The "Pathological Politics" of Criminal Laws in India

By all accounts, criminal justice is currently one of the most pressing issues in the Indian political process. Powerful protests erupted in different parts of the country over the past few months blaming the system not only for how it treats the rich and privileged - the laxity over bank frauds - but also the poor and helpless - the horrors in Kathua, Unnao, and countless other places. On April 21, the President promulgated two ordinances designed to purportedly address both ends: The Fugitive Economic Offenders Ordinance, and the Criminal Law (Amendment) Ordinance. Both seem to be rooted in a deterrence logic that operates on either end of the spectrum. Allegations of having committed an economic offence involving sums of one hundred crores or above are sufficient to trigger asset forfeiture unless the suspect cooperates with the investigation, which is supposed to deter the rich from fleeing the country. Similarly, prescribing tougher sentences for rape ought to deter them from happening.

We have been here before, most recently with amendments to the Juvenile Justice Act and tougher sentences for rape in the wake of the 2012 Delhi Gang-Rape case, and by now it can be safely asserted that the deterrence logic is questionable at best. But here we are again, different government but the same result. Why? The answer has a lot to do with what the late law professor William Stuntz explained in his seminal essay, “The Pathological Politics of Criminal Procedure”. Writing in the American context where a similar tough on crime approach had led to a significant ratcheting up of punishments for drug crimes without any real deterrent effect, he argued that it was because passing new laws and increasing sentences was the cheapest option in the political process. Compare that with the cost of finally bringing about police reforms that have been in cold-storage since the 1960s that would reduce politicisation of police and improve investigation. Or with reforming the structures of public-sector banks to rid them of government influence in appointments. Passing an ordinance costs nothing more than the paper it is printed on, police reforms will come at thousands of crores, and bank reforms involve incalculable political cost. Together with that low cost, the option brings significant political returns – the government will use the new laws to show voters that it cares about these issues and is willing to do something about them.

This skewed cost-benefit incentive makes it logical for our politicians to adopt seemingly illogical policies. The consequences of these cycles do not result in any appreciable effect on reducing the incidence of crime, as we know by now. But this does not mean that they are benign. They carry serious downstream consequences. Passing more laws, that too stiffer laws, without making similar investments on their enforcement, means that the police and prosecution forces are getting more and more discretion to enforce those laws. That discretion can be challenged in India – one can petition a court to either start or quash an investigation – but besides being restricted to the privileged, courts are usually circumspect about intervening at this stage. Effectively, then, we give more and more power to the police. The same police which is maligned for shoddy investigations, arbitrary targeting of individuals, corruption, use of third-degree torture methods and whatnot. Since nobody speaks of, or either pays attention to, these downstream effects, we only realise them when it is too late.

In India, an additional feature worsens the “pathological politics”: the relative importance given to the start of a case with its end. Here, the political process meets the systemic problem of judicial delays. It takes years for any criminal trial to conclude, and the passing of time depreciates the deterrence value of any possible sentence that might follow a conviction. Because of this, the public at large views the pretrial stage as appropriate to start dishing out the penalties. The problem is that the criminal justice system isn’t designed to function that way. It traditionally takes the end more seriously – the label of “guilty” and eventual sentence – and guarantees accused persons with several rights to ensure that those consequences are not lightly or wrongly imposed. It does not provide with similar protections at the start of the process because that would obstruct the investigation itself.

This demand for pretrial punishment is being met by all branches of the State, in different ways and forms. The judicial branch has the power to deny bail and condemn individuals to jail without them having a right to know exactly what the evidence against them is, without having the ability to cross-examine witnesses, and without being able to introduce evidence. Since convictions take time, judges frequently use pretrial detention to achieve punitive functions, thus depriving individuals of their liberty without them having been proven guilty. While this is the most obvious problem, it is not the only one. What we rarely appreciate are the collateral consequences that have been imposed by the legislative and executive branches on persons “accused of an offence”.

Being arrested means your fingerprints and photograph will be taken, and your name will be entered into a national database. A pending case against you means restrictions on issuing a passport. If you are a public servant, it means suspension. If you are aspiring to be one, you will not be considered. The private sector frequently runs background checks where you will be flagged. And till you are released on bail, you lose your voting rights. These are only some illustrations of the general consequences. Besides others of this nature, there are also specific consequences that can arise depending on the alleged crime. The legislature has made it very easy for court to deny bail in certain offences. Similarly, if you are accused of a crime covered by the Money Laundering Statute, you stand to be dispossessed of any assets that the government alleges was connected to that crime.

The traditional notions of procedural guarantees to accused persons to protect them against the stigma of convictions are turned on their head in India. The accusation of crime involves equally serious consequences, if not more serious, then what can follow a conviction. The effect of which is to expose defendants to serious life-changing consequences based upon unproven allegations, that are the product of an unchecked exercise of discretion vested in untrustworthy police forces. Each subsequent cycle of criminal law’s pathological politics will worsen this underlying tension leading to short-term gains for whichever government is in power, at the cost of long-term damage to the Indian criminal process. 

(Many thanks to Deekshitha Ganesan for her help with this post)