Tag: indian penal code

Consenting adults and law

There are people who say what consenting adults do in private should not be covered by law. This is mainly in reference to Section 377 of IPC which is under litigation in Supreme Court.

By that logic prostitution, sale and purchase of narcotics and psychotropic substances and illicit liquor, corruption, polygamy, transmission of pornographic material and many others matters that take place between consulting adults will be out of the scope of law. Drug traffickers can claim they have right to life and liberty to sell heroin, marijuana and such things to consenting adults in private and they have right to equality. The state will have no right to legislate on marriage, divorce, alimony and child custody. Also concubinage, live-in relationship and palimony will be out of the legal purview.

What happens if a man who is married does not reveal his marital status and marries another woman? What happens if a woman has sex with a man because he promises her something and later he does not keep his promise?

What about doctors and parents who after sex determination test terminate the pregnancy of a foetus knowing it is female? India’s sex ratio is going down. Medical termination of pregnancy is not a crime. Female foeticide is a crime.

Some blame Thomas Macaulay for everything what they claim is wrong with India including Section 377 of IPC. Thomas Macaulay came to India in 1834 and left India in 1838. IPC was promulgated in 1860.

Some give examples of Khajuraho and Ajanta-Ellora as examples of Indian culture and civilization. It is like saying Jarawa women who do not cover their breasts as representative of all Indian women. Khajuraho and Ajanta-Ellora are exceptions. If what they show is a sample of what is Indian then all temples would have shown them.

A vociferous minority supported by sections of media attacks people who stand for heterosexuality. Those who speak of freedom of speech criticize Ghulam Nabi Azad and Baba Ramdev when they exercise their freedom of speech.

Some wrongly speak of gays and lesbians being married and having children. They are bisexuals. There is nothing hereditary being gay. If someone is gay he would not have had children.

It is not for judges to declare what should be the law. Their job is to deliver judgment as per law. Judges who cross their limits do lot of damage.

It is wrong to call gays and lesbians a minority. Minorities are either ethnic, or religious or linguistic. All types of criminals can claim they are a minority. Terrorists can claim they are a minority doing a noble job but misunderstood by the majority. Bandits can claim they are a minority.

If Supreme Court judges do not know what is sex according to order of nature it is penile vaginal intercourse. Terms like unnatural sex have definite meanings acquired over the years. It is not for judges to change the meanings. It is for legislatures to change the law.

The government of India wants to run with the hare and hunt with the hound. On 23/2/2012 Additional Solicitor General P. P. Malhotra told the Supreme Court Bench comprising Justices G. S. Singhvi and J. S. Mukhyopadhyay “The issue whether to retain or not to retain Section 377 IPC was considered by the Law Commission of India in its 42nd report and it observed that Indian society by and large disapproves of homosexuality and disapproval was strong enough to justify it being treated as a criminal offence even when adults indulge in it in private.” About privacy he said “Whose privacy is being disturbed? Nobody’s privacy is being disturbed. Privacy is not an absolute right and is always subject to restriction. It is an offence.” Then home ministry came out with a press release that the government is neutral on the issue. It had asked Attorney General to assist the Supreme Court. May be if Shahi Imam or head of Darul Uloom wants to retain Section 377 as it is the government will take a stand in favour of retention.

Corporal Punishment

Spare the rod, spoil the child.

Corporal punishment to students has become a controversial subject. There have been instances of excessive beating by teachers, causing injury and sometimes death. TV channels reported it for a day, some discussed it for a few minutes and everything was forgotten. A boy from La Martiniere in Calcutta died in February. After three and half months the death became controversial.

The boy was beaten on 8/2/2010. For the next three days he did not attend the school. On 12/2/2010 he attended the school. That day he was not beaten. He was told to bring his parents. The principal claimed there was no connection between beating and death. Alumni of La Martiniere came in defence of the school. If TV channels expected widespread condemnation of corporal punishment or the teachers or principal of La Martiniere they were disappointed.

Corporal punishment of students was banned in many states years back but it continues. Sometimes parents tell teachers to beat their children if they do not study or misbehave. Indian Penal Code allows it. Some want change in the Indian Penal Code.

Some have come in defence of corporal punishment. Some oppose corporal punishment. They say there should be counselling. What happens when counselling fails? The student has to be expelled from the school.

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Changes in Indian Penal Code

In India judicial process is a long one.

Many give up pursuit of justice along the way.

Sometimes judgment is delivered but people feel justice is not done and the punishment is not proportionate to the crime.

I propose changes to following sections of Indian Penal Code.

57. Fractions of terms of punishment – In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as imprisonment till the person dies.

71. Punishment of offence made up of several offences – Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall be punished with the punishments of all of such offences.
The punishments shall run consecutively.

128. Public servant voluntarily allowing prisoner of state or war to escape – Whoever, being a public servant and having the custody of any State prisoner or prisoner of war, voluntarily allows such prisoner to escape from any place in which such prisoner is confined, shall be punished with death.

129. Public servant negligently suffering such prisoner to escape – Whoever, being a public servant and having the custody of any State prisoner or prisoner of war, negligently suffers such prisoner to escape from any place of confinement in which such prisoner is confined, shall be punished with death.

147. Punishment for rioting – Whoever is guilty of rioting, shall be punished with life imprisonment.

148. Rioting, armed with deadly weapon – Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with death.

223. Escape from confinement or custody negligently suffered by public servant – Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody negligently suffers such person to escape from confinement, shall be punished with death.

225A. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise, provided for – Whoever, being a public servant legally bound as such public servant to apprehend, or to keep in confinement, any person in any case not provided for in section 221, section 222 or section 223, or in any other law for the time being in force, omits to apprehend that person or suffers him to escape from confinement, shall be punished – (a) if he does so intentionally, death; and (b) if he does so negligently, with life imprisonment.

