Letter and Spirit | A failed attempt at decriminalisation

What is the Jan Vishwas Bill tabled by the Union government in Parliament and what are its objectives? Is it the solution to the problem of overcriminalisation? What are the shortcomings of the Bill and how can it be overcome?

Updated - December 29, 2022 01:34 pm IST

Published - December 28, 2022 10:51 pm IST

The time is now ripe to shift focus to existing penal offences such as sedition and offences under NDPS Act & UAPA Acts.

The time is now ripe to shift focus to existing penal offences such as sedition and offences under NDPS Act & UAPA Acts. | Photo Credit: AFP

Last week, the Union Government tabled the Jan Vishwas Bill, 2022, (Bill) in the Parliament with the objective of “decriminalising” 183 offences across 42 legislations and enhancing the ease of living and doing business in India. It is a welcome move and can be viewed as an attempt to reverse the trend of overcriminalisation. However, there is much that needs to be done in order to institutionalise efforts aimed at decriminalisation.

Consequences of overcriminalisation

An unprincipled growth of criminal law has long been a cause of concern for scholars of law. Such growth is evident from the fact that criminal law is frequently used as a political tool; the act of criminalisation often becomes a medium for governments to put across a strong image as opposed to punishing wrongful conduct. Governments offer little in the way of justifications to support such decisions. This phenomenon has been termed “overcriminalisation” by scholars.

The consequences are felt almost immediately. As per the National Judicial Data Grid, of the 4.3 crore pending cases, nearly 3.2 crore cases are in relation to criminal proceedings. It is trite to say that the growing number of pending criminal cases share a direct relation with the number of criminal laws. Similarly, the rise in the prison population is also proof of overcriminalisation. As per the National Crime Records Bureau’s Prison Statistics of 2021, a total of 5.54 lakh prisoners were confined in prisons against a capacity of 4.25 lakh.

Scope of the Bill

The Jan Vishwas Bill either omits penal provisions or replaces them with fines in legislations such as the Air Act, Environment Protection Act, Forest Act, Drugs and Cosmetics Acts, Cinematograph Act, Patents Act, Trade Marks Act and Information Technology Act amongst several others. These are primarily offences which are regulatory in nature. By and large, an examination of the provisions of the Bill reveals that stress has been on the replacement of imprisonment clauses with fines. This can hardly be termed as ‘decriminalisation’. There is much that is required for the efforts aimed at decriminalisation to fructify in any meaningful way.

Firstly, the Bill undertakes what we may refer to as ‘quasi-decriminalisation.’ In this context, Andrew Ashworth’s arguments in relation to use of criminal laws in regulatory frameworks are particularly poignant. In his seminal piece titled – ‘Is the Criminal Law a Lost Cause?,’ Mr. Ashworth creates a distinction between regulatory offences and penal offences and exemplifies the same through the functional distinction between a tax and a fine. While the purpose of a tax is primarily regulatory in nature, a fine carries with it an element of censure and stigma. This functional distinction, Mr. Ashworth proffers, is increasingly being diluted under our legislative frameworks which frequently deploy these elements of censure and stigma to regulatory domains.

Secondly, the Observer Research Foundation’s report titled Jailed for Doing Business found that there are more than 26,134 imprisonment clauses in a total of 843 economic legislations, rules and regulations which seek to regulate businesses and economic activities in India. In this light, the number of offences deregulated under the Bill seems to be a mere drop in India’s regulatory framework.

Thirdly, the regulatory offences to be considered for ‘decriminalisation’ need to be prioritised not only from the point of view of the ease of doing business, but also from the points of view of the ills that plague our criminal justice system itself.

Lastly, the Bill conforms to the understanding of the government that decriminalisation should be limited to regulatory domains. However, the time is now ripe to shift focus to existing penal offences as well. Debates are ongoing about the decriminalisation of several penal offences such as sedition, offences under NDPS Act & UAPA Acts, triple talaq and anti-conversion laws etc. There is an urgent need to assess these offences on a principled basis.

The way ahead

The intent of the Bill is merely to ensure that imprisonment is replaced with fines for as many offences as possible. The extent to which it succeeds in ‘decriminalising’ offences, however, is questionable. If these faults are to be rectified, it is pertinent that a more comprehensive exercise is undertaken and that the government prioritises the needs and requirements of the criminal justice system.

G.S. Bajpai is the Vice-Chancellor at Rajiv Gandhi National University of Law, Punjab, where Ankit Kaushik is an Assistant Professor

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