of strict colonial law like sedition. Enforcing gender neutrality in consonance of the equality provision of the Constitution, in order to remove disparity in society. Law need to be reformed in order to balance peculiar circumstances and the liberal approach towards the progressive society.

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Footnotes

1. Author is a student at Campus Law Centre, University of Delhi, India.

2. Siddharth Narrain, 'Disaffection' and the Law: The Chilling Effect of Sedition Laws in India, 46 EPW.33, 33-37(2011). ↩

3. A.I.R. 1962 S.C. 955. ↩

4. SCR (2) 204, 1989 SCC (2) 574. ↩

5. (2013) 12 SCC 73. ↩

6. Rahul Tripathi, Over 45% rise in sedition cases in 2017: NCRB Data, ET Bureau, ( Oct 23, 2019, 09.09 AM) , https://m.economictimes.com/news/politics-and-nation/over-45-rise-in-sedition-cases-in-2017-ncrb-data/articleshow/71714464.cms ↩

7. AIR 321, 1954 SCR 930. ↩

8. AIR 1618, 1985 SCR Supl. (1) 741. ↩

9. AIR 835, 1988 SCR (3) 73. ↩

10. SCC Online SC 1676. ↩

11. Dr.Anjuli Sharma & Neha Sharma, Critical Analysis Of Law Of Adultery In India, 1 JMSG, 1-9 (2015) ↩

12. Justice Markandey Katju, Why I don't agree with Supreme Court's reasoning to decriminalise adultery, https://www.dailyo.in/voices/why-i-don-t-agree-with-supreme-court-s-reasoning-to-decriminalise-adultery-writes-markandey-katju/story/1/26935.html#itgdcommentMod ↩

13. K. G. Kannabiran, Extra-Judicial Killing, 31 EPW 705, 705-707(1996). ↩

14. . Varsha Gowda, Police encounters: Murder, not justice, DECCAN HERALD, DEC 17 ,2019, 07:38, https://www.deccanherald.com/opinion/main-article/police-encounters-murder-not-justice-786115.html. ↩

15. AIR 2014 SC 1863. ↩

16. Section 18(d), Transgender Persons (Protection of Rights) Act, 2019, NO. 40 Act of Parliament, 2019 ↩

17. Hijra/Transgender Women in India: HIV, Human Rights and Capital and social exclusion, TG Issue Brief, UNDP, VC. Dec. 2010. ↩