Criminalisation of 'nothing': India cannot afford more criminal provisions

Jerry Seinfeld famously described the show created by him (and named after him), as a show about 'nothing'. In the final episode, the principal characters – having gloried in selfishness for many years – watch an unfortunate man being mugged. They make light of it and do nothing to help. A police officer present on the spot does nothing to stop the incident either. Instead, he arrests the four friends under the 'Good Samaritan Law'. The law makes it a criminal offence to not help those in need. Jerry and his friends are ultimately sentenced to a year in prison. 

The episode was keenly dissected by fans. It also initiated a debate in legal circles. Can you be charged criminally for 'doing nothing'? If recent legislative activity is anything to go by, it seems you can.  

Criminal law and the harm principle

The traditional starting point of criminalisation is the "harm principle". John Stuart Mill stated "the only purpose for which power can be rightly exercised over the member of a civilised community against his will is to prevent harm to others". This was approved by the Supreme Court in its 'adultery judgment', in September, 2018. 

Mill's argument seems to have collapsed in Parliament. Our ideas about "harm" have become sufficiently capacious to take in almost anything legislators might wish to criminalise. It is impossible to arrive at a conclusive number of the laws that provide for criminal sanction. But they are certainly more than what we require. 

Over the years, numerous committees and reports of the law commission have warned about the dangers of 'over-criminalisation'. However, parliamentary activity during the monsoon session indicates that these cries have fallen on deaf ears. 

Triple Talaq and the criminalisation of nothing

In August 2017, the Supreme Court 'set aside' the practice of Talaq-e-Biddat or Instantaneous Triple Talaq. After the court's judgment, a pronouncement of triple talaq is void. Simply put, a Muslim man can utter 'talaq' as many times as he wants to. It does nothing. The marriage subsists.  

Section 3 of the The Muslim Women (Protection of Rights on Marriage) Bill, 2019, recognises and reiterates this position. However, Section 4 prescribes a jail term of up to three years for the pronouncement of talaq. In effect, there is no divorce in the eyes of the law, but the mere accusation that the man has uttered 'talaq' is enough to condemn him to the vagaries of the criminal process.

The statement of objects and reasons of the Muslim Women (Protection Of Rights On Marriage) Bill, 2017 ("Bill") states that – "setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims[…..] there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce."

There is no evidence that has been tabled in support of this assertion. Some reports quote unnamed sources to declare that there have been 60-odd pronouncements of triple talaq following the judgment. The Law Minister in Parliament stated that over 100 pronouncements had been made. But perhaps he forgot that those 100 utterances had no legal effect. Thus, even if true, mere pronouncements are no ground to introduce a penal statute with harsh consequences.

The case of mandatory corporate social responsibility

Any company that has a net worth of at least Rs 500 crore, a turnover of Rs 1,000 crore or a net profit of Rs 5 crore is obliged to spend two per cent of its average profit over the previous three years on (corporate-social responsibility) CSR. This was a change brought to the Companies Act by the United Progressive Alliance (UPA) government in 2013. It turned what many companies had been doing voluntarily into a legal obligation. However, the obligation came without an element of coercion. If a company did not comply with the CSR requirements, it was only required to give an explanation for its inability to do so. 

Under the new amendment, company executives can face a fine of up to Rs 25 lakh and a prison term of three years for failure to comply with the CSR law. This comes at a time when India Inc is already struggling with criminal sanctions under the goods and services tax (GST). A brief pause for reflection might lead one to wonder whether criminalisation of conduct, traditionally dealt with under civil law, is a good idea. When it comes to criminalisation, it seems Parliament rarely pauses for reflection any more.

The ultima ratio of legislative policy?

Criminalisation is said to be the "ultima ratio" of legislative policy – an "uttermost means in uttermost cases". It is employed only as a last resort, when all other means – civil litigation, administrative reform, etc, have failed. Over the years, it has become the government's first line of attack -- a way for lawmakers to show that they're serious about whatever the perceived problem of the month is.

There are several reasons to be alarmed by the exponential growth of criminal rules and regulations. In recent months, the State has used the criminal sanctions envisaged by statutes to go after media houses and lawyers critical of the government. Indians have always prided themselves in the freedoms guaranteed by their Constitution. But a society in which the criminal rules are so pervasive that no one is safe from arrest and prosecution cannot be described as free. The other problem is with the criminal process – a process which despite its safeguards has been described as "worse than the punishment". 

India's criminal codes are now so voluminous that they bewilder not only the average citizen but also the average lawyer. Our courthouses are so clogged that there is no longer adequate time for trials. Most of our prisons are now operating well beyond their design capacity. All of this begs the question, do we need and can we afford more criminal provisions? The answer is a resounding no. 

One must, however, note that decrying over-criminalisation does not mean being soft on crime. Just the opposite, in fact. Being tough on crime requires making intelligent distinctions between conduct that truly threatens the public and conduct that is better handled by fines or civil law. Those who can't make those distinctions, far from being tough on crime, actually weaken the force of the criminal law. 

The writer practises in the Supreme Court. Twitter: @parahoot