-Sofia Dash & Ahan Gadkari
Introduction
The recent Criminal Procedure (Identification) Act, 2022 (“CP Act”) has spurred nationwide debates amongst human rights activists and the government officials. The CP Act, which aimed at replacing the archaic Identification of Prisoners Act, 1920,permits law enforcement officers to collect identifiable information of all convicts, arrested persons, and detainees, with the exception of those infringing prohibitory orders under Sections 144 or 145 of the Code of Criminal Procedure, 1973 (“CrPC”), or arrested under preventive detention under Section 151 of CrPC. While the existing literature on such discriminatory provisions are usually centered on the infringement of a person’s fundamental rights, such as right to privacy under Article 21 of the Constitution of India, this article aims to draw focus on a common law concept less heard of – “fair labelling”.
The principle of fair labelling, first propounded by Andrew Ashworth, refers to the distinctions between types of offences and degrees of wrongdoing, which are respected and signaled by the law, and are subdivided and labelled to represent fairly the nature and magnitude of the law-breaking.
Fair labelling plays a predominant role during both – conviction and sentencing. It also harbors paramount importance in the lives of the convicts/ incarcerated when they are reintroduced to the society and must fend for a living. The criminal record must explicitly clarify the nature of the crime and its degree. For instance – while there still exists a difference between culpable homicide and murder in the Indian Penal Code, 1860 (“IPC”), there lacks clarity in the degree and conditions of murder while sentencing and recording the crime. This persists even though the IPC has audibly laid out four differing conditions under which murder may be committed.
The CP Act, by grouping all convicts, arrested persons, and detainees under one umbrella, has not only played foul on the principles of fair labelling but has also rendered obsolete the differentiation of crimes under the IPC.
Thus, this article will aim to highlight the concept of fair labelling and its lack of implementation in the Indian criminal jurisprudence. Furthermore, it will attempt to contrast the same with international standards and summarize the major takeaways.
Concept of Fair Labelling
The principle of fair labelling is often manifested in laws governing homicide, and laws governing modes of responsibility in domestic and international criminal law. However, its prevalence can also be sought in other focus areas such as sexual offences, offences against property, and domestic abuse. The principle of fair labelling is activated even in cases when it is not mentioned by name. Such as, offences involving aggravated hostility towards protected characteristics in society are often labelled as ‘hate crimes’ due to the definitive culpability such acts possess.
Fair labelling constitutes two major issues – ‘differentiation’ and ‘naming’. While ‘differentiation’ refers to the categorization of criminal conduct into different offences, ‘naming’ refers to the actual title assigned to the offence – such as ‘fraud’ or ‘trespass’. While both issues play cardinal roles in the furtherance of fair labelling, this piece will dwell into the ‘differentiation’ issue.
The ’differentiation’ issue majorly focuses on the moral guilt of the offender and ‘the extent of the harm’ caused. Scholars collectively refer to the aforementioned as the ‘blameworthiness’ of the offender. This inherently includes the conduct for which the offender is to be blamed and his culpability. This is essentially important in a nation like India where the death penalty is part of the legislation governing offenders. Incorrectly labelling an innocent as an offender can cost lives, as it has in the past. In 2009, the Supreme Court admitted that it had wrongly sentenced 15 people to the death row. Such an error can never be justified as its echoes will forever reverberate within the walls of the Apex Court.
Depending on the veracity of the ‘label’ attributed to the offender, the Apex Court in Nandini Satpathy v. PL Dani (1978) observed that the technology used in torture devices is adequate to destroy the convict’s will without leaving any marks of physical injury.
Such instances indicate that the Indian penal system is a glutton for disregarding the fair labelling principles.
Importance of Fair Labelling
First and foremost, fair labelling works as a check against arbitrary discretion used while sentencing. The 47th Law Commission Report (1972) expanded on factors that determine sentencing of offenders in India. Under this, an important consideration includes the nature of the offence. However, the nature of offence is determined by categorizing it into one of the already known offences in the IPC. Since the IPC merely gives the minimum penalty for some offences and maximum for others, it bestows the sentencers with the utmost discretion in determining the ‘appropriate’ sentencing. The Malimath Committee on Reforms of Criminal Justice System (1973) highlighted the lack of proper sentencing guidelines in India which, when coupled with the ineffectual system of labeling offences, renders the convict helpless; at the mercy of the sentencer who is only bound by the statutory lower and upper limits and “holds no accountability”, otherwise.
