Introduction
One of the central purposes of law, if not the preponderant purpose, is to regulate human behaviour. This the law does by placing curbs on what human beings, living in a particular society or jurisdiction, may or may not do. Since the law places restrictions on human freedom, questions surrounding law’s authority and legitimacy (who may enact law, and for what purpose, and why we should obey laws) have always been central to jurisprudence.[i]
Criminal law, by its very nature, calls for even greater scrutiny. It gives coercive powers to the State and its machinery to prevent and punish certain forms of behaviour. These powers extend to depriving a person of her physical liberty, her property, and in extreme cases, her life. Unsurprisingly, therefore, the Anglo-American literature on the philosophy of criminal law has seen great debates on what the purpose(s) of criminal law ought to be,[ii] or when it is permissible for the State to deploy its coercive strength. It is agreed, however, that some valid principle must determine criminalisation. This means when the State takes recourse to criminal law to punish certain behaviour, thereby labelling and constructing it as “criminal”,[iii] the guiding purpose behind such a decision should be evident and justified. To take a simple example, and explain it simplistically for the purposes of illustration, the offence of murder is premised on the principle that killing, as such, is harmful for the individual as well as society (any of the harm principle(s)),[iv] or that it is wrongful in the sense that it violates a moral code that could potentially threaten the survival of society (the public wrongs principle).[v] To say that killing should be criminalised simply because the government would like killings to stop, however, is unprincipled because it does not in fact give any reason for criminalisation. It simply expresses a whim. And it could, as discussed below, lead to the criminalisation of behaviour that is certainly not fit for criminalisation.
Beyond principle, it is also essential that attaching criminal sanction to any act or behaviour in a democracy, is premised on a consultative process that considers the views of civil society and experts working on the relevant area, non-government organisations, the opposition, and where possible, those who are most likely to be affected by the law in question. The record of the government of India on both principled criminalisation and consultative criminalisation, however, has been patchy at best. I shall use two recent examples of criminal law-making to demonstrate this point, arguing that the criminal law has been reduced to little more than political rhetoric in India.
The Criminalisation of Triple Talaq
Talaq-i-biddat, or triple talaq, is a form of repudiation in Muslim law that allows Muslim husbands to divorce their Muslim wives unilaterally, irrevocably and without cause, by saying the word ‘talaq’ thrice.[vi] The practice was opposed by Muslim women both within[vii] and outside Court for a number of years before a Constitutional (5-judge) bench of the Supreme Court of India, in Shayara Bano v. Union of India (2017),[viii] declared the pronouncement of triple talaq unconstitutional and void. Consequently, the pronouncement of triple talaq could no longer effect legal divorce. Notwithstanding that the judgement of the Supreme Court had already rendered this form of divorce legally powerless, the government of India criminalised the pronouncement of triple talaq through the Muslim Women (Protection of Rights on Marriage) Act, 2019, claiming that criminal law alone would succeed in deterring the practice. Recently, this deterrent function of the Act has, prima facie, been reiterated and affirmed by the High Court of Delhi.[ix] There is some merit to the idea that declaring the pronouncement of triple talaq void and illegal would not actually end the practice. The solution to this, however, is not criminalisation, which is likely to do more harm than good.
The 2019 Act is disproportionate in its sentencing,[x] and does not serve any purpose, especially not the ostensible purpose of ‘protecting Muslim women’.[xi] There is no right to be protected from divorce, nor is there a right, legally speaking, to know why one’s spouse has opted for divorce. In fact, as I have argued elsewhere, the ability to divorce one’s spouse, with or without cause or ‘fault’, is intrinsic to individual autonomy.[xii] What, then, qualifies the pronouncement of triple talaq as a ‘wrong’ worthy of criminalisation? Even assuming that deterrence alone is a valid purpose,[xiii]the criminalisation of triple talaq will not achieve the said purpose in any meaningful sense. It may serve as a deterrent against this particular form of divorce but cannot prevent Muslim men from divorcing their wives unilaterally, irrevocably, and without fault (albeit after a waiting period meant to encourage reconciliation) by using other forms of talaq, such as talaq-i-ahsan and talaq-i-hasan.[xiv]
This unprincipled criminalisation of triple talaq actually has little to do with women’s rights or equality.[xv]As the critics of the 2019 Act have repeatedly stated, the government cannot, on the one hand, condone the lynching of Muslims and on the other, pretend to be the saviours of Muslim women. The legislation is little more than a political gimmick that casts the practices of minority communities as problems in need of a legal solution,[xvi]while simultaneously enhancing the carceral vulnerability of an already over criminalised demographic. If the purpose of criminalisation had genuinely been to protect women from the consequences of desertion, all acts of illegal desertion would have been criminalised, notwithstanding the religion of the parties involved, or the time taken in finalising divorce.
