The Great Repression Read online

  The government accepted the proposal and ordered the commencement of drafting the penal code on 15 June 1835. However, the commission’s work was hindered by the protracted ill health of Charles H. Cameron and the absence of G.W. Anderson from Calcutta for long stretches of time. Only Millett somewhat assisted Macaulay, and that too only when he was available, which by Macaulay’s account was not enough. Such unfortunate circumstances led to the responsibility of drafting the penal code lying largely with Macaulay, and therefore, he should be considered the true author of the same. The draft penal code was completed after two years in 1837, making Macaulay defensive of the delay.

  In a letter dated 2 January 1837, Macaulay pointed out that the drafting of the French Criminal Code began in 1801 but the Code of Criminal Procedure and Penal Code was only completed in 1808 and 1810, respectively. This delay occurred even though Napoleon had many jurists at his disposal, as compared to Macaulay single-handedly drafting the Indian code. He also compared the time taken to draft the code with the four-and-a-half years taken to draft the Criminal Code of Louisiana 2 which had commenced in 1821.

  The draft penal code was finally presented to Lord George Auckland, the governor general, on 14 October 1837 with an introductory report and detailed notes on the various chapters of the draft code containing illustrations and examples.

  In drafting the penal code, the commission did not follow any existing system of law in India even though it conducted an inquiry into the existing system of indigenous penal laws. 3 The report noted that the Hindu penal laws had long been discarded by Indian rulers in favour of Muslim penal laws, which had in turn been largely modified by British Regulations. The Bombay Presidency had in fact completely discarded indigenous laws and relied on English law. The Bengal, Madras and Bombay Presidencies at that time had a different set of regulations altogether, which provided different punishments for similar offences.

  The Bombay Presidency had Regulation XIV of 1827 as a compendium of offences and punishments, as opposed to various regulations in the Madras and Bengal Presidencies. However, the commission was especially critical of the Bombay Regulations and did not consider it fit enough to be relied upon to draft the penal code. Its main criticism arose from the fact that the penal laws of the Bombay Presidency prescribed disproportionate punishments even for varying degrees of the same offence. As an example, punishment for destruction of property worth just one rupee also attracted a punishment of five years’ imprisonment, the same as punishment for much greater destruction. Another criticism was that unequal offences were often punished equally. For example, the punishment for concealment of a murder was the same as that for committing murder. The commission found the mechanism of categorization of offences and penalties to be completely unscientific and arbitrary.

  However, the commission did rely upon the French Penal Code and decisions of French Courts as well as the Penal Code of Louisiana which was also based on the French Code.

  The draft penal code did not specify the territorial application of the code as it felt that it would be a political question and would depend on treaty relations between native rulers and the British. However, the commission was of the opinion that the code should apply to everyone within the British Indian territory as well as to the princely states. It recommended that the penal code should immediately be made applicable to the mofussil 4 and translated versions of the code be provided to the natives to enable them to understand the penal law in the vernacular.

  The draft penal code contained twenty-six chapters 5 concerning, among others, punishments; general exceptions; offences relating to the State, armed forces, public justice, revenue, coin, religion or caste, illicit immigration and residence, press, body, property, marriage, and defamation; abuse of powers by public servants; contempt of lawful authority of public servants; illegal pursuit of legal rights; and criminal breach of contracts of service. 6 The provisions were divided into 488 clauses.

  Chapter V of the draft penal code enumerated the act which could amount to offences against the State. The State here referred to the government of the territories of the East India Company and not the British Crown. This was clarified by the Law Commission in its notes on the said chapter.

  Clause 113 of the draft code stated what would constitute the offence of sedition:

  Whoever, by words, either spoken or intended to be read, or by signs, or by visible representation, attempts to excite feelings of disaffection to the Government established by law in the territories of the East India Company, among any class of people who live under that Government, shall be punished with banishment for life or for any other term from the territories of the East India Company, to which fine may be added, or with simple imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

  Explanation—Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this Clause.

  Though the Law Commission did not mention the word ‘sedition’ in Clause 113, it did clarify in its notes on the chapter titled ‘Defamation’ that imputations intended to inflame the people against the government would be punishable as sedition under Clause 113. It also clarified that an attack made on the public administration of the governor of a presidency would not be seditious if it is made in good faith.

  The provision on sedition was based on the Libel Act of 1792 enacted in England, and the law settled after that. 7 The term ‘sedition’ is derived from the Latin word seditio which translates into ‘riot’. However, sedition in its usage under English law 8 did not actually mean an act, unlike rioting. Sedition was categorized as a class of offences against internal public peace not accompanied by or leading to open violence. In fact, there was no such offence of ‘sedition’ known to English law. Rather than have a single offence called sedition, seditious offences were categorized as seditious words, seditious libels and seditious conspiracies.

