Guest Post: Conviction Records in Labour Law — A Closer Look at the Decision in Sushil Singhal

(This is a guest post by Vasudha Passi Verma)

Individuals who have been convicted of a criminal offence often find it difficult to reintegrate into society even after they have served a sentence prescribed by law. Apart from the stigma which attaches to a conviction, these individuals also lose several formal rights for the rest of their lives. This fate is especially tragic when it befalls individuals involved in minor or petty crimes, or young offenders, or those convicted under penal provisions which were not constitutional to begin with, such as section 377 of the Indian Penal Code for instance. Like other statutes struck down for unconstitutionality, it was only made ineffective prospectively, which means that individuals convicted under the provision from 1860-1947 serve carceral sentences and emerge with conviction records. All of these individuals are equally struck by blanket exclusions based on conviction records, and are thus deprived permanently of avenues to reform, self-actualize, or find constructive purpose.

Most jurisdictions recognize this, and attempt to reduce this impact. Some states in the US expunge criminal records of low-level and first-time offenders to prevent prejudice to opportunities otherwise available to the individual. In India, the attempt to prevent prejudice has culminated in the Probation of Offenders Act of 1958 (‘the Act’).

Sections 3 and 4 of the Act allow courts to offer a lighter sentence to persons who have committed minor crimes, or otherwise exhibit a character which makes it expedient in the opinion of the court to grant probation. These sections allow the court to exercise discretion and award a lighter sentence or ‘probation’. However, section 12 of the Act attempts to reduce the post-carceral disadvantage that these individuals face by relieving them of the disqualifications which accompany a conviction. 

The provision has the potential to create significant impact, but this has remained unfulfilled due to the conflicting and inconsistent construction that courts have placed upon it. In Sushil Singhal’s case, the Supreme Court had the opportunity to give meaning to section 12, which it missed. 

Sushil Singhal’s case

Sushil Singhal, the appellant, was an employee of the Punjab National Bank. As part of his duty, he was asked to deposit a sum of money which he instead misappropriated. The bank reported him to the police, and he was tried and subsequently convicted. He was also dismissed from his position because section 10(1)(b) of the Banking Regulation Act of 1949 required that the respondent bank dismiss and refuse to employ individuals convicted of offences involving moral turpitude. He was subsequently granted probation, and moved the Industrial Tribunal arguing that the dismissal was a “disqualification attached to conviction under [a] law”, and he was entitled to not suffer it. 

The court upheld his dismissal. In considering the effect of section 12, it asked whether dismissal from employment was a "disqualification attached to conviction under [a] law", and found that it was instead a "civil consequence". To arrive at the correct interpretation of the law, the court ought to have considered two distinct questions, namely whether the dismissal was at all a “disqualification”, and whether the dismissal in the present case was “attached to conviction”. 

Is dismissal from employment a “disqualification”?

In determining what a “disqualification” is, two views are possible. The first is that since the provision reads “notwithstanding anything contained in any other law... disqualification, if any, attaching to a conviction of an offence under such law”, that “such law” refers to disqualifications under statutes which specify the disqualification, or those to which the non-obstante clause pertains. This was the view taken in Shankar Dass. The other view is the one taken in Harichand, which read the provision to mean “conviction of an offence under such law”, where “such law” referred to the statute which specified the offence. Since the decision in Harichand did not acknowledge the decision in Shankar Dass despite adjudicating the same subject, it was in fact per incuriam, and the meaning of “such law” in Section 12 continues to refer to disqualifying statutes.

Thus, an individual who faces exclusion under a statute which creates the exclusion based on conviction should be relieved of it if they are granted probation. However, the Supreme Court in Sushil Singhal cited both Shankar Dass as well as Harichand to create sub-categories of “disqualification” to which section 12 applied. 

In Shankar Dass, the Supreme Court attempted to gauge the meaning of a “disqualification”. In that case, the appellant was convicted, granted probation, but dismissed nevertheless based on a departmental proceeding. The court held that “disqualification” in section 12 refers to disqualifications under statutes which provide for such “disqualifications”, such as for example the Representation of People Act, 1951 (which co-incidentally uses the word ‘disqualification’). The court appeared to have been emphasising that the benefit of section 12 could only be granted when the disqualification was under a statute. While the use of the example may be considered illustrative, the court did not specify whether statutes which use the word ‘disqualification’ differed from those that do not.

