DIVYANSHA GOSWAMI
In modern times, according to Austin’s command theory[1], the Parliament or the Legislature is the sovereign from which commands emanate, and as such, the sovereign prohibits any behavior that it deems to be detrimental to civilized society. However, criminalization is much more complicated today than it appears because, as society has progressed, it has shifted from being viewed as the sole solution to being viewed as the last resort. In this regard, the development of human rights jurisprudence in international law has made a monumental contribution because it has influenced the domestic criminal laws of numerous nations on a multitude of levels, attempting to bring them closer to a point of convergence – for instance, the emergence of jus cogens[2] norms or the clarion call for a shift from retributive justice towards restorative justice. However, the reality is that in the majority of modern societies, the retributive models of justice continue to hold sway, and thus the debate of over-criminalization – what to criminalize and what not to, and how much to criminalize – arises.
The maximalist thinkers, on one hand, advocate for the unbridled application of these principles and doctrines, in the sense that they encompass nearly every type of offensive and harmful conduct under the definition of prohibited conduct in the relevant legislation. On the other hand, the minimalists argue that for punishment to be legitimate it must criminalize only conduct that produces nontrivial harm, is morally wrongful, and is deserving of punishment.[3] Thus, minimalist thinkers generally accuse the maximalist approach of finding too much favor with the state because, inter alia, it leaves a lot of discretion with the state to penalize any type of behavior it deems “criminal”. In a nutshell, it can be maintained that the maximalist position stands by the argument that “an overlooked problem is reaching epidemic proportions.”[4] On the contrary, the minimalist position is “marked by a skeptical stance that tends to minimize the scope and seriousness of the problem.”[5]
This leads to disproportionate amounts of penalties, vague actus reus and often weak mens rea requirement[6], and inconsistent criminal legislations, whereas the former seeks to criminalize only the grossest forms of such behavior while downplaying the seriousness of such issues – an analogy between retributive and restorative justice can be drawn here, as these two exist on the two extreme ends of the justice spectrum, a criminal justice system requires synthesis of the two to function effectively; the same goes for the maximalist and minimalist positions. In addition, an overly maximalist approach not only gives too much leeway to lawmakers but also society as a whole, because, in a legal system based on criminalization, the immediate response of society to any (mis)happening is to demand punitive action.[7] Further, the judicial review of criminal legislation is also restricted to testing their validity against the touchstone of constitutional values and does not go to the extent of examining the motivations behind enacting the concerned penal law. In fact, academics are concerned that overcriminalization may be counterproductive and self-defeating, in the sense that the existence of overly broad and uncoordinated statutes may result in a loss of the deterrent and punitive qualities of the punishments.[8]
Furthermore, the most pressing issues concern the wrongfulness (or lack thereof) of the proscribed acts in question. This can be illustrated by the example of drug crimes, which have been the subject of debate and controversy for a long time, most recently in India.[9] To determine the extent to which the state tends to over-criminalize drug offenses, the legal framework must be evaluated in light of “principled criminalization”.[10] NDPSA,1985[11] is the primary anti-drug offenses legislation in India and the possession of drugs is itself an offense under the Act as much as a sale, purchase, production, etc.[12]. Juxtaposing this provision with Mill’s harm principle[13], it is clear that it violates the principle because, if we proceed with the general assumption that drugs are harmful to society, it becomes questionable how mere possession or personal consumption, for example, for recreational purposes, could be harmful to other members of society, as it causes no vital injury to any person except that it might at most be offensive to someone’s belief system, which cannot be considered a ground-level injury. Now, if drug consumption is a form of self-harm, it is also a violation of the principle of autonomy, since there is no way to restrict a person’s freedom if they choose to consume drugs despite knowing the medical consequences. This overcriminalization is not only unjust on an individual level, but it also imposes social costs on law enforcement.
Now, the third principle of culpability requires “blameworthiness”[14] to be established (via the requisite mens rea and actus reus) and the punishment is imposed accordingly i.e., as per the degrees of the intention involved, and the gravity of the act[15] but the penalty does not depend on the purpose (personal use/resale, etc.), but rather on the amount of the drug. In addition, the government has stated that it should be the total weight of the seized contraband, rather than its pure drug content should be considered when calculating contraband in a neutral substance.[16] This modification has proven to be extremely detrimental to recreational drug users and other low-level offenders because a disproportionate amount of penalty is imposed on them as per the graded penalties within the Act, thus defying the principle of culpability. As a consequence, several individuals arrested for possessing small quantities of drugs for personal use languish in prison for more than a decade.[17] Moreover, the fourth principle of equality dictates that all of the accused must receive equal protection under the law, regardless of their individual circumstances or socioeconomic backgrounds, and in today’s civilized societies, the presumption of innocence has become the cornerstone of criminal law. The burden of proof then shifts to the defendant, who must demonstrate that he was not in “conscious possession” of the contraband.[18] The reverse burden of proof is however incompatible with the presumption of innocence when the gravity of the crime is considered. Although the Court has reaffirmed that owing to a reverse burden of proof, the prosecution will be held to a higher standard and the accused will get the benefit of a reasonable doubt defense at any stage.[19] However, it is still very difficult for the accused to disprove the existence of a “culpable mental state” (mens rea), and it still favors law enforcement. The reverse burden of proof is, however, incompatible with the principle of presumption of innocence considering the seriousness of a crime.
