Comparative Study Of Afghan And Indian Penal Codes
1. Introduction: Afghan Penal Code vs. Indian Penal Code
Both countries inherited legal influences from Islamic law, British common law, and local customs.
The Indian Penal Code (IPC), enacted in 1860, is a comprehensive codification of criminal law, forming the basis for criminal law in India.
The Afghan Penal Code (APC) was updated most recently in 2017, reflecting a blend of civil law, Islamic principles, and international human rights standards.
Both codes define crimes, procedures, and punishments, but they differ in application, cultural context, and degree of incorporation of Sharia principles.
2. Key Areas of Comparison
| Aspect | Afghan Penal Code (2017) | Indian Penal Code (1860) |
|---|---|---|
| Influence | Islamic law (Sharia), civil law, international law | British common law, Hindu-Muslim customary law |
| Punishments | Includes Hudud punishments but limited; death penalty regulated | Mostly secular punishments; death penalty rare |
| Gender-specific provisions | More restrictions on women, certain moral crimes codified | Gender-neutral provisions, but with specific protections for women |
| Crimes Against State | Broad provisions including blasphemy, apostasy | Sedition laws, but apostasy not criminalized |
| Procedure | Hybrid of Islamic and modern standards | Common law based trial procedures |
3. Detailed Case Law Comparisons
Case 1: Blasphemy and Apostasy
Afghan Context: Under the Afghan Penal Code and Taliban Sharia, blasphemy and apostasy are criminal offenses punishable by death or imprisonment.
Indian Context: The IPC does not criminalize apostasy; blasphemy is not a specific offense but sections like Section 295A penalize deliberate acts hurting religious sentiments.
Example Afghan Case: A man accused of apostasy in Afghanistan was executed without a formal trial, illustrating the severity.
Example Indian Case: In Ramji Lal Modi v. State of UP (1957), the Supreme Court upheld Section 295A, balancing free speech and religious sentiments.
Case 2: Murder and Punishment
Afghan Penal Code: Article 398 allows Qisas (retribution) and Diyya (blood money), consistent with Islamic law.
Indian Penal Code: Section 302 prescribes life imprisonment or death penalty but no retributive justice; compensation is civil matter.
Case Afghan: In a tribal dispute, a murderer was sentenced to Qisas, where the victim’s family accepted Diyya to commute the death penalty.
Case Indian: In Bachan Singh v. State of Punjab (1980), Supreme Court upheld death penalty but emphasized rare use.
Case 3: Theft and Punishment
Afghan Penal Code: Theft punishable by imprisonment; in Taliban courts, amputation has been used (Hudud punishment), though APC restricts such corporal punishments.
Indian Penal Code: Section 378-382 penalizes theft with imprisonment; corporal punishments are abolished.
Example Afghan Case: A man had his hand amputated by Taliban authorities for theft.
Example Indian Case: Theft cases handled through criminal courts with prison terms; no corporal punishment.
Case 4: Rape and Gender-Based Crimes
Afghan Penal Code: Includes provisions criminalizing rape and violence against women but often underreporting due to social stigma; Article 427 prohibits harsh punishments.
Indian Penal Code: Sections 375-376 criminalize rape with defined procedural safeguards.
Case Afghan: A woman was raped but unable to get justice due to tribal pressures.
Case Indian: The Nirbhaya case (2012) led to amendments in IPC making rape punishable with stringent laws.
Case 5: Freedom of Expression
Afghan Penal Code: Limits free speech on religion and morals; blasphemy laws restrict expression.
Indian Penal Code: Freedom of speech guaranteed under the Constitution but limited by IPC sections on sedition and hate speech.
Indian Case: In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court limited sedition law scope to acts threatening public order.
Afghan Case: Journalists prosecuted under blasphemy laws for critical reporting.
Case 6: Juvenile Justice
Afghan Penal Code: Children under 18 generally exempt from harsh punishments; juvenile justice system underdeveloped.
Indian Penal Code: Juvenile Justice (Care and Protection of Children) Act provides for separate procedures.
Case Indian: In Sheela Barse v. Union of India (1986), Supreme Court emphasized rehabilitation over punishment.
Case Afghan: Lack of formal juvenile system leads to children held with adults, exposed to abuse.
4. Summary of Key Differences
| Subject | Afghan Penal Code | Indian Penal Code |
|---|---|---|
| Religious Offenses | Strongly criminalized (apostasy, blasphemy) | Limited, indirect via sections on religious insult |
| Corporal Punishment | Still used by Taliban courts, officially restricted in APC | Abolished, no corporal punishments |
| Punishment Philosophy | Retributive (Qisas), Hudud influenced | Deterrence and rehabilitation focused |
| Women’s Rights | Restricted rights, some laws protect women but social enforcement weak | Legal protections stronger but social challenges remain |
| Freedom of Expression | Restricted by religious laws | Protected constitutionally but limited by IPC |
| Judicial Procedure | Hybrid of Islamic and civil procedures | Based on British common law with codified procedures |
5. Conclusion
The Afghan Penal Code blends Islamic law with civil law, reflecting Afghanistan’s religious and cultural context, with harsher punishments and stronger religious offenses.
The Indian Penal Code is a secular, colonial-era code emphasizing common law traditions, with no corporal punishments and broader human rights protections.
Cases in both countries illustrate how social, political, and cultural factors shape law enforcement and justice delivery.
While both systems face challenges, the Indian system emphasizes procedural fairness and rights protections, whereas Afghan law under Taliban influence prioritizes religious doctrine and traditional justice.
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