Background to the

adoption of the Penal

Code, 1860
The subcontinent was governed by the Hindu law and
later the Muslim penal laws before the British came.
While the Hindu penal laws emphasized on the caste
system thus prohibited punishment for certain people,
the British found the Muslim law was found to be very
technical.
In the Three presidencies i.e.; Bombay, Madras and
Bengal the British East India Company were allowed to
legislate by a charter from the Crown.
 However, these legislations were often made by different
authorities with no consistency or structure.
The penal laws in Madras and Bengal were in fact the
prevailing Muslim law changed in principle but with the
technicalities of evidence law intact.
In Bombay on the other hand Regulation XIV was enacted
to codify the general law but was imperfect and
inadequate.
At one point of time punishment for forgery in Bengal was
double of the punishment for perjury in Madras. These
discrepancies made governance a complicated matter. The
need to enact the Penal code came from this context.
By the Charter Act of 1833 the governor general of Bengal
was made the Governor General of Bombay and Madras as
well and a 4 member council was made for him. It was the
first time when a single Governor General ruled over the
three presidencies and could enact law for all of them.
The Fourth member of his council was a Law
member.
Thomas Babington Macaulay was the first law
member appointed in 1834 of the 1st Law commission.
Thomas Babington
Macaulay was the first
law member
appointed in 1834 of the
1st Law commission.
 Principle of the Penal Code
Macaulay was asked to draft a penal code for the
presidencies with two principles –
 Suppression of crime with smallest possible amount
of suffering and
 Ascertainment of truth at the smallest possible cost
of time and money.
The code was to be complete and new, not the
codification of the existing or prevailing laws.
“not only ought everything in the code to be law, but
nothing that is not in the code ought to be law”
It aimed to be –
i. uniform without any consideration
for race, sect or cast
ii. without any vague terminology
iii. concise and perspicuous
The penal code 1860 as was greatly influenced and
inspired by the French Penal code of Napoleon, The
Code of Louisiana by Livingstone, Bentham’s
principle of punishment and code, western
Jurisprudence and above all the English penal laws.
The first draft of the code was submitted by Macaulay
in 1837 with 16 observations each an essay on it’s
Until 1840 the draft code was circulated for opinion and
received both praise and criticism own.
Amos, who succeeded Macaulay as Law member felt that
the greatest weakness of the Code was that it was not
based on a thorough study and understanding of the laws
prevailing in the country.
Drinkwater Bethune the Third law member resisted it’s
passage and attempted to redraft it.
In the after math of the bloody Sepoy mutiny the
draft penal code, somewhat revised by Sir Bernes
Peacock, was hastily enacted by the Indian
Legislative council on 6th October, 1860 and came
in force on the 1st Jan, 1862.
Features of The Code
The penal code was unique and first of it’s kind.
Use of illustrations “to exhibit the law in full action
and show what’s effect will be on the events of
common life”
Precise definitions of various offences
Distinctions of mental conditions
Dealing with problem peculiar to India such as
Thuggee, Suttee, human sacrifice, dacoity etc
The code was concise, lucid and consistent.
Drawbacks of the Code
The code was enacted for a police state and an
agricultural society
There was no division of crime
Many a times it becomes difficult to distinguish a
crime such as murder and culpable homicide
amounting to murder.
It was draconian in severity of punishment.
Within ten years of it’s coming to force amendments were
suggested to be enacted.

The Law Commission of India suggested in 1971

To bring verbal changes to remove ambiguity
Clarify underlying ideas
Simplification and
Modernization.