Reiterating the basics of criminalisation

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‘In the context of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, the Supreme Court relied upon the definition of “offence” as employed by the General Clauses Act. Applying this test, the Court concluded, “The penal law under which the criminal proceeding is initiated should create an offence and the punishment should also be in accordance with whatever the law prescribes... We cannot find any offence having been created”’ File | Photo Credit: Shashi Shekhar Kashyap

For four decades, the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 dealt with gangsters and anti-social activities in the State. However, on August 20, a two-judge Bench of the Supreme Court in Shiv Pratap Singh vs. State of U.P. and Himanshu Srivastava vs. State of U.P. ruled: “the U.P. Act is still-born and the proceedings under it cannot survive”. The reasons for arriving at this harsh conclusion were spelled out by Justice J.B. Pardiwala and Justice K. Vinod Chandran thus: “A gangster is defined under the Act and the determination of who a gangster is, for the purpose of punishment, is as prescribed in the Rules, left to the ipse dixit of the Executive. The creation of a crime, or to make an act or omission subject to penal consequences as an offence, is essentially a legislative function and it cannot be thrown away and left to sprout in the thicket of subordinate legislation”. 

This ruling centres around three inquiries — first, the need for the ‘creation’ of the crime by explicitly identifying the act made punishable by law; second, criminal law-making as exclusively a legislative function; and third, the desirability of excluding the executive from the rule-making and guilt-determination function.

For a society like ours which is used to ‘name-calling’ at will (deshdrohi, ‘urban naxal’ etc), it is very important to understand the value of clearly defining categories such as ‘crime’ or ‘offence’. The idea of criminalisation is rooted in the principle of legality that draws inspiration from the maxims nullum crimen sine lege (no crime without law), nulla poena sine lege (no punishment without law), and the prohibition against ex-post facto legislation. Relying upon the principle of legality, Article 20(1) of the Constitution creates a right against conviction except for violation of a law in force at the time of the act charged as an offence, and against a penalty greater than what the law in force prescribed. In the context of the U.P. Act, the Supreme Court relied upon the definition of “offence” as employed by the General Clauses Act. Applying this test, the Court concluded, “The penal law under which the criminal proceeding is initiated should create an offence and the punishment should also be in accordance with whatever the law prescribes... We cannot find any offence having been created.”

Professor Herbert L. Packer, in his classic The Limits of the Criminal Sanction (1968), elaborated on the assignment of functions to diverse agencies for defining crime and punishment, observing: “This definitional role is assigned primarily and broadly to the legislature, secondarily and interstitially to the courts, and to no one else”. In the U.P. Act case too, the Court expressed strong reservations against leaving matters relating to crime or punishment at the mercy of subordinate legislation. The reasoning behind this advocacy for legislative action, as against subordinate legislative action, is to ensure detailed debate and due deliberation at the stage of enacting a criminal law.

Problems arise when the opinions of the executive are accepted unquestionably in matters of categorisation and punitive action. Section 23 of the U.P. Act provides special provisions for trial, bail, and rule-making power. Chapter 3 of the Act prescribes the procedure for preparing the ‘gang chart’. In this and in many earlier cases, challenges have arisen over the operation of the Rules in arriving at the decision to accord the status of ‘gangster’ to someone or the quantum of punishment, with it repeatedly being argued that executive authorities reach conclusions of culpability without verifiable evidence or reasoning. The Court ruled, “In the context of mere status being punished, which is determined by the administrative and police authorities by the preparation of a gang chart, nothing remains to be considered by the judicial officer but to punish him... The end result of a trial under the U.P. Act is a foregone conclusion, a statutory imprimatur to punish”. The Court reinforced its stand against the ipse dixit of the Executive with hard-hitting reasoning: “However compelling or threatening the social menace, any penal enactment to curb that, it cannot lead to arbitrary and capricious actions against the one, alleged with the commission of an offence”.

This categorical SC ruling is laudable. It has not only laid out an elaborate agenda for a reform of the Gangster Act, but has forthrightly reiterated the basics of criminalisation and the limits within which agencies are supposed to operate.

B.B. Pande is Former Professor of Law, Delhi University

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