That the criminalisation of triple talaq was meant to further the government’s political ends is also evident from the naming of the legislation. The Muslim Women (Protection of Rights of Marriage) Act, 2019, contrasts sharply against The Muslim Women (Protection of Rights on Divorce) Act, 1986, which had been passed by the Congress government to limit the rights of Muslim women to claim maintenance upon divorce, and thereby effectively to overturn the judgement of the Supreme Court[xvii] allowing Muslim women to claim maintenance on par with other women under S. 125, Code of Criminal Procedure, 1973 (CrPC). This contrast was driven home when the criminalisation of triple talaq was being debated in the Parliament.
Beyond these gimmicks, however, criminalisation serves the insidious function of saving the government time, effort and funds required for taking real and comprehensive action to address the underlying structural inequalities that make triple talaq truly problematic- such as the multidimensional poverty of Indian Muslims, the entrenched prejudice against women which leaves them without support from their families or communities after divorce, and most importantly, the lack of sufficient financial safety nets and social security programmes from the State for women upon divorce, which make married women entirely dependent on their husbands. Unprincipled criminalisation, therefore, serves as a distraction, creating a sense of justice through retribution, while leaving the real problems unaddressed.
Rape Law Amendments
Another example of the political use of criminal law is the introduction of harsher sentences, or the imposition of the death penalty, to signal toughness on crime. Whether it is the amendments that took place after the horribly mishandled Mathura Rape Case[xviii] or the shocking Nirbhaya incident, reactionary rape law reform in India has followed this trend for decades: a disruptive or shocking event leads to quick and targeted law reform that frequently misses the larger picture.[xix] Most recently, in 2018 and 2019, the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012 (POCSO) were amended following the brutal gang-rape and murder of an 8-year-old girl. The Amendments introduced shorter time-frames for the trial of cases under POCSO, ignoring evidence from five empirical state studies by the Centre for Child and the Law, National Law School of India University, Bangalore, on the implementation of the POCSO by Special Courts, that even the existing time-frames provided by the POCSO could not be adhered to unless the victim turned hostile. Similarly, higher minimum mandatory sentences were introduced for existing offences, ignoring evidence of the negative effects of mandatory minimum sentences, both from rape adjudication by Trial Courts in general,[xx] and the implementation of the POCSO by Special Courts in particular.[xxi] Most damaging, however, was the introduction of the death penalty for aggravated forms of rape and sexual assault, ignoring the evidence against the efficacy of the death penalty as a deterrent in the 262nd Report of the Law Commission of India, as well as the protests and warnings of feminists and child rights activists that the move would only put victims further at risk.
As I have argued elsewhere,[xxii] these amendments were meant to quell public outrage against a truly horrifying incident, a convenient way for the government to appear to be addressing the menace of rape and child sexual abuse in India, without actually investing in the systemic and social changes that could lead to long-term, sustainable solutions. The Amendment Acts of 2018 and 2019 are as likely to fail as their predecessors because they follow the same reactionary trend of reform that fails, not just to collect evidence on the ground realities of the problems it seeks to address, but also to factor in evidence that already exists on the subject. Instead of investing in training those in the child protection system, including the police, doctors, prosecutors, and judges, spreading awareness, and fighting stereotypes, the government has opted for quick-fixes with better optics so that the rape and sexual abuse of women and children can continue to be monetised for electoral gains.
Conclusion
The examples discussed above give an indication of how unprincipled criminalisation (whether by creating offences or enhancing sentences) serves as a political narrative, furthering only the ends of the government in power. It is characterised by the use of criminal law without considering the evidence at hand or attempting to collect evidence and opinion through those working on the subject of legislation on the ground, or those most likely to be affected by it. It has come to be weaponised for its powerful signalling effect, and its ability to dissipate the anger of the masses, not only in India but across the world. What of the well-being of potential victims? To that, such criminalisation is wholly indifferent.
