This blog will talk about the historical background of the Indian Penal Code, 1860, and Bharatiya Nyaya Sanhita, 2023 which provide key guidelines for penalizing crimes in India

Introduction
The Indian Penal Code (IPC) formed in 1860, has been changed several times to consider changing societal demands and cover multiple criminal charges, including crimes against the state, property, and individuals by the Bharatiya Nyaya Sanhita (BNS). The Indian Parliament passed the BNS in December 2023, and it became operative on July 1, 2024. The BNS seeks to bring India's criminal laws up to date so they reflect modern societal ideals and technological developments.

The history of the criminal justice system in India dates back to ancient India before the colonial era and the Mughal period.

Though there are two acts it is divided into five parts:

1. Ancient European Countries (England)
2. Ancient Hindu Criminal Justice
3. Mohamdam Law
4. Colonial Era
5. Bhartiya Nyaya Sanhita (BNS)

Ancient European Countries (England)

[1]In ancient European legal systems, particularly in medieval England, there was no clear distinction between crimes (offenses against the state) and torts (civil wrongs). Both focused on the harm done, not the offender's intent (mens rea). The primary concern was the act itself (actus reus) and the resulting injury.
The system aimed to rectify wrongs rather than classify acts as crimes, meaning any wrongdoing, intentional or not, had legal consequences. The emphasis was on providing a remedy for the harm done. The harmed person or their family often sought compensation or punishment. Modern legal systems typically have the state prosecute offenses, with the harmed party pursuing damages or retaliation.

Ancient Hindu Criminal Justice System

[2]Ancient India's legal system was deeply rooted in the concept of "Dharma," which established moral guidelines derived from the "Puranas" and "Smritis," explanatory texts of the Vedas. The King's authority was based on "Dharma," and he was obliged to uphold it, rather than deriving power from any other source. This system clearly distinguished between civil wrongs and criminal violations, with crimes associated with the concept of pātaka (sin), whereas civil wrongs typically involved disputes over wealth.

The Mauryan Empire enforced a strict legal system, imposing severe punishments such as the death penalty and mutilation for even minor offenses. The Manu Dharmasastra recognized property crimes like robbery and theft, crimes causing physical harm. During the Gupta era, the judiciary was composed of the guild, the folk assembly or council, and the monarch. Judges adhered to legal codes, customs, and the king's decrees, and were not permitted to deviate from these rulings.

Mohammedan Law

[3]Mohammedan criminal law was first implemented in our country following the Muslim invasion of India, as part of the judicial process. Muslim rulers introduced their administrative and legal structures, which were firmly based on Islamic law, to India when they first came to power. The Quran and Hadith served as the main sources for the criminal justice system.

The Hadith contains the sayings and deeds of Prophet Muhammad, while the Quran is the sacred book of Islam. This law was derived from the Quran and Hadith. and was created usingIjma. But eventually, it was discovered that this was insufficient to address societal needs. As a result, the secondary source consisted of the moral guidelines (Sunnat) derived from the Prophet's deeds, acts, and vocal commandments. The third and fourth sources of Muslim law were the concurrence of Muhammad's followers and the application of analogy. The criminal law was explained by Hidaya and Fatawa-i-Alamgiri.

Colonial Era

[4]The British initially implemented legal systems based on existing native laws, notably Islamic law. They soon found issues with Islamic criminal justice, such as the prohibition against non-Muslims testifying against Muslims and perceived unfair penalties. Governor-General Lord Hastings (1773-1785) recognized the need for a more standardized legal framework and established the Adalat system to organize and equalize the legal system. Lord Cornwallis continued these reforms, creating the Cornwallis Code in 1793 to harmonize laws and practices.

The British aimed to provide good governance, even if not a free government. Macaulay emphasized the importance of the rule of law and sought a national legislative framework. The British Parliament's Charter Act of 1833 led to the establishment of the First Law Commission in 1834, with Macaulay as chairperson, tasked with creating the Indian Penal Code. The code was completed in 1850 and passed to the Legislative Council in 1856, receiving final approval on October 6, 1860.

