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India’s Antiquated Penal Code

[By Shashi Tharoor]

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.”

Sedition was thus explicitly intended as an instrument to terrorize Indian nationalists; indeed, Mahatma Gandhi was among its prominent victims, though far from its last. In fact, just last month, students at New Delhi’s Jawaharlal Nehru University were arrested on charges of sedition, for using “anti-Indian” slogans in their protests against the execution of the convicted terrorist Afzal Guru. These arrests, which shocked many Indians, would not have been possible without the loose wording of the law.

My amendment would limit sedition charges to situations where an individual’s words or actions lead directly to the use of violence or incitement to violence, or where they constitute an offense – such as murder or rape – that, under the Indian Penal Code, is punishable by life imprisonment. By clarifying that simply criticizing the government’s actions does not constitute sedition, such an amendment would reinforce freedom of speech – fundamental to any democracy – while safeguarding against speech that actually incites violence.

Then there is Section 377 of the penal code, which was enacted in 1860 and criminalizes “carnal intercourse against the order of nature” – wording so archaic that it would invite derision in most modern societies. Even in the past, there was no taboo against homosexuality in Indian culture and social practice; it was the British Victorians who introduced it.

By criminalizing sexual acts in private between consenting adults, Section 377 violates the fundamental rights guaranteed under Article 21 (life and liberty, including privacy and dignity), Article 14 (equality before the law) and Article 15 (prohibition of discrimination) of India’s constitution. The real-world consequences of this are jarring: In the last two years, 58 Indians have been arrested under Section 377 for acts carried out in the privacy of their homes.

My amendment to Section 377 would have decriminalized sex between consenting adults of any gender or orientation. Unfortunately, conservative members of the ruling Bharatiya Janata Party (BJP) voted against the bill’s introduction in parliament, citing a 2013 Supreme Court judgment upholding the law. But there is still some reason for hope: The Supreme Court has agreed to hear a curative review petition against its earlier judgment.

The Indian Penal Code is not much easier on heterosexual women than it is on homosexuals. According to Section 497, a husband can prosecute his adulterous wife, and the man with whom she had sexual relations, but a woman cannot sue her adulterous husband, unless his partner is underage or married. This is an appalling and outdated double standard.

It is time for India’s government to get out of its citizens’ bedrooms, and also to recognize that a pernicious sedition law has no place in a lively and contentious democracy.

Indeed, the British, who created these problematic offenses, have since eliminated all of them at home – a reflection of the changing times. (One of the worst legacies of colonialism is that its ill effects outlasted the empire – in India, occupied Palestine, the Caribbean, and elsewhere.)

President Pranab Mukherjee, for one, feels it is time to take India’s penal code into the twenty-first century, underscoring last month, on the code’s 155th anniversary, the need to revise it thoroughly. India’s criminal law, he declared, was largely “enacted by the British to meet their colonial needs,” and must be revised to reflect our “contemporary social consciousness.” Only then can it be a “faithful mirror of a civilization underlining the fundamental values on which it rests.”

With that speech, Mukherjee threw down the gauntlet to the right-wing BJP government. One hopes that its leaders respond, though their fondness for autocratic measures and indulgence of illiberal and intolerant statements by their supporters – behavior that has spurred serious concern across the political spectrum – raises serious doubts that they will.

As long as they exist, laws that can be misused will be misused. In order to prevent this, and to create a liberal legal framework fit for a modern democratic country, homosexuality and adultery must be decriminalized, and sedition must be approached from a far more liberal perspective. As the recurring debates consuming the country indicate, it is manifestly time for a change.

About The Author

Shashi Tharoor, a former UN under-secretary-general and former Indian Minister of State for External Affairs and Minister of State for Human Resource Development, is currently Chairman of the Parliamentary Standing Committee on External Affairs and an MP for the Indian National Congress. Copyright: Project Syndicate, 2016.

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