When it comes to the majesty of any legal process, we’re rarely, if ever, talking blistering speed and superfast performance: far from it. Call up any regular, common or garden lawyer with even the most mundane question, and he (or she) will be sure to get back to you in a month or so. Because, as anyone who’s ever stumbled through the legal undergrowth will tell you, everything slows down when dealing with someone wearing a horsehair wig or lugging around the latest supplement to the Indian Penal Code. Indeed, even in those stiff upper lipped, trigger-happy days of the East India Company, renowned for very little beyond the efficiency of its bureaucracy, the Penal Code still took twenty-eight years to complete: started by Thomas Macauley (no less) in 1834, it didn’t finally hit the statute book until 1862 (by which time Macauley was long dead and India was part of the British Empire).
But here’s what’s so very odd about that…even allowing for the law’s delay, the clarity of Thomas Macauley’s prose, and, indeed, the supervening independence of India in 1947, that same Penal Code has remained largely unchanged on the subcontinent since 1862: despite being more or less a cut and paste composite of the Napoleonic Code, snippets of English Law, and even, with a quirky sense of lateralism, the 1825 Louisiana State Code…India has pretty much held on to its root and branch ever since. Sure, there are some occasional nods to specific local issues of cultural misfeasance (including the offence of Dacoity, or banditry), but why, post independence, did India not decide to build an entirely new code… one better suited to the specific needs of the subcontinent?
After all, even for the crustiest and dustiest of legislators and lawyers, one hundred and sixty-one years is quite a long time…
Well, stop all the clocks because the good news is that, at last, the waiting is over. Prime Minister Modi’s Government is currently on the verge of introducing new legislation that will re-fashion the Colonial Code and strip away all remaining vestiges of the former mother country (as well as, thank goodness, every last trace of the Louisiana State Code). And that isn’t just a matter of national autonomy (although it’s certainly that too)…for example, ridiculously antiquated regulations governing offences against women will be reformulated with the needs of a new millennium in mind (bear in mind adultery was a criminal offence under the Code until, in 2017, the Supreme Court stepped in); and measures will also be taken under the new legislative programme to speed up the administration of justice generally, so as to address legacy delays in the system that left defendants waiting up to thirty years for a verdict. The aim is to have the new legislation in place prior to next May’s general elections.
No surprise then that, introducing the new Bill this week (one of three seminal measures), Home Minister, Amit Shah, described the vestigial Code as a species of “slavery”: and, of course, he was right…bearing in mind, in particular, that Macauley’s handiwork was raddled through with misogyny, maladministration, and a peculiar brand of paternalism that ceased to be relevant more than a century ago. As Mr Shah put it, in his inimitable way: “The foundation of these procedures was to protect the British, not the common people of India. They were complex, only to penalise Indians whereas the Indian concept is that of giving justice to the poor and punishing the guilty.”
It’s difficult to put it better…in a very real sense, and in a manner that matters profoundly, India is continuing to take back control.
India continues to acquire and build on a new level of assertiveness on the world stage, and wholesale revisions to the colonial penal code are just the latest chapter in the story…
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