Saturday, July 19, 2014

Macaulay revisited


. 1,Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform  edited by Wing-Cheong Chan, Barry Wright and Stanley Yeo, Ashgate, 2011. (hereafter referred to as Codification in this review).  Book details available here.

.  2.  MACAULAY: Pioneer of India’s Modernization by Zareer Masani, Random House India, 2012.Rs.450, Pages 269. (hereafter referred to as Macaulay in this review). Details here.

   3. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE, As amended by the Criminal Law (Amendment) Act, 2013, 34th edition, by Justice K.T.Thomas, and M.A.Rashid, LexisNexis, 2013. Rs.650, Pages 1397. (hereafter referred to as R&D IPC in this review).  .

Reading these three books together, for the purpose of this review, has been a source of exhilaration, of one leading to the other, that is,  the three books in quick succession, not necessarily in the order, I have placed them above.  Of these, Macaulay has been with me for quite some time, but it required some compulsion to finish it, while I happened to notice Codification at a library and evinced interest in its contents, but again, for lack of compulsion, postponed reading it.  I, therefore, thank M.A.Rashid, the co-author of R&D IPC, for alerting me to the recent publication of his book, which provided me the occasion for doing justice to the other two.

Together, these three books represent a surge of interest in Thomas Babington Macaulay and his Indian Penal Code, ever since the Code completed its 150 years in 2010 – an event which went almost unnoticed and uncelebrated in India as well as on this blog.  This is not surprising as we take many things for granted, IPC included.

IPC was the first codification of criminal law in the British empire and is the longest serving criminal code in the common law world.  The editors of Codification organized a three-day symposium from June 9 to 11 2010 at the National University of Singapore.  IPC was introduced into Singapore by the 19th century British colonial administrators.  The code remains its principal criminal law statute.  Participants of this symposium included 10 specially invited international researchers from Australia, Canada, England, India and Malaysia.

I read the first chapter of Codification with interest, as it provides the justification for the book, and for the need to revitalize IPC. Readers may get a glimpse of the other chapters from the Ashgate’s website, and choose to read those which interest them, when they access the hard copy.
There are several things about Macaulay which are of interest to the readers.  He was the chairman of the first Indian Law Commission.  He lived just for 59 years, but wore several caps during his life time: author, historian, voracious reader, very affectionate sibling (he remained a bachelor) to his sisters, a representative of the British Empire, as well as its faithful critic, and a person who was deeply sympathetic to the underdog. 
Macaulay gives a fascinating account of his brief life, interspersed with Masani’s counterfactual historical comments, that is, whether Macaulay would have approved this or that aspect of our contemporary times.  Macaulay’s contribution to the making of IPC forms just one chapter in his book, (Chapter 8: The Law-giver), leaving the reader to wonder whether the author could have provided a more lengthy treatment of this phase, than what was possible in the book.  In Epilogue too, Masani skips his counterfactualism with regard to the IPC, giving more space to Ambedkar as his political heir, and to Macaulay’s possible surprise over English becoming the popular language, despite many challenges.

An interesting aspect was the fact that there was a gap of two decades between Macaulay’s writing the Code, and its actual inauguration, and that he died just one year before its enactment.   There is no doubt that Macaulay wanted to see his code being implemented during his lifetime, but would he have approved the manner, we clung to it without any major attempt to legislatively revise it in accordance with the changing times?  It is here Codification helps the reader to understand the issues at stake.  At a time when the Narendra Modi Government talks about the need to dump outdated laws, and reform the existing ones, the editors’ call for a fresh approach to understand the IPC is refreshing.  I am surprised that the book’s persuasive plea to reform the IPC has not been the subject of debate at all in India.

As Codification shows, the IPC was intended by Macaulay, to be regularly revised by legislative amendment whenever gaps or ambiguities were found.  As this did not occur, courts had largely undertaken this task, sometimes with unsatisfactory outcomes.  This was in part due to the failure of the courts to recognize or follow the drafting philosophy that underpins the IPC. 

Codification further reveals that many courts have instead been influenced by English common law developments or have followed the decisions of other jurisdictions in an inconsistent  fashion.   Legislative amendments have tended to be ad hoc and reactive, responding to local circumstances and pressing policy challenges rather than involving systematic attempts to combine local needs with attention to Macaulay’s general codifying principles, the book says.

The editors recognize that the philosophical stance and basic principles of the original IPC framers are the product of a particular time, culture and policy context.  

