Criminal Law and Public Goods


Aagam Jain



Introduction


Criminal law plays an important role in protecting the autonomy of the people. It regulates the conduct of society by placing sanctions that threaten the sovereignty of individuals. Criminal law assumes numerous characteristics in accordance with the object that it seeks to achieve. For instance, the criminal legislation dealing with offences against the body might be different from that dealing with offences against the property. One such facet of criminal law is the protection of public goods for ensuring the autonomy of the people. Criminal law has an important role in protecting the autonomy of the people, and protecting public goods is a means to achieve said autonomy.[1]


This article deals with the interconnectivity between criminal law and public goods. This article analyses how the value accorded to such goods provides the basis for the criminalisation of acts curbing the autonomous use of the goods. Some public goods such as the environment have been protected by the criminal legislations while goods such as privacy have not been protected. In the first part, the author has dealt with the status and importance of the protection of public goods through criminalisation. The second part deals with the implications of criminal law by analysing the right to environment and privacy.


Which public goods should have the force of criminal law?


Criminal law deals with the protection of goods in a particular situation. A good is not defined by its economic cost but by its value. A good is a particular instance of exercising a valuable autonomy that could manifest itself in a moral, economic, social or political context.[2] Public goods are those which are exercised by the community as a whole, and there is no exclusivity to their use.[3] Clean air, right to privacy, personal autonomy are all examples of public goods. Public goods provide a means of achieving personal liberty.


A comparative analysis of criminalisation of various conducts becomes imperative while analysing this issue. Value should be accorded to the collective interests, and it should be seen what social importance the goods hold in the social system.[4] Criminal law seeks to protect the society as a whole, so the objective of criminalisation of conduct against public goods should also be seen in the same light.


Crimes relating to public goods are more than protecting mere existence of the community. For instance, public peace is more than a protection against physical attack, it seeks to preserve the human dignity of every individual and provide for a secure social environment.[5] To protect these values, it is important to criminalise and standardise such offences.[6]Criminal law goes beyond the preservation of public goods to provide for individual autonomy.


The degree to which legal protection needs to be given to social interests such as public health and the environment is important. It is important that these goods deserve legal protection in order for the people to live, rather than merely survive. This does not, however, suffice to decide the adequate criteria that needs to be employed in order to categorise it under criminal law.[7] Criminal law should only protect those goods which are socially important and which necessitate special protection.[8] It is, however, debatable that which goods are fundamental for people to enjoy their social life. There needs to be a rational nexus between the goods protected and the objective that is sought to be achieved by protecting the said goods.


Academicians and policymakers focus on rights to be protected within criminal law and policing rather than on substantive criminal law.[9] This position of the legislators needs to be changed in order to address and integrate provisions relating to the security of public goods. The end goal of such criminalisation is not the protection of a particular good, but the protection of the value that the good holds. The harm principle of criminalisation should be construed in a broader sense to include the harm done to public goods.[10] It is important to remember that not every public wrong calls for its criminalisation.[11] Some other regulations might be able to tackle the conducts that do not warrant criminalisation.[12] It is important to remember the objective of criminal law. Criminalisation should be the last resort to regulating the wrongs against public goods. While most of the inchoate offences are excluded from the ambit of criminalisation, the security of public goods warrants their criminalisation.


The harm principle forces an enquiry into the consequences of the conduct. It necessitates that an action should not be criminalised only on the account of it being an immoral act.[13] It needs to have some particular effects in order to be criminalised.[14] This principle is especially important to draw the line while dealing with public goods. The ambit of public goods is obscure, and there needs to be a rational nexus to criminalise the conduct related to it. The harm principle provides this necessary nexus. The harm principle provides only one of the basis for analysing criminal sanctions in relation to public goods. The harm principle determines the criminalization of public goods through their value. Criminal law is important to protect the people from the use of coercion, exploitation and domination from others. It is important to secure an individual’s autonomy.[15] The prohibition placed by criminal law on society is important to ensure that everyone can exercise their autonomy without the interference from either the state or its citizens.


