In 1947, India won its political independence but India’s legal system has remained chained to its colonial past. The Indian Penal Code (IPC), drafted by Thomas Babington Macaulay in 1860, was created not to rehabilitate or reform its citizens, but to control its subjects. More than 160 years later, Indian criminal law remains colonial: punitive, moralistic, and obsessed with order over empathy. The government’s recent replacement of the IPC with the Bharatiya Nyaya Sanhita (BNS) promised decolonisation, but a closer look reveals that spirit of the IPC still runs thick and punishes like its 1860.
When Macaulay drafted the IPC, the goal was to supress, to control, to dominate the ‘unruly’ colony. Its focus was obedience, not rehabilitation. The British did not trust India’s capacity for self-regulation, so the IPC prioritized deterrence over reform. This philosophy can still be seen in our laws that treats citizens as potential offenders rather than contributors to the justice system.
Colonial era laws relating to preventive detention and sedition echo the colonial obsession with fear. Section 124A of the IPC and Section 152 of the BNS deals with punishment for sedition. It treats disagreement as disloyalty, putting a bar on the fundamental right of freedom of speech. It protects power rather than protecting democracy. The Preventive Detention laws mirror the colonial fear of rebellion. The principle of ‘innocent until proven guilty’ gets replaced with ‘detain until proven safe’. No justification can defend imprisonment without trial, it truly echoes colonial control.
The British saw it as their duty to morally police the Indian subjects. This impulse manages to creep its way through in our laws relating to obscenity, public decency, outraging the modesty of a woman, etc. Although Section 377 was decriminalised in Navtej Singh Johar in 2018, its mere existence for over a century goes to show the law’s obsession with policing personal lives rather than protecting public order.
Colonial laws targeted not just based on their content, but by their disproportionate impact on oppressed classes, marginalized groups and minorities. The BNS retains majority of the colonial structure and therefore risks keeping these inequalities alive by failing to address systemic biases in enforcement.
If punishment was the goal in 1860, delay has become its perpetuator in 2025. Trials stretch for years. India has approximately 5 crore pending cases as of 2025 and undertrials form nearly 76% of India’s prison population. This is not by accident. The British legal structure was designed to intimidate and the procedure was deliberately made difficult – evidence, documentation, appeal mechanisms. Today, the same mechanisms cause the most harm to the poor and marginalized.
The British believed that punishment needed to be seen to be believed – public hanging, flogging, public humiliation, were some of the tools they used to make punishment a spectacle. Indian society internalized this logic. Today, media trials, custodial encounters, public naming of the accused before verdict, continues the legacy of public punishment. Over the years, colonial code’s punitive nature has evolved, from gallows to hashtags, but the audience is the same, public who want vengeance rather than justice.
If India wants to break free from the shackles of colonial law, it must rethink what punishment actually means. A promising solution can be borrowed from Norway’s penal reform. Norway’s criminal justice system relies on the principles of normality, humanity and rehabilitation. Prisoners cook, study and work; they prepare to rejoin society. As a result, the repeat offender rate is one of the lowest in the world, at about 20% (compared to over 75% in India).
The Norwegian model of criminal law lays emphasis on rehabilitation, where sentences focus not just on punishment, but prepare individuals to re-enter society. Prisons are structures to resemble ordinary life – private rooms, communal areas and access to work and learning. Prisoners retain most civic rights and there is strong oversight against abuse.
India could take inspiration from Norway’s model built on constitutional morality, human dignity, and restorative practices. For India, this would mean reducing harsh and long-term imprisonment and relying more on restorative justice programmes, reforming prison conditions to focus on rehabilitation and reintegration, ensuring frequent checks on the police and involving communities, human rights organisations, etc. to design and evaluate the justice system.
India’s criminal law has survived longer than the empire that birthed it. The IPC was built on mistrust; that mistrust still governs our laws, our police and our courts. The colonial framework, once imposed to control subjects of a colony still remains deeply engraved in our minds. The new criminal code, though with a modern guise, still has punitive traditions, moral policing and state supremacy at its very core.
For India’s criminal justice system to truly reflect the ideals of justice, liberty, and equality enshrined in its Constitution, it must confront and break down its colonial legacy. This change should be more than just superficial; it needs to happen at both structural and philosophical levels. Only then can it begin to punish in ways that align with a free, inclusive, and democratic society.
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