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  • Writer's pictureTeam SACJ


Megha Gohel


Habitual offender legislation, frequently aimed at longer sentences for ‘career criminals,’ is based on the analogy between crime and disease, which, when persistent, leads the patient to being quarantined from society in the interests of greater public safety. This analogy reflects the basic assumption of positivist criminology, which treats crime at par with a dangerous disease. §116(4) of the Code of Criminal Procedure (‘CrPC’) can be interpreted to define habitual offenders as persons who are too dangerous or desperate to be left to exist in society at large without security, which could prove to be hazardous for the community, based on their general reputation of crime.

Vimukta Day on August 31, 2023 brought forth a discourse on habitual offender legislation in our country through the repeal of the Criminal Tribes Act, 1871, which branded certain tribes as habitual offenders and largely referred to them as hereditary criminals “addicted to the systematic commission of bailable offenses”. This was followed by the Supreme Court, on September 6, 2023, delivering a judgement stating that a person could only be deemed as a habitual offender if his actions led to public disorder and he could not be put into preventive detention for the ‘habituality’ of his crimes. While there are multiple state laws, the primary example being the Kerela Anti-Social Activities (Prevention) Act, which act as habitual offender legislations, the country is yet to enact a nation-wide habitual offender law.

In the current Indian socio-political context, there is a critical need to comprehend the criteria for defining a habitual offender, their rights, and the viability of habitual offender laws and dearth of jurisprudence on this issue has been bridged by drawing inspiration from American jurisprudence where the habitual offender laws originated in the form of Three Strikes Law (‘TSL’) in California in 1994. This piece explores the potential impact of such laws in India, considering the unique aspects of the Indian legal system and the constitutional repercussions, such as Double Jeopardy and Retroactive Justice, which could follow their enactment. Lastly, the author emphasizes on the necessity for an adapted version of habitual offender laws in the Indian legal system.


‘Three Strikes and you are out’ is a common baseball terminology which has been adapted into the American habitual offender legislations, commonly known as the Three Strikes Law. In this double pronged legislation where life imprisonment shall be granted if the convict was previously charged with a ‘serious violent felony’ or if he has two prior convictions, one being a violent felony and another being an offence of ‘substantial gravity’. The aim of this sentencing policy is to target a career criminal with several felony convictions and render him ‘incapable’ of committing a crime again through lengthy incarceration periods.

§142(1) of the Criminal Justice Act, 2003 states that any court dealing with the offender who has attained the age of majority, with respect to an offence, must keep in mind the purposes of sentencing the offender, firstly, the punishment, secondly, the reduction of crime including through deterrence, thirdly, the reform and rehabilitation of the offender, fourthly, the protection of the public, and fifthly, the compensation and reparation to be provided to the victim.

The TSL establishes a sentencing formula that focuses on eliminating these criminals from the streets by laying down a standard approach for sentencing, eradicating discrepancies, and supporting a consistent outcome by establishing specific statutory rules which appears as ray of sunshine to effectively help achieve the objectives of punishment and deterrence while also protecting the public at large, amid the rising crime rate and an overburdened judiciary. The consequences of TSL, as implemented in California, are visible through its decreasing crime rate since 1994. If implemented well, the TSL has the potential to ensure that the cycle of criminality, starting from a juvenile, would be nipped in the bud.

Despite sounding logical, this is not above critique for the disproportionate prison time in return for a scarcely visible gain in moral retribution or public safety in the times where the crime rate is an upward slope. The imbalance of power harasses petty offenders into pleading guilty rather than being awarded a fair trial to avoid earning a habitual offender status by being charged with a larger felony. The prior convictions of the offender were popularly known as ‘qualifying offenses’ and the current crime as the ‘triggering offense’. Historically, some jurisdictions required that a qualifying offense resulted in actual imprisonment, but under most current modern regimes, a simple conviction on the qualifying offense is the relevant criterion.


There is a two-pronged critique of the habitual offender laws – the critique on its merits and the critique on the constitutionality of this law with respect to the pre-existing laws guaranteeing the rights of an accused.

Habitual offender laws are propagated with the benefits of public safety, which could be achieved by ‘quarantining’ hardened criminals and repeat offenders of serious and violent crimes from society. However, it should be kept in mind that simply isolating the offender is not helpful without reformative measures to wane the offender off these repeated crimes. This is further corroborated by the ‘chemical incapacitation’ laws against child abusers in America where molesters were given hormones or drugs targeted to reduce their sex drive or eliminate it. However, drugs alone did not render the offender ‘incapable’ of repeating the crime and it was only psychological treatments which helped the offender reform. Secondly, it must be kept in mind that these laws do not guarantee proportionate results of enhancement of public safety or more retribution in proportion to the offender’s crime.

