Reforming the Indian Penal Code (IPC) for a Democratic India

On July 1, 2024, newly reformed acts that repealed more than 1,500 archaic laws in a bid to “align India with the true democratic system and do away with India’s colonial past” will become active. These acts come in three parts:

1. Bharatiya Nyaya Sanhita, 2023 - to replace the Indian Penal Code (IPC),
2. Bharatiya Nagarik Suraksha Sanhita, 2023 - to replace the Code of Criminal Procedure (CrPC)
3. Bharatiya Sakshya Adhiniyam, 2023, - to replace the Evidence Act

As one of the stakeholders, I would like to see these acts collectively serve the people of India. The spirit of this humongous task resonated with citizens’ will, aspiration, and hope – to be free at last. On India’s 76th Independence Day, Prime Minister Narendra Modi said “In this Azadi Ka Amrit Kaal, new laws should be made by abolishing the laws which have been going on from the time of slavery.”

I hope this reform once and for all addresses the most simple and important issues that aam admi (people of the nation) hope for, though most of them do not know that those are their fundamental rights as citizens of the country. I say this because they bowed to those colonial-era laws for the past 77 years.

Since August 2023, the nation’s legal minds, intellectuals, politicians, journalists, and commentators have analyzed these laws and discussed their merits and demerits in writing and on TV programs. However, I feel some very simple yet critical issues might have been overlooked. Here, I provide perspectives on what were missing and what we need, along with comparisons of Indian laws and police systems with those of the USA, UK, Japan, and Germany – contemporary democratic systems.

Five critical reforms that every citizen would like to see are:

1. Urgent Action on Violence against Women: Any violence against girls or women should be dealt with urgently. Rape should be classified as a federal criminal offense and addressed by a special justice unit, as described in the article “She Screams: Justice and Deterrence of Rape.”
2. Central Bureau of Investigation (CBI) Oversight: Local administration (state or city) should defer to the Central Bureau of Investigation (CBI) in cases where there is an appearance (even if not actual) of unfairness, conflict of interest, or threats to citizen safety.
3. Central Government Intervention: The Central Government should have the authority and responsibility to intervene in cases involving multiple victims. This will help eliminate dirty politics, self-interest, and corruption.
4. Protection of Indian History: A law should be enacted to protect Indian history, regardless of how old or minor the details may seem. It should be a federal offense to dilute, hide, or misrepresent India’s true history. History is the root through which each generation connects to the past, building inner strength to defend the nation against all enemies, internal and external.
5. Exemplary Punishments for Misuse of Power: Institute exemplary punishments for those entrusted with power and resources to protect the people but who misuse these for personal gain. These punishments should be extremely severe, at least ten times harsher than those for any other individual committing the same offense, and should serve as a strong deterrent.

Key Dates and Facts:

• 1834: The First Law Commission was established under the British Government.
• 1860: IPC drafted by Thomas Babington Macaulay.
• 1862: IPC came into force.
• 1977-1981: The National Police Commission recommended comprehensive police reforms.
• 2006: Supreme Court directives in the Prakash Singh case on police reforms.
• 2019: NHRC recorded 1,723 custodial deaths, highlighting police accountability issues.
• On 11 August 2023, Amit Shah, Minister of Home Affairs, introduced the Bharatiya Nyaya Sanhita, 2023; Bharatiya Nagarik Suraksha Sanhita, 2023; and Bharatiya Sakshya Bill, 2023 in the Lok Sabha
• On 20 December 2023, these three bills were passed in Lok Sabha.
• On 21 December 2023, these three bills were passed in Rajya Sabha.
• On 25 December 2023, these three bill received the assent of the President of India
• On 1 July 2024, the newly reformed acts will replace the old IPC.

The Indian Penal Code (IPC)

The Indian Penal Code (IPC), established in 1860, has long been the backbone of India’s criminal justice system for all this time even after 77 years of independence. As a whole, we all should be ashamed of using the penal codes that were for the “subjects”, but used against the masters – citizens of the free nation. Until the year 1981 IPC very much remained the same as that of British-ruled India.

While it served its purpose during the British Raj, the socio-political landscape of India has dramatically transformed since then. Now, as a sovereign, democratic republic, India requires a legal framework that not only maintains law and order but also upholds the rights and dignity of its citizens.

This article outlines the historical context, current challenges, and the urgent need for comprehensive reform of the IPC in order to serve its citizens as masters rather than as subjects of the powers.

