Towards a Fairer Principle of Criminalization

Aanchal Bhateja

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Criminalization, considering its impact on the society and individual, should be the ultima ratio of any mindful legislative policy.  When it becomes inevitable, constitutional morality remains a fairer principle than moralism, paternalism and liberalism

Jail authorities of Netherlands  had to shut down their prisons in 2018 as they ran out criminals to house there. Contrast that to the  overcrowded dungeons housing nearly 4,00,000 inmates in India.

Partly, the reasons for the plight of these inmates are judicial delays and the lack of state resources to maintain jails. But the most relevant reason in the present discussion is the excessive criminalization perpetrated by the state under the garb of social morality.

In this context, it is argued that criminalization, considering its impact on the society and individual, should be the ultima ratio of any mindful legislative policy. Even when, criminalization is inevitable, it is argued that constitutional morality is a fairer principle than moralism, paternalism and liberalism. The usage of constitutional morality while assessing the criminisability  of a conduct would essentially call for testing every act of criminalisation against the touchstones of the constitution and seeing if it infringes upon any right or liberty guaranteed by it.


To start off with the basics, Crimes are wrongful commissions that are punishable by law. The act of the state  of labelling a particular conduct as being criminal in nature is called criminalization. Sometimes this process goes beyond the precincts of reasonability and becomes over-criminalization.

By interpreting the Indian penal code 1860 as per purposive rule of interpretation, it is clear that the drafters intended to avoid excessive criminalization. This intention remotely finds place in Section 95 of the IPC, that states that the wrongful conduct shall not be punished if it is trivial in nature.

The idea behind this section was to make sure that the offences that fall in the word of law are not criminalised if they do not fall under the spirit of law.

Even the Indian judiciary, off late has shown an aversion to the idea of criminalising individuals when they ought not to be. It has either tried to decriminalise the acts that actually ought to be civil offences (like in the case of Joseph Shine v. Union of India wherein adultery was decriminalised) or have absolutely decriminalised them by using tools like constitutional morality (like in the case of Navtej Johar v. Union of India wherein the top court decriminalised homosexuality, while testing section 377 of the IPC against the touchstones of article 14, 15 and 21 of the constitution).

The legislature on the other hand, has gone up to the extent of criminalising acts like triple talaq that could be better handled by imposing civil sanctions.  Instead of opting for civil sanctions, they took recourse to the tool of criminalization. This is a manifestation of bad legislative practice.

It should be noted that while criminalising something, one needs to adopt significant amount of caution as it will not only have legal or economic consequences, it has social rebuke fastened to its core.

Moreover, the conditions of jails in India are pathetic. Jails typically house inmates more than 150% capacity. Inmates do not have access to basic necessities like clean drinking water, nutritious food, hygienic lavatories etc.  The suffering of an accused does not end after serving the sentence. Former prisoners face difficulties in resuming their lives and finding gainful employment.

But contrary to this, a recent example of a legislative error of not treating criminalization as the ultima ratio or the last option, was the criminalization of triple Talaq.

The Muslim women protection of rights on marriage act 2019, enacted after the verdict of the Supreme Court in Sharaya Bano v. union of India , suffers from multiple flaws. On one hand it makes the practice of Tala-qe-biddat, that is invalidating marriage by uttering talakh 3 times, void in the eyes of the law. This means that a woman who is abandoned by her husband after triple talakh is still considered married. It enables the woman to file a case against her husband who indulges in the act of talaq-e-biddat. The act further makes the practice a cognisable offence and provides for a punishment of 3 years and a fine.

But practically, why would a woman file a case against the husband while she is still in marriage? How would the woman get maintenance even if she reports the crime as this act provides for the imprisonment of the husband? Would her in-laws support her after she reports the crime and puts her husband behind the bars? This was an example of impractical legislative practice where a conduct was mindlessly criminalised without considering other effective options.