Secondly, fair labelling acknowledges the symbolic function of ‘offence labels’. When an individual is labelled as a ‘murderer’, it creates a declaratory function for the public. When the title of the offence does not accurately highlight the nature of wrongdoing or harm caused, it may subject the convict to unfair stigma from the public. For instance, in India, causing death of another person is divided into two labels – culpable homicide, under Section 299 of IPC, and murder, under Section 300. Such differentiation, although helpful in determining the intensity of the mens rea and actus rea of the crime, disqualifies the circumstances which might have precluded the crime. Section 300 itself is divided into four parts to determine the circumstances under which the crime was committed. However, the broad label of ‘murder’, which encompass all the four circumstances under one umbrella, seems to render the practice of differentiating the mens rea and actus reus of the offender nugatory. The public eye will never look at the label ‘murderer’ and rationalize the circumstances under which the crime was committed. This is detrimental to all offenders who attempt to restart their life, post their sentence, and rehabilitate themselves in the society.
Thirdly, fair labelling is essential to deliver justice to victim/s of the crime. While the aforementioned section has focused greatly on the phenomenon of over-criminalizing the circumstances of the crime, a juxtaposing phenomenon of under-criminalization is known, consequently, to take too much space in the Indian penal system. The Criminal Law (Amendment) Act, 1983, triggered by the appalling Tukaram & Anr. v. State of Maharashtra (1978) case, and the Criminal Law (Amendment) Act, 2013, triggered by the gruesome Mukesh & Anr. v. State For NCT Of Delhi & Ors. (2017) case, brought considerable reforms to the rape provisions in the IPC. It included custodial rape and expanded the definition of rape, respectively. However, the concern raised for including marital rape under the label of ‘rape’, although recommended by the Justice Verma Committee Report, still remains a far cry from tangible implementation. How does such faulty labelling of rape then manifest in binding the spouses in an ‘irrevocable bargain’ of ‘indisputable consent’? Such instances of under-criminalization further elegize the hardship tale of the Indian penal system.
International Standards of Fair Labelling
The principles of fair labelling have been by far, most extensively practiced in the American penal system. For instance, the differences in the factors leading to first-, second- or third-degree murder in states, such as Florida, and the explicit differences in its sentencing aim to recognize the distinguishing circumstances that may contribute to the crime and sentence accordingly. While first-degree murder is the most consequential form of murder, in the United States, third-degree murder is similar to that of manslaughter in the United Kingdom (“UK”). The UK has a two-tier system of murder and manslaughter – similar to that in India of murder and culpable homicide. However, the Law Commission of the UK released a report in the 2004 providing recommendations for a complete review of the law of murder. The recommendations attempted to inculcate a divisive method of labelling murder and manslaughter into a three-tier structure, with definite illustrations of the circumstances which may encompass the crime. However, these recommendations were rejected by the Government.
It is interesting to note how the penal system of UK and India, first implemented under the British rule, lack vehemently in fair labelling principles – indicating that both their criminal systems are cut from the same cloth and are in need of urgent reform.
Takeaways
Corroborating the above arguments, it is suffice to state that there is a significant disadvantage when the principle of fair labelling is disregarded – both to the convict and the victim of the crime. The foremost purpose of having a coded penal system in India is to deliver justice, uniformly, to the accused and victims. By turning a deaf hear to fair labelling, we find inconsistencies in the decisions of the courts at every tier of the appellate system. This renders the common law principle of precedents, alongside fair labelling, moot. A call for action is required for the criminal jurisprudence to take up this matter in consonance with that of sentencing guidelines, especially on death penalty, as proposed by the Supreme Court, to create a more efficacious penal system. The legal fraternity waits with bated breath as the Union Home Minister, Amit Shah, in 2022, announced that the Government will soon introduce new drafts of IPC and CrPC. He stated that several hours are being spent, daily, to improve the existing codes. The authors only hope that the Government takes a holistic view at the law and the principles that govern it; since even the summation of the ‘hours’ spent by the Government, only to create a kindred rendition of the existing code, will never equal or nullify the ‘lifelong injustice’ endured by an individual fallen prey to a system in ignorance of the fair labelling principles.
[Sofia Dash and Ahan Gadkari are 2nd and 5th-year student of Jindal Global Law School, O.P. Jindal Global University]
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