A Comparative Analysis of six democratic law enforcement systems For contrast and better visualization of the Indian penal system, a brief comparative analysis of the Indian Penal Code (IPC) with the penal codes and law enforcement systems of the USA, UK, Japan, Germany, and France, focusing on (i) citizens’ rights and powers, (ii) accountability and enforcement of police officials, and (iii) noninterference of elected officials, corporations, wealthy and powerful individuals.

Also Read: Upholding Parliamentary Privileges: Understanding Constitutional Provisions and Judicial Precedents

1. Citizen’s Rights and Powers

India:

• Constitutional Rights: Indian citizens enjoy fundamental rights under the Constitution, such as the right to equality (Article 14), freedom of speech (Article 19), and protection from arbitrary arrest and detention (Article 22). However, these rights are sometimes undermined by outdated provisions in the IPC. For instance, Section 124A (sedition) has been criticized for stifling free speech and has led to numerous arrests of activists and journalists

USA:

• Bill of Rights: The First Amendment protects freedom of speech and assembly, while the Fourth Amendment safeguards against unreasonable searches and seizures. High-profile cases like Miranda v. Arizona (1966) established the requirement for police to inform suspects of their rights, underscoring the emphasis on civil liberties.
• Civil Liberties: Organizations like the American Civil Liberties Union (ACLU) actively litigate to protect these rights, ensuring robust legal protections.

UK:

• Human Rights Act 1998: Incorporates the European Convention on Human Rights (ECHR) into domestic law. Notable cases, such as the Belmarsh case (2004), where indefinite detention of foreign terrorism suspects was ruled unlawful, highlight the protection of rights.
• Common Law Protections: The UK’s common law tradition provides strong protections for individual rights, with judicial review processes allowing citizens to challenge unlawful government actions.

Japan:

• Constitutional Rights: The Japanese Constitution guarantees rights including freedom of speech and assembly. The Supreme Court of Japan plays a crucial role in protecting these rights, as seen in the Kyoto Koto School Case (1997), where the court upheld freedom of speech in an educational context.
• Public Trust: High levels of public trust in the legal system and law enforcement contribute to the effective protection of these rights, with rigorous adherence to due process.

Germany:

• Basic Law (Grundgesetz): Article 1 of the Basic Law guarantees human dignity, while Article 5 protects freedom of expression. The Federal Constitutional Court’s decision in the Lüth case (1958) reinforced the importance of freedom of expression as a foundational right.
• Constitutional Court: The Federal Constitutional Court actively safeguards these rights against any infringements, playing a pivotal role in maintaining the rule of law.

France:

• Declaration of the Rights of Man and of the Citizen (1789): This foundational document guarantees fundamental rights and influences modern French law. For example, the State of Emergency cases following the 2015 Paris attacks tested the balance between security and civil liberties.
• Constitutional Protections: The French Constitution and subsequent laws provide robust protections for civil liberties and individual rights, enforced by institutions like the Conseil d’État.

2. Accountability and Enforcement of Police Officials India:

• Challenges: Issues like custodial violence and corruption are rampant. The NHRC recorded 1,723 custodial deaths in 2019, underscoring the urgent need for police accountability
• Reform Initiatives: Despite recommendations from the Supreme Court in the Prakash Singh case (2006) for police reforms, such as establishing Police Complaints Authorities, implementation has been inconsistent

USA:

• Internal and External Oversight: Police departments have internal affairs units, and external bodies like civilian review boards and the Department of Justice oversee police conduct. The George Floyd case (2020) led to widespread calls for police reform and increased accountability measures.
• Body Cameras: The increasing use of body cameras aims to ensure transparency and accountability, providing crucial evidence in cases of misconduct.
• Qualified Immunity: This doctrine, which often protects police officers from lawsuits, has faced significant criticism, prompting legislative efforts to reform it.

UK:

• Independent Office for Police Conduct (IOPC): Investigates complaints against police officers independently. High-profile investigations, such as the handling of the Hillsborough disaster (1989), highlight the importance of independent oversight.
• Stringent Regulations: Strict guidelines and regulations govern police conduct, with significant consequences for violations, such as dismissal or criminal charges.

Japan:

• Internal Disciplinary Measures: Police in Japan are subject to strict internal disciplinary measures. The Amagasaki case (2009), involving police misconduct, led to significant public scrutiny and reforms in police accountability.

