Decriminalisation of more offences the way forward

Sankar Sen

Ex-Director, National Police Academy

IT was reported recently that the Haryana Government will take a final call on the decriminalisation of offences under about 235 Acts. These will be treated as civil offences and covered by administrative measures and other non-criminal penalties.

Criminal sanctions have been traditionally viewed as society’s moral condemnation of the defendant’s behaviour and its “hatred, fear and contempt for the convict” (Henry M Hart, The Aims of Criminal Law). Criminal sanction has thus a stigmatising quality. In view of the proliferation of criminal laws, it is strongly felt by some criminologists and law-enforcement experts that laws should be reviewed with the objective of decriminalisation of many aspects of human behaviour. Apart from crimes against persons and property, there are several offences which fall in the realm of immorality, such as gambling, liquor consumption, and sexual pursuits like pornography and prostitution.

It is also seen that many of these laws impinge upon individuals’ freedom of action and are often either unenforceable or too costly to enforce.

Norval Morris and Gordon Hawkins, in their book The Honest Politician’s Guide to Crime Control, referred to the ‘overreach’ of the criminal law. They argued that the criminal justice system should be stripped of moralistic excrescences so that it can concentrate on the essential. Some criminologists opine that it is obligatory on the part of society to enforce morality through criminal sanctions. Conservative criminologists like HLA Hart (Law, Liberty and Morality) and Patrick Devlin, however, believe that public morality is the ‘cement of society’, which must be maintained in order to prevent social disintegration. It is difficult to consider some kinds of behaviour as immoral when there is no consensus about their harmfulness.

It is also felt that decriminalisation, in a large measure, is necessary to reduce the workload on the police. The police are working under great stress and are plagued by the shortage of manpower and other material resources.

There is considerable substance in the argument of advocates of decriminalisation that when the police are not able to devote adequate time to the investigation of important cases, they should not be burdened with probes into ‘victimless’ crimes. The police are indeed devoting an enormous amount of time and energy to the investigation of such cases without getting proportionate results.

It is seen that many laws are criminogenic. Sometimes, laws create crimes by labelling and encouraging ‘secondary deviance’. According to the labelling theory, the person who is arrested, prosecuted and convicted internalises the label of the criminal and proceeds to act out the role and commit crimes. The law also creates ‘secondary deviance’. For instance, a drug addict takes to crime to keep up his habit because the drug is illegal and expensive.

Decriminalisation has been proposed in certain areas of criminal law. Some criminologists and law enforcement experts are of the view that sexual activities between consenting adults in private should not be the subject of criminal law in cases of adultery, homosexuality, pornography and obscenity. The Bharatiya Nyaya Sanhita (BNS), which will soon replace the Indian Penal Code (IPC), has omitted adultery as an offence. The Supreme Court decriminalised adultery in a landmark judgment in Joseph Shine vs Union of India (2018). The IPC’s Section 497, which exempts the woman from culpability as an abettor and puts the entire blame on the man, is not part of the BNS. However, the new statute’s Clause 84 has retained the IPC’s Section 498, which penalises a man for enticing the wife of another man so that she may have intercourse with any person.

Under Section 377 of the IPC, homosexuality was both a non-cognisable and punishable offence. However, the apex court struck down Section 377 and decriminalised same-sex relations between consenting adults.

The BNS has dropped Section 309 (attempted suicide) of the IPC. However, attempted suicide with the intent of preventing a public servant from carrying out his/her duty is still a punishable offence.

Sections 292 and 293 of the IPC state that by itself, possession of obscene material is no offence unless it is so possessed for the purpose of sale, hire, distribution, public exhibition and circulation. Section 293 prohibits the sale of obscene material to any person under the age of 20. In 1969, Denmark became the first country in the world to legalise pornography. Initially, there was a great rush for obscene material, but soon the craze faded and people did not pay much attention to pornographic books and other material freely available for purchase.

Similarly, perhaps, the time has come to think about decriminalisation of gambling by permitting it under licence. In Japan, law enforcement authorities focus on the activities of professional gamblers. No action is taken against betting for small sums of money. While decriminalising gambling, there should be essential safeguards; for example, no attempt must be made by people who indulge in gambling to use force or violence on anybody or entice juveniles into their group to further their activities.

The drug menace has become a malaise afflicting many countries. Like a tidal wave, illegal drugs are invading the global market. In the US, there is a growing feeling that criminalisation of heroin has done more harm than good. Advocates of decriminalisation acknowledge that the drug is a destructive commodity which requires control. Decriminalisation means the removal of criminal penalties for the use of heroin, but narcotic trafficking would remain a crime. Drug addiction should be viewed as a health-related rather than a criminal problem.

Similarly, cases registered under the liquor laws significantly increase the work on the police without solving the problem itself. There is a growing realisation that criminalisation is not an appropriate response to social and medical problems. Constant efforts are needed to decriminalise unenforceable laws to ease the pressure on the justice delivery system.

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