Ideas for India in 2024: Towards less volatile criminal laws and practice

It has been some decades in the making, but criminal law jurisprudence today seems very highly strung—the sort that jumps at every dissenting note, at any sign of dissonance.

To those who enforce the criminal justice system (police and prosecutors, magistrates and judges), present laws and jurisprudence encourage continued surveillance and strict action, evoking a sense of panic and exception.

It is as if the law were responding to a constant state of emergency, as if state and society were always vulnerable to attack from ‘enemies’.

This projection of fear has come to shape opinions, practice and even jurisprudence. Even for its enforcers, the criminal justice system may have become claustrophobic, whether or not they realise it. To be always looking for conspirators, to treat large parts of the population as always suspect must take its toll.

The new criminal codes especially normalise ‘the state of exception’.

Every act, unless it is an act of consolidation of culture or politics, is exceptional (and subversive). All investigations must start with arresting all suspects (and then some). Investigations are open-ended—both in terms of looking for wider conspiracies and more conspirators, and in terms of time, stretching endlessly for the accused waiting in jail.

I’d find hope in a politics that vocally expresses a desire to reverse this trend, one that even begins to ask the question: How can citizens be less anxious when their lives are framed by jittery laws and politics? How does a modern state keep its laws and criminal justice practice level-headed and fair, and less volatile?

While criminal and special laws frame society as always under threat and thus mire some citizens’ perspectives in fear and suspicion, in their operation, such laws actually strip other citizens of all rights. For an accused person, an encounter with such laws might evoke panic for more tangible reasons than felt by the law enforcer.

I’d find hopeful any politics that understands and acknowledges such functions of power.

SHARUKH ALAM is an advocate in the Supreme Court of India. Views are personal