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Chapter 10
Macaulay's 'Utilitarian' Indian Penal Code:
An Illustration of the Accidental Function of Time,
Place and Personalities inLawMaking1
K.J.M. Smith
This essay attempts to examine both the historical and intellectual forces
responsible for producing Thomas Macaulay's 1837 Indian Penal Code, finally
enacted in 1860. Macaulay's Code and its creative antecedents are worthy
of our interest because together they constitute a curious and important
episode in the development or evolution of criminal jurisprudence and, more
generally, in nineteenth century intellectual history.
The shaping forces behind the Code included, most particularly, a dynamic
mixture of time, place, and personalities: Time' in the sense of the 1830s being
a period when a broad reforming spirit had infected at least some in positions
of power and influence, and when commissions of enquiry, of one form or
another, were much in vogue as the standard technique for ascertaining the
nature, if not always the solution, of specific social problems; 'Place' in the
sense that legislating for India obviously raised issues and necessitated meeting
difficulties peculiar to that part of what later became the 'Empire'. The third,
and perhaps most potent of these formative influences, were the personalities
and individual philosophies of the leading participants: Macaulay, James
Mill, then occupying a pivotal position in the East India Company, and the
strong posthumous presence of Bentham, who died in 1832, two years before
Macaulay's Indian interlude began.
/. The Circumstances of Macaulay's Appointment
Appreciation of the cardinal features of the political and philosophical climate
in which the Code was produced is aided by a glance back at the immediate
history of the 1833 Charter Act which created the post of legal member of the
Governor-General's Legislative and Executive Council of India, first occupied
by Macaulay.
Prior to the 1833 Act India enjoyed, or suffered, diversified government
with no centralized Indian-based authority; the various provinces were ruled
1 With acknowledgements to Bentham's 'On the Influence of Time and Place in Matters of
Legislation', Works of Jeremy Bentham, J. Bowring, ed. (Edinburgh and London, 1843), (hereafter
Works), i, 169.