Mains Syllabus: GS II - Structure, organization and functioning of the Executive and the Judiciary.

Why in the News?

The recent Supreme Court of India ruling, in Imran Pratapgarhi vs State of Gujarat, highlighted that principled criminalisation is contingent on the adherence of the police to India’s criminal procedure law, the Bharatiya Nagarik Suraksha Sanhita (BNSS).

What is Criminalization?

• Criminalization – It is about the state’s power to name a wrong/harm as ‘crime’ and impose ‘punishment’.
• It is, equally, about the state’s duty to address wrongdoing by holding individuals accountable publicly and administering appropriate penalties.
• Criminal law - In a constitutional democracy, Criminal law seeks to ensure that this enormous authority and responsibility is exercised properly.
• Duty/Power of the State - Legal philosopher Victor Tadros suggests that the state’s duty/power to criminalise wrongful conduct is part of a larger complex duty/power to criminalise, prosecute, convict, publicly condemn and punish the conduct.
• Social Institution - Within the broader normative context, criminalisation exists as part of social institutions and practices that address wrongdoing, such as families and private law.
• Effectiveness of Criminal System -  The full force of criminalisation depends on criminal law and the workings of the criminal justice system.
• Principles of Criminalization - Tatjana Hörnle makes a cogent case for three principles that conduct should be criminalised only if
  • It is incompatible with important collective interests.
  • It constitutes a violent attack against other persons.
  • It violates another person’s right to non-intervention.
• These principles can be seen at the core of criminalisation under India’s substantive criminal law, the Bharatiya Nyaya Sanhita (BNS).

What is the role of police in criminal justice system?

• Performing functions - Police spearhead the process of criminalisation by detecting, registering, investigating crime, and, most conspicuously, by arresting suspects.
• Performance of the system - The nature and the extent of criminalisation is largely shaped by the regulation and use of police.
• Crime Prevention - Police patrol areas to deter crime and maintain public order and they collect and analyze information to anticipate and prevent crime.
• Investigation and Law Enforcement -  Police investigate crimes, collect evidence, identify suspects and arrest individuals suspected of committing crimes.
• Maintenance of Law and Order - Police manage crowds and ensure public safety during events and gatherings and traffic.

What are the problems with over criminalization?

• Unjust and Excessive Punishments - Overcriminalization often leads to punishments that are excessive or imposed for conduct that arguably should not be criminalized at all.
• Overlapping and Duplicative Offenses - Multiple statutes may criminalize the same conduct, leading to harsher sentences and confusion in the legal system.
• Erosion of Civil Liberties and Rights - The expansion of criminal law can restrict freedom of movement, take away civil and political rights, and even result in life-altering consequences for actions that may not warrant such severe responses.
• Overburdened Justice System - Overcriminalization contributes directly to prison overcrowding and strains the criminal justice system.
• Resource Misallocation - Significant government resources are diverted to policing and prosecuting minor offenses, such as gambling or drug use, rather than focusing on serious crimes.

What lies ahead?

• Principled criminalisation is central to the legitimacy of the state’s power to criminalise.
• It is as crucial for substantive law to be defined by judicious principles as it is for procedural law to be able to control the actual effects of criminalisation.

Reference

The Hindu | Principled criminalisation