The Court in Sushil Singhal understood this ratio to mean that there exists a class of “other statutes” for which section 12 is effective. Apart from the Representation of People Act, the Court (wrongly) relied on Harichand to include within this category criminal statutes.

However, it did not attempt to clarify the meaning of “other statutes”. It did not even clarify if the basis of this determination was indeed the use of the word ‘disqualification’. Since the dismissal was based on the Banking Regulation Act, which was not a criminal statute, and did not contain the word ‘disqualification’, the Court’s determination allowed it to hold that the dismissal of the appellant was not a “disqualification” and the benefit of section 12 therefore need not be granted. However, the word “disqualification” should have instead been constructed to include all exclusions or bars stipulated by a statute where they attach to conviction. This is because of the following factors:

• Beneficial legislation 

Statutes which confer a benefit on individuals or classes of individuals by protecting them from an oppressive circumstance should be interpreted broadly and given wide meaning. Since the Act, and in particular Section 12, attempts to protect certain individuals against the deprivation of their rights, it is a beneficial statute. In order to give section 12 wide effect, it should be read broadly. A broad reading would not limit its meaning to disqualifications expressly called ‘disqualifications’. Rather, such a reading would account for statutes which create a disqualification but for reasons of drafting or simplicity do not label them as such. For instance, the Court in Trikha Ram upheld an order of dismissal but noted that it should not operate in any way as a “disqualification or bar” against future employment. The court in Sushil Singhal did not consider if the Act was a beneficial legislation. 

• “disqualification, if any”

The use of “disqualification” under section 12 is followed by the words “if any”. If the legislature had intended the provision to be read narrowly, it could have omitted “if any”, since the sentence ‘shall not suffer disqualification attaching to a conviction’ would have made grammatical sense. However, the inclusion of “if any” indicates that the legislature intended the provision to cover any kind of disqualification, and not just one which is expressly labelled so. This is a broad category but is limited by the requirement that the disqualification be mandated by statute. Thus, the section does not go as far as to create absolute parity of treatment with individuals without conviction records, but attempts to undo the harms of formal exclusion. 

Therefore, the word “disqualification” should be broadly construed. Such an interpretation would have acknowledged that a compulsory dismissal was indeed a disqualification created by the Banking Regulation Act, capable of receiving the benefit of section 12. Fortunately, the word has subsequently been interpreted broadly in matters connected with employment. For instance, section 12 has been held to protect retirement benefits, as well as employment opportunities received through compassionate appointment. 

Was the dismissal in this case attached to conviction? 

The Court was of the opinion that the dismissal of the appellant was a “disciplinary proceeding” against the employee. It argued that section 12 does not preclude disciplinary action against an individual, which is a “civil consequence”.

However, the court adopted the incorrect approach to this question. Instead of focusing on civil or criminal consequences, the court should have focused on whether the disqualification was attached to a conviction under a law. In Punjab Water Supply Sewerage Board, Karam Singh and in P.R. Mohan all of which the Court relied upon, the decision to dismiss was based on the discretionary ability to dismiss i.e. the departmental proceeding was a decision and not a mandate under a statute. 

The Court was in fact applying the ratio in Swarn Singh, where the appellant was dismissed under the same provision of the Banking Regulation Act, and sought re-appointment under section 12. Yet, even in that case, the Supreme Court attempted to characterise the dismissal as a discretionary act. It referred to Article 311(2) of the Constitution which confers a power on the government to dismiss a person “on the ground of conduct which has led to his conviction on a criminal charge”. However, the dismissal in both of these cases was based on a mandatory stipulation, making the dismissal not one of discretion but statute, and thus a ‘disqualification based on conviction under a law’ under section 12. 

