Context

• While substantive law grapples with defining crimes and prescribing punishments, procedural law governs the mechanisms through which justice is administered.
• The conventional marginalisation of procedural law overlooks its fundamental role in shaping how justice is delivered.
• Recent judicial developments, such as the Supreme Court’s verdict in Imran Pratapgarhi vs State of Gujarat, underscore the critical importance of procedural safeguards in upholding the principles of democratic criminalisation.
• Therefore, it is crucial to explore the interplay between substantive and procedural criminal law, highlight the responsibilities of the police, and analyse how legal philosophy and jurisprudence shape the legitimate use of state power in criminalisation.

Substantive vs Procedural Criminal Law: A False Hierarchy

• Substantive criminal law defines offences and stipulates the punishments associated with them.
• It captures the moral and legal compass of a society, determining what behaviour is deemed criminal.
• However, to enforce these norms, procedural criminal law is indispensable. It provides the framework through which allegations of crime are investigated, prosecuted, and adjudicated.
• Despite its apparent mundanity, procedural law is not merely a technical tool; it is the ‘beating heart of action’ in the criminal justice process.
• It ensures that the immense power of the state to deprive individuals of liberty is exercised within defined and justifiable boundaries.
• The Supreme Court’s ruling in Imran Pratapgarhi reaffirms that principled criminalisation hinges not only on what the law punishes but also on how it punishes.

Theoretical Foundations of Criminalisation, Procedural Law and the Dynamics of Actual Criminalisation

• Theoretical Foundations of Criminalisation
  • Criminalisation involves both the state’s power and duty: the power to declare conduct criminal and the duty to pursue justice against wrongdoing.
  • Legal philosopher Victor Tadros emphasises that this is part of a broader ethical obligation encompassing prosecution, public condemnation, conviction, and punishment.
  • Criminal law does not operate in a vacuum; it exists among other social institutions that handle wrongs, such as families and civil law frameworks.
  • Tatjana Hörnle’s contribution to this debate introduces three principles that should guide the process of criminalisation: it must protect collective interests, guard against violence, and uphold the right to non-intervention.
  • These criteria aim to restrict the scope of criminalisation and ensure it targets only genuine societal harms.
  • In India, these principles find expression in the Bharatiya Nyaya Sanhita (BNS), the substantive criminal code.
• Procedural Law and the Dynamics of Actual Criminalisation
  • Even when substantive law is grounded in sound principles, the actual criminalisation process, detection, registration, investigation, arrest, prosecution, and sentencing, can distort the intended outcomes.
  • Certain behaviours and social groups may be over-criminalised due to systemic biases or bureaucratic inertia, while others may escape due scrutiny.
  • This discrepancy underscores the necessity of robust procedural oversight.
  • The discretionary powers vested in criminal justice agencies, particularly the police, are central to this dynamic.
  • The police serve as the frontline agents of criminalisation. Their decisions to register an FIR, investigate a case, or make arrests significantly influence who is labelled a criminal and what acts are deemed criminal.
  • Hence, procedural law must constrain and guide police discretion to prevent abuse and ensure fairness.

Section 173(3) of BNSS: A Check on Police Overreach

• Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) represents a critical procedural innovation.
• It allows the police to conduct a preliminary inquiry before registering a First Information Report (FIR) for certain cognisable offences punishable with three to seven years of imprisonment.
• This provision introduces a valuable safeguard against unnecessary or hasty criminalisation, especially in cases where the accused exercises fundamental rights such as freedom of speech.
• The Imran Pratapgarhi case demonstrates the judiciary’s role in interpreting and enforcing such safeguards.
• The Supreme Court quashed the FIR against the parliamentarian for allegedly posting an inflammatory poem, ruling that the police failed to undertake the mandatory preliminary inquiry.
• The judgment emphasised that the provision aims to prevent frivolous or politically motivated FIRs that could chill legitimate expression.

Conclusion

• The legitimacy of the state's power to criminalise rests not just on the justness of the substantive law but equally on the integrity of procedural implementation.
• Principled criminalisation demands a commitment to constitutional values, legal restraint, and procedural fidelity.
• The Imran Pratapgarhi judgment is a timely reminder that procedural law is not secondary but central to justice.
• Ultimately, criminal law in a constitutional democracy must balance authority with accountability.