The criminalisation of certain conduct regarding public goods should be compensated for in order to retain their value.[16] For instance, if the government criminalises setting up of industries in a particular area because of environmental issues, it is their responsibility to designate zones where the industries could be set up. It would be detrimental to the economy of the country if the setting up of industries is banned completely. Criminal law should aspire to both informing a social practice of criminalisation and generate a normative vision of the society. Another consideration that the government needs to look at where criminal law is concerned is the effect of the legislation on the real world.[17]A good explanation and demarcation are needed to give effect to the objectives of the law. While analysing on the issue of criminal law, it is important to determine the policy implications of the law. It is important to account for all the diversities while drafting a law. Not all the citizens might perceive a particular provision as a ‘public’ good; however, to maintain the polity’s civil order, it is their duty to respect others’ right to autonomy.[18]


Effect of criminal sanctions to protect public goods


The criminal law principles are based on an understanding of society. It is a dynamic law because the collective consciousness of the society changes with the changes in time. This ‘collective endeavour’ is an important element of the protection of public goods under criminal law.[19] The state is under an obligation to protect these goods for the maintenance of society. The duties and rights that criminal law bestows on public goods are imperative to maintain the value of such goods. Some examples might include a relationship between the public good and certain group of citizens.[20] For instance, the obligation to maintain a particular public park is upon the people using it, and any nuisance or vandalism might result in criminal sanction. In this case, the park, even though used by a particular section of people, is a public good and the sanctions imposed are according to the relationship of the people with the said good. Some parks may place a bigger fine on vandalism while some might place a lesser fine. The criminal liability, in this case, is being decided by the value placed by the community on the public good.


Environment:


In terms of the number of offences concerned with the obligation to promote public goods, criminal law is mainly aimed at businesses and not on individuals. Businesses are required to perform certain duties in order to protect public goods, a breach of which generally results in a penalty.[21]An example of this kind of obligation is the protection of the environment. Environmental laws are often based on the duties of the government to protect the environment. Additionally, such laws regulate the conduct of corporations to protect the environment.[22] In such cases, the ‘public good’, i.e. the environment, is being affected by the ‘public bad’, i.e. the industrial pollution.[23] Criminal law seeks to regulate the public bad in order to protect the citizen’s right over public goods.


In the Bhopal Gas Leak case,[24] the court fixed the liability on the company recognising the protection of the environment as a right of the citizens.[25] The court opined that the company was liable not just for the damage it has caused, but also on humanitarian grounds. The risk that the citizens were exposed to was considered while penalising the company.[26] This case provides a coherent understanding of criminal liabilities affixed on corporations in case of a violation of a public good. A clean environment is an important part of the right to life, and criminal law seeks to protect this right by regulating the conduct of enterprises. As the scale of the catastrophe in such cases is massive, the court’s reason was not only based on the imminent harm but also on the harm of value to public goods.


Privacy


The value accorded to public goods is also an important consideration while talking about the criminalisation of certain offences. Privacy, for instance, has become a burning issue about individual autonomy. The basis for criminalising breach of privacy thus needs to be in accordance with the harm to identity caused.[27] The discussion on privacy in this piece is limited to personal autonomy. Though there are different notions of right to privacy, the individual autonomy is arguably the most important ‘public good’.


The criminalisation of conduct against public goods demands an incursion into the concept of ‘public wrongs’. A public wrong need not be a wrong that injures the public, but it is something that concerns the public.[28] The criminalisation of certain actions might not have a bearing on all the individuals alike, but it is important to take action against such conduct because it concerns others. Taking the aspect of personal autonomy, if the government criminalises the collection of data from a particular application like Facebook or Instagram, the users not using these apps will not be affected but it is still justifiable as these apps could be counted as public goods. The ‘public’ nature of crime is, therefore, an implication, rather than a ground, of its criminalizable character: the reasons that justify its criminalisation are the very reasons why it is ‘public’.[29] It is important to realise the vacuum of legislations governing this right. The criminal nature of the abuse of right to privacy needs to be recognised by the legislature and proper laws should be drafted for the same. The courts in some recent judgments have recognised this right and the legislation need to do the same.


