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India is still using the Indian Penal Code, drafted in 1860, written by the British.

Since India already gained their own independence, why can't they write their own penal codes?

Panda
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Kyle Maples
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    It's common for newly independent jurisdictions to allow previous laws to stand until they have time to change them. But in addition to time, they need political will: if the existing law is adequate, why change it? Furthermore, even if it is agreed to be inadequate, there must also be agreement about what should replace it. Certain elements of English law still persist in the United States, for example, which has been independent for nearly two centuries longer than India. This is a comment rather than an answer because I don't know the specific reasons in Indian politics. – phoog Mar 05 '17 at 19:04
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    If it aint broke don't fix it? I don't know many details about British and Indian penal codes, but I would guess that in many cases they would be similar with each other (and the rest of the world; ie murder is bad). Just speculating though – David says Reinstate Monica Mar 06 '17 at 02:04
  • Is there a new type of crime? Else old law is good enough. – Narasimham Mar 12 '17 at 11:14
  • Usually it's more or less impossible to explain a non-event (unless we know with 100% certainty what causes the event). However, there is a wealth of documentation from the debates surrounding Indian independence, so I'm offering a bounty on this. Maybe someone can figure it out. – indigochild Mar 15 '17 at 17:38

2 Answers2

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This is an interesting question and I think it deserved an answer.

According to Wikipedia we find out that:

Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Elements were also derived from the Napoleonic Code and from Edward Livingston's Louisiana Civil Code of 1825.

Also we can see that numerous (about 40) amendments (improvements) were performed before Indian Independence Act (1947).

So, Indian Penal Code is a solid set of laws that had much time to become mature even before 1947.

Changing Penal Codes within a democracy is far from being trivial and it might incur great cost:

  • changes must be debated among various actors within the society such as lawyers, judges, law makers etc.
  • changes must be disseminated to all the people, but especially to law enforcers, judges, lawyers. This takes time and costs money

A quite notorious example of how hard it is to change criminal laws is Canada (1, 2) which has some "zombie laws" (inapplicable anachronistic laws):

Outdated offences that are still included in Canada’s Criminal Code include dueling, abortion and pretending to practice witchcraft

Using old law codes is not something strange. E.g. The Napoleonic Code is still used today in some countries:

The resulting code is the basis of the modern so-called "inquisitorial system" of criminal courts, used in France and many civil law countries, though significantly changed since Bonaparte's day (especially with regard to the expansion of the rights of the defendant).

Using such old codes as basis for current laws is somehow counter-intuitive, especially for people within IT industry (modern means better). However, criminal codes deal with problems that changed very slowly during human evolution (murder, theft, rape exist for millennia). Also, their relative harm effect is quite constant (e.g. murder is worse than theft).

Conclusion: from the practical point of view, penal code rewriting is very hard to achieve, so the "if ain't broken, don't fix it" principle applies.

Alexei
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  • Pretending to practice witchcraft? So much for Halloween. – JAB Mar 14 '17 at 19:04
  • Forget halloween - but do not dare playing D&D ;) – TomTom Mar 21 '17 at 14:56
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    As we've seen from the recent debates about US Supreme Court judges, in a well-functioning democracy one doesn't debate new Penal Codes with judges. Separation of powers means that one branch creates the law, and another independent branch applies that law. – MSalters Mar 22 '17 at 09:12
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There had been several ammendmants made in the Indian Penal Code that was drafted by British.Completely redrafting the Penal Code is a tough task.

The foremost obstacle to be tackled is to implement the uniform civil code. without which a redrafting the penal code would just render redundant.

Trect
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