From the foregoing discussion, it is safe to deduce that taking an excessively maximalist approach contradicts the established set of conditions in the theory of criminalization, under which the state is permitted to impose penal sanctions, and that if the state does not legislate within these limitations, it leads to an explosion of criminal laws and an inconsistent, unreliable criminal justice system. It instantiated through the NDPS example that over-criminalization is reflected in the imposition of sentences on unjustified grounds, overcrowding of jails, mainly targeting the marginalized strata of society. As pointed out by a criminal jurist, the real issue with overcriminalization is both quantitative and qualitative, i.e., it is not only that too many criminal statutes are enacted, but rather that they are given an expansive judicial interpretation.[20] The responsibility to combat systemic overcriminalization, therefore, rests not only with lawmakers, who must proceed with caution but also with the judiciary, which must refrain from providing an expansive interpretation of the statutes, because the expansive and unprincipled application of substantive criminal law is detrimental to the freedom and liberty of the people in a civilized society.
[1]John Austin, The Province of Jurisprudence Determined (first published 1832,Cambridge University Press 2009 )
[2]A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
[3]Douglas Husak, Overcriminalization: The Limits of the Criminal Law (OUP USA 19 November 2009)
[4]Andrew Karmen, Crime Victims: An Introduction to Victimology (Wadsworth, Cengage Learning, 2013)
[5]Ibid.
[6]Ellen S. Podgor, ‘Introduction: Overcriminalization: New Approaches To a Growing Problem’ (2012) The Journal of Criminal Law and Criminology vol. 102 < http://www.jstor.org/stable/23416054 >. accessed 3 November 2022.
The author has pointed out the joint report of the Heritage Foundation and the National Association of Criminal Defense Lawyers, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law, examined the mens rea terms or lack thereof, finding that during the 109th Congress, 446 criminal statutes were proposed “that did not involve violence, firearms, drugs and drug trafficking, pornography, or immigration violations,” and of these 446 proposed non-violent criminal offenses, 57% lacked an adequate mens rea requirement.
[7]One of the classic examples in this regard can be the Patriot Act of the USA, which was brought in as a direct reaction to the outrage succeeding the 9/11 attacks in the country.
[8]Erik Luna, “The Overcriminalization Phenomenon” (2005) 54 A.M. U.L. REV.
[9] There are other areas of problematic criminalization like that of same-sex consensual relations, abortions, alcohol-prohibition etc, but for the sake of brevity and clarity, the paper only substantiates the argument against an overly maximalist approach through the example of narcotics.
[10] Jerome Hall, General Principles of Criminal Law (first published 1947, The Lawbook Exchange, Ltd., 2010)
Principles of criminalization: 1. Principle of harm 2. Principle of autonomy 3. Principle of culpability 4. Principle of equality
[11]Narcotic Drugs and Psychotropic Substances Act, 1985
[12]Narcotic Drugs and Psychotropic Substances Act, 1985 s.8
[13]John Stuart Mill On Liberty (Dover Publications, 2002)
John Stuart Mill introduces the “harm principle,” according to which “The only purpose for which power can be rightly exercised over any member of a civilized commu- nity against his will, is to prevent harm to others.”
[14] As defined by USLegal, Culpable is a term in criminal law that refers to the blameworthiness of the accused. An accused is culpable when he or she is sufficiently responsible for criminal acts or negligence to be at fault and liable for the conduct. Culpability often implies some knowledge of the wrongfulness of one’s actions. However, it is not always necessary to show gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable crimes proven.
[15] One of the most obvious examples in this regard can be the varying degrees of punishments for culpable homicide and murder. According to Prof. B.B. Pande, as stated in his work “LIMITS ON OBJECTIVE LIABILITY FOR MURDER”, there are around 26 shades such as four clauses of section 300, five exceptions of section 300, two clauses of section 299, two clauses of rashness, and like that.
[16] Notification through S.O.2941 (E), dated 18 November 2009
[17] See: Raju v. State of Kerala AIR 1999 SC 2139
[18] Baldev Singh v. State of Haryana [2015] (4) RCR (Criminal) 1014
[19]See: Hanif Khan @ Annu Khan v. Central Bureau of Narcotics (4) RCR (Criminal) 250
[20]Stephen F. Smith, “Overcoming Overcriminalization.” (2012) The Journal of Criminal Law and Criminology (1973-), vol. 102 < http://www.jstor.org/stable/23416055 > accessed 2 November 2022.
The author is a 1st Year L.L.M Student at National Law University, Delhi
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