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CONSTITUTIONALISM AND CONSTITUTIONAL MORALITY AS A CHECK ON CRIMINALISATION

Updated: Jan 26, 2022


Adarsh Pandey & Aanchal



“The Constitution is not a document for the government to restrain the people; it is an instrument for the people to restrain the government”


These are the golden words of Patrick Henry, one of the founding father of United States, and they reflect the true nature of constitutionalism and constitutional morality. These two concepts are the most sacramental and form the basis of existence of humanity in the contemporary times. It is a herculean task to precisely define these two concepts in a comprehensive manner, but for the sake of clarity for the further reading, they can be briefly understood as some form of control on unrestricted powers of state and strict abidance to the spirit of constitution and zero tolerance from deviation of its true spirit.[1]


Coming to other interrelated issues like the definition of criminal law, its necessity, existence in every state since inception, consequences of its absence, etc. - The answers to all these are pertinent to trace down the boundaries and justifications of criminal law in society. The purpose is to maintain order in the society, and if we see it from the eyes of philosophy, then referring Isaiah Berlin[2], the liberty of one person can only be preserved if other person does not intrude into the liberty of former, and hence, state has taken the task to maintain this by the apparatus of criminal law, which since time immemorial has existed in some or the other form in all societies.


But this tool in hands of state is being exploited and arbitrarily utilised. Quoting Professor G. S.Bajpai, “It is surprising, if not alarming, that we do not know the exact number of laws that criminalise actions and provide for punishment in India. Rough estimates range from 12,000 to 1.5 lakh. But, for sure, we have more laws than we require.”[3] In a democratic and liberty focussed state, criminalization should be the last resort, when there is no other tool left. But in India, we can recently see state criminalizing a wide variety of acts that needed no criminalization or could have been better dealt under civil laws.


· State would decide what comes in my plate - Beef Ban Law

· State (secular) would take a call on which religion I wish to profess – Religious Conversion Law

· State would criminalize a civil offence – Triple Talaq Law

· State would criminalize a person’s helplessness rather than tackling his impoverishment – Begging Offence


Apart from the above examples, there were earlier many wrong criminalisation, and thousands would have been prosecuted under them, until they were struck down by the Sentinel on the Qui Vive, the Apex Court, on ground of violation of constitutional spirits, namely, S.377 Indian Penal Code (Unnatural Offences)[4], S.497 (Adultery)[5], etc. The criminalization practice is not done by state just by enacting a new law, but also by amending the existing law, on the grounds of making them stringent, hence effective. The best example could be Unlawful Activities (Prevention) Amendment Act, 2019, which gave a state unregulated power to tag any person as criminal. Another notable example of state tyranny is exploitation of sedition law - There has been more than three times increase in sedition cases under IPC in last five years, with just 30 cases filed all over India in 2015, which rose to 93 cases in 2019, but surprisingly the conviction rates are declining every year, and in 2019, the conviction rate was just 3.3%.[6]


An observation of Dr. Justice D.Y.Chandrachud is noteworthy here, “it is not the common morality of the State at any time in history, but rather constitutional morality, which must guide the law”.[7]The flaw lies in the current practice, as per which the legislature while enacting a law, does not prefer to deeply assess its need and impact. There are many schools of criminalization, one advocates that harmful acts must be criminalized, other supports criminalisation of anti-societal morality acts, another supports criminalization by state as a guardian for betterment of its subjects. The law should clearly state its purpose, but that is least happening nowadays and we are witnessing a new practice, by which the very purpose of having a combination of ruling party as well as opposition in the same legislature has frustrated. The laws are being hastily passed through both houses, by the ruling party enjoying a clear cut majority, ignoring the views of opposition or demands from them to refer them to select committee. By the virtue of said blank draconian laws, the fate of crores is being judged at whims and caprices of the executive.


What is happening as a result of this is that currently the Government can do what it wants with any citizen, taking the loose words stated in these laws, which are completely upon the subjective satisfaction of government. Any voice that dissents government would be crushed by using criminal law, any policy that favours vote bank of any particular government, it would be criminalized/decriminalized as per its whims and fancies. This is not our founding fathers thought of while enacting the Grundnorm. Excessive criminalization, apart from its other consequences, aggravates the problem of overcrowding in jails, and hence greater burden on the governmental exchequer.


