Paramours, palanquins, cannons and horses on the road to nyaya: How decolonised is the new penal law?

The colonial rulers were still coming to terms with the Sepoy Mutiny of 1857 or Gadar or the First War of Independence, when Lord Macaulay sat in humid Calcutta and in his grand mansion - on which site today stands the Bengal Club - giving final touches to a criminal code which would hold its sway over a century from Malacca to Mauritius. 

The first draft had already been submitted to the Governor General Lord Auckland on May 2, 1837. However, it went through repeated revisions.  Ranee Laxmeebai was vanquished and now India had only one ruler - the Maharanee Victoria. 

The occasional colonial approach to law-making, despite the Queen’s Proclamation of 1858 having promised the natives a just legal order under direct British Rule, could easily be excused.  After all, who could forget the horrors of Delhi and Residency in Lucknow, Oudh?

So, when Lord Macaulay in his Penal Code started off the general exceptions to offences with the defence of “bound by law” (Section 76, IPC), no Indian subject would have even batted an eyelid with his “Illustration”:

“A, soldier, fires on a mob by order of his superior officer, in conformity with the commands of the law. A has committed no offence.”

Seven decades since the tricolour made its debut at the ramparts of the Red Fort, when a group of learned men gathered to perform the noble task of “decolonising” Macaulay’s Code, it is unpardonable if such an illustration should survive the “cut and paste”. 

Section 14 of the Bharatiya Nyay Sanhita (BNS) does precisely that. In times of increasing complaints of state excesses and shrinking of the “protest” space, was this the only “illustration” our nyaya givers could come up with to flesh out the defence of “bound by law”? 

How about this one:  “A, a dam operator, is told by his superior to open the dam as the water had crossed the danger level. He obeys the order and B drowns downstream and dies as a result. A has committed no offence.”?

I concede that the illustration might not be artistic, but it certainly ‘decolonises’ the brutality of a colonial state and replaces it instead with the dilemmas of a welfare state! Surely the framers of BNS, any day more learned than yours truly, could have certainly come up with an even better one!

Sadly, in this “decolonisation” exercise, even colonial tools and implements are not given the much-needed upgrade. Hence, we are still stuck with a ‘stick’ (Section 9), ‘hatchet’ (Section 18), a ‘sword’ (Section 25), a ‘club’ and not to forget ‘cannons’ (Section 101). Poor laser guns and automatics, which have not made the cut, will sadly have to await the next round when our nation shall be blessed with another leader desirous of leaving his indelible impression on criminal law!

The Wright brothers conquered the skies, albeit for a few seconds, on December 17, 1903, which was 43 years after Macaulay’s ink had dried.  One would have expected that a modern revision would at least move the narrative from water to air if not to outer space. Alas, we are still stuck with “captain of a vessel” and his “boat” (Section 19), “chariot and palanquin” (Section 129), “bullock cart with treasure” (Section 303), “horses” (Section 314) and, of course, “ships” (Sections 324, 330)!

Modern medicine has made certain medical techniques antiquated. Yet, in the cut-and-paste, we find that the Amrit Kaal drafters have in the age of non-invasive keyhole surgery mechanically reproduced “cut for the stone” in Section 27 (old Section 89) and, not to forget, “trepanation” or the drilling of a cavity in the skull in Section 30 (old Section 92), which has long been abandoned by neurosurgeons who prefer craniotomy any day!

Abdul, Queen Victoria’s page-turned-Urdu tutor, had tried to introduce her Britannic Majesty to the ways of India. Sadly, Macaulay did not take a fancy to Urdu like his Sovereign. His Code, written in English, was peppered with Victorian terms such as “entreaties” (Section 30), “paramour” (Section 303) “entices” (Section 140), “unloose” (Section 130), the last one being a term from the Middle English period. The BNS framers have faithfully cut-and-pasted them into their law.

Same is the case with Victorian usage such as “concert” which has also escaped the attention of the framers who have retained it in the illustration to Section 46, Explanation 5 (old Section 108). How many in today’s age use the term “concert” instead of “collaborate” or “collude” or even “connive” or “team up”?

Like in the case of the illustrations to the Saskha Adhiniyam, while India has moved to Indigo Airlines from Indigo cultivation, BNS retains the “indigo plant” in Section 318 [illustration (g)].

There is light at the end of the tunnel. Mercifully, in the rare creative provisions which the drafters have included from their own imagination and not plagiarised Macaulay, such as Section 69 (Sexual intercourse by employing deceitful means) and Section 152 (Endangering sovereignty, unity and integrity of India), no illustrations have been set out. However, given how vague, overboard and dangerous both these provisions are, perhaps even an antiquated illustration involving horses and cannons would have helped!

Sanjoy Ghose is a Senior Advocate of the Delhi High Court.