Law and You > Criminal Laws > Criminal Jurisprudence > Decriminalization of Offence
In this article, we shall discuss important concept in criminal jurisprudence called decriminalization of offence
List of Sub-Topics:
- Introduction
- What is Decriminalization
- Comparing Legalization and Decriminalization
- Decriminalization of Attempted Suicide (S. 309 IPC)
- Decriminalization of Adultery (S. 497 IPC)
- Decriminalization of Homosexuality (s. 377 IPC)
- Decriminalization of Dishonour of Cheques (S. 138 NIA)
Decriminalization of offence is one of the thrust areas of the Government. The risk of imprisonment for actions or omissions that aren’t necessarily fraudulent or the outcome of malafide intent is a big hurdle in attracting investments. The ensuing uncertainty in legal processes and the time taken for resolution in the courts hurts ease of doing business. Criminal penalties including imprisonment for minor offences act as deterrents, and this is perceived as one of the major reasons impacting business sentiment and hindering investments both from domestic and foreign investors. This becomes even more pertinent in the post COVID19 response strategy to help revive the economic growth and improve the justice system.
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What is Decriminalization?:
Decriminalization takes away the status of criminal law from those acts to which it is applied. This means that certain acts no longer constitute criminal offences. Following decriminalization, the act still is illegal, but those acts are no longer criminal offences. However, administrative sanctions can still be applied; these can be a fine. In contrast, legalization is the process of bringing within the control of the law a specified activity that was previously illegal and prohibited or strictly regulated.
There are two forms of decriminalization policies, de facto and de jure. Under a de facto decriminalization framework, an administrative decision has been made to not prosecute certain acts. Since there is no legislative change, possession technically remains illegal, but is assigned a low priority by the State. In contrast, de jure decriminalization involves amendments to criminal legislation.
The idea behind decriminalization is to respect human rights by promoting social inclusion and to reduce socio-economic costs of criminalization on the individual.
Legalization and decriminalization refer to different ways that a government can approach the regulation of an activity. Both legalization and decriminalization can be used to reduce the harms associated with criminalizing certain activities or substances, but they take different approaches to doing so.
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Difference Between Legalization and Decriminalization:
| Legalization | Decriminalization |
| Legalization is the process of making a particular action legal. | Decriminalization means that the criminal penalties attributed to an act are no longer in effect. |
| It is the process of making something legal that was previously illegal. | Decriminalization not necessarily make the act legal. |
| Decriminalization of an act reflects the changing social values of a society. | |
| Legalization makes an act completely acceptable in the eyes of the law and, therefore, not subject to any penalties. | Decriminalization simply means that an act is no longer regarded as a criminal act but is still subject to minor penalties or fines |
| Legalization is more comprehensive and typically requires more regulation. | Decriminalization is more limited and focuses on reducing criminal penalties. |
| Legalization of an act may be a result of decriminalization of the act in the past. | Decriminalization of an act can lead to its legalization. |
| Example: legalization of prostitution means that patrons no longer have to hide whenever they seek the services of a prostitute; the act becomes completely legal. | Example: decriminalization of prostitution means that individuals found committing the act would be exposed to lesser penalties, such as a fine or a special permit instead of jail. |
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Decriminalization of Attempt of Suicide (S. 309 IPC):
Attempted suicide is a serious problem requiring mental health interventions, but it continues to be treated as a criminal offence under the section 309 of Indian Penal Code. The Mental Health Care Bill, 2013, still under consideration in the Rajya Sabha (upper house), has proposed that attempted suicide should not be criminally prosecuted. Decriminalization of suicidal attempt will serve to cut down the undue stigma and avoid punishment in the aftermath of incident, and lead to a more accurate collection of suicide-related statistics.
According to Article 21 of the Indian constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by the law”. While the constitution covers the right to life or liberty, it does not include the ‘right to die’. The attempts at taking one’s own life are not considered to fall under purview of constitutional right to life.
Section 309 of the Indian Penal Code (IPC) clearly states as follows: “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine or both.”
In State v. Sanjaya Kumar Bhatia, 1986 (10) DRJ 31 case the Delhi High Court acquitted the accused who had attempted to commit suicide. The court emphasized the fact that Section 309 of IPC should be deleted from the statute i.e. opined for its decriminalization. The court stated it as ‘unworthy of society’.
