Criminalization of minor civil wrongdoings has become a pattern to force criminal liabilities for non-criminal activities in India and a basic understanding of what amounts to a criminal action is pertinent to understand the difference between a civil wrong and a criminal activity. The very idea of the criminal justice system is to protect society against criminals under the existing penal law so as to reduce the incidence of criminal behaviour either by deterring potential offenders or incapacitating and preventing them from repeating the offence or by reforming them into law-abiding citizens.

On the other hand, the offences which are more of civil and regulatory in nature, have been criminalized when the same does fall under the harm principle formulated by John Stuart Mill which holds that the actions of individuals should only be limited to prevent harm to other individuals. It is because of the criminalization of civil offences, an individual causing the demise of another individual and an individual having inadequate assets in his/her ledger may be exposed to similar discipline. Naturally, even fair criminalization of offences has now become over-criminalized because of the criminal law operating in the extremes and the Indian criminal justice system is more punitive rather than reformative.

Such over-criminalization of offences creates multiple repercussions such as overcrowding of prisons, increasing pendency of cases etc. Not only this, it also has a severe impact on the ease of doing business and it also destabilizes the rule of law and the criminal law undergoes outsourcing, that is, it subcontracts with the other legislations.

In 2018, several offences (a total of 16) were decriminalized under the Companies Act, 2013 and is consistent with the past approach, in order to control the problem of overcriminalization, the Jan Vishwas (Amendment of Provisions) Bill of 2022 was introduced during the winter session of the parliament for discussion after which it was sent to a Joint Parliament Committee consisting of thirty-one members.

The Bill targets decriminalizing various minor offences under various legislations with an aim to rationalize penalties under the current laws governing different sectors such as food, information technology, agriculture, postal service and many others. One of the major objectives of this Bill is to improve and enrich the comfort of living and ease of carrying out business. In total, 183 offences under 42 legislations (administered by 19 ministries including agriculture, posts, finance, road transport and highways) are to be decriminalized under this Bill. Such legislations include the Environment (Protection) Act of 1986, the Public Debt Act of 1944, The Public Liability Insurance Act of 1991, the Cinematograph Act of 1952, The Information Technology Act of 2000, the Copyright Act of 1957, the Prevention of Money-Laundering Act of 2002, Legal Metrology Act of 2009 and many others.

In consonance with the aforementioned objectives, the Bill contains certain provisions which captivate the form of punishment from being an imprisonment term to only imposing a fine. For example, under the Information Technology Act, of 2000, disclosure of private details falling out of a lawful contract is an offence warranting imprisonment extending up to three years or a fine of a maximum of five lakh rupees, or in some cases, both the imprisonment and the fine. The Jan Vishwas Bill replaces these existing provisions with a punishment of a fine of twenty-five lakh rupees.

The Bill also seeks to alter the fine and penalties by removing imprisonment and increasing the amount of penalty with the increasing gravity of offence. Further, the Bill provides for the appointment of adjudicating officers to determine penalties for various offences. The adjudicating officer also has the power to summon the individuals for evidence and to enquire about the violations. Further, there are certain offences, where there is no option of compounding which means that imprisonment will be the only punishment. The Bill proposes to make certain offences compoundable. For instance, certain kinds of offences (when committed for the first time) under the Drugs and Cosmetics Act (section 32B) are now proposed to be compoundable. Similarly, the Bill proposes to make offences under section 200 of the Motor Vehicles Act as compoundable.

The Bill is certainly headed in the right direction in terms of its objective which is to increase the confidence of businesses in India by reducing the possibility of harassment along with reducing the administrative burden on the courts so that their resources can be better prioritized for important matters. In fact, a joint parliamentary committee was set up to scrutinize the Jan Vishwas (Amendment of Provisions) Bill, 2022 and a report was tabled by the committee whereby the panel agreed in principle with around 183 provisions proposed to be amended and in many instances, it recommended the imposition of penalty rather than fine so as to avoid an increase in litigation.

Even though is a step forward with its objective being of shedding ‘the baggage of antiquated laws’ affecting India’s developmental trajectory, the bill barely makes a dent in the landscape of laws which use criminal provisions for compliance. The Bill is a bold attempt at saving state resources. But some of these violations may still have to be reported to the police and tried by criminal courts, some will require administrative procedures to take over and therefore, whether the Bill will actually lead to saving of time, energy and resources for the Court, only the time will tell. Further, the attempt of the Bill is to reduce incarceration but barely anyone actually goes to jail for the provisions which are being dealt with in the bill. More so with the decriminalisation conversation being undermined by the ease of doing business push.

A summary decriminalization exercise, although important, should not be seen as a substitute for a continuous and comprehensive effort to improve India's criminal law-making practices. While decriminalization can address specific issues and reduce the burden on the legal system, it is equally essential to ensure that criminal laws are formulated responsibly, based on informed decision-making processes and guided by principled considerations. In summary, while a summary decriminalization exercise can be a positive step towards addressing specific issues, it is crucial to recognize that it should be part of a broader effort to improve India's criminal law-making practices. A sustained commitment to responsible, informed, and principled law-making processes can help ensure that criminal laws effectively serve the needs of society while upholding fundamental principles of justice and fairness.

By - Prapti Allagh