279. Rash driving or riding on a public way – Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine which may extend to ten lakh rupees, or with both.

302. Punishment for murder – Whoever commits murder shall be punished with death, and shall also be liable to fine.
There shall be one death penalty for each person murdered.
If a person murders two or more persons he shall be sentenced to two or more death penalties which are to run consecutively.

307. Attempt to murder – Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with death, or imprisonment for life, and shall also be liable to fine.

323. Punishment for voluntarily causing hurt – Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with life imprisonment or with fine which may extend to one crore rupees, or with both.
For causing privation of the sight of an eye, the eye of the offender shall be transplanted to the eye of the victim.
For permanent disfiguration of the head or face the offender shall be punished with death.

363. Punishment for kidnapping – Whoever kidnaps any person from India or from lawful guardianship, shall be punished with death.
Since punishment for kidnapping in every case shall be death there is no need for sections 363A, 364, 364A, 365 and 366.
However if they are to continue they shall also be changed as below.

363A. Kidnapping or maiming a minor for purposes of begging –
(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purposes of begging shall be punishable with death.
(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with death.

364. Kidnapping or abducting in order to murder – Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with death.

364A. Kidnapping for ransom, etc.
– Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death.

365. Kidnapping or abducting with intent secretly and wrongfully to confine person – Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with death.

366. Kidnapping, abducting or inducing woman to compel her marriage, etc.
– Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with death; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable with death.

366A. Procreation of minor girl – Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with death.

366B. Importation of girl from foreign country – Whoever imports into India from any country outside India any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, shall be punishable with death.

367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.
– Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death.

368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person – Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished with death.

369. Kidnapping or abducting child under ten years with intent to steal from its person – Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with death.

370. Buying or disposing of any person as a slave – Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with death.

371. Habitual dealing in slaves – Whoever habitually imports, exports, removes, buys, sells traffics or deals in slaves, shall be punished with death.

372. Selling minor for purposes of prostitution, etc.
– Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with death.

373. Buying minor for purposes of prostitution, etc.
– Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with death.

376. Punishment for rape – (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with castration or imprisonment of either description for a term which shall not be less than twenty-five years but which may be for life and shall also be liable to fine.

379. Punishment for theft – Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
If the stolen amount or value of stolen amount is more than one lakh rupees for every additional hundred rupees or part thereof, there shall be additional punishment of imprisonment of one day each.
Illustrations
(a) A has stolen Rs.1,10,000/-.
He shall be punished with three years and 100 days; three years for Rs.1,00,000/- and 100 days Rs.10,000/-.
(b) B has stolen a paining worth Rs.1,02,075/-.
He shall be punished with three years and 100 days; three years for Rs.1,00,000/- and 21 days Rs.2,075/-.

382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft – Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft or in order to the retaining of property taken by such theft, shall be punished with death.

384. Punishment for extortion – Whoever commits extortion shall be punished with death.

385. Putting person in fear of injury in order to commit extortion – Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with death.

386. Extortion by putting a person in fear of death or grievous hurt – Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with death.

387. Putting person in fear of death or of grievous hurt, in order to commit extortion – Whoever in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with death.

388. Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc – Whoever commits extortion by putting any person in fear of an accusation against that person or any other, of having committed or attempted to commit any offence punishable with death, or with imprisonment for life, or with imprisonment for a term which may extend to ten years, or of having attempted to induce any other person to commit such offence, shall be punished with death.

389. Putting person in fear or accusation of offence, in order to commit extortion – Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of an accusation, against that person or any other, of having committed, or attempted to commit, an offence punishable with death or with imprisonment for life, or with imprisonment for a term which may extend to ten years, shall be punished with death.

395. Punishment for dacoity – Whoever commits dacoity shall be punished with death.

396. Dacoity with murder – If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death.

426. Punishment for mischief – Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to life imprisonment, or with fine in double the proportion to the damage caused, or with both.

447. Punishment for criminal trespass – Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine which may extend to one lakh rupees, or with both.

448. Punishment for house-trespass – Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to to seven years, or with fine which may extend to one lakh rupees, or with both.

449. House-trespass in order to commit offence punishable with death – Whoever commits house-trespass in order to the committing of any offence punishable with death, shall be punished with death.

465. Punishment for forgery – Whoever commits forgery shall be punished with imprisonment of either description for a term not less than seven years and which may extend to more years depending on the value intended to be gained by forgery, or with fine, or with both.

468. Forgery for purpose of cheating – Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term not less than fourteen years and which may extend to more years depending on the value intended to be gained by forgery, or with fine, or with both.

469. Forgery for purpose of harming reputation – Whoever commits forgery, intending that the document forged shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with life imprisonment or death.

500. Punishment for defamation – Whoever defames another shall be punished with death.

501. Printing or engraving matter known to be defamatory – Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with death.

502. Sale of printed or engraved substance containing defamatory matter – Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with death.

506. Punishment for criminal intimidation – Whoever commits the offence of criminal intimidation shall be punished with life imprisonment and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life of with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with death.

507. Criminal intimidation by an anonymous communication – Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with life imprisonment or death.

Besides the above changes I propose addition of a chapter with two sections to Indian Penal Code.

CHAPTER XXIIA HIJACKING AND TERRORISM 510A.

Hijacking – Whoever hijacks any aeroplane, ship, bus, car or any other vehicle shall be punished with death.

510B. Terrorism – Whoever engages in any act of terrorism, abets it, finances it shall be punished with death.

The changes I propose are not exhaustive.

These are the minimum changes required to deter people from committing crimes.

If these changes are implemented there will be a significant drop in crimes.