This Article is written by Rashmi John, a student of National Law University, Jodhpur.
Overcriminalization means the imposition of disproportionate criminal sanctions for acts which as not criminal; they fall short of the essentials of a crime. But it has become a trend to impose such liabilities for non-criminal actions in India. Legislations that have been passed and the amendments that have been made in the pre-existing legislations criminalise acts of non-criminal nature and have a lack of or a weak mens rea requirement.
The major distinction between a crime and a civil offence is the societal condemnation that is attached to a crime and not with a civil offence. The core function of criminal law can be stated as the declaration of offences which are serious enough to justify this societal condemnation which is inevitable with conviction and imprisonment. This societal disapproval which the offender is met with, has an overriding effect on his/her rights, and can only be justified when the society as a whole is affected and this justification must be of a higher degree when the person is subjected to imprisonment.
This article examines a few instances of provisions contained in legislations passed over a time period of twenty years, starting from the year 2000, which display how criminal sanctions are being imposed on acts that are not particularly criminal. An attempt has been made to bring light on the negative impact of overcriminalization on the individual as well as the society as a whole. It also points out how an important function of the legislative gets affected by the practice of overcriminalization. The article concludes by providing certain factors that the legislature should take into consideration while performing its foremost duty.
Instances of Overcriminalization in Acts Passed Post-2000
A person simply involved in the process of advertising e-cigarettes may be imprisoned by the operation of law, even if their degree of involvement is indirect and negligible. This provision enables criminal sanctions to be imposed on an act such as merely printing the advertisement on a piece of paper, without any criminal intent. A person promoting, operating, soliciting through advertisements any unregulated deposit, is liable for imprisonment for at least one year which may be extended up to five years, whether(s) he has any element of means rea or not. Whereas, a person causing the death of a person negligently is liable for imprisonment for a maximum period of two years. Hence, a truck driver, who by his negligence caused the death of a couple of people may be sentenced to be imprisoned for a duration shorter than a person who has indirectly helped in advertising an e-cigarette or solicitation of an unregulated deposit.
The Muslim Women (Protection of Rights in Marriage) Act, 2019, subjects any Muslim husband who pronounces Talaq three times with imprisonment up to three years, though this pronouncement has been declared void and amounts to nothing, and hence causes no harm which is a prerequisite for criminalising any conduct. The imprisonment term for attempting to commit culpable homicide is also up to three years. Pronouncement of talaq can in no way be equated with an attempt to cause culpable homicide, in which the act could’ve led to the death of a person.
A person who has insufficient funds in their account due to which an electronic transfer initiated by them gets denied may be imposed with imprisonment of up to two years even if they do not have any reason to believe insufficiency. The mens rea requirement, in this case, is very weak and this results in equating having insufficient funds in the bank with causing the death of a person, though negligently.
The Insolvency and Bankruptcy Code warrants imprisonment for several acts, which could’ve been dealt with by civil remedies like an imposition of fines, injunctions, and restitution. The Negotiable Instruments Act subjects any person who dishonors a cheque with imprisonment of up to two years along with a fine. Various provisions of the Companies Act also employ imprisonment of the officers in default as a punishment for offences which can be considered civil and for which imposition of civil remedies would’ve been an adequate remedy. An officer of a company which has defaulted in repayment of deposits accepted by the company before the commencement of the Act is liable to be imprisonment for a period of up to seven years. Even after imposing criminal liability through the provisions of the Companies Act, the Committee of the Ministry of Corporate Affairs had earlier felt that the existing penalty structure did not provide suitable deterrence and need to be reviewed and enhanced, however, the Companies Act (Amendment) Bill, 2020, which seeks to decriminalize certain non-compliances, is a step towards the positive direction.
The Negative Impact of Overcriminalization
Subjecting a person to criminal sanctions for offences which are not supposed to attract them, may have a direct impact on the rights of the person. A punishment imposed in such a manner affects a person’s personal liberty, as it imposes a restriction on the same or leads to a total deprivation of it. Cases where there is an insufficient requirement of the presence of mens rea, is a direct infringement of the person’s human rights as (s) he is subjected to the same punishment for a civil offence done without mens rea as a person committing a crime and having the requisite guilt. This contravenes the principle of equality, as it treats un-equals equally, and violates a fundamental right.
Overcriminalization results in the reduction of seriousness and graveness of a criminal sanction. If the difference between acts which are not criminal and crimes are blurred, then the societal condemnation which ensues with crimes and criminal sanctions gets reduced as they become common. A person causing the death of another person and a person having insufficient funds in his/her bank account might be subjected to the same punishment and for the same duration. The gravity of criminal sanctions like imprisonment would reduce in the minds of the people as overcriminalization would normalize such sanctions by imposing the same for acts which are not crimes.
