Over the past three decades human rights movements in India have persistently interrogated systems of criminal justice in the country. The concerns have ranged from addressing the problem of arbitrary detention during the emergency to constructing entire communities as criminal thereby justifying forced dispossession and/or mass violence. While overt violence by state actors and their complicity in violence by dominant private actors has been a major concern, there has also been the problem of the abdication by the state with respect to provision of the means for bare life to a majority of the people, the denial of the right to bare life compounding their vulnerability to a repressive rule of law. There is a widespread acceptance of the fact that the law is unequal especially in terms of access to and delivery of justice, inequality of process negating the fundamental guarantee of equality.
This collection of essays re-examines the field of criminology through an interdisciplinary lens, challenging in the process unproblematic assumptions of the rule of law and opening out avenues for a renewed and radical restatement of the contexts of criminal law in India. This collection is a significant step towards mapping the ways in which interdisciplinary research and human rights activism might inform legal praxis more effectively and holistically. The contributors are a diverse group – widely respected activists, bureaucrats, scholars, and professionals – who share concerns on criminal justice systems and the need to entrench human rights in the Indian polity.
Chapter 9: Penal Strategies and Political Resistance in Colonial and Independent India
Penal Strategies and Political Resistance in Colonial and Independent India
The first Indian Law Commission produced a draft of the Indian Penal Code (IPC) in 1837, which was enacted into law in 1860 after the assumption of direct rule by the Crown in 1858.1 For reasons unexplained, Section 113 of the draft penal code dealing with sedition was not included in the IPC, 1860 (hereafter IPC) and was added 10 years later as Section 124A by a special Act (XXVII of 1870)2 under the chapter ‘Offences against the State’. The members of the Law Commission held that ‘state crimes’, or crimes of a political nature, were especially ‘heinous and formidable’ and required ‘strong and sharp’ measures. ...