Opinion | A legal case that highlights an entire legacy of bad laws4 min read . Updated: 03 Aug 2020, 08:30 PM IST
The needless criminalization of ordinary rule violations has clogged courts and thus denied others justice
Last week, Supreme Court justices Ramana, Kant and Murari finally gave Prem Chand long-due relief, acquitting the shopkeeper from Haryana 38 years after he was accused of a crime. The crime? On 18 August 1982, the state food inspector, upon testing, allegedly found four living meal worms and two live weevils in a sample of haldi (turmeric) powder taken from Prem Chand’s shop. He was charged under the Food Adulteration Act, 1954, for selling adulterated haldi and for selling without a licence, both of which carry prison sentence and fines.
The case went through a trial court, which acquitted Prem Chand after 13 years on 31 August 1995. Inexplicably, the State of Haryana appealed this decision. The high court took another 14 years to rule, and, reversing the trial court’s decision, convicted Prem Chand on 12 September 2009. Prem Chand appealed the high court’s decision, and after almost a decade, on 30 July 2020, the Supreme Court acquitted him. It found the procedure followed for testing impeachable—there is no receipt for the sample sent for testing the next day, and no evidence that it was not tampered with during the 18-day delay in report submission by the office of the public analyst. It will be 38 years this month since this absurdity began. To add salt, not haldi, to old wounds, the case didn’t even move at a weevil’s but a snail’s pace.
When Prem Chand was accused in 1982, Indira Gandhi was India’s prime minister and the Bharatiya Janata Party was two years old and Namak Halaal, starring Amitabh Bachchan, had just been released. When Prem Chand was accused, Y.V. Chandrachud was chief justice of India; the Supreme Court that acquitted Prem Chand includes his son, justice D.Y. Chandrachud.
This is not the only case of delayed justice. Criminalizing the ordinary is not an exception but the rule for state engagement with citizens in India, it seems. State ineptitude and excesses add to people’s misery.
What kind of society criminalizes poor quality haldi? One that implements socialism. In a market economy, the market for everyday food commodities is thick and branding and reputation solve most kinds of adulteration problems. Typically, such problems are resolved directly by an aggrieved consumer through tort law or consumer courts. The state deals with error or negligence through civil penalties or fines. Criminal penalties are usually reserved for those who wilfully add poisonous or unsafe substances, or violate food safety standards in cases like pharmaceuticals, where markets are thin or marked by high asymmetry of information.
In a socialist economy, even everyday food items are prone to adulteration. Socialists impose price and quantity controls, and the unintended consequence of price ceilings is a drop in quality, often through adulteration. When the price per kilogram of pulses is fixed by the State, the retailer’s incentive is to add sandy gravel to adjust its quantity and “balance" the fixed price with the informal market rate. This was so rampant in India that it led to illness or death in some cases. The socialist solution was more bad regulation; i.e. criminalizing the activity to deal with the unintended consequences of the original bad regulation.
The problem disappears when the same goods are sold in a market where prices are allowed to adjust to market conditions. Not because the government is more vigilant in prosecuting food adulteration, but because adulteration hurts the reputation of sellers. An area where India still grapples with adulteration is poisonous hooch in states enforcing alcohol prohibition.
Much of the blame falls on socialist planners who enabled the criminalization of ordinary activities in India. Their misunderstanding of market process, and how incentives operate laid the foundation of much bad regulation in the country. India continues to criminalize a number of activities that would be better regulated by a combination of market processes and civil litigation.
An important and under-recognized consequence of such criminalization of ordinary activities is that it clogs the criminal justice system and delays justice. Justice was not just denied to Prem Chand, but many others. A recent working paper by Aparna Chandra, William H.J. Hubbard and Sital Kalantry, categorizing the Supreme Court’s decisions from 2010 to 2015, finds that 29.1 % of the court’s cases were criminal matters—which makes sense, since these involve questions of life and liberty. But in the same time period, only 5.3% were constitutional matters, and a mere 0.2% were habeas corpus cases, which relate to even more grave and urgent matters of life and liberty.
All branches of government are to blame for their failure to understand economic dynamics and for this clog-up of India’s already weak state capacity. Overzealous legislation has criminalized everything from haldi adulteration and the pulling of a train’s halt-chain to cutting trees. A weak executive that lacks the capacity to execute these laws fairly then arbitrarily turns ordinary citizens into criminals with the full force of absurd regulation. So far, the judiciary has not struck down the constitutionality of these punitive laws, even though it has had time for matters like service pensions and college fees, leaving constitutional matters and even habeas corpus petitions unattended.
Irrespective of economic ideology, a country that cannot swiftly dispose habeas corpus petitions should not criminalize haldi adulteration.
Shruti Rajagopalan is a senior research fellow with the Mercatus Center at George Mason University, US