In State of Maharashtra v. Maruti Satpati Dubal, 1987 (1) BomCR 499 case, theBombay High Court considered the question of inclusion of the right to die under the purview of right to life for the first time. The court observed that all the efforts to prevent suicide by deterrence by punishing the person who has attempted the suicide are in vain. The court stated that a person who has attempted suicide is already in enough torment either physically or mentally, locking that individual behind bars will only aggravate his/her level of mental or physical agony. What one requires is medical attention or treatment. Therefore, the court struck the Section 309 of the Indian Penal Code as unconstitutional on the ground that it violates Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty) and held that Article 21 also includes the right to die.
In Chenna Jagdeshwar v. State of Andhra Pradesh, 16 April, 1987 case the Andhra Pradesh High Court held thatthe right to life under Article 21 does not include right to die and hence Section 309 is not in violation of Article 19 and 21 of the Indian Constitution.
In P. Rathinam v. Union of India, AIR 1994 SC 1844 case, two judges bench of the Supreme Court took cognizance of the relationship and contradiction between Section 309 of the Indian Penal Code and Article 21 of the Indian Constitution. The court supported and upheld the view of Delhi and Bombay High Courts and overruled the view of Andhra Pradesh High Court stating that the Section 309 of the Indian Penal Code is unconstitutional on the ground that it violates Article 14 and 21 of the Indian Constitution. The court termed the provision as ‘cruel and irrational’.
In Gian Kaur v. State of Punjab, AIR 1996 SC 946 case, five judges bench of the Supreme Court overruled its earlier decision in Rathinam Case and held that Section 309 is constitutional and it is not violative of Article 14 or Article 21.
The Law Commission in 1971 and 2008 had recommended scrapping of Section 309. Besides, the Supreme Court in Common Cause v. Union of India and another case in 2018 had recommended Parliament consider decriminalizing the offence, saying the provision had become anachronistic. It had made the observation while issuing guidelines with respect to passive euthanasia.
Section 115 of the Mental Healthcare Act, 2017 decriminalized the attempted suicide. The Provision is as under:
Presumption of severe stress in case of attempt to commit suicide:
- Notwithstanding anything contained in section 309 of the Indian Penal Code (45 of 1860) any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
- The appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.
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Decriminalization of Adultery:
According to Section 497 IPC, whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
Thus, Section 497 IPC criminalised adultery. it imposed culpability on a man who engages in sexual intercourse with another man’s wife. Section 497 IPC was inapplicable when a married man engaged in sexual intercourse with an unmarried woman.
Essential ingredients of section 497 of the Indian Penal Code, 1860:-
- Person must committed sexual intercourse with the wife of another man;
- The person must have knowledge or has reason to believe that the woman is another man’s wife;
- Her husband has not given consent or connivance for sexual intercourse;
- Such sexual intercourse not amount to offence of rape;
- Woman’s consent or willingness is not excuse to the crime of adultery.
According to Section 198 of the Criminal Procedure Code, 1973, no Court shall take cognizance of the offence (adultery) under this section except upon a complaint made by the husband of the woman or in absence of husband if another person who had care of such woman on the behalf of the husband then such person made with the leave of the court if the adultery was committed at that time.
Under section 497 of the Indian Penal Code, 1860 woman was not considered even as an abettor and probably the rationale behind not punishing the woman was that patriarchal perspective of seeing the woman as she is the property of the husband and also there was no remedy available to the wife if her husband commits adultery because Section 497 IPC only talks about punishing the other man who has sexual relationship with his wife, only one remedy is available to the wife that is divorce.
Similarly, According to Section 198(2) of the Criminal Procedure Code, 1973, only husband is allowed to bring charge against the person who commits adultery with his wife but under this section wife is not allowed to bring charge if his husband commits adultery with another woman.
Section 497 IPC, exclusively governs the ostensibly shady behaviour of the man who commits such a crime, while exonerating the woman involved voluntary behaviour. Similarly, the advantage of such a statute does not apply to the wife whose husband commits such an offence with another woman. Thus, the provisions were affecting individual dignity and equality and hence unconstitutional.
In Joeseph Shine v. Union of India, 27 September, 2018 case, a five judge bench of Supreme Court headed by the Chief Justice of India Deepak Mishra declared section 497 of the Indian Penal Code, 1860 unconstitutional and struck down the penal provision.
