Sunday, Aug 13, 2023

How the Indian Penal Code came into existence under British colonial rule

Union Home Minister Amit Shah, on August 11, introduced a bill in the Lok Sabha to replace the Indian Penal Code of 1860. Shah claimed that the IPC was meant to protect the governing interests of the British rather than Indian citizens.

Macaulay-Sepoy MutinyThe IPC was enacted in the aftermath of the Rebellion of 1857. It was the brainchild of Thomas Babington Macaulay, pictured here. (Wikimedia Commons)
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How the Indian Penal Code came into existence under British colonial rule
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Union Home Minister Amit Shah on Friday (August 11) tabled three bills in the Lok Sabha – the Bharatiya Nyaya Sanhita Bill, the Bharatiya Nagarik Suraksha Sanhita Bill, and the Bharatiya Sakshya Bill – which would replace the colonial era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act respectively.

Shah said that the current laws have a “British colonial stamp” over them, and were not meant to protect the common people of India. “These laws were made 160 years ago with an aim to create an atmosphere in favour of the British authority in London. The foundation of these procedures were to protect the British, not the common people of India,” Shah said.

The IPC was first enacted in 1860, the CrPC in 1882 and the Evidence Act in 1872. Here we look at the history of the IPC.

A good code no longer

The Indian Penal Code was enacted in 1860, and came into force on January 1, 1862. This makes it the longest surviving code in the common law world – perhaps a testimony to how well thought out it was, at the time of its creation.

However, times change. The Code came up during the heyday of British colonialism in India and was very much a product of prevailing attitudes and circumstances.

“The IPC as we know it today … presents the danger of perpetuating the moral judgments, values and policies of a bygone era,” legal scholars Stanley Yeo and Barry Wright write in their introduction to Codification, Macaulay and the Indian Penal Code (2011).


In fact, while it was enacted in 1860, the Code, in its first form, came up over two decades earlier.

The need for codification

As British colonial control expanded across the Indian subcontinent, so did the difficulties it faced in administration, particularly in the legal sphere.

“Indian law prior to codification consisted of a complex array of Parliamentary Charters and Acts, Indian legislation (after 1833), East India Company Regulations, English common law, Hindu law, Muslim law, and many bodies of customary law,” legal historian Marc Galanter wrote in ‘The Displacement of Traditional Law in Modern India’ (1968).


For Thomas Babington Macaulay (1800-1859), a leading legal mind of the time and Whig politician, this necessitated codification. He saw codification as the means to lift India from backwardness into modernity – as promised by the British “civilising mission”.

“The physical and mental distance separating East and West was to be annihilated by … transplanting the genius of English laws and English education. It was the attitude of English liberalism in its clear, untroubled dawn, and its most representative figure in both England and in India was Macaulay,” historian Eric Stokes wrote in his classic The English Utilitarians and India (1959).

Influence of Bentham

Macaulay was most directly influenced by the ideas of Jeremy Bentham (1748-1832), English philosopher commonly recognised as the father of modern utilitarianism. One of Bentham’s most central concerns was the codification of law.

He saw the legal system in England as hopelessly cumbersome, a product of piecemeal legislation over centuries. Thus, he advocated for the replacement of all law with a “complete code of laws”, each with a set of reasons to justify it in the eyes of those compelled to obey it.

“Such a code, anchored in the principles of utility, would not only enhance the rule of law, but hold out promise of a ‘universal jurisprudence’, applicable to places as diverse as England and Bengal,” Barry Wright writes in ‘Macaulay’s Indian Penal Code: Historical Context and Originating Principles’ (2011).


For Macaulay, in a country like India, where laws did not just vary, but were also, in many cases, unwritten, a code was perhaps even more important. It would not only bring about consistency in laws, but also do away with the judicial discretion that marked the legal system of the time.

Macaulay drafts the IPC

In 1833, the British Parliament passed the first Government of India Act to organise British rule in the country. Subsequently, a law commission was created under Macaulay to “modernise laws and the colonial governance of civil society.”


Echoing contemporary developments in English law reform, Macaulay began his task by focussing on criminal law. He completed the first version of the IPC in 1837.

Notably, the IPC completely ignored existing Indian laws and instead was founded on British common law. This has prompted modern scholars such as David Skuy to say that the IPC represents the transplanting of English law in India, “not because Indian law was primitive, but because English law needed reform” (‘Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India’s Legal System in the Nineteenth Century’, 1998).


Unlike in England, where politics made major legal reform far more onerous, Macaulay pretty much had free reign to put his ideas into paper in India. However, it would take a mutiny for the IPC to be finally enacted.

The Rebellion of 1857 and the IPC

While Macaulay did receive a lot of latitude when it came to framing the IPC, it would take years for his proposal to finally be enacted. The IPC remained in limbo for years, undergoing revisions during that time.

According to Barry Wright, “The IPC project was delayed by governmental and legislative inertia, resistance by European residents to having the same legal status as indigenous populations and the loss of reforming momentum in the metropole.”

Multiple Governors-General of India, such as Auckland (1836-42) and Ellenborough (1842-44) felt reforms were not needed and opposed them with gusto. Crucially, at the time, India was still ruled by the East India Company, and not the British Crown itself.

However, the Rebellion of 1857 changed everything. It not only led to the eventual demise of the East India Company, with the British Crown taking over direct control in 1858, it also introduced a great crisis of legitimacy for colonial rule. With the rebellion being followed by brutal reprisals, it fundamentally shook the British claim of “enlightened” rule in its colonies.

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Criminal Procedure Code, crpc, criminal justice system, Bharatiya Nagarik Suraksha Sanhita, Indian Penal Code, Three New Bills For Criminal Justice Reform, Explained, Indian Express Explained, Current Affairs
Law and Order

“The English political classes… saw the legitimacy of British rule, founded on claims of constitutionalism and the rule of law, undermined by such repressive responses… Enactment of the IPC helped to address these concerns,” Barry Wright writes.

First published on: 12-08-2023 at 20:22 IST
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