In the landmark judgment of Justice K.S. Puttaswamy (Retd) v. Union Of India,[30] the Supreme Court affirmed the right to privacy as a fundamental right under Art. 21 of the Constitution. The court held that the right to privacy is intrinsically related to the autonomy of an individual.[31] The concept of privacy has evolved in recent times and has now become an indispensable component to safeguard the autonomy of the people. Privacy could be argued to have become a public good according to the definition provided by Andrew Ashworth, and its ‘intrinsic value’ has increased overtime.[32] Although no formal criminal legislation has been enforced to protect the right to privacy, its acknowledgement as a means of ‘personal liberty’ warrants criminal procedure.[33]


The legislations on right to a clean environment have come about as a result of the recognition of the right by the courts. The courts have now started placing reliance on right to privacy as an indispensable right under Art. 21.[34] It is thus logical that in furtherance of the recent judgments, the legislature criminalises any conduct that breaches the personal autonomy of individuals. People have started placing a heavy ‘value’ on the concept of privacy. The criminalisation of conduct against this right needs to be construed in accordance with the ‘value’ that privacy as a public good hold today. Thus, just as environment was considered a public good in the late 20th century, privacy has come around as an indispensable public good with escalating value in the 21st century.


Conclusion


This article has tried to establish the importance of criminal law to protect the autonomy of the individuals by way of protecting public goods. It seeks to establish the considerations that need to be kept in view while determining the criminalisation of a particular public good. The most important consideration that has been dealt with in the article is the value accorded by society to the good. The aspect of value has been determined by using the harm principle. The harm principle takes a holistic and comprehensive view of the value of public goods and provides an adequate basis for determining its criminalisation.


Goods that have high public value need to be protected under criminal legislations while those warranting a lesser liability should be covered under the civil law. As public goods are ultimately related to personal autonomy, it is imperative that they are protected through criminal sanctions. The article has also tried to establish how various public goods interact with criminal law by taking the examples of environment and privacy. Protection of the environment has been firmly grounded in criminal law, while there is no such support in case of privacy. Hence, it is imperative that criminal law needs to be dynamic and diverse in order to protect the public goods, which will consequently lead to greater autonomy for the people.


[The author is a second-year law student at the National Law School of India University, Bangalore]

[1] Jeremy Horder, Ashworth’s Principles of Criminal Law 51 (9th ed., 2019). [2] James Slater, ‘Public Goods and Criminalisation’ (2017) 29 Denning Law Journal, 2. [3] Id. [4] Santiago Mir Puig, ‘Legal goods protected by the law...’ (2008) 11(3) New Criminal Law Review 8. [5] Slater, supra note 2,14. [6] Slater, supra note 2,17. [7] Puig, supra note 4, 5. [8] Puig, supra note 4, 6. [9] Victor Tadros, ‘Crimes and Security’ (2008) 71 (6) The Modern Law Review 1. [10] Tadros, supra note 9, 4. [11] Nicola Lacey, ‘Approaching or re-thinking the realm of criminal law?’ (2019) Criminal Law and Philosophy 8. [12] Id. [13]AP Simester and Andreas von Hirsch, Crimes, Harms and Wrongs (Hart Publishing 2011) 36. [14] Id. [15] Horder, supra note 1,50. [16] Tadros, supra note 9,10. [17] Tadros, supra note 9,13. [18] Lacey, supra note 11,11. [19] Horder, supra note 1, 50. [20] Horder, supra note 1,52. [21] Horder, supra note 1,53. [22] See The Environment (Protection) Act, 1986. [23] Horder, supra note 1,46. [24] Union Carbide Corporation v. Union Of India, 1989 SCC (2) 540. [25] 1989 SCC (2) 540 [7]. [26] 1989 SCC (2) 540 [204]. [27] Simester, supra note 16, 213. [28] Duff, supra note 20,141. [29] Duff, supra note 20,142. [30] Justice K.S.Puttaswamy (Retd) v. Union Of India, MANU/SC/1044/2017. [31] MANU/SC/1044/2017 [23]. [32] ‘Intrinsic value’ has been defined by Prof. Ashworth as something which has value separate from or beyond being (such as a pen or a phone). It is a means to an end. [33] MANU/SC/1044/2017 [33]. [34] Id.

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