In the abstract, the court’s reasoning was correct. Had the dismissal been the outcome of a discretionary disciplinary proceeding, the respondent bank would have been able to successfully demonstrate the legal basis to do so, and section 12 would not have applied. However, in this case, the respondent bank did not initiate its own disciplinary proceeding or act on the misconduct until the conviction, despite having the ability to do so as per Swarn Singh. The respondent, in fact, argued that the grant of probation did not “wash away” the finding of guilt or the “factum of conviction”, and relied on the ratio in T.R. Chellappan. 

That appears to be a reasonable view to take. Being convicted of a criminal offence means that an individual can be demonstrated to have committed it beyond reasonable doubt. Therefore, the grant of probation cannot take away the finding of culpability. Such a reading, however, fails to acknowledge the purpose of section 12. Surely all disqualifications attached to conviction actually attach to the finding of fact of commission of the offence. Without the finding, an order of conviction is purely an order of sentencing. It would make no sense to assume that the statutes which exclude based on conviction for an offence actually exclude based on the deprivation of personal liberty that the individual suffered whilst serving their sentence.

In fact, such a reading effectively nullifies section 12 in entirety. A more honest reading of the section would acknowledge that the only individuals who are granted probation are those in whom a court of law has seen a ‘character’ capable of change and reform, and therefore section 12 intends to erase any disqualification based on their conviction record, as the finding of culpability itself is deemed to not reflect on their future prospects.

Guest Post: Trapped and Purged – the Foreigners Tribunal Regime in Assam and the Criminalisation of the citizen

(This is a guest post by Padmini Baruah)

The latter half of 2019 witnessed an uproar in India over a packet of legislation / executive policy consisting of the National Population Register [“NPR”], National Register of Citizens [“NRC”] and the Citizenship Amendment Act [“CAA”]. This NPR-NRC-CAA triumvirate sparked off a wave of protests against the violation of the foundational principles of secularism and equality as protected in the Indian Constitution. This was preceded by the release of the National Register of Citizens in Assam in August, 2019; an exercise designed to oust “illegal immigrants” which led to 1.9 million Indian citizens being excluded from its roster.

The fate of these people merits careful consideration; their status will be determined by Foreigners Tribunals [“FT”] in Assam. In this context, I examine the genesis of this notorious body, and how it has been operating as a quasi-criminal court over the past 5 decades.

The FT find their roots in the Foreigners Act, 1946. This Act defines a foreigner as a person who is not a citizen of India, and places the burden of proving that one is not a foreigner on the person themselves. Established through an executive order – the Foreigners Tribunal (Order) 1964 — the FT performs the task of filtering out whether or not one is a foreigner. Between 1985 till date, FTs have declared over 1,00,000 people as foreigners through processes that are arbitrary, and overstep the bounds of procedural fairness in multiple ways.

The FT Process

An FT process is initiated in two ways – through reference by the Assam Border Police and through the Election Commission of India’s identification of a person as a Doubtful Voter in the voting list.There are no guidelines determining how this reference is made — in my scrutiny of multiple Border Police references, I have seldom come across any grounds for suspicion. Procedural aberrations begin at this stage – to initiate proceedings, notice must be provided to the suspected foreigner, but, as an examination of High Court challenges to FT cases shows, in multiple instances, there is a failure to serve notices in a proper manner, meaning that many people are unaware that their citizenship is under scrutiny. Despite this clear breach of procedure, FTs forge ahead with ex parte proceedings, where people are declared foreigners without being provided the opportunity to present their case. Thus far, over 63,000 people have been declared foreigners in this manner.

It is pertinent to note that FTs are styled in the manner of civil court governed by the provisions of the CPC in terms of summoning and enforcing the attendance of any person, examining them under oath, discovery and production of documents, and the examination of witnesses. FTs have been given the flexibility of determining their own procedure; the Supreme Court has held that “…Tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act”

However, it is seen that FTs apply provisions of the Indian Evidence Act, 1872 in an extraordinarily stringent and selective manner, effectively applying the same standard as a criminal trial. Public documents proving citizenship, such as voter lists, are to be certified before submission. Sections 61—65 of the Evidence Act are applied to private documents; thus, critical identifiers such as residence certificate issued by the village headman, nikahnama, Panchayat certificate proving lineage with the father are rendered inadmissible in the absence of testimony from the issuing authority.