Deterrence of people from committing an offence is one of the major aims of criminal law. This is achieved by the imposition of stringent criminal sanctions on the people who have been convicted of the crimes. Overcriminalization directly affects the achievement of this aim as the effect of deterrence, in which criminal sanctions have also reduced.
It is an important function of the legislature while making laws to ensure that offences are graded as per their seriousness and punishments are imposed accordingly to ensure that they adequately express the societal condemnation attached with a particular offence. Overcriminalization impacts on the fulfillment of the principal function of the legislature of grading offences.
Overcriminalization has also a negative impact on the administration of the justice delivery system as certain crime provides a lot of discretion to the judges to decide the quantum of punishment. The imposition of imprisonment in a frequent manner for criminal as well as civil offences also impacts the availability of funds with the government, as it is an expensive affair. Maintaining and running prisons in a sound manner employ a lot of money, making it undesirable as a substitute for civil sanctions. Almost Rs.6,068 Crores was allocated by the states for the upkeep of prisons in the financial year 2018-2019.
Criminal law is a highly specialized tool used to control the actions of the people in the society, which should be used only for certain specific purposes. The decision to criminalise a particular behavior must be made only after balancing the good that can be achieved against the bad that it might result in, as not doing so and improperly imposing criminal sanction can cause more harm than gain.
The sanctions imposed by the aforementioned civil legislations are either at par with criminal offences or are more severe than them and hence, there no longer exists a vast difference between a civil wrong and a crime. The actions which now have criminal sanctions attached to them as a result of the practice of the legislation to over-criminalize, would not have otherwise encompassed societal condemnation. The taboo that has been attached to a person being imprisoned has several negative impacts on the individual and in turn the society as a whole. It would also become problematic for the legislative as well as the justice system to realise its objectives and roles.
As far as possible, if civil remedies fulfill the aim of causing deterrence then criminal liabilities should not be imposed. The legislature should look at the nature of the offence and check whether the requirements of a crime are met before imposing a criminal sanction, as if it is excessive and unwarranted it affects personal liberty. The funds available with the government should also not be wasted. The legislature should keep in mind all these negative consequences that overcriminalization has on society and ensure that it only criminalises those offences which are serious enough to attract societal condemnation and result in harm being caused.
- Ellen S. Podgor, Overcriminalization: New Approaches to a Growing Problem, 102 Crim. L. Criminology 529, 532 (2012).
- Henry M. Jr. Hart, The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 404 (1958).
- Andrew Ashworth, Conceptions of Overcriminalization, 5 Ohio St. J. Crim. L. 407, 408 (2008).
- Joseph Shine v. Union of India, (2019) 3 SCC 39.
- Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, No.42 of 2019,
- Banning of Unregulated Deposit Schemes Act, No. 21 of 2019, India Code,.
- Muslim Women (Protection of Rights on Marriage) Act, No. 20 of 2019, India Code,
- Andrew Ashworth & Jeremy Horder, Principles of Criminal Law (7th ed. 2013).
- Payment and Settlement Systems Act, No. 51 of 2007, India Code, ⸹ 25.
- Insolvency and Bankruptcy Code, No. 31 of 2016, India code.
- Negotiable Instruments Act, No. 26 of 1881, India Code, ⸹ 138 (amendment was made to this section in 2002 with respect to the duration of imprisonment).
- Companies Act, No. 18 of 2013, India Code, ⸹ 74.
- Offences and Penalties, Report of the Expert Committee on Company Law, Ministry of Corporate Affairshttp://www.mca.gov.in/MinistryV2/offences+and+penalties.html.
- India Const. Art. 21.
- Andrew Ashworth, Conceptions of Overcriminalization, 5 Ohio St. J. Crim. L. 407, 408 (2008).
- Gauri Shankar v. UOI, AIR 1995 SC 55; TMA Pai Foundation v. State of Karnataka, AIR 2003 SC 355.
- India Const. Art. 14.
- Henry M. Jr. Hart, The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 437 (1958).
- National Crime Records Bureau, Prison Statistics India 2018, Ministry of Home Aff.: Nat’l Crime Rec. Bureau 239 (2019), http://ncrb.gov.in/sites/default/files/PSI-2018.pdf.
- Sanford H. Kadish, The Crisis of Overcriminalization, 7 Crim. L. Q. 17, 33 (1968).
- Joseph Shine v. Union of India, (2019) 3 SCC 39.??