| Issue 25 Vol II, October 15, 2006 | Archive |
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Utilitarian Angle of the Indian Penal Code
By mid 19th century, the British had established their rule in whole of India except certain pockets. Even around Delhi where the king Emperor Bahadur Shah Zaffar held the throne who satirically used to be addressed as "Shahan Shah-e-Alam, Az Delhi ta Palam", whose writ ran only up to Palam , a village now Palam Airport. The ineffective civil and criminal justice that was being administered had no definite source. It depended on the interpretation of religious edicts, by not well informed, Pandits and Kazis. Crime and civil obligation or social duty was not properly identified. The result was a chaotic judicial system. Even in British ruled areas, there was no uniformity of laws. The Presidencies of Bengal, Bombay and Madras had different sentence quantum for the same offence. The Law Commission headed by Macaullay constituted in 1935, studied the laws being administered in India, but did not make them a base for the new code as the native laws derived their source and authority from religious edicts which were based on the concept of sin, whereas in western thought idea of crime distinct from sin was taking shape. The draft code presented to Governor-General-in-Council on October 14, 1837. It was circulated to judges and advisors for comments. The code could finally be enacted in 1860 after the British Govt. took over from the East India Company. The Indian Penal came into effect on October 6, 1860, 146 years ago. The Penal Code is divided into 23 Chapters, the cardinal chapters relate to offences against the State, and offences against the person and property. All terms are precisely defined. All sections contain detail of ingredient, to constitute an offence. All killings are not murders. All hurts are not grievous. Intention is the sole criteria. The act or ommission should be voluntary and committed by a person of sound mind. If so found, the person convicted is to be awarded punishment. How, how much, and what punishment are the key questions. The IPC does not provide how to arrive at a decision in awarding a sentence. However the accused is heard before the sentence is awarded. The most important part of the judgment is the punishment order. The framers of the Code, particularly Macaullay, a utilitarian in approach provided maximum limit of sentence, saying, "sentence upto seven years" or "upto ten years" and so on, except for some cases where minimum sentence to be awarded is provided. Thus he left the quantum of sentence to be awarded to a wide discretion of the judge. According to the circumstances of the case and the person convicted of the offence sentence of ten days or ten years or any other period in between can be awarded. Benthem based his theory on consequences of human pleasure and avoidance of pain, and value of human action calculated from the intensity of pleasure and how long it lasts. The principle of utility, according to Benthem, means moral obligation by reference to the greatest happiness of the greatest number of people who are affected by performance of actions to be properly evaluated in light of their effect on the general well being of the populations they involve. "Punishing criminals is an effective way of deterring crime precisely because it pointedly alters the likely outcome of their actions, attaching the likelihood of future pain in order to out weigh the apparent gain of committing crime. Thus punishment must "fit" the crime by changing the likely perception of the value of committing it." A generation later, John Stuart Mill, not only endorsed Benthem but offered significant improvements saying "Because we all have social feelings on behalf of others, the unselfish wish for the good of all is often enough to move us to act morally. Even if others do not blame or punish me for doing wrong, I am likely to blame myself, and that bad feeling is another of the consequent pains that I reasonably consider, when deciding what to do. J.S.Mill thought that a retributive sentiment in favour of punishing wrong doers may also be supposed to contribute to the traditional concept of justice. He was of the view that appropriately limited use of external sanctions on utilitarian grounds better accords with a legitimate respect for the general welfare. In no case, utilitarians pleaded that two persons should be punished alike for the same offence because the circumstances of the two are not identical e.g. Punishment by mutilating fingers, of persons charged for same offence, say theft, may help the one and destroy the other if one of them is a beggar and the other an artist. In our system of administration of criminal justice this fact is being grossly ignored. In most of the cases all the accused are given same kind of sentence. Investigation as to the effect of sentence on each accused is seldom done. Mostly all are herded together in jails, for the same kind of punishment, for the same term. Even looking back can help. Manu (700/800 B) after codifying the then existing laws into 18 heads advises the king how to administer it. A king must, he says, enter his court of justice, composed and sedate in his demeanour, together with Bahmins and Counsellors, who know how to give him advice; Their either sitting or standing, holding forth his right arm, without ostentation of his dress and ornaments, let him examine the affairs of his litigant parties. "As a hunter traces the lair of a wounded beast by the drops of blood thus let a king investigate the true point of justice" and to see men by external signs, the rights of men by their voice, colour, countenance limbs, eyes, action, the motion of body, the gesticulation, the speech, the eyes, the face to discover the internal working of mind. Akbar the Great, in his Ayeen-i-Akbari provided that the person whom the king delegates his power to administer justice, must not be satisfied with witnesses and oaths, but make diligent investigation into circumstances. Should we not change our methods and evolve a judicial philosophy, so as to administer justice, and not only decide the cases on the basis of oaths and testimonies alone. The pain if at all to be administered on the accused short of reform by other means to out weigh the gains of offence must be measured in respect of each person separately and distinctly by a thorough scrutiny of the circumstances of each accused before awarding sentence. [jogindersingh_toor@yahoo.com Mobile No.98151-33530 ] |
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