Women face the brunt of this disproportionately, as the system bases itself on the notion of patrilineal descent. Despite there being proof of women’s names appearing in voter lists, in the absence of proven linkage with the father’s side of the family, they are declared as foreigners. Moreover, deposition by family members (who are citizens) attesting to their relationship with the person accused is often disregarded, in clear contradiction to the principles of Section 50 of the Evidence Act. FTs also rule against persons on the basis of minor discrepancies in documentation, such as spelling errors and contradictory dates, disregarding all other evidence. They are strongly incentivised to declare people as foreigners, which contributes to their disregard of documents and testimonies.

Immcarceration

Finally, the repercussions of FT adjudications amount to criminal penalties. A person declared foreigner is stripped of citizenship, and rendered face to face with the prospect of detention as a prelude to deportation. Detainees fare worse than those convicted of crimes; in the absence of parole, access to work, healthcare or recreation, their existence is a testament to the “immcarceration” regime propagated by FTs. In the event that the person is not detained, they exist in limbo, with no citizenship, and therefore no access to any rights whatsoever.

The fact that a person is subject to such strict standards of evidence and procedure for a civil proceeding, failing which the consequences are so extraordinarily harsh is tantamount to a failure of the rule of law. Most people hauled up before the Foreigners Tribunals are from backgrounds where they can ill-afford proper legal representation. The FT regime leans towards making criminals out of those who are unable to prove their citizenship. This system reinforces the adoption of a crimmigration regime – the boundary lines between citizenship laws, procedures and practices and crime control strategies are increasingly blurring. The use of the law enforcement system in the form of the Assam Border Police to identify migrants, and the penalisation highlight the use of criminal law practices to regulate citizenship related offences. Procedural aspects have come to overlap for citizenship and criminal matters.

Through a combination of flawed procedure and arbitrary use of evidence law, they impose extraordinary consequences on those who are unable to navigate the complex tangle of bureaucracy and legal procedure. Given that most people who are brought before the FTs are from vulnerable socio-economic communities, the hurdles they face in the process are often insurmountable. FTs have made stateless criminals out of India’s own citizens without tangible proof of guilt. The system effectively ‘otherises’ and removes the offender from society, either through detention or deportation. This kind of societal removal is analogous to a criminal conviction, but without the presumption of innocence that the criminal justice system recognises and puts in place. 

No Censure and Total Sanction: A Recipe for Disaster

Below are some random quotes that I've extracted from news reports in the aftermath of the horrible incident of alleged rape in Telangana: 

• Andhra Pradesh Chief Minister YS Jagan Mohan Reddy has promised to bring in a law to punish rapists within 21 days of a crime. [Article dated 09.12.2019 from News Minute];
• Thank you Hyderabad Police. This is the way to deal with rapists. Hope Police of other states will learn from you [Tweet by a politician dated 06.12.2019 as seen here];
• What will the police do if rapists try to escape. That is exactly why we are requesting the Centre to create a strong system in the country so that rapists who are committing such heinous crimes need to be given death penalty after all kinds of court procedures. [DCW Chief quoted in an article dated 06.12.2019];

[Emphasis is mine in all the above]

There are tons of other, similar, quotes that can be extracted, and there is already substantial discussion surrounding the two separate crimes that occurred at the same spot within the space of a week. So what is the point of plugging these quotes? The purpose behind extracting these quotes was to give concrete examples of the kinds of conversations that newspapers, TV channels, dinner-tables, metro cars, sidewalks, canteens and restaurants are inundated with at the moment, all decrying "these rapists", or, "these criminals". And then, to ask you to take a step back and consider: Does being arrested on the suspicion of a crime make you a criminal? If not, then why does being arrested for allegedly committing rape make anyone a rapist?