It took effect on January 1, 1862, after thorough revisions by Barnes Peacock and future judges of the Calcutta High Court. Macaulay did not live to see the code's implementation. Influenced by English law, the Napoleonic Code, and the Louisiana Civil Code, the Indian Penal Code aimed to provide a comprehensive and unified body of criminal laws, improving the fairness, consistency, and clarity of India's criminal justice system.

Bharatiya Nyaya Sanhita (BNS)

On August 11, 2023, Home Affairs Minister Amit Shah introduced the Bharatiya Nyaya Sanhita Bill, 2023 in the Lok Sabha, marking a significant step in modernizing India's criminal justice system. The bill was withdrawn on December 12, 2023, likely due to the need for further changes. However, a revised version, the Bharatiya Nyaya (Second) Sanhita Bill, 2023, was introduced the same day. With bipartisan support, the bill was enacted by the Lok Sabha on December 20, 2023, passed by the Rajya Sabha on December 21, and received the President's assent on December 25, 2023.

The Bharatiya Nyaya Sanhita introduces significant reforms, including new offenses and harsher punishments for mob lynching, comprehensive protocols for organized crime and terrorism, and inclusion of transgender individuals in the definition of gender. It also modernizes legal definitions to include electronic and digital records, eliminates outdated clauses, decriminalizes same-sex relationships, and reorganizes offenses for clarity. These changes aim to provide a fair, comprehensive, and functional legal framework for India's contemporary society.

Conclusion
Conclusively, the Indian Penal Code (IPC) has been a cornerstone of India's legal system since its inception in 1860, covering a broad spectrum of criminal acts and associated punishments. Influenced by the Napoleonic Code, the Louisiana Civil Code, and English law, the IPC evolved to address a range of criminal charges and adapt to changing societal needs. However, the introduction of the Bharatiya Nyaya Sanhita (BNS) marks a significant shift in India's criminal justice system. Passed in December 2023 and effective from July 1, 2024, the BNS aims to modernize India's criminal laws, incorporating advancements in technology and contemporary societal values.

References:

1. K.D. Gaur, Textbook on the Indian Penal Code (6th ed. 2016).
2. Codification and the rule of colonial difference: Criminal procedure in British India (2021) History Cooperative. Available at: https://historycooperative.org/journal/codification-and-the-rule-of-colonial-difference-criminal-procedure-in-british-india/ (Accessed: 07 August 2024).
3. How the Indian Penal Code came into existence under British colonial rule (2023) Optimize IAS. Available at: https://optimizeias.com/how-the-indian-penal-code-came-into-existence-under-british-colonial-rule/ (Accessed: 07 August 2024).
4. The Indian Law (2021) Historical background of Mohammedan Law, The Indian Law. Available at: https://theindianlaw.in/historical-background-of-mohammedan-law/ (Accessed: 07 August 2024).
5. McIntosh, M. (2024) The judicial system in medieval India - Brewminate: A bold blend of news and ideas, Brewminate. Available at: https://brewminate.com/the-judicial-system-in-medieval-india/ (Accessed: 07 August 2024).
6. Also, I have taken some information and guidance through class notes.

End Notes:

• Codification and the rule of colonial difference: Criminal procedure in British India (2021) History Cooperative. Available at: https://historycooperative.org/journal/codification-and-the-rule-of-colonial-difference-criminal-procedure-in-british-india/ (Accessed: 07 August 2024).
• McIntosh, M. (2024) The judicial system in medieval India - Brewminate: A bold blend of news and ideas, Brewminate. Available at: https://brewminate.com/the-judicial-system-in-medieval-india/ (Accessed: 07 August 2024).
• The Indian Law (2021) Historical background of Mohammedan Law, The Indian Law. Available at: https://theindianlaw.in/historical-background-of-mohammedan-law/ (Accessed: 07 August 2024).
• How the Indian Penal Code came into existence under British colonial rule (2023) Optimize IAS. Available at: https://optimizeias.com/how-the-indian-penal-code-came-into-existence-under-british-colonial-rule/ (Accessed: 07 August 2024).

Written By: Yasmin Sawhney, Symbiosis Law School, Noida.
She is a second-year law student having a keen interest in the administrative system of India. She has written various other articles on "Uniform Civil Code in India" and "Agency by Ratification". You can connect her on Linkedln: https://www.linkedin.com/in/yasmin-sawhney