PRINCIPLED CRIMINALISATION AND THE POLICE AS PIVOT

GS Paper 2: Governance – Role of civil services, transparency and accountability, judicial activism

GS Paper 3: Internal Security – Challenges to internal security through communication networks, Role of law enforcement agencies

Key Highlights:

• Supreme Court’s ruling in Imran Pratapgarhi vs State of Gujarat reasserts that criminalisation must be principled and tied to procedural safeguards.
• Emphasizes the role of police discretion in criminalising conduct and the potential for overreach, especially in cases involving freedom of speech.
• Reminds that procedural law, including preliminary inquiries, is key to ensuring accountable and proportionate criminal law enforcement.

Detailed Insights:

1. What is principled criminalisation?

• Criminalisation is the state’s power to define wrongs as crimes and impose punishment. This must align with constitutional morality, not arbitrary discretion.
• Legal scholar Victor Tadros describes this as part of the larger moral function of the state in a democratic society—to punish wrongs only after due process.

2. The Court’s ruling in Imran Pratapgarhi case:

• The Court quashed an FIR against the politician over a social media post seen as inflammatory.
• It held that police should have first conducted a preliminary inquiry under Section 173(3), BNSS, before proceeding.
• This protects the freedom of speech and prevents the over-criminalisation of dissent.

3. Role of police and procedural law:

• Police hold vast discretionary power in deciding what to criminalise via arrests, investigations, and FIRs.
• Without proper guidelines and accountability, this can lead to over-policing of trivial offences while neglecting serious harm.
• BNSS now allows police 14 days to conduct preliminary inquiry in cases with punishment of three years or more, before registering an FIR.

4. Conceptual framework:

Criminalisation should be based on “master principles”:

1. Offence must conflict with core public interest
2. Must constitute violent harm
3. Must violate non-intervention rights (e.g., autonomy, privacy)
4. These are reflected in India’s Bharatiya Nyaya Sanhita (BNS).

Scientific/Technical Concepts Involved:

Section 173(3), BNSS: Empowers police to conduct a preliminary inquiry before FIR registration in select cognisable offences.

Overcriminalisation: Inclusion of acts that do not merit criminal response, often infringing on liberties.

Significance:

• Reaffirms the importance of procedural justice in preserving individual freedoms in a constitutional democracy.
• Advocates a reformist policing culture, shifting from mechanical criminalisation to responsible discretion.
• Serves as judicial guidance for ensuring balance between public order and fundamental rights, especially amidst rising misuse of digital speech-related laws.