View: India’s criminal justice system needs real decolonising, and must go beyond mere textual changes
IPC), a colonial relic, was meant to, first and foremost, protect British interests. Last week, home minister Amit Shah, after introducing three new criminal codes — Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Bill (BSB) — emphasised the need to break free from colonial legacies. He accurately stated that the colonial criminal system focused on harsh punishments, lacking justice for Indians.
Shah contended that the new codes prioritise citizen-centric justice over punishment. These codes, however, don't live up to these contentions. The introduction of IPC in 1837, guided by Thomas Macaulay as a leading member of the Law Commission, aimed to be a definitive solution to India's scattered and complex penal law landscape.
The pre-codification era encompassed parliamentary charters, Acts, Indian legislation, East India Company regulations, English common law, Hindu law, Muslim law and customary practices. Macaulay's inspiration was the utilitarian philosophy of Jeremy Bentham, seeking a concise legal reference for different crimes. This approach involved clear definitions, and numbered sections and chapters.
At the heart of the code's utilitarian principle is the idea that punishments should match crimes. It recognised that while punishment causes pain, it can also inspire positive outcomes through deterrence. In line with this, the primary goal of British India's penal law was to discourage offences by implementing punishments.
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