I apologise if this sounds like an attempt at being clever, for this is far from it. Instead, I am trying to flag how loose talk about criminality, of the kind referred to above, contributes to the certain erosion of two cherished principles in our society. These principles are, first, that the condemning of a person as a criminal is a serious consequence, a punishment in and of itself; and second, presuming every person as being innocent and an equal member of society, until proven as being unworthy of such equal treatment for having broken the system of laws. 

For centuries, society has been taught to despise a criminal, causing those who were so labelled to carry a badge of shame. And this was not even a purely metaphorical badge, for often criminals were physically branded (24601), to completely deprive them of a chance at redemption through a normal life, a normal employment, and a family. This act of being labelled a criminal, which conveys to a person the censure of his fellow citizens and potentially banishes him from their effective company, is acknowledged by most to be the real part of punishment. And yet, somehow, popular discourse in India routinely ignores just how serious this label is. In fact, in this constant hyperbole of increasing sanctions for the offence of rape, hardly anyone acknowledges that a large part of the punishment is in being called a rapist for the rest of your life.

The seriousness of this label of criminality, and the consequences it entails for those who are so labelled, is what propels the other, cherished feature: a presumption of innocence. It might not have been true a couple of hundred years ago, but today, the idea that all humans are inherently equal beings is one that the law demands we respect. Even the most flagrant breaches of this equality principle that you can spot today (such as a recent legislation passed in the Indian Parliament) are still paying lip-service to the principle, being unwilling to risk the backlash of being too honest about their intentions. Thus, a society of equal persons demands that we secure this idea of equality, by refusing to remove anyone from society's fold by means of incarceration, unless their breach of the social contract can be established to a level that is "beyond reasonable doubt". To put it even more simply, because you yourself would not want to be labelled a criminal and condemned to prison at a mere accusation, you are willing to confer the same treatment upon others who might be so accused. In this way, the idea of a presumption of innocence lies at the heart of a society that respects equality.

What happens when you say that you will punish rapists quickly? By conferring a label upon another equal member of society based on a mere accusation, the premise behind the presumption of innocence is flipped. If the social contract is imagined as being made of invisible bonds, then I imagine these unwise and hasty declarations as knives that cut those bonds loose and, consequently, leading to breeding a culture of difference rather than equality. We might still be uncomfortable prejudging our guilt, or our brother's guilt, but we are fine with prejudging the guilt of those "shifty looking", "poor folk" who are always "up to no good". And slowly, these different groups of "us" and "them" come to see a society which forces people to live together with disdain rather than delight.

Nobody is born a criminal, and nobody becomes a criminal merely on the strength of suspicions or accusations. Rather, ordinary persons end up doing things that are punishable under laws made by society, and they might end up doing so for a multitude of reasons. In some cases those reasons may be brutal, but in others, they may just be the embodiment of the worst mistake in a person's life (to use a metaphor that Bryan Stevenson might employ). To foist fearsome labels of criminality upon a person and permanently alter his life, even posthumously, without giving any of this a thought, can surely satiate the heat of the present. But it is also steadily leading us towards a far bleaker, and much more divided, future. 

[This post was updated on December 12 with minor edits, and changing the reference to law passed by India's Parliament]

Guest Post: Day Fines: Re-shaping India’s Broken Criminal Justice System

The Proof of Guilt is happy to have a guest post by Mr. Nishant Gokhale, a recent LLM graduate of the Harvard Law School

By most accounts, India’s criminal process is broken. Criminal courts are plagued by issues of delay and pendency, highly inconsistent legal representation, and outcomes which often result in longwinded appeals and revisions. While attention is focused on some of these issues sporadically, little is discussed or known about the system’s financial health. This post sheds some more light on this aspect, providing a brief background into how the court system is financed, before moving to discuss the concept of “day fines” as an additional tool to help the system run better. 

Who pays for our courts? 

