II.

THE PENAL CODE FOR INDIA. (1).

IN former Numbers, the basis has been stated on which, in 1833, a legislative power was established in India over British persons. Since those were published, an important document has been laid before the House of Commons by the President of the Board of Commissioners for the Affairs of India, namely," A Copy of the Penal Code, prepared by the Indian Law Commissioners, and published by command of the Governor-General of India in Council." () To this Code is prefixed a letter from the Indian Law Commissioners, which it would be unfair not to publish in company with the remarks which are suggested by it.

"To the Right Honourable George, Lord "Auckland, C.G. C.B., Governor-General of India in Council.

66

"MY LORD,

"The Penal Code which, according to the orders "of Government of the 15th June, 1835, (3) we had the

(1) See No. I. p. 14; No. II. p. 57; No. III. p. 97 ; No. IV. p. 121.

(2) Sessional Paper, No. 673, ordered by the House of Commons to be printed, 3d August, 1838 (price 1s. 3d). Nearly the whole of the Code has been published also in the "Asiatic Journal" in the course of this year.

(3) These orders ought to have been laid before Parliament. See 3 and 4 Wm. IV. c. 84, ss. 53, 54.

"honour to lay before your Lordship in Council on the "2d of May last, has now been printed under our super"intendence, and has, as well as the notes, been carefully "revised and corrected by us while in the press.

"The time which has been employed in framing this

body of law will not be thought long (*) by any person "who is acquainted with the nature of the labour which "such works require, and with the history of other works "of the same kind. We should, however, have been able "to lay it before your Lordship in Council many months "earlier, but for a succession of unfortunate circumstances "against which it was impossible to provide. During a "great part of the year 1836, the Commission was ren"dered almost entirely inefficient by the ill-health of a majority of the members; and we were altogether deprived of the valuable services of our colleague, Mr. "Cameron, at the very time when those services were "most needed.

66

66

66

It is hardly necessary for us to entreat your Lordship in Council to examine with candour the work "which we now submit to you. To the ignorant and "inexperienced the task in which we have been engaged

may appear easy and simple. (*) But the members of

(*) The work could not, perhaps, have been accomplished in a shorter time, according to the method which has been pursued; but if the less ambitious course had been taken, which experience would have suggested, of making more use of old materials, and of being very sparing of new inventions in relation to the melancholy subject of human crime, there scarcely can be a doubt that the mere definitions of crimes, and the apportionment of punishments, might have been written down in precise language in half the time.-This, which is all that has been done, might have been a tolerably simple and easy task, if the Commissioners had thought that the best arrange

"the Indian Government are doubtless well aware that "it is among the most difficult tasks in which the human "mind can be employed; that persons placed in circum"stances far more favourable than ours have attempted "it with very doubtful success; that the best codes extant, if malignantly criticised, will be found to furnish "matter for censure in every page; that the most copious "and precise of human languages furnish but a very "imperfect machinery to the legislator; that, in a work

66

so extensive and complicated as that on which we have "been employed, there will inevitably be, in spite of the "most anxious care, some omissions and some inconsis

tencies; and that we have done as much as could "reasonably be expected from us, if we have furnished "the Government with that which may, by suggestions "from experienced and judicious persons, be improved "into a good code.

"Your Lordship in Council will be prepared to find "in this performance those defects which must neces"sarily be found in the first portion of a code. Such "is the relation which exists between the different parts "of the law, that no part can be brought to perfection "while the other parts remain rude. The Penal Code "cannot be clear and explicit while the substantive Civil

ment and most perfect specification of crimes and punishments which have been provided for any, the most civilised and most perfectly constituted, of the nations of the earth, might suffice, at present, for India; with such particular improvements as the Commissioners might have chosen to introduce. To provide for a steady, impartial, unerring administration of penal law in such a country as India, is a task which it would, indeed, argue inexperience and ignorance to designate as simple and easy. But that task remains to be attempted.

"Law and the Law of Procedure are dark and confused. "While the rights of individuals and the powers of pub"lic functionaries are uncertain, it cannot always be "certain whether those rights have been attacked, or "those powers exceeded. (5)

"Your Lordship in Council will perceive, that the "system of penal law which we propose is not a digest "of any existing system, and that no existing system "has furnished us even with a groundwork. We trust "that your Lordship in Council will not hence infer that

(5) This is very true; and it is astonishing that those by whom the truth was so propounded were not led to the obvious inference that a fasciculus of definitions and illustrations, not in any way combined with Indian institutions, might have been prepared with nearly as much advantage in London as in Calcutta ; and that it can scarcely be said to be of any use at all for practical purposes, until means are devised for establishing a more satisfactory administration of law than has yet existed in India. This, it may be supposed, is what the Commissioners have in view when they speak of "the Law of Procedure." Why, then, did they not begin with that? or with "the rights of individuals and the power of public functionaries?" Or why, at any rate, did they not take the course which, by the Act of Parliament to which they owed their existence, was pointed out to them? The act of the 3 and 4 Wm. IV. c. 85, s. 53, makes it the first duty of the Commissioners "to inquire fully into the jurisdiction, powers, and rules of the existing Courts of Justice and Police Establishments in the said territories, and all existing forms of judicial procedure; and that they may, from time to time, suggest such alterations as may, in their opinion, be beneficially made in the said Courts of Justice and Police Establishments, forms of judicial procedure and laws, due regard being had to the distinction of castes, difference of religion, and the manners and opinions prevailing among different races and in different parts of the said territories."

we have neglected to inquire, (6) as we are commanded "to do by Parliament, into the present state of that part "of the law, or that in other parts of our labours we are "likely to recommend unsparing innovation, and the "entire sweeping away of ancient usages. We are per"fectly aware of the value of that sanction which long prescription and national feeling give to institutions. "We are perfectly aware that lawgivers ought not to "disregard even the unreasonable prejudices of those for "whom they legislate. So sensible are we of the importance of these considerations, that, though there are "not the same objections to innovations in penal legisla"tion as to innovations affecting vested rights of pro"perty;(7) yet, if we had found India in possession of "a system of criminal law which the people regarded "with partiality, we should have been inclined rather "to ascertain it, to digest it, and moderately to correct it, "than to propose a system fundamentally different.

66

66

"But it appears to us that none of the systems of penal law established in British India has any claim "to our attention, except what it may derive from its own intrinsic excellence. All those systems are foreign. "All were introduced by conquerors differing in race, manners, language, and religion, from the great mass "of the people. The criminal law of the Hindoos was "long ago superseded through the greater part of the

66

(6) This is not sufficient. The Commissioners are not only commanded to inquire fully, but also "to make reports from time to time, in which they shall fully set forth the result of their said inquiries ;" and these reports are to be transmitted to the Court of Directors, and to be laid before both Houses of Parliament.-3 and 4 William IV. c. 84, ss. 53, 54.

(7) If innovations in penal legislation affect rights which are more valuable than any rights of property, they are more objectionable than innovations which affect only rights of property.