What Decriminalisation Means

In one line

Decriminalisation is the removal of conduct from the reach of the criminal law, so that what was an offence is no longer one, and it is a question about the boundary of the criminal law rather than about the severity of punishment.

The definition

Decriminalisation is the process by which conduct that the criminal law prohibited ceases to be an offence.

Four things follow from that, and each excludes something the word is loosely used for.

It concerns the definition of the offence, not the sentence. Reducing a punishment, however far, leaves the conduct criminal. A statute that changes the penalty for an offence from imprisonment to a fine has not decriminalised anything.

It concerns the conduct, not the offender. A provision that exempts a class of persons, as the adultery section exempted the wife from being punished as an abettor, is not decriminalisation of the conduct.

It is a legal change, not a change in enforcement. A prosecuting authority that stops charging an offence has not decriminalised it. The offence stands, and a later authority may charge it.

And it may be complete or partial. The commonest form in India is partial: the conduct ceases to be an offence in some circumstances and remains one in others.

Why the topic is on a jurisprudence syllabus

Because the question it asks is the one this whole book has been circling. Module I asked what a crime is. Module III asked why the state may punish. This topic asks the question those two produce together: which conduct should the criminal law reach at all?

Three considerations make it a jurisprudential question rather than a policy one.

The criminal law is the state's gravest instrument. It convicts, stigmatises and imprisons. A doctrine that says when it may be used is a doctrine about the limits of state power.

Its use has costs beyond the offender. An offence that is widely disobeyed brings the law into contempt, occupies courts, and creates opportunities for extortion.

And it is not self limiting. Every serious social problem generates a proposal to criminalise something. Nothing in the machinery of legislation asks whether the criminal law is the right tool.

The four grounds on which conduct is decriminalised

An answer improves at once if these are separated, because the arguments differ.

One. The conduct harms nobody but the actor. This is the harm principle, and it has its own chapter. The argument is that the criminal law exists to prevent harm to others, so conduct confined to the actor is outside its province.

Two. The conduct is a matter of private morality. This is the ground the Wolfenden Report advanced and Lord Devlin denied, and it has its own chapter too. The argument is that there is a realm of private morality that is not the law's business.