Indian Penal Code

“ The Indian Penal Code he knows, the accused and the witnesses he does not know; the Village Act he knows, the village organism he is hopelessly ignorant of. Therefore when Government pass and enforce laws that do more harm than good he cannot tell them what is wrong. Naturally, he must believe nothing is wrong.
Yet the whole Penal System of India is wrong. It is very wrong indeed. I believe I could keep a district in greater quietness and peace if its Criminal Courts were abolished altogether and I were allowed to use the village organism in its proper form for preventing crime. ”

“ The law in the main agrees with that of the mother country, but it is quite competent for a colony to deal with treason by its own legislation Avhich need not necessarily be in accordance with English law, and is sometimes ex pressed in more definite terms. Thus the Indian penal code makes it punishable with transportation for life to wage war against the Government of any Asiatic power in alliance or at peace with the queen, or to attempt to excite feelings of disaffection to the Govern ment. ”

“ A prosecution under the Penal Code for adultery can be instituted only by the husband, or the guardian representing him, and the woman is not punishable. Although the Muhammadan law of evidence has been got rid of, the Anglo-Indian courts are still unsuitable for the prosecution of adultery cases, especially where Indians are concerned. ”

“ Section 328 of the Penal Code (Comp. St. § 10502) provides that an Indian committing murder on another Indian 'within the boundaries of any state, and within the limits of any Indian reservation, shall be subject * * * to the same penalties as are all other persons committing' the same crime 'within the exclusive jurisdiction of the United States.' United States v. ”

“ For example, certain comments or gestures towards women or about religion that are legal in the United States may be considered a criminal violation in India, subjecting the accused to possible fines or imprisonment. Penalties for breaking the law can be more severe than in the United States for similar offenses. Persons violating Indian laws, even unknowingly, may be expelled, arrested or imprisoned. Penalties for possession, use, or trafficking in illegal drugs in India are severe, and convicted offenders can expect long jail sentences and heavy fines. ”

“ Any Indian or mixed-blood who shall pay or offer to pay any money or other valuable consideration to the friends or relatives of any Indian girl or woman, for the purpose of living or cohabiting with said girl or woman, shall be deemed guilty of an Indian offense, and upon conviction thereof shall forfeit all right to Government rations for a period at the discretion of the agent, or be imprisoned in the agency prison for a period not exceeding sixty days ”

“ Such a modification of the existing laws is suggested because if offenders against the laws of humanity in the Indian country are left to be punished by Indian laws they will generally, if not always, be permitted to escape with impunity. ”

“ Tribal law enforcement authorities have the power to restrain those who disturb public order on the reservation, and if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.
Respondents' major objection to this last point is that, in the circumstances presented here, there may not be any lawful authority to punish the nonmember Indian. State authorities may lack the power, resources, or inclination to deal with reservation crime. ”

“ Or, to go to India itself for an instance, though I fully believe that a mild penal code is better than a severe penal code, the worst of all systems was surely that of having a mild code for the Brahmins, who sprang from the head of the Creator, while there was a severe code for the Sudras, who sprang from his feet. India has suffered enough already from the distinction of castes, and from the deeply rooted prejudices which that distinction has engendered. ”

“ On 23 Feb. 1882 he declared in council that he would 'be very glad if it was possible to place the law in regard to every person not only on the same footing, but to embody it in the very same language whether it relates to Europeans or natives.' At the time the Criminal Procedure Code, which amended and consolidated the law based on Macaiilay's famous Indian Law Commission, was being enacted. ”

“ In my annual, report last year I took occasion to quote from the report of the commission appointed during that year to visit the Red Cloud and Spotted Tail agencies, in regard to the urgent necessity of laws for the protection and punishment of Indians. In previous reports of the Department the same subject has been repeatedly alluded to, and the absence of any proper means for the administration of justice over Indian Territory presented. The present law is entirely inadequate to punish an Indian for a crime committed against another, either without the limits of his reservation or upon it. ”

“ Their authority is founded only on "the consent of the governed," and only as they pander to the whims or vices of the young men of the tribe can they gain such consent. As a police restraint upon lawlessness they are of no avail, being themselves subject to the control of the worst element in the tribe. An Indian murdering another Indian is accountable only to the law of retaliation. The State authorities do not concern themselves in punishing the murders among Indians, even when such murder is committed under the shadow of their criminal courts. ”

“ If more than one criminal statute has been violated, the penalty is determined according to the statute which provides for the most severe penalty...” (Bohlander & Reusch, n.d.) .1 2 The Thai text literally translates “then [the court] shall aggravate the penalty which is to be handed down to that one, one...of the penalty which the court designates for the offence on the subsequent occasion”. The English draft of the Penal Code says “the Court shall have the punishment to be inflicted for the subsequent offence, if it be imprisonment, increased by one...” ”

“ At all times many hundreds of predatory castes existed in India, chiefly among the marauding hill and forest people, and some of them are still recorded by name in the census papers. These people lived openly by plunder, and were organised for crime, and for determined gang-robbery and murder. There was no established police in those days equal to coping with these gangs, and the government of the East India Company had recourse to the savage criminal code of the Mohammedan law. ”

“ Whoever, in order to fulfil the desire of another person, dares exercise a deceitful trick, or physical force, or threat, or undue influence, or other forcible means to procedure, lure away, or lead away a woman or girl for an indecent purpose shall, Lord says, be held guilty and be punished with imprisonment of not over five years and a fine of not over three thousand baht, regardless of whether or not the acts constituting his offence are committed in different countries. ”

