Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India's Legal System in the Nineteenth Century

Abstract

On 1 January 1862, the British enacted the Indian Penal Code, and within two decades most of India's law was codified. Ironically, England still awaits a criminal code, and the vast majority of English law remains uncodified, in the form of statute or common law. Hindu and Muslim law was rarely included in these Indian law codes, so the entire codification process represented the transplantation of English law to India, complete with lawyers and judges. A modest historiography has investigated the effect codification had on Indian society; or as Marc Galanter theorized, what happened to India's indigenous law as a result of the formation of a modern Indian legal system. However, Galanter's question implicitly assumed that England's legal system was modern. That assumption has resulted in a misleading interpretation of the Indian Penal Code.