New Codes: Selective decriminalisation, selective over-criminalisation

The recent session of parliament concluded with two bold moves toward reforming India’s criminal justice system -- the tabling of Bharatiya Nyaya Sanhita Bill, 2023 (BNS), and the passage of the Jan Vishwas (Amendment of Provisions) Act, 2023 (JV Act). Both BNS and the JV Act were tabled ostensibly to shun the baggage of antiquated laws. Both laws promise to enhance ‘ease of living’ and to make systems ‘citizen-centric’. Read together, these laws also present the government’s latest policy on the use of criminal law.

Regrettably, this policy is inconsistent and presents an ad hoc vision for crime and punishment in India. These laws also show how criminal law-making in India is unprincipled and often subservient to political agendas. The government’s response to the issue of over-criminalisation in India is a classic example of this inconsistency, which the BNS fails to redress.    

Over-criminalisation

Scaling up the earlier piecemeal attempts at decriminalisation, the JV Act decriminalises minor offences and rationalises punishments under 42 laws. Part of the government’s long-standing agenda of axing criminal provisions from commercial laws, the JV Act seeks to improve business sentiment. Considering that there are over 400 laws that criminalise social and regulatory non-compliances, it is a step in the right direction. However, it has also been severely criticised for proposing removal of jail terms for some serious offences.

The debate on the JV Act, however, seemed to miss a crucial point. It decriminalises and removes jail terms for many offences, not because the offences are petty or minor, but only because the offenders are businesses. This, very oddly, frames the issue of over-criminalisation as one of ‘ease of doing business’ and not of governance and the use or misuse of criminal law. It also risks creating two divergent justice systems in India.

Tabled after the JV Act, the BNS, though aiming to revamp India’s criminal law framework, fails to address this risk. It fails to lay the norm for criminalisation in India, and thereby facilitates arbitrary decriminalisation.

Decriminalising forgery for a few  

Consider this: The BNS, just like the Indian Penal Code, 1860 (IPC), punishes simple forgery with imprisonment for up to two years. Forgery for the purpose of cheating and falsification of accounts may attract up to seven years of imprisonment. Such offences can be found in many other laws, such as the Army Act, 1950; the Patents Act, 1970; and the Customs Act, 1962. These laws punish falsification of documents or entries in registers with imprisonment ranging from a few months to 14 years.

The JV Act, however, decriminalises and omits the offence of ‘Falsification of entries’ under the Trade Marks Act, 1999, the Geographical Indications of Goods Act, 1999, and the Indian Post Office Act, 1898. On the other hand, it removes imprisonment for this offence under the Merchant Shipping Act, 1958, and replaces it with a monetary penalty of up to Rs 2 lakh.

With forgery, cheating and fraud continuing to send over one lakh people to jail every year under the IPC, selective decriminalisation without any apparent guiding principles seems incongruous and obscure.

Decriminalising contempt  

Even with respect to the laws that the JV Act touches, it adopts an inconsistent approach. For instance, the JV Act proposes three widely different responses to the same offence of ‘obstructing an officer discharging their duties’. Firstly, while the JV Act continues to criminalise obstruction under the Pharmacy Act, 1948, it will no longer attract imprisonment. Secondly, it decriminalises and provides only monetary penalties for obstruction under laws like the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, and the Public Liability Insurance Act, 1991. Lastly, it drops all punishments for, and totally omits, the offence of obstructing under the Collection of Statistics Act, 2008, and the
Tea Act, 1951.

This, even as the BNS and the IPC continue to criminalise and prescribe a three-month jail term for the offence of obstructing a public servant in their discharge of public functions.

Going easy on impersonation

The JV Act removes jail term for the offence of ‘falsely claiming to be registered’ as a pharmacist under the Pharmacy Act, 1948. Even on subsequent convictions, the maximum punishment prescribed is a fine of up to Rs 1 lakh. Further, impersonating an employee authorised to collect statistics under the Collection of Statistics Act, 2008, has been decriminalised and totally omitted from the law.

Similar provisions are present in around 10 other laws, such as the Company Secretaries Act, 1980; the Chartered Accountants Act, 1949; and the Dentists Act, 1948. Under these laws, subsequent convictions for falsely claiming to be registered as Dentists, Company Secretaries or Chartered Accountants can attract imprisonments of up to six months. For falsely claiming to be an Actuary, the punishment can even go up to one year.

The intention behind decriminalising this offence only under the two laws seems unclear considering that impersonating under any of these laws could be equally serious, if not more in case of a pharmacist.

Failing to lay down principles

The complete redrafting of India’s criminal codes, particularly in the backdrop of a massive decriminalisation exercise, presented an opportunity to holistically shape the pathway for decriminalisation and rationalisation of punishment. It provided an opportunity to lay down the guiding principles for criminal law-making in India and also recognise the restrictions on the government’s power to criminalise. This could have gone a long way in informing the current decriminalisation efforts and making the criminal justice system free from arbitrariness.

These attempts, however, do not even scratch the surface, evidencing how the discourse on over-criminalisation, decriminalisation and rationalisation of punishment has been divorced from the larger question on criminal law reform.

(The writer is a Senior Resident Fellow, Criminal Justice, at Vidhi Centre for Legal Policy)

(This is the fourth article in a DH-Vidhi Centre for Legal Policy series on the proposed new criminal law codes)