“ The Interior Department strenuously opposed this measure of relief. The counsel for the Government, in an argument of several hours' duration, maintained that Standing Bear was not entitled to the protection of a writ of habeas corpus, on the ground that an Indian was not a person under the law, and had no standing in the courts; while the equally able attorneys for the Indians contended that such protection was intended to apply to every human being, and that any other interpretation of the law was in violation of the fundamental principles of the Constitution. ”

“ The district court held that it had no such power, and hence that the indictments charged no offense. The ruling was that there was 'no act of Congress conferring upon the Interior Department, or the Bureau of Indian Affairs, any duty whatever in regard to recommending to the executive or judicial departments of the government whether or not Executive or judicial clemency shall be extended to, or withheld from, any person who may be charged with, or convicted of, selling intoxicating liquors to Indians, or of any other offense against the United States.' 206 Fed. ”

“ Whenever, in the commission, by a white person, of any crime, offence, or misdemeanor within the Indian country, the property of any friendly Indian is taken, injured, or destroyed, and a conviction is had for such crime, offence, or misdemeanor, the person so convicted shall be sentenced to pay to such friendly Indian to whom the property may belong, or whose person may be injured, a sum equal to twice the just value of the property so taken, injured, or destroyed. ”

“ Old abuses thus remain unchecked, and vast multitudes of hereditary scoundrels combine to cheat their superiors and oppress the people. The police, in fact, are the objects of universal dread; and numberless crimes escape unpunished, and even unexposed, because their victims will rather suffer than invoke such fatal assistance.
At present, however, our business is more with the criminal than the policeman; and the rough pictures of our Orderly show that the peculiarity of Indian crime is its resemblance to the crime of old and modern Europe at the same time. ”

“ To treat petitioner as a non-Indian for jurisdictional purposes would thwart the exercise of federal criminal jurisdiction over the misdemeanor because, as the court saw it, the relevant federal criminal statute would not apply to this case due to an exception for crimes committed "by one Indian against the person or property of another Indian." ”

“ While Indo-U.S. trade is at an all-time high, India is still working to modernize its legal system to cope with the evolving, high-tech business environment. Under Indian law, the police may arrest anyone who is accused of committing a crime, even if the allegation appears frivolous in nature. This practice has been increasingly exploited by dissatisfied business partners or contractors and used to escalate civil or personal disagreements into criminal charges, occasionally resulting in the jailing of U.S. citizens pending resolution of their disputes. ”

“ Nevertheless, if you will examine the criminal statistics of India you will be surprised at the small number of arrests, trials and convictions for penal offenses. The figures demonstrate that the people are honest and law abiding. There is less crime in India than in any other country in proportion to population, much less than in England or the United States. ”

“ Because the designation of conditions for supervision of behaviour of offenders for whom courts have suspended the designation of punishment or suspended the imposition of punishment in accordance with the current Penal Code is still not suitable for the rectification of those offenders in order to efficaciously enable them to reform themselves, it is appropriate to improve the conditions for supervision of behaviour of the offenders in the described events by broadening their scope, so that the courts would be able to exercise their discretion as suitable for each case. ”

“ This makes it a felony for anyone to sell liquor in any form, at any time, and under any pretense, to an Indian, to whom allotment has been made, while the title is held in the trust period, or to an Indian who is held under guardianship of an Indian agent or superintendent, or under the charge of the United States. This law is being much more rigidly enforced than has hitherto been the case, yet the [Pg 18] Indians still get the liquor. ”

“ Viewed from that premise, it would be quite unreasonable to attribute to Congress an intention to extend the protection of the criminal law to an Indian upon a trust allotment and withhold it from one upon a restricted allotment, and we find nothing in the nature of the subject-matter or in the words of the statute which would justify us in applying the term 'Indian country' to one and not to the other. ”

“ INTELLIGENT enquirers assert that there are no written laws amongst the Indians, but that a few maxims transmitted by tradition supply the place of such a code in the discussion of civil causes; and that the ancient practice, corrected on particular occasions by the good sense of the judge, decides absolutely in criminal cases. ”

“ Again, there are also immense numbers of offences committed yearly, in which the Police are unable to get any clue, the offenders having succeeded in eluding altogether the vigilance of the Law. For instance a celebrated outlaw has only recently been apprehended in Central India after several years of successful and daring robbery, arson, mutilation and murder. Indeed in many parts of India there are predatory tribes and communities of thieves who have to be perpetually under Police surveillance, and who are brought up from their infancy to thieving as a profession. ”

“ The contacts approach is little more than a variation of the argument that any person who enters an Indian community should be deemed to have given implied consent to tribal criminal jurisdiction over him. We have rejected this approach for non-Indians. It is a logical consequence of that decision that nonmembers, who share relevant jurisdictional characteristics of non-Indians, should share the same jurisdictional status.
Respondents and amici contend that without tribal jurisdiction over minor offenses committed by nonmember Indians, no authority will have jurisdiction over such offenders. ”

“ Offences against ordinary morality are scarcely found in the category of those entailing punishment. Murder must sometimes be expiated by a pilgrimage to the Ganges, but other criminal offences against the person and property are not taken cognisance of by the caste committee unless the offender is sent to jail. ”