India has, of late, shown an increasing tendency to be stuck in a particular equilibrium with regard to crime and punishment, one of poor enforcement but harsh penalties. According to economic theory, law-breakers can be deterred by the expected cost of breaking the law - an expectation formed by the probability of being caught interacting with the loss of welfare once apprehended. It has been widely observed that weak, developing states tend to focus more on penalties; strong, modern states on enforcement and implementation of laws. But the problem, of course, is that weak implementation and over-harsh penalties lead to a culture of public and private violence, lawlessness and impunity, such as can be observed in India today.
The tendency to legislate unnecessarily stiff sentences was thrown into somewhat absurd light by a recent draft from the Union home ministry of a law governing the use of maps. Breakers of the proposed law - those using geo-location without approval, which would include a large plurality of Indians - would be subject to a seven-year jail sentence. This is clearly both unimplementable and draconian. All such laws do is to keep the citizens of India in a state of perpetual criminality - subject to the whims of law enforcers, and destroying respect for the rule of law. Then there are the "social policy" laws, such as Article 377 on homosexuality, or the beef bans. In Mumbai, for example, a recently enforced law insisted that having a beef-steak in your fridge could land you in jail for five years (although this is being examined by the courts, and some provisions were diluted by judges recently). And then there are prohibition laws, which are unfortunately gaining popularity all over the country - Bihar and Kerala have recently implemented them, and they were an issue in the Tamil Nadu elections as well. These are often accompanied by over-strict penalties. Even in non-prohibition states like Delhi, the possession of a few cases of beer, or a collection of more than nine bottles of single-malt whiskey, could land you in jail for three years.
Unfortunately, this process of criminalising the general public has only gathered steam in the last couple of years. To beef bans, prohibition, and the maps law should also perhaps be added the Supreme Court judgement upholding criminal defamation. Defamation is essentially a civil crime that was only criminalised in the period when duels, aimed at defending honour and reputation, posed a threat to public order. To move forward, and fit in with other liberal democracies, India should improve the delivery of swift justice in civil defamation cases, instead of retaining criminal defamation. The global trend is indeed in the opposite direction from criminalisation - various offences are being decriminalised, such as the possession of cannabis. Criminalising more and more offences is an indication of an illiberal approach to delivering justice. It is also deeply inequitable; it is the poor who usually get caught or picked on by the arbitrary law enforcer. They then have to spend years in jail as under-trials with no recourse to quick justice. The Modi government came into office promising to look at outdated laws. It should not stop there; it should look at some more recent laws, and the need to amend them.
