Funcionamiento de los Autómatas de Pila

The Need for Codification

173

Vide Proceedings of the Governor-General in Council, dated the 10th Oct.1991, in James Edward Colebrook (n 165), p.159.

174 _{Jörg Fisch (n 169), p.131.} 175 _{Regulation VI of1832, sec 5.}

176 _{George Campbell, Modern India: A Sketch of the System of Civil Government, with Some Account}

of the Natives and Native Institutions (London: John Murray, 1853), p.464.

177 _{Mahabir Prashad Jain (n 143), p. 340.} 178 _{Ibid, p.340.}

179 _{Regulation 1795/16 section 23 in John Herbert Harington (n 162), p. 332.} 180

Regulation1817/17, Sec.15 in John Herbert Harington (n 162), pp. 332-33.

181 _{Evan Gottesman, ‘Reemergence of Qisas and Diyat in Pakistan’ (1991-92) 23Columbia Human}

In 1833 the attention of the British parliament was directed to three short comings in the frame of the Indian Criminal Justice System. Firstly, ‘the defects were in the laws themselves’, secondly, ‘in the authority of making them’ and thirdly ‘in the manner of executing them’.182

Criminal law was a mixture of numerous sources of jurisprudence namely Muslim Law, Hindu law, the regulations of the East India Company, as well as a version of the common law. To address the residuary subjects, Sir Elijah Impey, as the sole Judge of the Sadar Diwani Adalat, had it prescribed through a regulation that ‘in all cases, for which no specific directions are hereby given, the Judges of Sadar Diwani Adalat should act according to justice, equity and good conscience’.183_{In the absence of a specific body of law, the maxim of ‘equity, justice,}

and fair play’ varied from judge to judge.184

The inevitable result of such a flexible state of law was bound to be confusion and uncertainty in the country legal system.185 Macauly’s Speech in Parliament on 10th_{July1833 depicted ‘the existing legal system}

in India as no system at all, but rather as a jumble of laws derived from multiple sources of authority: Hindu, Muslim, Parsee and English’.186

In the House of Commons debate, Mr. Rickards most accurately described this state of things, when he said ‘we have already seen that, in these tribunals, justice was but the mockery of the term’.187

The Indian Penal Code 1860

Against this backdrop, Act 1833, section 59 envisaged a general system of judiciary, police and a code of laws that may be applicable in commons to all classes of the inhabitants of India. In 1860, the Indian Penal Code, based on the draft proposed by Macaulay’s commission and revised by Mr. Bethune, the legal member of council, and Sir Barnes Peacock, was passed.188 In the words of Stokes ‘their basis is the law of England, strips of its local peculiarities, and modified with regard to the conditions,

182 _{Herbert Cowell, The History and Constitution of the Courts and Legislative Authorities in India}

(London: W. Thacker, 1872), p. 96.

183 _{Regulation 1781/6, sec. 60; it is also known as Impey’s Code containing 95 sections guidelines for}

the working of Mufussel Courts

184

George Claus Rankin (n 167)., p. 22.

185 _{Mahabir Prashad Jain (n 143), p. 382.}

186 _{Thomas Babington Macaulay, Speeches of Lord Macaulay (London: Longman Green, and Co.} 1886), p. 75.

187

HC Deb 10 July 1833, Vol. 19, col 488.

188 _{Francis Du Pre Oldfield, ‘Law Reform’ in Henry H. Dodwell (eds.), The Cambridge History of}

institutions and climate of India’.189

Much of the substance was borrowed from English Law. It is simplified, intelligible and precise. In the view of Rankin the code is ‘far from the complexity of English law’.

Assessing the merits of the Code Sir Fitzjames Stephen, a valiant Benthamite till death, devoting himself largely to drafting or revising codes for India on various subjects described the Code ‘as the criminal law of England freed from all technicalities and superfluities, systematically arranged and modified in some few particulars to suit the circumstances of British India’.190

The nomenclature and classification of offences, which was the whole touchstone of a system of penal law, was on the natural and not the technical system. Eric Stokes reckons the most striking feature of Macaulay’s Code to be the employment of illustrative examples ‘to exhibit the law in full action and show what its effects will be on the events of common life’.191

In spite of its great success, it is not immune to criticism. The constituent elements of mens rea motive, intention, and consciousness are certainly held in view, but ‘the clear distinction which Bentham wished to make between motive and intention, in order to avoid the ambiguous term voluntary’ is not preserved.192

It has been criticized as the weakest part of the code. Stephen also criticizes the definition of culpable homicide and murder as ‘obscure, culpable homicide is first defined, but homicide is not defined at all, except by way of explanation to culpable homicide’.193

Under the Code, culpable homicide is not murder if the offender, while deprived of the power of self-control by grave and sudden provocation, causes the death of the person who provoked him.194 The provision has been invoked to award a lighter sentence to men who committed ‘culpable homicide not amounting to murder’ in

189 _{Whitley Stokes, The Anglo-Indian Codes, vol1(Oxford: Clarendon Press,1887), p.(xxvi).} 190

James Fitzjames Stephen, A History of the Criminal law of England, vol.3 (London: Macmillan, 1883), p. 300.

191 _{Eric Stokes, The English Utilitarians and India (Oxford: Clarendon Press, 1959), p. 231.} 192 _{Jeremy Bentham, An Introduction to the Principles of Morals and Legislation Vol.1 (London:}

Clarendon Press, 1879), p. 40.

193 _{James Fitzjames Stephen (n 190), pp.313-14.} 194 _{Indian Penal Code 1860, Sec 299, 300.}

defense of their family’s honor,195

as defense of the family honor is generally regarded as an excuse for homicide.196

Indian Penal Code allowed judge to consider the circumstances of a crime and select a death sentence or sentence of life imprisonment though death was the rule and life imprisonment the exception. The code of Criminal Procedure 1898 required a judge to provide ‘special reasons’ for not making the choice of death penalty. Code of Criminal Procedure Act no.5 of 1898, sec.367(5). Section 303 of Indian Penal Code 1860 prescribed mandatory death sentence for life-term prisoners who committed murder while incarcerated.197

The Section 303 of the Indian Penal Code authorized mandatory death penalty for the murder committed by life-term prisoner.

Another criticism of the code is that ‘it is draconian in its severity as regards to punishments’.198