There may be a common thread connecting the raging controversy over the arrest of JNU students on charges of sedition and the recurring debates over the need to decriminalise offences like homosexuality, adultery and defamation.
The offences inserted in the penal code during the colonial regime more than 100 years ago may no longer be in tune with the social structure and philosophy of the society.
Speaking at the valedictory function of the year-long celebrations of the 155th anniversary of the Indian Penal (IPC) in Kerala last week, President Pranab Mukherjee emphasised on the need for a thorough revision of the IPC to ensure that our criminal law reflected "contemporary social consciousness" and was a "faithful mirror of a civilisation underlining the fundamental values on which it rests".
Mukherjee emphasised that some offences in the penal code were "enacted by the British to meet their colonial needs". The speech assumes relevance in the backdrop of the furore over the arrest of JNU students under Section 124A of IPC for protesting against the execution of Parliament attack convict Afzal Guru. With the offence inserted in the penal code during the colonial rule to bar crtiticism, this was not an isolated case when invocation of sedition was seen as an attempt by the government to stifle free speech.
Justifying the introduction of Section 124A in the code in 1870, James Stephen said, "The law relating to riots and unlawful assemblies is very full and elaborate, but it is remarkable that the Penal Code contained no provision at all as to seditious offences not involving an absolute breach of the peace." The idea clearly was to curb free speech and not to deal with likely breach of peace which had been taken care of by other provisions.
Later, the provision was amended in 1898 to make it harsher than in England. Sir Alexander Mackenzie, lieutenant governor of Bengal, supporting different yardsticks for India and England, said, "It is clear 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 and inhabited by many races, with diverse customs and conflicting creeds."
Another offence which is being opposed for having a chilling effect on free speech is defamation. With several progressive democracies limiting the remedy for violation of reputation to civil defamation which allows recompense in monetary terms, a number of petitions challenging the constitutional validity of Section 499 of the IPC have been filed in the Supreme Court.
International opinion reflected in views expressed by various UN bodies is clearly against providing jail terms for peaceful expressions. While introducing an amendment October 2009 to outlaw libel in the UK, parliamentary under-secretary of state, ministry of justice, Lord Bach said, "They stem from a bygone age when freedom of expression was not seen as the right that it is today."
Coming to Section 377, which criminalises gay sex, a large number of people now find it obnoxious to punish people for their sexual orientation. A petition seeking a relook at the decision upholding the validity of Section 377 is pending before the Supreme Court. In what explains the call for change, Mukherjee stressed that criminal law has to be sensitive to changes in social structure and social philosophy.
With the change in outlook of the society towards women, Section 497 (adultery) of the IPC may require a relook in view of the restricted application of the provision to extramarital relationships involving only married women and not married men. The provision permits a husband to prosecute a man having sexual relations with his wife. But the wife can't do the same to a woman in an extramarital relationship with her husband.
It is no offence for married men to have extramarital relationship outside marriage, provided the partner is not minor or married.
The provision was questioned twice, in the 1950s and the 1980s, but the Supreme Court upheld its validity. The provision was put in IPC to maintain the sanctity of matrimonial relationship but there is no reason to put the entire burden of preserving sanctity of marriage on women.
The executive and legislative need to review offences in the light of changing outlook of the society.
The fact that the validity of some of the laws, including sedition, has been upheld by the Supreme Court does not make them good laws.