Revising the Law of Murder in the Indian Penal Code: A Macaulayan Reconstruction of Provocation and Sudden Fight

Abstract

Thomas Babington Macaulay – historian, essayist, poet and politician – completed his draft of an Indian Penal Code in 1839. The draft had taken him just two years to write, with the merely nominal assistance of his fellow Indian Law Commissioners. The Code was enacted in 1860 with relatively few changes and it remains law in India and Pakistan. Versions of it have been enacted in Singapore, Malaysia and other Asian jurisdictions.Macaulay’s Code is remarkable for its legislative sophistication; its moral coherence and for its direct, lucid and concise prose. Jeremy Bentham was a guiding though unacknowledged influence: Macaulay followed Bentham in his determination to limit the severity of punishments for Code offences and to restrict the courts’ predilection for interpretive distortion of legislation. Treason and murder were the only capital offences. Treason aside, Macaulay’s definition of murder was informed by the premise that the worst of punishments must be restricted to the worst of crimes. His definition of murder, with its defences and exceptions, was changed when the Indian Penal Code was enacted. This paper presents an argument for substantial restoration of his original draft provisions which parallel, in many respects, current proposals for the reform of the law of murder advanced by the UK Law Commission. The discussion concentrates on three points of particular interest in Macaulay’s draft Code. The first is his acceptance of the ‘correspondence principle’. The common law doctrines of ‘felony murder’ and ‘unlawful act manslaughter’ have no place in his Code. Physical and fault elements must correspond. The second point of interest is his formulation of the partial defences. The partial defences to murder include excessive self defence, provocation, sudden fight and consent. Provocation extends beyond murder, to provide a general, though partial defence to lesser crimes of violence. Macaulay’s conception of provocation, which is the primary concern of this paper, appears to owe much to the virtue ethics of Adam Smith, expressed in his Theory of Moral Sentiments. The defence extenuates violence arising from a blameable excess of an appropriate feeling of resentment for wrongdoing by the provocateur. The third point of interest, which survives in the Indian Penal Code 1860, is Macaulay’s acceptance of a ‘comparative responsibility principle’: the defendant’s criminal responsibility for harm suffered by the victim of the offence is diminished to the extent that the victim bears responsibility for the harm.