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The severity of punishment is not a substitute for state capacity. Parliament would do well to recognize this while framing laws. Photo: PTI
The severity of punishment is not a substitute for state capacity. Parliament would do well to recognize this while framing laws. Photo: PTI

Opinion | The trouble with legislation that’s difficult to enforce

Well intentioned laws without the capacity to enforce them may result in even more rule violation

Last week, Parliament hastily passed three bills. The Protection of Children from Sexual Offences (Amendment) Bill, 2019, aims to increase the severity of punishment for sexual offences against children. The Code on Wages Bill, 2019, replaces four existing laws regulating wages, covers 500 million workers, and establishes floors for wages and overtime as well as penalties and criminal punishments for violating these rules. The Companies (Amendment) Bill, 2019, criminalizes violations of the spending provisions of money meant for corporate social responsibility activities. On the face of it, these are all well-meaning laws. However, aside from specific problems in each of them, they suffer from the common malady that they are likely to be extremely under-enforced because of weak state capacity. This raises the question—should Parliament pass laws that the government cannot enforce?

One view is that it is better to have these strong laws on the books, as the prospect of severe punishment can be used to deter individuals from breaking rules. As India develops more state capacity in the future, these laws will be primed for better enforcement. Unfortunately, this view does not take into account the kind of incentives created by under-enforcement and its unintended consequences.

There are three problems with passing laws without the capacity to enforce them. The first is that low capacity to enforce leads to arbitrary enforcement. So, some individuals will get away while others will be punished. This tends not to be random. Typically, rich and politically well-connected individuals get away. Selective enforcement can also be pernicious, where the government uses these laws to punish its Opposition or target particular groups and individuals.

Second, a rule violator weighs the expected costs and benefits of breaking a rule. The expected cost is the cost of breaking the rule, i.e. the punishment/fine, multiplied by the probability of getting caught, which is determined by how universally and well the law is enforced. If the punishment or the probability of getting caught is too low because the law is under-enforced, then expected costs might be relatively low, compared to the expected benefits from breaking the rule. In other words, it is not only the severity of punishment, but also the probability of facing the severe punishment that deters rule violations.

The more counter-intuitive problem is that stronger penalties that are under-enforced may actually incentivize more rule violation. When the enforcement infrastructure is overloaded, this also affects pre-existing laws and not just newly passed legislation.

The probability of being punished is a function of the total amount of crime that occurs in any given society. As the total amount of crime increases, criminal justice enforcement resources are strained, the police are overworked, courts congested and prisons overcrowded. As a result, proportionately fewer criminals are apprehended, convicted and imprisoned. One simple way by which more crime occurs in society is criminalizing more activities. To deter certain actions by criminalizing them increases the amount of crime in society and reduces the probability of being punished.

Therefore, when enforcement resources are constrained, the expected value of the penalty facing potential violators falls as the frequency of violation rises. The late Mark Kleiman dubbed this “enforcement swamping". Consequently, the third effect is that even sensibly crafted pre-existing laws that were enforced to some degree will now be enforced to a less degree because of overloading of the enforcement infrastructure. More individuals will be incentivized to break those laws, resulting in more criminal behaviour in society.

In sum, passing well intentioned laws with severe punishments without accounting for state capacity can create very harmful effects in society that are not easy to reverse. Increasing the amount of crime in society by criminalizing much more, without the state capacity to enforce penalties, can actually incentivize more rule violators.

What is the way out?

The first step is to stop passing laws that simply overload the system and cannot be enforced.

The second is to pass laws that actually increase state capacity by increasing the personnel that enforce the laws. India has only 12-15 judges per million compared to 110 per million in the US. Similarly, India has about 129 police personnel per 100,000 citizens. Only Uganda fares worse. Worse still, 20-25% of allotted police positions are vacant. To meet the UN recommended ratio, India is short of half-a-million policemen. The overburdening of judges and the police also holds true for traffic police, inspectors and bureaucrats. In addition to personnel, India requires the accompanying infrastructure to reduce processing times and thus congestion in its criminal justice system.

The third step is to free up existing state capacity by reducing or repealing onerous regulations in almost every area of social and economic conduct. Streamlining and shrinking the ambit of the regulatory state to a size that can actually be effectively enforced will free up precious capacity that will help increase enforcement in all other areas.

The severity of punishment is not a substitute for state capacity. Parliament would do well to recognize this while framing laws.

Shruti Rajagopalan is assistant professor of economics, Purchase College, State University of New York

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