  To understand the background of the law, it is necessary to understand the term ‘libel’. Words when published in print with the intention to wrongfully raise imputations against the character of a person to defame them amounts to ‘libel’. In the context of sedition, such wrongful imputations of defamatory character when made against the government or monarch could amount to seditious libel.

  The first definitive statement of law on any offence of the likes of sedition was mentioned in the First Statute of Westminster of 1275 which was enacted by an assembly called by King Edward I of England, who had just returned from the last great crusade and ascended to the throne of England in 1272. At the beginning of the half-century reign of King Edwards’s father, King Henry III, there was complete disorder and lawlessness in England. The biggest reason for such disorder was the non-compatibility of the races inhabiting England, which included the Normans, 9 Saxons 10 and Celts, 11 etc. The Saxons and Celts had inhabited England long before the Norman conquest of 1066 but were thereafter ruled by the Normans, who were considered foreigners, and the English Crown was seen as being occupied by aliens. The assimilation of the Normans and Saxons began in the twelfth and thirteenth centuries and the desire for a common English tongue and laws arose during the reign of King Henry. However, Henry was a weak leader and could not impose his will upon his people. In fact, in 1263, common Londoners had thrown stones at Queen Eleanor when she was commuting between palaces—such was the lack of respect for the Crown in England at that time. When Edward was officially crowned in 1274, it was down to him to bring about a semblance of organization and law and order in his kingdom. King Edward I was credited with a ‘legislative mind’ and was later responsible for the first statute for the formation of the first
modern Parliament in England in 1295 which comprised of all the lords of the land. However, the first Assembly, similar to the modern Parliament, was convened by King Edward in 1275 at Westminster in the above-mentioned background of Norman–Saxon assimilation and the need for regulation by law of the state of affairs in his kingdom. This Assembly enacted the Statute of Westminster which sought to correct abuses, cure defects and remodel the administration of justice. The statute was later described to be more in the nature of a code than a simple Act of Parliament. 12 Clause 34 of the Statute provided: 13

  For as much as there have been often times found in the country [devisers] of tales whereby discord or occasion of discord has many time arisen between the King and his people or great men of this realm for the damage that hath and may therefore ensue, it is commanded that from henceforth none be so hardy to cite or publish any false news or tales whereby discord or slander may grow between the King and his people or the great men of the realm; and he that doth so shall be taken and kept in prison until he hath brought him into the court which was the first author of the tale.

  In simple words, people were prohibited from speaking or publishing false news or stories which could bring about discord between the king and his subjects, and such false news and stories which were slanderous of the king and the ‘great men’ of the kingdom. Anyone who did so was to be imprisoned, and a burden was placed on such people to bring forward the original author of the false story to face the court. It was noteworthy that the provision sought to only punish false news and stories and not everything critical published or spoken against the king. Clause 34 lived on for more than 600 years till it was repealed in 1887 by the Statute Law Revision Act! However, prior to the Libel Act of 1792, there was no specific statute governing seditious libel. Before that, trials of a political nature were held before the Star Chambers, which was established in the mid-fifteenth century and comprised of privy councillors, who were the king’s advisers, and judges who used Common Law to punish critical discussions on political affairs as seditious libel. The Star Chambers’ proceedings were arbitrary, secretive and oppressive. At the turn of the eighteenth century, there was a shift in public sentiment against political libel, and the powers of English judges were restricted by the Libel Act of 1792, which restricted the prosecution of seditious libel to cases where there was a direct incitement to crimes against the government. 14

  Similarity to this law could be found in the Book Licencing Act of 1662 in England, which remained in force up till 1694. This was when printing and publishing of books was just taking off. The Act mandated that books could only be published under a licence, and heretical, seditious or offensive content against the Christian faith, the Church of England, the State or the Commonwealth could not be published. However, the offence was classified as a misdemeanour and not a grave crime. 15

  Even the French Penal Code contained provisions concerning seditious acts which made actions critical of the government, president or any public authority of the French Republic punishable under the code. Articles published in the press containing criticism of public authorities for their public conduct also attracted penalties. 16

  The term of the first Indian Law Commission ended in 1838 with the draft code staying in draft form. It was circulated to the Supreme Courts of the presidencies for their views, and thereafter the comments were taken up for consideration by the Law Commission led by Charles H. Cameron, who was also a member of the first Law Commission but unable to contribute much due to ill health. The revised draft penal code was submitted to the government in 1847. One of the criticisms that the draft code received was that it was not codification in the technical sense as it attempted to change the entire criminal jurisprudence of India which was otherwise based on indigenous laws. Sir H. Compton, the chief justice of the Bombay Supreme Court at that time, therefore felt that the Law Commission had exceeded its brief. The further revised draft code was submitted to the British Indian government in 1851. 17

  At this stage, the draft code met opposition from John Elliot Drinkwater Bethune, 18 who was appointed as the legislative member of the Governor General’s Council in 1849. He prepared another draft penal code of his own which completely differed from Macaulay’s draft and was contrary to the Benthamite principles employed by Macaulay. Bethune’s draft code was based on the orthodox criminal laws of England in language as well as substance. Lord Dalhousie, the governor general, rather than decide the difference of opinion between the Law Commission and J.E.D. Bethune, himself referred the issue to the government in England. The British government reiterated its position in 1854, based on the recommendation of the Law Commission, that the draft penal code prepared by the first Law Commission under Macaulay should be revised and enacted at the earliest without much alteration in phraseology and framework. 19 However, the enactment of the penal code was left pending as the legislative process moved at a glacial pace.