Currently, states contribute at varying levels with the central government investing a majority of funds every year in the budget. It might not surprise you to learn that the judicial budget accounts for little more than 1% of India’s GDP, with much of it being spent on salaries of the judiciary and staff. Budgeting practises have been criticised for being formulaic, and for providing only incremental increases from past outlays, which leave little or no room for developing capacity or implementing new programs. The few other times that judicial budgets are spoken of, it has been in context of the ease of doing business, which does not take into account the chronic underfunding of criminal courts. While the Supreme Court in a 2012 Report had indicated that the financial burdens of operating courts should be shared between the centre and states equally, it remains an open debate. Chronic underfunding undermines nearly every action of the judiciary, and it is urgently necessary to examine new solutions to old problems. 

Fines in India 

One often overlooked approach involves “fines”. Every criminal court in the country has the power to impose a fine, where provided by law, once guilt has been proven or admitted by the offender. Fines have been around since at least 1100 AD in Europe and developed to reduce the dependence on private vengeance to punish criminality. 

How fines in India work in actuality remains a matter of conjecture as no information exists about it. Going by the Indian Penal Code, 1860 (“IPC”) alone, fines are capped at meagre amounts. While one problem is that fine amounts have not been revised to correspond with changing times, that is only the tip of the iceberg. Courts have the unenviable task of dealing with offenders across a wide spectrum of socio-economic means. For economically weak offenders, a higher fine amount would mean a substantial burden or even diverting expenses from basic necessities such as basic nutrition and health. For wealthy offenders, the low fine amounts constitute little more than a slap on the wrist. Increasing the fine amounts marginally would do little. This may explain why there has been little done to revise the monetary values of fines in the IPC which has resulted in this unhappy average. An alternative that some parts of the world have experimented with to deal with this problem is the concept of “day fines”, to which I turn to next. 

What are Day Fines? 

Day fines are a monetary criminal penalty imposed using a two-step procedure which take into account severity of the offence and the offender’s means. The first step involves assigning “day units” to a particular offence. Day units are determined based on how severe the criminal law considers a particular offence. Criminal law routinely grades offences based on severity. For example, rash driving resulting in the loss of life is considered more severe than drunken driving resulting in no actual harm to life or property. Day-unit determinations are divorced from the means available to the defendant. Means are considered in the second step called “day-value” determination. The day-value is determined after accounting for their assets, and liabilities and setting aside a reasonable allowance for their dependants and essential expenses such as nutrition and healthcare. 

The actual amount of day fine is a determined by multiplying day-units and day-value. So while the day-units for an offence of rash driving resulting in loss of life would be the same for rich and poor defendants (say for example 200 day units), the actual amount payable as fine would depend on the means available to the defendant. Using day fines would therefore result in the same relative burden on all offenders. 

Where are day fines used? 

Finland adopted a day fine system in 1921 following post-war fluctuations in the value of its currency. Today, around 60% of sanctions imposed by the Finnish criminal justice system uses day fines. Day units can vary between 1 to 120 units but can extend to 240 units for multiple offences. Germany (then West Germany) adopted day fines in the 1970s and continues to have one of the most nuanced system of day fines today. An estimated 82% of all offences in Germany are dealt with using day fines. In 2010, 94.5% of traffic offences, 86.8% of those sentenced to fraud and embezzlement, 73.3% of property crime offences attracted a day fine. Day units vary between 5 to 360 but day values have been capped between €1 to €30,000. Only 5% of the total number of cases in Germany resulted in actual imprisonment. 

Nearly all countries who had adopted this system continue to follow it till today and this has dramatically reduced incarceration rates. Notably however, the United Kingdom introduced “unit-fines” in 1991 only to repeal them in 1993. Partly responsible for the repeal were magistrates who felt that the system did not account for habitual offenders and public sentiment which felt that the middle class faced a heavy burden of fines while the poor got off lightly. Australia and Canada have unsuccessfully tried to introduce legislation to bring in day fines with a view to reduce incarceration rates. The United States abandoned day fines after some pilot projects as the system was found to be complicated and perhaps would also face resistance from vested interests such as private prison corporations. Some countries like the Netherlands, Norway, Italy, and Iceland have also steadfastly refused to implement day fines and continue with ordinary fines. Their preferred tools are suspended sentences and community service instead of incarceration. 

