Penal Populism: The Deadly Power of Their Opinion

[Preeti Gurnani is a law student at the National Law University, Jodhpur]

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Democracy which began by liberating men politically has developed a dangerous tendency to enslave him through the tyranny of majorities and the deadly power of their opinion.’

– Ludwig Lewisohn, The Modern Drama, p. 17

In very simple words, penal populism refers to a process whereby political parties compete with each other to be ‘tougher on crime’ to command the popular support of the people.[1] But this concept is not as simple as it seems to be. Policies are populist if they are advanced to win votes without being concerned about the effects they have. Thus, according to Prof. Roberts, “Penal populists allow the electoral advantage of a policy to take precedence over its penal effectiveness.”[2]

On a prima facie note, there seem no problems with the policies which are formed by the political parties in response to the public demand. The government is elected by the people and thus it is supposed to rule in accordance with their opinions, needs and demands if they want to remain in power. It will be foolish on our part to think that political parties should not be responsive to their electorates, which in turn is the very essence of a democracy. The real problem arises when the opinions being relied upon by the lawmakers is that of the lesser informed public. While doing so, they ignore the realities of society and logic. It can be observed that in some cases even media is responsible for instigating the formation of such an opinion with a loss of reason by magnifying the fear of crime, which is not related to the actual rates of victimization, and manipulating emotional reactions.

Here, the political parties in opposition have an important role to play as they always find ways to prove that how lackadaisical the existing government is, as it is not formulating new policies or laws of which the society is in dire need of. Prof. Roberts has correctly identified the basic elements to the definition of Penal populism: a) an excessive concern towards the attractiveness of policies; b) an intentional or negligent disregard for evidence of the effects of various criminal justice policies; c) a tendency to make simplistic assumptions about the nature of public opinion, based upon inappropriate methods.[3]

People feel that crimes are committed because the existing punishments do not have enough deterrent effect in the minds of potential criminals. However, it has been observed that harsher punishments have been imposed even at times when the crime rates were actually going down.[4]

The effects of penal populism can be seen in many countries. The biggest of which are mandatory sentencing laws like the three strikes sentencing provision in the United States, transfer of juveniles accused of wide range of offences to be tried as adults, imposition of shaming penalties on offenders (in some states of the US, offenders doing community service are obliged to wear distinctive clothing which causes public humiliation) etc.[5]

Even though scholars have done extensive research and have analysed populist trends in criminal policies, these researches are limited mostly to English speaking countries like the USA, England, Canada and Australia. No substantial effort has been made to identify such trends in Asian countries like India. The existence of penal populism can be sensed in India too and I shall support it through an analysis of the recent events.

Every time there is a public outcry due to the increase in the number of sexual offences, the government pacifies the same by imposing more stringent punishments for such offences.  For instance, the government responded to the Kathua rape case, where the eight-year-old was raped, by passing an Ordinance and later an Act, making the punishment for rape more stringent which can extend to death penalty where a girl of 12 years or less is the victim.[6] Most people are of the opinion that the death penalty itself would be sufficient to deter rape of minors. However, the 262nd report of the Law Commission of India has already observed that there is no evidence to show that capital punishments act as a deterrent.[7] Further, even if we assume that such punishments do create some deterrence, I wish to emphasize that the deterrence effect is not created by the quantum of punishment alone but also the by the possibility of conviction.[8] Here, it is important to emphasise that the conviction rate for crime against women has hit an all-time low in 2016 i.e. 18.9% and this gravely undermined the deterrent effect which harsher punishments supposedly create.[9]

Crime in India: 2015’ indicates that 94.8% of the accused under Section 4 (penetrative sexual assault) and Section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act (POCSO Act), 2012 were ‘known accused’.[10] It is apprehended that the death penalty will increase the pressure on the victim to not report the crime.[11]

The same could be observed in the Nirbhaya Rape case.[12] How did people respond to the acquittal of the accused who was a juvenile? Hunger strikes, traffic jams, huge crowds on road, all demanded his trial as an adult because according to them this to try the accused juvenile as an adult.[13] The government feared a huge loss in its votes as the rage in people seemed to be insatiable. Thus, without losing any time, it amended the Juvenile Justice Act to show its concern and made a provision to try juveniles between the ages of 16-18 as adults depending upon the seriousness of the offence.[14] The so-called concerned public was satisfied with the amendment because according to them, the juvenile crime rates would go down as higher punishment means enough deterrence! Illusion! On the contrary, according to the ‘Crime in India-2016’ released by the National Crime Records Bureau, the juveniles in conflict with law in 2014 were 38,455 which reduced to 33,433 in 2015, which makes it clear that the juvenile Justice Amendment cannot be justified on the ground of increase in crime rates by juveniles. Neither did the ‘trial of juveniles as adults’ serve as a deterrent because the juveniles in conflict with the law in 2016 were 35,849, which more than that in 2015.[15] These statistics portray the key characteristics of penal populism i.e. harsher crime policies even when the crime rates are going down and doing so just for the sake of ensuring electoral support and not preventing the crime in reality.