  The events of a few years later spurred the British back into action. These events are collectively known as the Sepoy Mutiny or the Revolt of 1857. By that time there was major public discontent against the rule of the East India Company because of the economic exploitation of the natives. British land and revenue policies resulted in the impoverishment of both peasants and landlords (zamindars) alike. In addition to that, the police and petty officials were extremely corrupt which furthered the discontent against the establishment. The British in 1856 declared that Bahadur Shah would be the last Mughal emperor of India, and his successors would only be recognized as princes. He was also asked to vacate the Red Fort in Delhi, which was the seat of power of the Mughal Empire. Another major reason for discontent among the masses, and especially the sepoys, was the propagation of Christianity by missionaries and British officers. Add to that the taxation of land on which Hindu temples and Muslim mosques stood, and the natives were convinced that the British were out to destroy their religion. 20

  In the lead-up to the revolt, the British annexed Oudh (Awadh) 21 in 1856, which did not go down well with the Company’s sepoys, the majority of whom came from Oudh. Apart from Oudh, the British were on a campaign to annex other princely states, including Jhansi, Nagpur, Satara and Sambalpur. This caused concern among the native rulers who feared losing their realms. Indians were also kept out of administrative and legislative positions in the East India Company which resulted in a lack of understanding of local customs, usages and aspirations of the people. However, the most proximate cause of the revolt was the introduction of the Enfield rifle which replaced the old muskets the sepoys were using. 22

  The new rifles required a special kind of cartridge which had to be bitten off at its ends before being used. These cartridges were greased by lard made from the fat of pigs and cows. Eating the meat of pigs was prohibited for Muslims, and eating beef was prohibited for Hindus. The sepoys raised their concerns with the government, which failed to allay their suspicion that it continued using pig and cow fat for the grease. Though sepoys conducted acts of defiance in February, the real spark for the mutiny occurred on 29 March 1857 when Mangal Pandey, a sepoy of the 34th Bengal Native Infantry, openly mutinied in Barrackpur. 23 Thereafter, the infantry was disbanded, and the sepoys returned to their native Oudh and spread the word about the mutiny. This resulted in multiple mutinies in places like Delhi, Ambala and Lucknow. The mutiny was followed by a civilian uprising which spread across north India. Bahadur Shah was declared the emperor of India by the rebels who took control of the Red Fort and Delhi. However, by September of 1857, British troops took back control of Delhi and recaptured the Red Fort on 20 September 1857 with Bahadur Shah surrendering the next day. 24 The revolt lasted till July 1859 with multiple battles between the British and various native forces.

  The British Parliament and the Crown laid the blame for the revolt on the East India Company and enacted the Government of India Act of 1858 by which the government of India was transferred to the British Crown, and the properties of the Company vested in the Crown. The Boar
d of Control and the Court of Directors of the Company were replaced by a secretary of state with a council of fifteen members to assist him. The governor general became a direct representative of the Crown and governed with the help of his council. 25

  The transfer of power to the Crown hastened the legislative process and made the enactment of the penal code imperative considering the revolt, as the British had consolidated their position in India by then and controlled almost all of the Indian subcontinent either as sovereign or in alliance with native rulers. The legislative member of the governor general’s council at that time was Barnes Peacock, an English barrister who went on to become the chief justice of the Supreme Court of Calcutta. 26 He was tasked with the revision and enactment of the dormant draft penal code. The draft code underwent revision at the hands of the Legislative Council 27 and received the assent of the governor general on 6 October 1860 and was supposed to come into effect from 1 May 1861. 28 However, the effective date of the penal code was deferred to 1 January 1862, to allow the judges and administrators in India more time to study the code. 29

  Thomas Macaulay, the rightful author of the draft Indian penal code, could not witness its enactment as he passed away on 28 December 1859, just under a year before the IPC was enacted. 30

  James F. Stephen (more on him later in this chapter) described the IPC as the criminal law of England freed from all technicalities and superfluities, systematically arranged and modified to suit British India. 31 He blamed the delay on the reluctance of the British Indian government to interfere with native institutions, and attributed the credit for the passage of the IPC to Barnes Peacock, who improved the draft code with practical skill and technical knowledge through a period described as the most anxious that the British Empire in India had witnessed. He commended Macaulay for the gift of going to the root of the matter in preparing such a detailed code despite being a barrister who barely practiced criminal law, or any law for that matter. 32