[i] See, H.L.A. Hart, The Concept of Law (OUP, 1961).
[ii] For a brief and tantalising view of this, see, Criminalization: The Political Morality of Criminal Law (Duff, Farmer et. al eds., OUP, 2014).
[iii] See Michael Moore, “Liberty’s Constraints on What Should be Made Criminal” in Duff, Farmer et. al (eds.), Criminalization: The Political Morality of the Criminal Law (Oxford, 2014), 182.
[iv][iv] J. Edwards, “Harm Principles” (2014) 20(4) Legal Theory 253-285.
[v] R.A. Duff, The Realm of Criminal Law (Oxford, 2018), 196.
[vi] Asaf A. Fyzee, Outlines of Muhammadan Law (3rd edn., OUP, 1964), 142-147.
[vii] Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945.
[viii] (2017) 9 SCC 1.
[ix] Nadeem Khan v. Union of India W.P. (Crl.) No. 1541/2020, decided on 13.10.2020.
[x] See the writ petition filed by All India Muslim Personal Law Board (AIMPLB) against the Muslim Women (Protection of Rights on Marriage) Act, 2019, Para O. available at https://www.livelaw.in/pdf_upload/pdf_upload-365781.pdf, (last accessed on 21.04.2021). All India Muslim Personal Law Board & Anr. v. Union of India WP(C) 1300/2019 [Supreme Court, Notice issued on 13.11.2019].
[xi] Muslim Women (Protection of Rights on Marriage) Act, 2019, Statement of Objects and Reasons.
[xii] Shraddha Chaudhary and Shreedhar Kale, “The Right to Love and the Right to Leave: Recognising Autonomy through Unilateral No-Fault Divorce”, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2020/04/06/guest-post-the-right-to-love-and-the-right-to-leave-recognising-autonomy-through-unilateral-no-fault-divorce/, (last accessed on 21.04.2021).
[xiii] For an argument that it is not a sufficient reason for criminalisation, See Edwards and Simester, “Prevention with a Moral Voice” in Duff and du Bois-Pedain (eds.) Liberal Criminal Theory: Essays for Andreas von Hirsch (London, 2004), 43.
[xiv] See note vi, 144-146.
[xv] See Flavia Agnes, “The Politics Behind Criminalising Triple Talaq” (2018) 53(1) Economic and Political Weekly.
[xvi] Pallavi Gupta, Banu Goranksel and Sara Smith, “The Politics of Saving Muslim Women in India: Gendered Geolegaity, Security and Terrorisation” (2020) 83 Political Geography 1, available at https://www.sciencedirect.com/science/article/pii/S0962629820303206, (last accessed on 04.05.2021).
[xvii] Supra vii.
[xviii] AIR 1979 SC 185.
[xix] See Prabha Kotiswaran, “Governance Feminism in the Post-Colony: Reforming India’s Rape Laws” in (Halley, Kotiswaran, Rebouche and Shamir eds.) Governance Feminism: An Introduction, 75 (Minneapolis, 2018).
See also, Shraddha Chaudhary, “Reconceptualising Rape in Law Reform” (2017) 13(2) Socio-Legal Review 156, 157-160.
[xx] Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (CUP, 2017), 202-204.
[xxi] Shraddha Chaudhary, “Charges and Sentencing Patterns under the POCSO Act, 2012”, Implementation of the POCSO Act, 2012 by Special Courts: Challenges and Issues (National Printing Press Bangalore 2018) 51, 59, available at https://ccl.nls.ac.in/wp-content/uploads/2017/01/Implementation-of-the-POCSO-Act-2012-by-speical-courts-challenges-and-issues-1.pdf, (last accessed on 22.02.2021).
[xxii] Shraddha Chaudhary, “Reforms to the Legal Framework of Child Sexual Abuse in India: Legislative Band-Aids on Systemic Wounds”, (2020) Statute Law Review, available at https://academic.oup.com/slr/advance-article/doi/10.1093/slr/hmaa007/5857571, (last accessed on 22.04.2021).
This article has been authored by Ms. Shraddha Chaudhary, a First Year Ph.D Candidate at the Faculty of Law, University of Cambridge, and a lecturer at Jindal Global Law School. Her areas of interest are criminal law and philosophy, family law, gender and law, and the treatment of women and children in the criminal justice system. This blog is a part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.