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

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.

Also Read

Even if the accused is not present, trial can still proceed: What the pro...

302 is not murder, 420 is not cheating: How IPC Section numbers will chan...

Section 377 is gone, but some fear the proposed Bharatiya Nyaya Sanhita d...

The ‘new IPC’ removes the punishment for attempting suicide — or does it?...

“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.