Further, the passing of the Indian Penal Code (Punjab Amendment) Bill, 2018 making ‘injury, damage or sacrilege’ to the sacred books of Hindus, Christians, Sikhs and Muslims punishable with life imprisonment[16] is one of the most appropriate examples of this phenomenon. The punishment is highly disproportionate and even if protecting the religious sentiments is so important, then why only these four communities have been covered by the amendment? The same could be observed in the Ordinance passed to make triple talaq a criminal offence.[17] The author supports the view that the Ordinance was not required because the practice in question had already been declared unconstitutional.[18] Moreover, prescribing a punishment of three years, which in IPC is provided for serious offences like rioting with weapons,[19] makes the situation absurd. It is not oblivious that the ruling party needed the electoral support of the community in question.

The reason behind the existence of penal populism is the structure of societies. The less educated and more orthodox the people are, more are the chances of populism of any find fostering in the societies.[20] The electorate at first is satisfied with the formulation of new stringent laws that creates a mirage of a society with low crime rates. But what people forget to take into account is that only harsh punishment is not required to reduce crime rates but the definiteness and uniformity with which it is administered. If the law provides for a tough punishment but there is a very low probability that the criminal will be convicted or he can easily find his way out of conviction with bribes and connections, which is magnificently used in India,[21] the chances of reduction in crime are very low. It shifts the focus of the government from doing actual work to prevent the crimes by making amusing policies to please the electorate.

Thus, educating people and making them capable of having informed opinions can solve this problem to a great extent. Also, there are societies with strong central bureaucracies, like Canada, Germany and England which have successfully blocked this populist practices.

[1] Dobrynina, Margarita, “The Roots of “Penal Populism”: The Role of Media and Politics, Kriminologijos studijos. 4. 98. 10.15388/CrimLithuan.2016.4.10729.

[2] Julian V. Roberts, Loretta J. Stalans, David Indermaur, Mike Houg, Penal Populism and Public Opinion: Lessons from Five Countries (2002).

[3] Id.

[4] Infra.

[5] Id.

[6] The Criminal Law Amendment Act, 2018.

[7] Law Commission of India, Report no. 262: The Death Penalty (2015).

[8] Should Those Who Rape Minors Get Death Penalty?, The Hindu (Apr 27, 2018), https://www.thehindu.com/opinion/op-ed/should-those-who-rape-minors-get-the-death-penalty/article23686547.ece.

[9] Crimes in India 2016, National Crime Records Bureau, Ministry of Home Affairs, Government of India.

[10] Crimes in India 2015, National Crime Records Bureau, Ministry of Home Affairs, Government of India, cited in Should Those Who Rape Minors Get Death Penalty, The Hindu (Apr 27, 2018), https://www.thehindu.com/opinion/op-ed/should-those-who-rape-minors-get-the-death-penalty/article23686547.ece.

[11] Id.

[12] Nirbhaya gangrape: A timeline of the case that shook India’s soul, India Today (Dec 16, 2017), https://www.indiatoday.in/india/story/nirbhaya-anniversary-a-timeline-of-the-gangrape-case-that-shook-india-soul-1111284-2017-12-16.

[13] Shivam Vij, Why The Juvenile In The Nirbhaya Case Deserves A Second Chance, Huffpost (Jan 01, 2018) https://www.huffingtonpost.in/2015/12/19/why-the-juvenile-in-the-n_n_8842954.html.

[14] The Juvenile Justice (Care and Protection of Children) Act, 2015, available at http://cara.nic.in/PDF/JJ%20act%202015.pdf.

[15] Crimes in India 2015, National Crime Records Bureau, Ministry of Home Affairs, Government of India.

[16] Faizan Mustafa, Why Triple Talaq Ordinance is Neither Perfect not Necessary, India Express (Sept 21, 2018), https://indianexpress.com/article/explained/why-the-triple-talaq-ordinance-is-neither-perfect-nor-necessary-5367271/.

[17] The Muslim Women (Protection of Rights on Marriage) Ordinance 2018, No. 7 of 2018.

[18] Sharaya Bano v. Union of India, (2017) 9 SCC 1.

[19] Faizan Mustafa, Why Triple Talaq Ordinance is Neither Perfect not Necessary, Indian Express (Sept 21, 2018), https://indianexpress.com/article/explained/why-the-triple-talaq-ordinance-is-neither-perfect-nor-necessary-5367271/.

[20] John Pratt, Penal Populism (2007).

[21] An Interview with The former Chief Justice of India V. N. Khare, ‘Corruption Is Rampant In The Lower Courts’, Outlook, https://www.outlookindia.com/magazine/story/corruption-is-rampant-in-the-lower-courts/281457.

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