Different schools of thought have argued for employing different grounds while criminalizing an act. The liberal school argues that acts that harm others should be criminalised. The moral school argues for criminalising acts that are in contravention with societal morality. The paternalists argue that criminalization should be based on the notion that the state is the guardian of citizens and can howsoever regulate their conduct for their betterment.

The courts and the legislature have not hitched themselves to any particular principle while assessing the criminisability of an act. Rather, they have often employed all these 3 principles or their combinations in such matters. But all these experiments have often led to criticism and challenges.

When judges employ conceptions of societal morality while criminalising an act, the criticism faced by them is that  morality is defined by the dominant classes, thereby making it subjective and arbitrary. Be it the case of Sowmithri Vishnu v. Union of India where the Supreme court upheld adultery in 1985 for it was a threat to the sanctity of marriage and societal morality or be it the case of Suresh Kumar Kaushal v. the Naaz foundation, where it upheld the validity of section 377 IPC which criminalized homosexuality because the idea of same sex couples was socially unacceptable then.

These instances show that the application of a subjective conception of morality which is hijacked by societal norms leads to exclusion of the marginalized.

Occasionally, the Supreme Court has also adopted a paternalistic approach. For example in the case of Gian Kaur v. state of Punjab, it held that the attempt to commit suicide was a culpable act. The right to life did not include the right to die as suicide was an unnatural way of ending one’s life and was therefore unacceptable. People were booked under section 309 IPC which criminalised the attempt to suicide and entailed a punishment upto 1 year and fine for the survivor, rather then medical and psychological aid. This shows that paternalistic conception of criminalization is also problematic as the state necessarily does not know about the best interests of the individuals. Although, this position of law has been changed due to the passage of Mental Health Care Act 2017 as section 115 of this act decriminalizes attempt to suicide.

The third and  the most widely accepted principle of criminalization is liberalism. But it fails to address the question of victim-less crimes like prostitution, consumption of drugs etc.

For example- the Immoral Traffic Prevention act 1956  states that prostitution is not a punishable offence but practicing it in a brothel or within the area of 200 meters of any public place is an offence. The anatomy of the legislation is such that only the third parties are punished and customers often get away after sexually exploiting women. The Karnataka HC, in the case of Sri Sanaulla vs State Of Karnataka held that although, the customers virtually encourage prostitution and exploit women, yet they cannot be prosecuted.

Here the state can neither leave these women in brothels to suffer saying that they have the liberty to practice the profession of their own choice, for their choice is not free in essence and nor can it punish the customers as that will lead to loss of livelihood of the prostitutes. Thus, liberalism also poses many legal and moral challenges.


This shows that the traditional principles of criminalization are not flawless. Within this context, a fairer option for legislature and judiciary can be constitutional morality which unlike social morality that constitutes social norms, conventions and beliefs endorsed by the majority, rather, entails testing every criminal law against the touchstones of the constitution thereby ensuring that the individuals do not face legal sanctions for exercising the rights guaranteed to them by the constitution. This experiment has been successful in the past and has led to fair and logical outcomes, such as in Navtej Johar v. Union of India, wherein the Supreme Court struck down section 377 of IPC.

The reasoning behind this verdict was that the constitution had granted the right to life and freedom of liberty which included the right to privacy as per Puttaswami v. union of India. Now, if they exercised this right under article 21 by having a particular sexual orientation, they could not be considered criminally liable.

A similar logic was applied in Joseph Shine v. Union of India where it was held that adultery could not be criminalized as it would amount to the violation of right to equality under article 14 of the Indian constitution.

All this shows that treating criminalization that goes beyond the contours of constitutional morality as being over-criminalization and doing away with it, can yield just outcomes and practical solutions to the long standing social and legal problems.

Over all other principles of criminalization, the tool of constitutional morality has enabled the courts to decriminalize what was not worth criminalizing and it can surely enable them to continue with this trend in the years to come. Furthermore, the criminal justice system will certainly become more just if the legislature also treats constitutional morality as being the standard while assessing the criminality of an act.


The author is a 2nd year BA.LLB student at NLSIU, Bengaluru.

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