Implementing Day Fines in India 

Day fines are a concept to which little thought has been given in India. Undeniably, prisons are overcrowded and disproportionately represent religious minorities and socio-economically vulnerable castes and tribal groups. It is however unclear how much of this is due to fines. The IPC provides some safeguards on imposing fines such as monetary caps on fines for some offences and stringent limits for imprisonment for non-payment of fines. Where no upper monetary caps are specified, the IPC does not gives courts discretion to impose fines which are “unlimited” but not “excessive”. While specific fine amounts would require to be done away with in the text of the IPC, several underlying actions would need to be done before pressing day fines into service. 

Firstly, it would need to be clarified that offenders committing the same offences can be charged different amounts. The day units would be the same based on the offence, but what would vary is the day value. Individualised sentencing is a value that the courts recognise in Indian criminal law. For the determinants of day value, some guidance can be taken from the affidavits of income required by the Delhi High Court in matrimonial cases, in motor vehicle accident cases and also mitigating circumstances used in death penalty cases. It would also be important to gradually expand the use of day fines to cases involving corporations as they may require rules and factors other than those applicable to natural persons. In the event that offenders refuse to submit information, contempt of court proceedings can be ordered or the court itself can make an estimation. For determining day-units, a clear severity based grading of offences requires to be done at the legislative level, either by central or state governments. 

Secondly, it must be remembered that day fines are only a means to use criminal justice tools more efficiently and partly subsidise costs, not a way to entirely fund the system. Day fines operate only after guilt-determination and not as a means to ensure compliance with court orders. The United States has shifted the burden of criminal justice debt in the form of penal fines and costs as well as administrative surcharges, user fees, even charges for transport from court to prison to defendants. This was done to provide a “painless” way to protect the tax-payer while also modernising the criminal justice system. It has resulted in untold hardship with indigent defendants being trapped in the criminal justice system’s endless cycle of being incarcerated for failure to pay thereby further impairing their ability to earn pay off the debt. The existence of social security, state healthcare and employment guarantee programs used in Finland and some other countries have generally been found to be more useful in crime-reduction than day fines itself. Therefore effective social welfare programs need to be rolled out along with modifying the system of fines. 

Lastly, given that this is a system which is different from the measures adopted thus far, it would be useful to try using it on a pilot basis. Judges, court staff and parties in the criminal system would need to be familiar with it so that it is not overwhelm them or get misapplied. It could initially be limited to a few courts (geographically) or types of offences (traffic offences or offences punishable by 1 year or less of imprisonment). It is important to safeguard against the possibility that defendants plead guilty to offences for which day fines only to expeditiously conclude criminal proceedings. 

While several substantive, comparative and procedural law issues need to be ironed out before day fines are implemented in India, it may rejuvenate the largely dormant provisions related to fines and help in bringing about meaningful criminal justice reform. 

(During his LL.M., Nishant worked with the Criminal Justice Policy Program at Harvard Law School on the issues of criminal justice debt in the United States, including on day fines. The views expressed in this post are personal and do not represent the views of the Criminal Justice Policy Program or Harvard Law School) 

Useful References (on file with the author): 

• Elena Kantorowicz-Reznichenko, "Day Fines: Should the Rich Pay More?", 11 Rev. Law Econ., No. 3, pg. 481–501 (2015) 
• Sally T. Hillsman; Judith A. Greene, "Tailoring Criminal Fines to the Financial Means of the Offender", 72 Judicature 38, (1988). 
• Joe Pinsker, Finland, "Home of the $103,000 Speeding Ticket", The Atlantic (12th Mar. 2015), available at https://www.theatlantic.com/business/archive/2015/03/finland-home-of-the-103000-speeding-ticket/387484/ (last visited 17th Jun. 2018). 
• Hans-Jorg Albrecht, "Countries in Transition: Effects of Political, Social and Economic Change on Crime and Criminal Justice - Sanctions and their Implementation Special Issue on the 21st Criminological Research Conference", 7 Eur. J. Crime Crim. L. & Crim Just. 448 (1999).
• Tapio Lappi-Seppala, "Criminology, Crime and Criminal Justice in Finland", 9 Eur. J. Criminology 206 (2012).