As a student, I became an admirer of Professor Andrew Ashworth, and his contribution to the jurisprudence of criminal law. The most recent edition of "Principles of Criminal Law" (available here) remains one of my more valuable possessions. The importance of a principled approach to studying the criminal law becomes apparent when one compares the current stock of publications on criminal law in India. The commentaries restrict themselves to providing a horde of citations without shedding any light on the principled debates that cases evoke.
But this entry is not a paean to a book, but rather considers a thought-provoking essay by Professor Ashworth titled "Is Criminal Law a Lost Cause" [(2000) 116 Law Quarterly Review 225]. The essay uses the turn of the century to consider the development of criminal law in England over the years. Cornerstones of criminal law, such as the concept of mens rea or a culpable mental state, appeared to have diluted over time. This was replaced by a regime of 'strict-liability' offences, which did not require any proof of guilt, but merely proof of certain acts/omissions having occurred in order to impose criminal liability. The vast range of situations that involved criminal liability surprised and dismayed Professor Ashworth, for this went completely against another settled view that the criminal law was always a means of last resort in society. Poignantly, he asks therefore is the criminal law a lost cause?
One of the reasons I appreciate the article is because of its relevance to what is happening in India today. The development of criminal law since independence makes one think that the article may have been written keeping India in mind! Successive government have only been too willing in employing criminal sanctions to deal with any problem. Cheque bouncing is an issue? Make it a crime [Section 138, Negotiable Instruments Act 1881]. The Internet needs regulation? Make anything we consider offensive an offence [Section 66-A, Information Technology Act 2000]. People are obstructing doors of a moving Metro Train? Threaten them with jail for upto four years [Section 67, Delhi Metro (Operation and Maintenance) Act 2002]. The last two, mind you, are non-bailable and cognizable - which basically means you can be arrested without warrant and denied bail.
Similarly, the mushrooming of strict liability has taken it far beyond the traditional realm of socio-economic offences with small punishments. There is nothing quasi-criminal about strict liability today. The State has either proceeded to eliminate requirements of mens rea altogether [e.g. Section 54, Narcotics Drugs & Psychotropic Substances Act, 1985], or proceeded to place the burden upon the Accused to show that such a culpable mental state did not exist [e.g. Section 35, NDPS Act, Section 24, Prevention of Money Laundering Act, 2002, Section 304-B, IPC]. Professor Ashworth is therefore certainly bound to agree that criminal law in India is a lost cause, or thereabout.
The other reason I appreciate the essay, is because it raises highly important questions of the fundamental values of the criminal law as we know it. Sure, mens rea and the presumption of innocence are being eroded. But are they so central to the criminal law that we must lose hope and question its purpose? These changes also raise questions regarding the place of criminal law in society. Could it be that penal sanctions are not viewed as severely as they were 30 years ago, making criminal law is viewed today as just another tool to modify behaviour. This is especially pertinent in systems like India where the judicial backlog is great thereby postponing the imposition of any punishment.
The fact that obstructing train doors is a more serious offence than Theft [punishable for a maximum of 3 years under Section 379, IPC] and can lead to arrest is nothing short of ridiculous. Maybe, this comes to the attention of the Law Commission while it finishes its task of weeding out the obsolete laws placguing India today.
But this entry is not a paean to a book, but rather considers a thought-provoking essay by Professor Ashworth titled "Is Criminal Law a Lost Cause" [(2000) 116 Law Quarterly Review 225]. The essay uses the turn of the century to consider the development of criminal law in England over the years. Cornerstones of criminal law, such as the concept of mens rea or a culpable mental state, appeared to have diluted over time. This was replaced by a regime of 'strict-liability' offences, which did not require any proof of guilt, but merely proof of certain acts/omissions having occurred in order to impose criminal liability. The vast range of situations that involved criminal liability surprised and dismayed Professor Ashworth, for this went completely against another settled view that the criminal law was always a means of last resort in society. Poignantly, he asks therefore is the criminal law a lost cause?
One of the reasons I appreciate the article is because of its relevance to what is happening in India today. The development of criminal law since independence makes one think that the article may have been written keeping India in mind! Successive government have only been too willing in employing criminal sanctions to deal with any problem. Cheque bouncing is an issue? Make it a crime [Section 138, Negotiable Instruments Act 1881]. The Internet needs regulation? Make anything we consider offensive an offence [Section 66-A, Information Technology Act 2000]. People are obstructing doors of a moving Metro Train? Threaten them with jail for upto four years [Section 67, Delhi Metro (Operation and Maintenance) Act 2002]. The last two, mind you, are non-bailable and cognizable - which basically means you can be arrested without warrant and denied bail.
Similarly, the mushrooming of strict liability has taken it far beyond the traditional realm of socio-economic offences with small punishments. There is nothing quasi-criminal about strict liability today. The State has either proceeded to eliminate requirements of mens rea altogether [e.g. Section 54, Narcotics Drugs & Psychotropic Substances Act, 1985], or proceeded to place the burden upon the Accused to show that such a culpable mental state did not exist [e.g. Section 35, NDPS Act, Section 24, Prevention of Money Laundering Act, 2002, Section 304-B, IPC]. Professor Ashworth is therefore certainly bound to agree that criminal law in India is a lost cause, or thereabout.
The other reason I appreciate the essay, is because it raises highly important questions of the fundamental values of the criminal law as we know it. Sure, mens rea and the presumption of innocence are being eroded. But are they so central to the criminal law that we must lose hope and question its purpose? These changes also raise questions regarding the place of criminal law in society. Could it be that penal sanctions are not viewed as severely as they were 30 years ago, making criminal law is viewed today as just another tool to modify behaviour. This is especially pertinent in systems like India where the judicial backlog is great thereby postponing the imposition of any punishment.
The fact that obstructing train doors is a more serious offence than Theft [punishable for a maximum of 3 years under Section 379, IPC] and can lead to arrest is nothing short of ridiculous. Maybe, this comes to the attention of the Law Commission while it finishes its task of weeding out the obsolete laws placguing India today.
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