While attending a lecture during my college days, one of our Professors, in an informal chat told the class that there have been scores of amendments in the Income Tax Act, 1961, but very negligible number of amendments have been made in the Indian Penal Code, 1860 or many other laws enacted by the British Government. Obviously, he was talking about the lack of intelligence or more of a will on the part of our Parliament so as to amend the laws enacted by the Britishers. The most striking feature of the conversation with the learned Professor was that the lack of political courage is patent from the fact that India has still not been able to amend the name of “Indian Penal Code” and rename it “Penal Code”.

Today, after passing out my LL.B. and six years into practice as an Advocate, the words of the Professor still echo in my ears. I am proud to be an “Indian” but my soul as well as my mind do not agree to the use of word “Indian” in the “Indian Penal Code”. The very “first word” of the “enactment” reminds of British Imperialism. As we go into history, everyone knows that while the Criminal Law Commissioners were at work on a Penal Code for England, Macaulay, who had come to India in 1834 to be the Law Member of the Governor-General’s Council, was drafting a Penal Code that was intended to apply to the entire population—native and expatriate—of British India. Instructions were issued to four Commissioners in June 1835, but because of the illnesses and absences of the others, Macaulay was virtually the sole author of the Draft that he submitted in October 1837 to the Governor-General Lord Auckland. Despite, or because of, its virtues, Macaulay’s Draft had a very hostile reception from the contemporary Indian judiciary (composed of English lawyers doing a tour of duty abroad). It was not enacted until 1860, in the aftermath of the Indian Mutiny or war of Independence of 1857, with amendments that were by no means all improvements, and came into force on January 1, 1862. Ironically England still awaits a Penal Code. Since the Code was enacted especially for Indians and thus was named “Indian Penal Code” and thus presented the discriminatory approach of the British rulers which is still haunting us.

There is an urgent need to have a thorough relook at the entire Code in as much as there are still offences which are punishable with fine as low as Rs. 100 or there are offences which have lost their meaning with the passage of time. The Law Commission, in its various Reports, has time and again made recommendations for amending various sections of the Code, but unfortunately none finds mention of amending section 1 of the Code, which almost since inception, reads as under:-

“1. Title and extent of operation of the Code.– This Act shall be called the Indian Penal Code, and shall extend to the whole of India except the State of Jammu & Kashmir.”
After 63 years of Independence our country, ironically, is still ruled by the laws, most relevant, if not all, by a country which our freedom fighters fought tooth and nail and finally ousted them. Time now is ripe enough to generate a movement for changing the laws enacted by the British, and to start with amend section 1 of the Indian Penal Code and rename it “Penal Code”. As the Code is applicable in India (except the State of Jammu & Kashmir) the Code need not be called as “Indian Penal Code” as it is quite obvious it is Indian Penal Code. Similarly, there are a number of other enactments (Indian Contract Act, 1872; Indian Evidence Act, 1872; Indian Trusts Act, 1882 to name a few), which start with the word “Indian” which also require to be amended since none of the Acts enacted after Independence start with the word “Indian” and rightly so.

The bigger question before us today is that for how long will we carry the burden of our tormentors and how many more generations will be reminded of the British imperialism by the tag of “Indian” before the Penal Code and other Acts? I am a young enthusiastic naïve mind just in my infancy as an advocate but the issue, as far as to my understanding, is of greater concern and is required to be debated by the right thinking individuals especially the academicians, scholars, advocates, politicians and last but not the least the nationalists.

                                                                                                                                  Padamkant Dwivedi
                                                                                                                                                             Advocate
                                                                                                                Punjab and Haryana High Court
                                                                                                                                    Source: Nyayapravah