The Court further held that Section 497 disregarded substantive equality as it reaffirmed the idea that women were not equal participants in a marriage, and that they were not capable of independently consenting to a sexual act in society and a legal system that treated them as the sexual property of their spouse. Therefore, this Section was held to be in violation of Article 14. The judges also held that Section 497 was based on gender stereotypes and in doing so, contravened the non-discrimination provision of Article 15. Further, it was held to be violative of Article 21 as it denied women of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy.
The Court noted that adultery remained a civil wrong and a valid ground for divorce and although it was no longer criminalized. It stated that criminal offences were committed against the society as a unit, while adultery fell under the umbrella of personal issues. In treating adultery as a crime, the Court held that the State interfered with people’s personal lives and crossed over into the private realm and subsequent to the act of adultery, the husband and the wife should be allowed to make a mutual decision based on their personal discretion.
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Decriminalization of Homosexuality (S. 377):
Section 377 refers to unnatural offence and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to pay a fine. Thus, Section 377 of the IPC categorized consensual sexual intercourse between same sex people as an “unnatural offence” which is “against the order of nature”. Unnatural offences cover all homosexuality offences as well as the non-consensual penile non vaginal sex and penile vaginal sex involving minors.
As per the explanation provided under this section penetration is sufficient to constitute the carnal intercourse. This section corresponds to the offences of sodomy and bestiality under the English law. As evident from the language of this section, consent is wholly immaterial in the case of unnatural offences and the party consenting would be equally liable as an abettor.
The criminalization of homosexuality, by condemning into perpetuity an entire class of people forces them to live their lives in a shadow of harassment, humiliation, and degrading treatment at the hands of the law enforcement machinery, further denying them the right to a full moral citizenship.
In Naz Foundation v Government of Delhi, (2010) Cri LJ 94 (Delhi) case, it was argued that Section 377 on account of covering consensual sexual intercourse between two adults in private, is violative of the fundamental rights guaranteed in Articles 14, 15, 19 and 21 of the Constitution. It was also contended that Article 21 can be curtailed only in case of compelling state interest which is missing in this case. The petitioner also contended that the legislative intent behind section 377 is based on stereotypes that are outmoded and have no historical or logical backing. They also argued that the expression “sex” as used in Article 15 also includes “sexual orientation” and thus according to Article 15 there can be no discrimination on the basis of sexual orientation. Broadly they prayed before the court that section 377 of IPC should be declared ultra vires to the constitution, insofar it criminalizes consensual sexual acts of adults. The court accepted all the contentions of the petitioners and declared the part of section 377 ultra vires which criminalised consensual sexual acts of adults in private. However, the court also ruled out that the provisions of section 377 will still continue to govern non-consensual penile non-vaginal sex involving minors.
This order of the Delhi High Court was challenged before the Supreme Court in the case of Suresh Kumar koushal and another v Naz Foundation & others, AIR 2014 SC 563 by groups of religious bodies and individuals including the All-India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council. They contended that section 377 was enacted by the legislature to protect social values and morals. The Supreme Court accepted this contention and set aside the order of the High court.
The court stated that every legislation enacted by the Parliament or State legislature carries with it a presumption of constitutionality. This principle also applies to pre-constitutional laws. If no amendment is made to a particular law it may suggest that the legislature deems it fit and leave the law as it is. Post-independence almost 30 amendments in the IPC have been made in the IPC including amendments in the chapter of sexual offences under which unnatural offences fall. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision”. The court ultimately declared section 377 to be constitutionally valid. However, the court left it opens for the Legislature to delete or amend the law. The Naz foundation has filed a curative petition challenging this judgement of Supreme Court. The matter is sub judice before the Supreme Court. However, as of now, section 377 is constitutionally valid and homosexuality is treated as an unnatural offence. Since, this section is operative as of now it becomes pertinent to see the sentencing policy in cases of unnatural offence.
he AIDS Bhedbhav Virodhi Andolan (ABVA) on 11th August 1992, had protested against all the harassment and criminalization of the suspected homosexuals under sections 72 and 73 of the Delhi Police Act. In the same year, many petitions were sent to the petitions committee of the parliament seeking for the decriminalization of the same by repealing Section 377 of IPC. However, in 1994 after filing a petition to repeal section 377 of IPC and also challenging the act of non-supply of condoms to the jailers present in Tihar Jail, New Delhi. The authorities in spite of knowing the homosexual activities being carried out in that jail ignored their request to be provided with condoms. This was violating the whole purpose of NGOs promoting the prevention of HIV/AIDS.
