Overcriminalisation

In one line

Overcriminalisation is the condition in which the criminal law reaches more conduct than it can enforce, more than it can enforce fairly, and more than it needs to reach, and its symptoms are visible in what Indian courts have themselves recorded about arrest, delay and undertrial detention.

What the term means

Not simply that there are many offences. A large code is not by itself a problem. Overcriminalisation is a condition with four symptoms, and an answer that names them can then look for evidence of each.

One. The system cannot try what it prohibits. Demand exceeds capacity, so cases wait.

Two. Enforcement becomes selective, and therefore arbitrary. Where a provision cannot be enforced against everyone who breaks it, who is prosecuted becomes a discretionary matter.

Three. The process becomes the punishment. Arrest, remand and the wait for trial impose more than the sentence would.

Four. Offences are created for their expressive value rather than for their effect. The legislature signals disapproval, and nobody asks whether prohibition achieves anything.

The Indian evidence

Each symptom has a finding behind it, and the findings are the Court's own.

On capacity. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360. A habeas corpus petition disclosed that men, women and children were in the jails of Bihar for years awaiting trial on charges which, even if proved, would not have warranted punishment for more than a few months. The Court held that a procedure which keeps large numbers of people behind bars without trial cannot possibly be regarded as reasonable, just or fair, that delay in trial by itself constitutes denial of justice, and that a judicial system permitting such incarceration denies human rights, so that law has become for them an instrument of injustice.

On systemic delay. Abdul Rehman Antulay v. R. S. Nayak, (1992) 1 SCC 225, requires a court to have regard to the nature of the offence, the number of accused and witnesses, the workload of the court concerned and prevailing local conditions, that is, to systemic delays; and holds that the obligation to ensure a speedy trial lies on the State, which includes the judiciary. It adds the warning that the prosecution should not be allowed to become a persecution.

On arrest as the sanction. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, sets out the figures for a single provision in a single year: 1,97,762 persons arrested, of whom nearly a quarter, 47,951, were women; a charge sheeting rate of 93.6 per cent; and a conviction rate of only 15 per cent, the lowest of any head. Of 3,72,706 cases pending trial, nearly 3,17,000 were thought likely to end in acquittal. The Court observed that the offence being cognizable and non bailable had lent it a dubious place of pride among the provisions that are used as weapons rather than shield, and that arrest brings humiliation, curtails freedom and casts scars forever.