Overcriminalisation: Are We Heading To Unprincipled Criminalisation?

It's surprising if not alarming. As a country, we do not know, in definite terms, the exact number of laws that criminalize conduct and provide punishment. Crude estimates range from 12,000 to 1.5 lakh. But, for sure, we have more laws than we require. Many laws mean many crimes; it also means overcriminalisation. The R. Ramanujam Committee (2014) observed the existence of 2,781 laws on the central statute book. This Committee, as well as the Law Commission over the years, have been recommending the repealing of many obsolete laws which have got redundant for all purposes.

Reportedly, more than 350 statutes in India prescribe the punishment of varying nature. There are also many civil laws which stipulate criminal sanctions. These matters relate to family, allowances, land, consumer, housing environment, marriage, maintenance. Several laws have outlived their purposes. Repealing of obsolete laws and review of the existing laws now become highly crucial not because they cause a burden on the exchequer, rather they a have potential to get misused resulting into overcriminalisation.

Last few months have seen an influx of decisions that involved a question regarding criminalization or decriminalization of various forms of human behavior. The major debate has arisen out of acts which are purportedly 'immoral', and the criminal law has been consistently invoked to penalize them. This has led to a serious issue of 'unprincipled' criminalization. The debate is a crucial one because criminal sanctions are known to emasculate the rights of people, and therefore invoking these sanctions has to be done with great caution. But recent examples state otherwise. Right from criminalization of triple talaq to the furor that occurred after decriminalization of adultery, it's almost as if the society seeks the protection of criminal law to enforce morality.

Calling criminal law, too often, into action is not a great idea. Criminal law ought to be the last resort in a constitutional democracy. It should not be invoked unless there are compelling reasons to do so. What is happening in this country is quite opposite of it. Criminal law is routinely exercised. Arrests rates are not only increasing but they are also found to be illegal in huge number of cases. Repressive criminal law and penchant to criminalise is also visible from the shocking figures of unusually high instances of arrests in drug offences under NDPS Act i.e. some 2600 in the year 2016, 2700 arrests in the stringent law like UAPA whereas the AFSPA was responsible for the killing of nearly 3000 persons in past 25 years.

Several laws or their provisions have specially earned the status of being considerably misused ones as they often result into an unprincipled criminalization. Infamous, Armed Forces Special Power Act, UAPA followed by the section 498- A , section 144, section 34 of IPC provisions in Prevention of Atrocities Act 1989, Dowry Act, NDPS Act, etc. have contributed a big share of illegal or excessive arrests. Various forms of rape would now attract minimum 7 to twenty years and the rape under POCSO will attract death penalty. The just desert and excessive punitive penal policy looks too precarious without addressing the fundamental issues interlinked to these problems. The crucial examples of mindlessness application of harsh criminal laws and resultant wrongful arrests, prosecution and even conviction has been recently authenticated in its 277 Report of the Law Commission of India. The number of under trial prisoners (2.8 lakh/ two –third of total prison population) in the country is the perfect example of criminalization without outcome.

New conducts are being brought in the purview of law without following the principles of criminalization. The intrusion of the state through criminal law in the lives of people has drastic implications to the constitutional rights. The state does have an authority to label the conducts as criminal. But, as was held in, Naz and later in Navtej Jouhar that the policy of criminalization must follow the constitutional morality and the values enshrined in it.

The ignorance about the accepted principles of criminalization or decriminalise is appalling. No does we find any serious debate on this issue in the policy or public domains.

The criminal sanction is the most drastic of the state's institutional tools for regulating the conduct of individuals. As such, it should be deployed only where supported by convincing justifications. These justification have been devised in the form of certain principles that are universally recognized and accepted in the criminal justice system. These principals are inter-related and have to be considered while deciding on criminalizing any conduct.

A few important principles of criminalization include the autonomy and the harm principle. While the former rests on the idea that a person is autonomous and exercises free will and autonomy and hence any act by him would create a liability on his part ; the latter makes sure that the state is justified in intervening coercively to regulate conduct only when that conduct causes or risks harm to others. According to the Harm Principle, proponents of a given criminal prohibition cannot simply allege that the relevant conduct is immoral. Rather, they must identify the particular effects of that conduct: the way in which it damages the lives of other persons. Only those acts that produce the risk of harm to public at large needs to be censured. This was the guiding principle behind decriminalization of both section 377 and the act of adultery.

The historical actualities of existing criminal law system should be taken into account while deciding upon criminalization. The act of criminalizing any conduct must first address to historical roots of the society and the roots of criminal system of that specific society. More specifically, this approach of deconstructing the existing norms and ideas to understand their history and the modern relevance has been consistently used by critical legal studies movement to challenge the existing position of many issues. This is precisely what was done by the Supreme Court while adjudicating on the constitutionality of the adultery law, stating that the law had specific historical discrimination linked to it, and it failed the present mores of the society.

However, even if it is established that certain moral wrong is a public wrong, the process of criminalization shall only be undertaken when other civil measures and legal regulations have considerably failed to bring deterrence effect with regard to the wrong. This is the principle of legal moralism which is being debated currently with regard to criminalization of triple talaq.

The point is that at all times, we must be aware of these principles which are definitely not exhaustive, while shaping our opinion upon any decision to criminalize or decimalize a particular act. These decisions cannot be taken on the basis of the morality of a few, especially at a time when we're moving towards transformative constitutionalism.   

GS Bajpai is Professor & Chairperson at Centre for Criminology & Victimology, National Law University Delhi.  

This Article was first published in 'The Tribune' . You can read it here

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