From here on there were a series of cases, fighting the battle against section 377 of IPC, 1860. Even after the constant filing of a petition by AVBA to decriminalize section 377 it was ignored to be heard and due to this, there was a death of a jailer who was suffering from AIDS. There was much opposition who were of opinion that homosexuality was not relevant to Indian culture and thus should not be encouraged. Also many argued that sex amongst homosexuals would lead to the spread of AIDS in the country. But the NGOs consistently pleaded that in fact not allowing the homosexual activities freely would cause AIDs which they were hoping to reduce and prevent by allowing the LGBT community the right to have consensual freely and in safe manner.
The Supreme Court on January 5th, 2018, formed a Constitution Bench to hear the challenge to Section 377 in a comprehensive manner, even though the curative petitions were pending before the Court. This could be due to the observations made in the nine-judge decision in the Right to Privacy case which hinted at the inherent wrongness of the reasoning and decision in Suresh Koushal. The five-judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra heard the matter from July 10th, 2018.
On September 6th, 2018 the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalizing same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalize non-consensual acts or sexual acts performed on animals.
The four judgments unanimously cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a).
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Decriminalization of Cheque Dishonour:
The backbone of business transaction in India is cheque. It is still the most common and most reliable mode of payment and this is only because of the criminal aspect of section 138. Chapter XVII (Sections 138 to 147) of the Negotiable Instrument Act, 1881 states Penalties in Case of Dishonour of Certain Cheques for Insufficiency of Funds in the Accounts. This Chapter was inserted by the Act 66 of 1988 effective from 1st April, 1989. The objective was to make business transactions more efficient and add credibility to cheque payment.
Section 138 in The Negotiable Instruments Act, 1881
Dishonour of cheque for insufficiency, etc., of funds in the account:
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:
For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
In Kusum Ingots And Alloys Ltd vs Pennar Peterson Securities Ltd, 23 February, 2000 casse, the Supreme Court has laid out the ingredients of section 138 as:
- a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
- that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
- that cheque is returned by the bank unpaid. Either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
- the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
- the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice
Liability of Dishonour of Cheque:
Civil liability:
- A Fine twice the amount of dishonoured cheque under section 138, Negotiable Instruments Act, 1881.
- Under order 37, Civil Procedure Code, 1908, amount as directed by the court.
Criminal liability:
Section 138 provides imprisonment of 2 years or fine or both and drawer will be prosecuted under section 417 and 420 of Indian Penal Code.
Basis of Decriminalization:
- As per 213th Report of Law Commission of India, over 38 lakh cases of dishonour of cheque were pending in courts and out of them over 7.6 lakh cases were pending in criminal courts in Delhi at magistrate level alone.
- Due to the huge backlog of these cases, trial of other cases are also side-lined giving poor name to our criminal justice system.
- Dishonour of cheque can be penalized under sec 420 IPC, therefore there is no need for another provision for the same purpose.
- Its criminality has also been substantially decreased by making it a compoundable offense, which shows the intention of legislature towards reducing the backlog of such case.
It is important to decriminalize petty offenses and especially ones whose civil remedy is available to decrease the burden on the criminal justice system.
Jan Vishwas Bill, 2022:
Recently, the Union Government tabled the Jan Vishwas Bill, 2022 in the Parliament with the objective of decriminalising 183 offences across 42 legislations and enhancing the ease of living and doing business in India. It proposes to decriminalise many minor offences by replacing them with monetary penalties. A unique feature of the proposal is an increase of 10% of the minimum amount of fine and penalty levied after the expiry of every three years once the bill becomes a law.
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Conclusion:
The regulatory offences to be considered for ‘decriminalization’ need to be prioritized not only from the point of view of the ease of doing business, but also from the points of view of the ills that plague our criminal justice system itself. If these faults are to be rectified, it is pertinent that a more comprehensive exercise is undertaken and that the government prioritise the needs and requirements of the criminal justice system. The time is now ripe to shift focus to existing penal offences as well. There is an urgent need to assess these offences on a principled basis.