Principled criminalisation and the police as pivot

The Supreme Court of India, in Imran Pratapgarhi vs State of Gujarat, quashed an FIR against a Rajya Sabha MP, citing police failure to conduct a preliminary inquiry as required under Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS). The ruling highlighted the critical role of procedural safeguards and police discretion in ensuring principled criminalisation.

Legal and Philosophical Foundations of Criminalisation

• Power-Duty Nexus of the State: Criminalisation is not merely an assertion of state power but also a constitutional duty to publicly identify and address wrongdoing through fair, proportionate punishment.
• Tadros’ Integrated Framework: Legal theorist Victor Tadros argues that the state's power to criminalise is part of a larger normative obligation that includes prosecution, condemnation, and punishment of wrongs, embedded in public institutional processes.
• Criteria for Legitimate Criminalisation: As per Tatjana Hörnle, conduct should only be criminalised if it harms collective interests, involves violence, or violates the right to non-intervention — principles partially reflected in the Bharatiya Nyaya Sanhita (BNS).

Role of Procedure and Police Discretion

• Procedural Law as the Operational Core: The BNSS (procedural law) governs the real-time operations of criminal justice — determining how and when offences are registered, investigated, and prosecuted — making it central to criminalisation’s actual impact.
• Police as the First Gatekeepers: The police initiate the process of criminalisation through arrest, investigation, and FIR registration, and their discretionary power directly affects the extent and nature of law enforcement.
• Discretion and Its Risks: Unregulated discretion can lead to over-criminalisation of non-serious conduct and neglect of harmful wrongdoing, thus distorting the goals of the criminal justice system.

Supreme Court Interpretation of Section 173(3), BNSS

• Discretion Structured by Safeguards: Section 173(3), BNSS allows police to conduct a 14-day preliminary inquiry before registering an FIR for cognisable offences punishable with 3 to 7 years, aiming to prevent frivolous criminalisation.
• Judicial Reinforcement of Procedural Duty: In Imran Pratapgarhi, the Court held that preliminary inquiry is mandatory especially when fundamental rights like free speech are implicated, reinforcing the binding nature of procedural compliance.
• Guarding Against Police Overreach: The ruling emphasized that failure to follow due procedure amounts to abuse of police power, which can undermine both individual rights and the legitimacy of the criminal justice system.

Practice Question