Reiterating the basics of criminalisation

Why in the News

The Supreme Court has held that the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 is “still-born” and that proceedings under it cannot survive. A two-judge Bench decided this in Shiv Pratap Singh vs. State of U.P. and Himanshu Srivastava vs. State of U.P. The Bench found that the Act never created an offence at all. Who counts as a gangster was fixed by Rules framed under the Act, so the determination was left to the “ipse dixit of the Executive”, an assertion resting on official say-so rather than on proof. The Act had governed gangsters and anti-social activities in the State for four decades. The contest is between a State’s claim to a special law against organised crime and the constitutional requirement that only a legislature may create a crime.

What is the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986?

1. Subject matter: The Act was the State’s dedicated special law against gangsters and anti-social activities in Uttar Pradesh.
2. Determination of a gangster: The Act defines a gangster. Who is a gangster for the purpose of punishment is prescribed in the Rules framed under the Act.
3. Gang chart: Chapter 3 prescribes the procedure for preparing the gang chart. This is the document through which administrative and police authorities record a person as a gangster.
4. Section 23: Section 23 carries special provisions for trial and bail, together with the rule-making power.

Why did the Court call the Act “still-born”?

1. Creation of the crime: A penal law must create the crime by explicitly identifying the act made punishable. The Court applied the definition of “offence” in the General Clauses Act and concluded, “We cannot find any offence having been created.”
2. Criminal law-making as a legislative function: Making an act or omission subject to penal consequences is “essentially a legislative function”. The Court held that this function “cannot be thrown away and left to sprout in the thicket of subordinate legislation”.
3. Exclusion of the executive: The Rules left the determination of who a gangster is to the executive. The Court treated the exclusion of the executive from rule-making and from guilt determination as the desirable position.
4. Punishment must follow the statute: The Court held that punishment must accord with what the penal law itself prescribes. A subordinate instrument cannot supply it.

Why is criminal law-making reserved to the legislature?

1. The definitional role: The role of defining crime and punishment is “assigned primarily and broadly to the legislature, secondarily and interstitially to the courts, and to no one else”. That formulation comes from Herbert L. Packer’s The Limits of the Criminal Sanction (1968).
2. Deliberation before enactment: Enacting a criminal law through the legislature forces detailed debate and due deliberation. Subordinate legislation supplies neither.
3. Unquestioned executive opinion: The problem arises when the opinions of the executive are accepted without question on categorisation and on punitive action.

How does the principle of legality bar an executive-defined crime?

1. Principle of legality: Criminalisation is rooted in the principle of legality. It requires the act and its punishment to exist in law before the conduct occurs.
2. Two maxims: The principle draws on nullum crimen sine lege, no crime without law, and nulla poena sine lege, no punishment without law. An administrative classification satisfies neither.
3. Bar on retrospective criminalisation: The principle also prohibits ex-post facto legislation. Conduct cannot be made punishable after it has taken place.
4. Article 20(1): Article 20(1) creates a right against conviction except for violation of a law in force at the time of the act charged as an offence. It also bars a penalty greater than what the law in force prescribed.

How did the Act turn a criminal trial into a formality?

1. Status as the punishable thing: The Act punished mere status. That status was settled by administrative and police authorities rather than in court.
2. Nothing left for the judge: Once the status is so determined, “nothing remains to be considered by the judicial officer but to punish him”, the Court held.
3. A foregone conclusion: The Court described the end result of a trial under the Act as “a foregone conclusion, a statutory imprimatur to punish”.
4. Culpability without reasons: Challenges in this and in earlier cases argued that executive authorities reached conclusions of culpability without verifiable evidence or reasoning.

Can the gravity of a social menace justify an executive-defined offence?

1. No licence for arbitrary action: However compelling or threatening the social menace, a penal enactment to curb it “cannot lead to arbitrary and capricious actions against the one, alleged with the commission of an offence”, the Court held.
2. Loose labelling in public life: Indian public discourse applies labels such as deshdrohi and “urban naxal” at will. Precise definition of categories such as crime and offence is what keeps that habit out of statute.
3. A reform agenda: The ruling sets out an agenda for reform of the Gangsters Act. It also restates the limits within which enforcement agencies may operate.

Conclusion

A State penal law can name a social danger without ever defining the act it punishes. That is what this ruling ends. The reform it invites is legislative, because the offence, its ingredients and its punishment have to sit in the statute a legislature passes rather than in rules the executive writes afterwards. The marker to watch is whether Uttar Pradesh re-enacts its special law with the offence on the face of the statute, and whether other State special laws that punish a status recorded by police are now tested on the same ground.

Matching Previous Year Question

“[2021] A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44 (a)”