An interesting observation in Codification is that as a manufactured article, the IPC has not even been serviced, let alone remodeled, since leaving the codifier’s desk. As a result, the IPC struggles to remain the principal repository of the foundational principles of criminal responsibility in India and other jurisdictions like Malaysia, Nigeria, Pakistan, Singapore, Sri Lanka and the Sudan which have adopted it, having had hardly any influence on the development of subsequent penal legislation.

IPC, the editors of Codification point out, has left many unintended problems of interpretation for the courts which have had the unenviable task of finding ways, not always successful, of applying the 19th century attitudes and approaches embodied in the Code to social and moral situations in the 20th and 21st centuries.  They, therefore, suggest enactment of a General Part which will significantly revitalize the IPC and restore many of its original technical attributes. 

According to Macaulay, a good code should have the qualities of precision and comprehensibility, and should reflect legislative rather than judicial law-making, with associated features of comprehensiveness and accessibility.   The three general principles of precision, comprehensibility and active legislative lawmaking have stood the test of time and remain as progressive general aims for law reform in the 21st century.  Codification throws light on each of these principles, and it is better to their essence, as explained in the book.

Precision: While most of the provisions of Macaulay’s code have this quality, there are some which are ambiguous. The enacted version added complexities and ambiguities.  Many more gaps and inconsistencies showed up and required the attention of the courts.

Comprehensibility: IPC may have been understood by the ordinary people of Macaulay’s time who were familiar with the words used and could relate well to the many factual illustrations which he used to help explain the law.  But ever since its inception, there have been parts of the code which have necessitated clarification by the courts on account of their incomprehensibility.  There are many words or concepts which are likely to cause puzzlement: Examples are as follows: wantonly (s.153), maliciously (s.219), malignantly (s.270) common intention (s.34), unsoundness of mind (s.84), sufficient in the ordinary course of nature (s.300) and cruel or unusual manner (ex.4 to s.300).

Active legislative engagement:  Since the criminal law is arguably the most direct expression of the relationship between a State and its citizens, it is right as a matter of constitutional principle that the relationship should be clearly stated in a criminal code the terms of which have been deliberated upon by a democratically elected legislature.

The  ad hoc nature of legislative amendment, instead of systematic legislative review as contemplated by Macaulay, is illustrated in Codification.   The fact that so many parts of the IPC have been subjected to judicial interpretation and elaboration runs counter to Macaulay’s insistence that the Code should be the creation of the legislature, by those who make the law, and who must know more certainly than any judge can know what the law is which they mean to make.

Macaulay also proposed that each member of the population should be furnished with a copy of the code in their own native language. Most certainly, a person has more ready access to a copy of the Code than ever before, thanks to the internet.  But the point, as the book rightly points out, is that the Code is no longer the sole repository of the law which it purports to cover, but has to be read together with a very large body of case law.  

Any Indian criminal law commentary, for instance, no less than its counterparts from common law jurisdictions such as Australia, Canada and England, devotes more number of pages to the discussion of case law.  H.S.Gour’s The Penal Law of India (11th edn, 2000) has 4900 plus pages. R.Ratanlal and K.T.Dhirajlal, (32nd edn,2010) has 2900 pages.  Justice Thomas and Rashid’s R&D IPC has 1397 pages, but the size of the book is bigger than the earlier editions.

Codification rightly suggests that it would be an immense surprise if the many pronouncements concerning criminal responsibility in a criminal code enacted for the 19th century British subjects in India accurately reflected the values and views of Indian citizens in the 21st century.  Values, ways of thinking about criminal responsibility and policies inevitably change according to time and place, and it is incumbent upon legislative authority to keep abreast with these changes, assisted by specialist law reform commissions, in order to actively update the Code and maintain its effectiveness.

The IPC, as it stands today, fails to satisfy any of the attributes which Macaulay regarded as essential for a good code, and presents the danger of perpetuating the moral judgments, values and policies of a bygone era, Codification believes.

In line with his insistence that the Code should be the work of the legislature and not of the Courts, Macaualy proposed putting in place a revision mechanism.  It was that, whenever an appellate court reversed a lower court decision on a point of law not previously determined or whenever two judges of a higher court disagreed  on the interpretation of a provision of the Code, the matter should be automatically referred to the legislature which should decide the point, and if necessary, amend the code.  Codification regrets that this mechanism was not adopted in India or in any other jurisdictions which have adopted the Code, leaving any ambiguities in the Code to be rectified by the legislature as it saw fit, or else to be dealt with by the courts as best they could.
It deplores what  the general pattern of inattention to the IPC in India. There has been a proliferation of penal laws outside the IPC.  Most changes are the result of judicial interpretation, drawing unevenly, sometimes inappropriately and certainly contrary to Macaulay’s intent,  from precedents in other common law jurisdictions. 