Germany:

• Independent Oversight: Various mechanisms, including independent commissioners and internal disciplinary bodies, ensure police accountability. The Oury Jalloh case (2005), involving the death of a detainee, led to widespread protests and calls for increased accountability.
• Strict Protocols: The police are bound by strict legal protocols and face severe penalties for misconduct, fostering a culture of accountability

France:

• Inspection Générale de la Police Nationale (IGPN): The “police of police” body investigates police misconduct. The Adama Traoré case (2016) brought significant attention to police accountability issues in France.
• Judicial Oversight: Strong judicial oversight helps in maintaining accountability, with courts frequently scrutinizing police actions to ensure legality and propriety.

Also Read: Mastering New Criminal Laws: A Comprehensive Course for Legal Professional

3. Non-Interference of Elected Officials or Wealthy Individuals India:

• Political Influence: Significant political interference in police operations, with transfers and promotions often influenced by political considerations. This was evident in the handling of cases like the Sanjiv Bhatt case.
• Wealthy Individuals: Instances of influence by wealthy individuals on police actions, such as the Jessica Lal murder case (1999), lead to selective enforcement of laws.
• Separation of Powers: The principle of separation of powers and a robust system of checks and balances help reduce political interference. The Mueller investigation (2017-2019) into Russian interference in the 2016 election showcased the independence of investigative agencies.

USA:

• Influence of Wealth: While influence by wealthy individuals and lobbying is a concern, legal frameworks like the Foreign Corrupt Practices Act (FCPA) address conflicts of interest and corruption.

UK:

• Operational Independence: Police forces operate with a high degree of operational independence from political influence. The Leveson Inquiry (2011-2012) into the culture, practices, and ethics of the press also examined police relationships with politicians and the media.
• Ethics Committees: Various ethics committees and regulations limit the influence of wealthy individuals, ensuring that law enforcement remains impartial.

Japan:

• Low Political Interference: The police operate with significant independence from political and wealthy influences, supported by strong public trust and strict internal protocols. The Teigin incident (1948), involving a high-profile bank robbery, highlighted the importance of police independence in highstakes cases.

Germany:

• Strict Separation: The police operate independently, with strong legal frameworks preventing interference from politicians and wealthy individuals.The Love Parade disaster (2010) investigation demonstrated the thoroughness and independence of police operations.
• Public Accountability: High levels of public accountability and transparency in police operations further prevent undue influence.

France:

• Operational Autonomy: The police maintain operational autonomy, with mechanisms in place to prevent political and wealthy interference. The handling of the Benalla affair (2018), involving a security officer close to the President, highlighted issues of accountability and independence.
• Public Oversight: Strong oversight mechanisms ensure that law enforcement operates without undue influence, maintaining public trust in the system.
• In short, reforming the Indian Penal Code (IPC) and the functioning of the police force to align with the principles of a democratic society is essential. By learning from contemporary practices in the USA, UK, Japan, Germany, and France, India can enhance citizens’ rights, ensure effective police accountability, and minimize political and wealthy interference. These reforms are crucial for building a just, equitable, and modern legal system that truly serves and protects its people, builds a robust economy through entrepreneurship, and fulfills the vision of Viksit Bharat.

Also Read: Navigating Legal Remedies: Understanding the Distinctions Between Criminal Writs, Criminal Revision, and Section 482 of the CrPC

Historical Context and the Need for Reform

Historical Context:

• British Influence: The IPC was drafted by the First Law Commission under the British Government, chaired by Thomas Babington Macaulay, and came into effect on January 1, 1862. It was designed to establish a uniform system of law across colonial India.
• Control over Subjects: The primary objective was to exert control over the Indian population, treating them as subjects rather than citizens with individual rights.

Current Context:

• Democratic Transformation: Postindependence, India adopted the IPC with minor modifications. However, the foundational structure remained largely colonial, more suited for controlling a population than serving a democratic citizenry.
• Need for Reform: Modern India, with its emphasis on democracy, human rights, and individual freedoms, necessitates a legal framework that reflects these values. Replacement of the IPC must evolve to protect citizens, ensuring justice and equality.

Accountability of Police Officers

Current Issues:

• Misuse of Power: Numerous instances of police misconduct, including corruption, custodial violence, and abuse of power, have been reported. For example, the National Human Rights Commission (NHRC) recorded 1,723 custodial deaths in 2019 alone.
• Lack of Accountability: The absence of effective oversight mechanisms often allows such behavior to go unchecked. Police reforms suggested by various commissions, like the National Police Commission (1977-1981) and the Supreme Court directives in the Prakash Singh case (2006), remain largely unimplemented.

