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India’s Antiquated Penal Code

NEW DELHI – A number of seemingly unrelated controversies in India actually have one important element in common: They all relate to criminal offenses codified by India’s British imperial rulers in the mid-nineteenth century that India has proved unable or unwilling to outgrow.

The problematic features of the British-drafted Indian Penal Code include the prohibition of “sedition,” defined loosely as speech or actions promoting “disaffection against the government established by law”; the criminalization of homosexual acts; and the uneven prosecution of adultery. The first two, in particular, have lately been the source of considerable public outrage – and rightly so. These provisions – as I argued when introducing amendments to them in the lower house of parliament (of which I am a member) – can easily be misused by the authorities in ways that infringe upon Indians’ constitutional rights.

Consider sedition, against which a draconian law that was established in 1870 to suppress any criticism of British policies – even criticism that, as one Briton candidly put it, did not involve “an absolute breach of the peace.” The result was Section 124A of the penal code, under which any person who used “words, signs, or visible representation … to excite disaffection against the government” could be charged with sedition and potentially sentenced to life imprisonment. In other words, no free speech for Indians.

But even that was not sufficient for Britain’s leaders, who tightened the law further in 1898, making it even harsher than the sedition law in England. The British had concluded, in the words of the British lieutenant governor of Bengal, that “a sedition law which is adequate for a people ruled by a government of its own nationality and faith may be inadequate, or in some respects unsuited, for a country under foreign rule.”