Principled criminalisation and the police as pivot : 15 May 2025

Editorial 2: Principled criminalisation and the police as pivot

Context

A recent ruling by the top court highlights how principled criminalisation is closely tied to responsible actions and commitment by the police.

Introduction

Procedural law often receives less attention than substantive law in discussions of criminal law. A key reason is that procedural criminal law is viewed as addressing the practical question of ‘how’, while the more dramatic question of ‘what’ crimes and punishments exist is linked to substantive criminal law. However, in reality, procedure is the coreof action. The recent Supreme Court of India ruling in Imran Pratapgarhi vs State of Gujarat serves as a reminder that principled criminalisation depends on the police’s adherence to India’s criminal procedure law, the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Criminalisation is the exercise of state power and duty.
It involves the state’s authority to define a wrong or harm as a crime and to impose a punishment.
It also reflects the state’s responsibility to address wrongdoing by holding individuals accountable and administering appropriate penalties.
In a constitutional democracy, criminal law ensures that this significant power and responsibility are used appropriately.

Legal Philosophy and Criminalisation

Victor Tadros, a legal philosopher, argues that the state’s duty to criminalise is part of a broader complex duty.
This includes not just criminalising, but also prosecuting, convicting, publicly condemning, and punishingwrongful conduct.
Criminalisation exists as part of broader social institutions that address wrongdoing, like families and private law.
Criminalisation has an independent role, which can be realized through the operations of criminal law, regardless of its direct legal effects.

The basis

Key Aspect	Details
Full Force of Criminalisation	The full force of criminalisation relies on the criminal law and the criminal justice system. The effects of criminalisation are both symbolic and concrete.
Master Principles for Criminalisation	Legal scholars seek principles to determine behaviours that should be criminalised. Tatjana Hörnle proposes three principles:
	1. Incompatibility with collective interests
	2. Violent attacks against others
	3. Violation of non-intervention rights
Principles in Indian Criminal Law	These principles align with India’s substantive criminal law, the Bharatiya Nyaya Sanhita (BNS), which structures criminalisation around these guiding values.
Over and Under-Criminalisation	Certain social groups or behaviours may be over-criminalised or under-criminalised, despite a structured approach in substantive criminal law.
Criminal Justice Process	Beyond conceptual labelling, criminal acts and individuals are labeled as ‘crime’ through processes of detection, recording, arresting, charging, prosecuting, and sentencing.
Importance of Procedural Law	Equal attention should be given to the powers and functions of criminal justice agencies under procedural law, as they govern the practical process of criminalisation.

Role of Police in Criminalisation Process

The police play a central role in the process of criminalisation, leading efforts in detecting, registering, investigating crimes, and notably, arresting suspects.
Police officers have significant discretion in their daily work, influencing the nature and extent of criminalisation.
Discretionary authority impacts how criminalisation unfolds, which could lead to issues like overzealous policing of minor infractions, potentially shifting focus away from more harmful wrongdoing.

Key Provision: Section 173(3) of BNSS

Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) gives police the discretion to decide which cases to investigate.
The provision aims to prevent unnecessary criminalisation due to police overreach.
When an officer receives information about a cognisable offence punishable by 3 to 7 years, they do not need to immediately register a First Information Report (FIR).
Instead, the officer has the option to conduct a preliminary inquiry within 14 days to assess if there is a prima facie case to proceed.

Imran Pratapgarhi Case: Court’s Interpretation

The Court in the Imran Pratapgarhi case ruled that a preliminary inquiry is required when the offence involves the fundamental right to freedom of speech.
The Court quashed the FIR against Mr. Pratapgarhi for posting an alleged inflammatory poem on social media, finding the police acted without following the preliminary inquiry procedure under Section 173(3).
The ruling highlighted that Section 173(3) aims to prevent frivolous FIRs, particularly in cases related to freedom of speech.

Conclusion

Principled criminalisation is essential to the legitimacy of the state’s power to criminalise. Similarly, it is just as important for substantive law to be guided by judicious principles as it is for procedural law to regulate the actual effects of criminalisation. However, this system can only function effectively if the police demonstrate a commitment to responsible criminalisation and are held accountable.

15 May 2025 : Principled criminalisation and the police as pivot