Proposed Solutions:

• Independent Oversight Bodies: Establish independent bodies such as Police Complaint Authorities (PCAs) at both state and district levels to investigate complaints against police officers.
• Regular Training Programs: Implement mandatory training focused on human rights, ethical conduct, and community relations.
• Community Policing Initiatives: Promote community policing to build trust and ensure accountability. For instance, the “Janamaithri Suraksha Project” in Kerala has shown positive outcomes in improving police-community relations.

Political Interference

Current Issues:

• Influence and Manipulation: Police forces often face undue pressure from politicians, leading to biased investigations and misuse of power. This issue was highlighted in the Supreme Court’s observations during the Prakash Singh case.
• Dependence on Politicians: Career advancements for police officers, including transfers and promotions, are frequently influenced by political considerations rather than merit or performance.

Proposed Solutions:

• Autonomous Police Commission: Create an independent police commission to oversee appointments, transfers, and promotions, reducing political interference.
• Fixed Tenure for Officers: Implement fixed tenures for police officers to ensure stability and reduce dependence on political patronage.
• Judicial Oversight: Strengthen judicial oversight to review cases involving political influence, ensuring impartial and fair investigations.

Reimagining the IPC for a Democratic India

Principles for Reform:

• People-Centric Legislation: The IPC (now Bharatiya Nyaya Sanhita) should be further reformed to prioritize the protection and rights of citizens, romoting fairness, justice, and social welfare.
• Transparency and Accountability: Incorporate provisions that enhance transparency in law enforcement and legal processes, ensuring robust accountability mechanisms
• Modernization: Update outdated provisions incorporate new categories of crime such as cybercrime, and align the IPC (or Bharatiya Nyaya Sanhita) with international human rights standards.

Steps to Reform:

• Comprehensive Review: Conduct a thorough review of the IPC/ Bharatiya Nyaya Sanhita by a committee of legal experts, civil society representatives, and other stakeholders.
• Public Consultation: Engage with the public through consultations and surveys to gather inputs and ensure the reformed IPC/ Bharatiya Nyaya Sanhita reflects the aspirations and needs of the people.
• Legislative Action: Ensure that the reformed IPC/ Bharatiya Nyaya Sanhita is passed through proper legislative processes with adequate debate and discussion in Parliament

Reforming the IPC/Bharatiya Nyaya Sanhita to better serve the citizens of India is crucial for upholding democratic values and ensuring justice. By addressing issues of police accountability, political interference, and outdated laws, India can move towards a legal system that truly serves and protects its people. The new administration must prioritize these reforms to build a just, equitable, and democratic society.

“Ghosts may be in the Mustard Seeds.”

Just changing the laws and penal codes may not bring true reforms and desired services to the masters – the citizens of the nation. Overhauling India’s Administrative and Police Systems: A Path to IPC Reform and True Democratic Governance.

The Indian Administrative Service (IAS) and Indian Police Service (IPS) have long been pillars of India’s governance structure. However, their colonial origins have left them with legacies that are often counterproductive to democratic values and effective governance. Coupled with an outdated Indian Penal Code (IPC), these structures perpetuate issues of accountability, transparency, and political interference. This article proposes a comprehensive reform, including the abolition of the current IAS and IPS recruitment systems and a thorough overhaul of the IPC, to create a governance framework that truly serves the people of India.

Historical Context and Current Challenges

Colonial Legacy:

• Origins: The IAS and IPS evolved from the Indian Civil Service (ICS) and the Imperial Police, designed to serve British colonial interests. These services were structured to maintain control rather than serve the people.
• Post-Independence: After 1947, India retained these services with minimal changes, leading to continued hierarchical and bureaucratic practices that often conflict with democratic governance.

Current Issues:

• Bureaucratic Inertia: The hierarchical nature of the IAS and IPS results in a topdown approach, making it difficult to implement reforms or respond effectively to local needs.
• Accountability Deficits: Weak mechanisms to hold officers accountable lead to issues like corruption and abuse of power.
• Political Interference: Politicians often influence the transfer, posting, and functioning of IAS and IPS officers, undermining their independence and effectiveness.
• Outdated IPC: The IPC, formulated during the British Raj, is outdated and often misaligned with modern democratic values, leading to misuse and selective enforcement.

Proposed Reforms Abolishing the IAS and IPS:

Rationale:

• Outdated Structures: The current system is based on colonial-era structures that are not suited to modern governance needs.
• Democratic Governance: A new system should emphasize service to the citizens and uphold democratic values.