When weighed against the prominent constitutional law doctrines, these laws are criticized on the grounds that they violate equal protection granted by the law, and double jeopardy as they are a poorly-hidden mechanism of punishing the accused for a second time for his ‘qualifying offenses,’ by using them to increase the sentence for his ‘triggering offense.’ These laws can further be critiqued on the grounds of violation of protection against retroactive justice, as some of the qualifying offenses would have occurred before the habitual offender legislation was enacted.

While these laws have been challenged in the American courts, all such claims have been rejected in the Ross’ Case, in Massachusetts in 1824 by upholding that the law used the ‘character of the culprit’ and not his ‘crimes’ as a basis for awarding an enhanced sentence; the accused were essentially convicted ‘anew’ according to the court. This justification was further invoked in the case of Commonwealth v Rand in Virginia, where the court held that the prior convictions were merely used to measure the defendant’s ‘moral depravity.’ In the case of McDonald v Massachusetts, it was upheld that the habitual offender law does not violate retroactivity clauses as the punishment is for the current ‘triggering crime’ only while the allegations of the prior convictions are necessary to bring the case within the ambit of the habitual offender statute and are not a charge against those crimes.

The trend, as seen from various judgements of the United States Courts, is three-pronged in nature: firstly, the relevance of the habitual offender law rests in the qualifying offenses, secondly, the habitual offender laws do not create any new offense, allowing the court to deny any claims of retroactive justice or double jeopardy and thirdly, the logic of these arguments largely rests on the ‘status’ of the culprit or his ‘character,’ being justified as a moral correction of the accused who have been proven difficult to reform.

However, this ‘appeal to status’ is flawed, for it refuses to touch upon the reality that the law is based on – the qualifying crimes. These crimes, become the only important factors that increase the prison sentence by more than a marginal amount, such that the habitual offender laws make it a ‘crime to be a criminal.’ The accused fails to have a human identity beyond his criminal record in the eyes of the court. The criminal record places an inherent bias on judges who adjudge an accused based on his past, effectively hampering the process of fair and free trial. Instead of judging the severity of the current crime, the judge bases his decision on the prior convictions of the offender, even if the offender has made amends for the same.

Here, it is important to bring a parallel to Indian laws where §110 of the CrPC provides security for good behaviour from habitual offenders. A magistrate may demand a show cause of good behaviour for a period not exceeding three years from the offender. However, there is no basis for determining whether the crime is grave or minor, and whether repeating it within three years or more should impose upon it, the gravitas for a qualifying offense. Further, such trials blow up disproportionately via the media, forming a pre-judgement public opinion influencing the judge’s decision.

The Habitual Offender and TSL legislations, as they stand cannot be adopted by India keeping in mind the socio-political scenario of our country and the implications of an innocent man being imprisoned for a longer than-deserved sentence and they send a message to the people of a lower socio-economic background that a handful of unrelated petty thefts and relatively minor assaults, will be treated as in a manner reserved for murderers. While deciding the basis of such an offence, the court must first investigate the offender’s past and decide on the nature of his crime, keeping in mind the laws of proportionality, where repeat offenders, committing non-violent crimes should have their sentences increased in proportion to these crimes instead of simply being awarded imprisonment for life.

The convict must be warned of his past and its consequences of a lengthy prison sentence. The economic conditions of the lowest classes of society must be kept in mind, along with the principle of ‘lesser eligibility’ which states that the treatment for a prisoner, if better than the condition for the lowest class of people in society, will not help in acting as a deterrent for crime, and instead, increase disruption to social order. The gravitas of such a law must be understood before any excessive punishment or ineffective prison sentences are imposed on an individual.


While the TSL legislations are extremely necessary to curb the growing crime rate in our country, multiple changes must be made to make them compatible with the local Indian identity, starting with a legislation defining the exact tenets of a minor and violent offence and different penalties for them to allow for an easier transition to these laws.

However, a major component of these laws must focus on the reformative parts of the objectives under §142(1) of the Criminal Justice Act, 2003 by working on its jails and prison systems. Inhumane conditions and less-than-human treatment of prisoners lead to more chances of a crime being repeated than a prisoner being reformed. The country is steadily moving towards enacting better prison laws through The Model Prisons Act, 2023 which aims at addressing the gaps in the existing Prisons Act, 1984 by focusing on the reformation and rehabilitation of inmates and their smoother integration into society. However, these laws are yet to be enacted and must work hand-in-hand with the Habitual Offender legislation to help these convicts, both physically and psychologically, before they are deemed safe to be released back into society.

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