The Union Government have recently announced the setting up of an official committee to review the basic Criminal Codes in the country, to “update” these to ‘meet the modern challenges in this day and age of extremism and terrorism’. It is argued that these are “colonial era” legislations, introduced by our former British masters to subdue the Indians and keep them in bondage. The Government have been badly advised.
Any tinkering with these basic Codes which govern not only the criminal justice system but day-to-day law and order in India will adversely impact the basic rights and safeguards that a citizen now enjoys if the ‘rule of law’, of which the nation is justly proud, is to have any meaning. That India is the world’s largest functioning democracy today owes not a little to these basic Codes which leading British jurists of 19th century gifted to India, an irreplaceable legacy.
Truly has democracy grown roots in India in the last seven decades of the working of independent India’s Constitution, which borrowed heavily from these basic Codes, especially the chapter on Fundamental Rights. By way of background, it would be pertinent to recall that the British introduced three basic Codes to govern India in the 19th century and thereby introduce the ‘rule of law’ for the first time in its long history. Prior to these, there was no rule of law. These Codes were the Criminal Procedure Code (and its civil counterpart), the Indian Penal Code and the Indian Evidence Act.
Of the three, the Penal Code prescribes the punishments and fines to guide a court of law to award these to persons found guilty of wrongdoing. It enshrined the will of the legislature to grade crimes and civil lapses according to the seriousness, expressing common wisdom about the punishments to be awarded for wrongdoing – whether retributive or reformatory. The second Code was the Evidence Act which was not substantive law but contained modalities of presenting relevant evidence collected during the course of investigation by the police, before a court of law.
It contained fine checks and safeguards so that no citizen accused of a crime was unnecessarily harassed in protracted proceedings before he could come know his fate, either way. The Act, framed in the 1870s was so welldrafted that it has stood the test of time for a century and a half, without any change. It is a work of near perfection, if it be so possible in legal drafting. Perhaps there is no other such model statute anywhere in the democratic world even today – what a precious legacy for independent and democratic India!
The third was the Criminal Procedure Code, the most important of the three basic codes. It was the work of Lord Macaulay, arguably the greatest law giver of the 19th century anywhere in the world. It was first drafted in 1833, when he was appointed the first Chairman of the Indian Law Commission. Prior to 1833, there was no pan-India legislation although there were some ad hoc Regulations introduced by the British Governor-Generals mainly in the Presidency towns where there was a concentration of foreign nationals.
The British discovered that the ‘rule of law’ was an alien concept, unknown to Indian rulers and kings. As Dr. Ambedkar, the main architect of free India’s Constitution (1950) stated in the Constituent Assembly, democracy is merely the top soil without roots in the ancient land of Bharat. The CrPC was an immaculate masterpiece by a master craftsman. It can be described as not only the first ever text of pan India’s Charter of Freedom and Democracy but also, in a manner of speaking, the first draft of the written Constitution of independent India conceived almost one and a quarter century later.
The only blemish in this perfectly finished piece is that the Procedure Code is somewhat of a misnomer. It was not only procedural law but also substantive law which regulated the day-to-day life in pre-independent India. It incorporated many of the certitudes of modern civilian democracy. Sardar KM Pannicker, one of the leading historians of independent India called Macaulay “the Second Manu” of India. One of the certitudes of modern democracy is that the ‘rule of law’ is managed by the civil magistracy, to the exclusion of the armed services of the State.
Macaulay commenced his monumental effort by translating the wisdom of Aristotle into the CrPC: “For without the indispensable magistrates, a state cannot exist.” Accordingly, he devised two classes of magistrates ~ the executive magistracy to implement the laws and judicial magistracy to adjudicate disputes between parties, as also the State versus the citizen. The executive magistracy was placed under the Executive, and the judicial magistracy under the High Court. He thus pioneered the law enshrining the modern Constitutional principle of ‘separation of powers’.
It was simultaneously an embodiment of the classic principle of Roman jurisprudence: “A civil magistrate is a speaking law, and law is a silent magistrate.” The CrPC contained provisions whereby law and order were maintained under the supervision of the magistracy. Thus, preventive criminal jurisdiction was entrusted to the executive magistrates, to the clear exclusion of the police force. Routine public order and peace and tranquility were the exclusive responsibility of magistrates, in daily civil life.
The magistracy was exclusively authorized by law to conduct all local inquiries and, if necessary, in the considered judgment of the magistrate, to bind citizens to future good behaviour and provide security for keeping the peace in public places. Any breach thereof was to be visited by the arrest of the violators but under the authority of the magistracy. Arguably, the most basic of all the basic certitudes of modern civilian democracy is the subordination of the military to the civilian executive.
The first Constitutional Reforms Commission set up by the Government (2008), headed by the former Chief Justice of India, the distinguished Justice MN Venkatachaliah had in its voluminous report specially reminded the Government of the same. The civil-military equation in a democracy was first defined in law, with amazing prescience, by Macaulay way back in 1833. ‘If (say) the Civil Administration cannot control large-scale disturbances, it can summon and require officers of the armed forces to disperse an unlawful assembly, and every such officer (irrespective of rank) shall obey such requisition’ by the senior most magistrate present.
(To Be Concluded)
(The writer is a retired IAS officer)