Establishing New Recruitment Systems:

Independent Recruitment Authority:

• Merit-Based Selection: Establish an independent authority to oversee the recruitment of government and police officers, ensuring selections are based on merit, qualifications, and integrity.
• Transparent Processes: Implement transparent recruitment processes, including rigorous testing, background checks, and public scrutiny.

Local Recruitment for Police:

• Community Policing: Recruit police officers locally to ensure they are familiar with and accountable to the communities they serve. This can help build trust and improve law enforcement effectiveness.

Removing Political Control:

Fixed Tenures and Independent Oversight

• Stable Tenures: Guarantee fixed tenures for administrative and police officers to prevent arbitrary transfers and ensure continuity.
• Oversight Bodies: Create independent oversight bodies to monitor the conduct and performance of officers, free from political influence.

Decentralization of Power:

• Local Governance: Empower local governments to manage administrative functions, reducing the concentration of power at the central and state levels.
• Citizen Participation: Encourage citizen participation in governance through local councils and community boards.

Enhancing Accountability and Transparency:

Performance Evaluation:

• Regular Audits: Conduct regular audits and performance evaluations of officers, with results made public to ensure transparency.
• Public Feedback: Incorporate feedback from the public in performance reviews to ensure officers are responsive to the needs of the community.

Ethical Training and Continuous Education:

• Human Rights Training: Provide comprehensive training on human rights, ethics, and democratic governance.
• Ongoing Education: Ensure continuous professional development to keep officers updated with the latest best practices and legal frameworks.

Modernizing the IPC:

Rationale:

• Colonial Legacies: The IPC, enacted in 1860, contains provisions that reflect the colonial mindset of control rather than democratic governance.
• Aligning with Modern Values: Reforming the IPC to align with contemporary values of justice, equality, and human rights is essential.

Specific Reforms:

• Decriminalization of Outdated Offenses: Remove or update sections that are no longer relevant or that infringe on individual freedoms, such as Section 124A (sedition).
• Human Rights Focus: Ensure that the IPC upholds human rights, with clear provisions against custodial violence and arbitrary detention.
• Transparency and Accountability: Introduce measures that ensure accountability in law enforcement, such as mandatory recording of interrogations and independent review of custodial deaths.
• Bharatiya Nyaya Sanhita, 2023 have addressed many of these issues.

Implementation Strategy

Legal and Constitutional Amendments:

• Legislative Action: Pass the necessary legal and constitutional amendments to dismantle the IAS and IPS and establish new recruitment and oversight systems.
• Judicial Support: Engage with the judiciary to ensure legal backing for reforms and address any constitutional challenges.

Establishing New Institutions:

• Recruitment Authority: Set up the independent recruitment authority with clear guidelines and a mandate to operate transparently and independently.
• Oversight Bodies: Create independent oversight bodies at national, state, and local levels to monitor and evaluate the performance of officers.

Phased Transition:

• Gradual Implementation: Implement the reforms in phases to ensure a smooth transition, starting with pilot projects in selected regions.
• Stakeholder Engagement: Engage with stakeholders, including current officers, civil society, and the public, to gather input and build consensus.

Conclusion

Reforming India’s administrative and police services by abolishing the IAS and IPS and establishing new, transparent, and accountable recruitment and oversight systems is a bold but necessary step. Coupled with a comprehensive overhaul of the Indian Penal Code (IPC), these reforms can eliminate the remnants of colonial-era governance, reduce political interference, and ensure that the administrative and police services truly serve the people of India. By embracing these changes, India can build a more democratic, equitable, and efficient governance structure for the 21st century.

Additional Information and Further Readings:

1. https://cdtihyd.gov.in/NewCriminallaws
2. https://www.youtube.com/watch?v=13n5mtNUDDg&ab_channel=IndiaToday
3. https://medium.com/@eduzakka/she-screams48c6d88ab153
4. https://www.pgurus.com/author/ryanandanjali/
5. https://prsindia.org/billtrack/the-bharatiyanyaya-second-sanhita-2023
6. https://legalfly.in/chapter-1-bharatiya-nyayasanhita-2023-explained/
7. https://www.linkedin.com/pulse/bharatiyanyaya-sanhita-2023-former-indianpenal-codejaishankar-j6kpc/
8. https://www.youtube.com/watch?v=B_jQ3DlrVs4
9. https://www.nls.ac.in/blog/bharatiya-nyayasanhita-decolonising-orreinforcing-colonialideas/
10. https://www.thelawadvice.com/articles/comparative-table-of-ipc-andbharatiya-nyayasanhita-2023