“Laws are like cobwebs which may catch small flies but let wasps and hornets break through.”

These are the words of Jonathan Swift, Irish Satirist, and they unveil the bitter truth of execution of arbitrary laws in hands of state. In such a state, the only faith ordinary citizens of land have is – “I shall see you on court”- judiciary, which is the guardian of the Constitution and does justice as per it, served in same plate for Prime Minister as well as a daily wage labourer. It is the Part III of Indian Constitution, which acts as most strong valve against tyranny of the state along with the beautiful interpretations that the apex court gives about constitutional morality and constitutionalism. Any criminalization exercise that violates the fundamental constitutional guarantees of any person or citizen, is struck down by the apex court, either suo moto or through petitions. Additionally, when charges are arbitrarily levied upon an individual and he is tagged a criminal, it is the judiciary that acts as the last resort remedy for every such individual. This is the reason why conviction rates in crime statistics is less as compared to incidence rates. The Constitution is designed in such a way that it keeps the strongest check upon those in power[8], so as to eliminate any possibility of misuse of law by the ones, who have been given responsibility to administer it. “Equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.[9] A noteworthy incident here is the strong observations of Allahabad High Court reprimanding Uttar Pradesh Government against frivolous use of draconian National Security Act, 1980 and quashing 94/120 orders issues on grounds such as mere cow slaughter.[10]


But since constitutionalism and constitutional morality are so important and sacred, their ambit must also be crystal clear, so that they may not fall prey to the biases of judge as well. This task too was initiated by the Supreme Court, which in recent case of Kantaru Rajeevaru v. Indian Young Lawyers Association,[11] urged for a need to define constitutional morality by a larger bench of Apex Court.


The Constitution is a living document, and its life is preserved by the judiciary, which through its interpretation, ensures that the laws in force remain in tune with the contemporary constitutional morality. Interestingly, wherever necessary, the Constitution itself supports reasonable criminalization, such as in case of Article 17 or 23.[12] Therefore, it would be wrong to assume that just blind decriminalization would serve the spirit of constitution. The language of the Indian Constitution along with the Preamble is an essential tool for establishing a link between what the Constitution desires & what must not be permitted in criminalisation considerations.


[Adarsh Pandey is a LL.M. (Constitution and Criminal Laws) student at National Law University, Delhi]

[Aanchal is a LL.M. (Corporate and Commercial Laws) student at National Law University, Odisha]


[1] Bhaskar Kumar, Transactional Sex : A Socioeconomic Right Rooted in Dignity and Consent, 8 J. of Ind. Law and Society 25, 27 (2017).

[2] Theodore L. Putterman, Berlin’s Two Concepts of Liberty: A Reassessment and Revision, 38(3) Polity 416, (2006).

[3]G. S. Bajpai, Invoke criminal sanctions with caution, The Tribune (Jan. 11, 2019, 06:30AM), https://www.tribuneindia.com/news/archive/comment/news-detail-711660.

[4] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[5] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

[6]National Crime Records Bureau, Ministry of Home Affairs,Crime in India (2019), https://ncrb.gov.in/en/crime-india-2019-0.

[7] Joseph Shine v. Union of India, (2019) 3 SCC 39, 139 (per Chandrachud, J. concurring).

[8]Louis D. Bilionis, Process, the Constitution, and Substantive Criminal Law, 96(5) Michigan L. Rev. 1269, 1300 (1998).

[9] E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3.

[10]Kaunain Sheriff M, 94 out of 120 orders quashed: Allahabad High Court calls out abuse of NSA in Uttar Pradesh, The Indian Express (Apr. 7, 2021, 03:25PM), https://indianexpress.com/article/express-exclusive/national-security-act-uttar-pradesh-police-detentions-cow-slaughter-ban-7260425/.

[11] (2020) 3 SCC 52.

[12]Latika Vashisht, Re-Thinking Criminalisable Harm in India: Constitutional Morality as a Restraint on Criminalisation, 55(1) J. of Ind. L. Institute 73, 83 (2013).

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