Codification, Macaulay and the Indian Penal Code [Book review]

• Main Author: CHEN, Siyuan
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2011
• Subjects: Criminal Law; Legislation
• Online Access: https://ink.library.smu.edu.sg/sol_research/1971; https://ink.library.smu.edu.sg/context/sol_research/article/3923/viewcontent/BookReview_CodificationMacaulayIndianPenalCode_2011.pdf
• Institution: Singapore Management University

As noted (at vii) by the contributors to this book, the Indian Penal Code 1860 (Central Act 45 of 1860) (“IPC”), largely the work of Thomas Macaulay, “was the first codification of criminal law in the British Empire and is the longest serving code in the common law world.” Upon its enactment, the influential IPC was adopted in various British colonies, such as Singapore. The continuing use of legislation of such pedigree, however, brings about several problems. Any legislative inertia to update the statute from time to time will put the judiciary in a dilemma, whenever the latter is asked to either resolve newfound ambiguities and loopholes in the provisions, or interpret provisions in the context of evolving social norms. Lacking a democratic mandate, different judges will also have different conceptions of how much judicial activism can and should be accommodated. All of this results in an inevitable situation of inconsistent judicial interpretation of the provisions, with the contradictions in logic and approach becoming accentuated over time. And when the legislature finally overcomes this inertia, yet only introduces changes that are ad hoc and reactive in nature, this actually induces more fissures in the entire scheme of things. The combined effect of the aforementioned problems is that society as a whole suffers when the law becomes too uncertain, perhaps most so in the realm of criminal law, which can also sometimes be unduly affected by its symbolic and cathartic functions. The responsibility to remedy these uncertainties then falls chiefly upon the shoulders of those involved in law reform—yet how often do we see works that function categorically as tools for law reform?