Codification, however, notes some exceptions.  Constitutionalism has led to some notable striking down or judicial modification of elements of some offences, such as the decriminalization of homosexuality in relation to s.377.  Here, the book approvingly refers to the Delhi High Court’s judgment in Naz Foundation  case, and the Supreme Court’s Mithu verdict, striking down S.303.  As the book was published prior to the Supreme Court’s Kaushal decision, which restored S.377, as it originally stood, readers can only infer that the editors would have disapproved it.  Justice Thomas and Rashid, in their preface to the 34th edition of R & D IPC, however, feel it would have been more appropriate if the two Judge Bench had been persuaded to refer this momentous Constitutional question to a Bench of Five Judges.

Codification refers to the critical essays on legislative and judicial developments, first published by the Indian Law Institute in 1962, and updated in 2005. [Essays on the IPC, 2005.  Edited by K.N.C.Pillai and S.Aquil.]  While such initiatives have informed IPC amendment bills, (1972 and 1978), the bills lapsed on the dissolution of Parliament. 

Can an Indian reader take comfort from the book’s observation that this narrative of neglect and uneven amendment is a familiar one across IPC jurisdictions?  Legislatures have rarely taken the initiative to rectify defects in the Code which have come to the attention of the courts and commentators.  When they did, the results were far from satisfactory, adding further confusion or complexity.

A likely explanation which Codification offers is that the drafters of the legislative amendments have paid scant regard to the relationship between their amendment on the one hand and existing provisions in the Code and their philosophical underpinnings on the other.   Example: the word ‘rash’ in S.304A. The new provision did not define what rash meant, leaving it to the courts to define.  The legislature may be criticized for effectively handing over its democratically ordained law-making powers to the judiciary, Codification suggests.

However, Codification also defends the Judges saying they are required to handle cases where criminality has taken new forms which are difficult to cope with under old structures and under a philosophy which binds judges to a strict and literal reading of prohibition.  The judges are left entirely in the dark concerning the correct approach to take to resolve an ambiguity, gap or inconsistency in the IPC.  The current impoverished nature of the IPC cannot be rectified by the courts simply because their involvement is antithetical to the formulation of the good code.

The book is correct in its prognosis that Macaulay’s three principles, if followed meticulously by our legislature, will result in  less appeals, greater compliance and savings and prevent crime through education.  Sadly, there has been no debate about these principles within India, which only underscores our inability to identify the real reasons for the ills in our criminal justice system. 

Codification says that the IPC, when first implemented, was well ahead of its time, thanks largely to the legislative genius of Macaulay.  But like all good things which are not regularly maintained and improved, it has become a pale shadow of its former self.  Judges have not been given any guidance from the Code as to which source of law they should draw upon to resolve a problem of interpretation.  The result has been the growth of a huge body of case law on the Code, including numerous conflicting judicial rulings affecting the whole range of general principles of criminal responsibility.

According to Codification, a dedicated law reform body working together with leading criminal law academics can fulfil this role and introduce a General Part to revitalize the IPC.  Can the Indian Law Commission rise to this challenge, and do it suo motu, as it had done on many occasions earlier?
The first edition of R&D IPC was published in 1896.  Both Ratanlal and Dhirajlal were advocates of the Bombay High Court, and I have not been able to lay my hands on the first edition.  The earliest edition with the Supreme Court Judges Library is the 19th edition, published in 1956 (titled then as ‘The Law of Crimes’).  But the list of editions in the latest one shows 19th in 1948.  I am not able to explain this discrepancy, but it will be of interest, to get access to the earlier editions.

Recently, a Madras High Court Judge favoured chopping of hands of accused found guilty of  forgery.  The judge's observation drew critical comments.  Thanks to Macaulay, our Judges have not been able to play havoc with our punitive system, which is proportionate to the gravity of the crime.  I am relieved that R&D IPC, like Codification,  favours greater role by Parliament, in clarifying many provisions in IPC, which are in disarray, thanks to confusing judicial pronouncements.  R&D IPC' s reference to death penalty jurisprudence is a case in point.

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