Decriminalisation of Minor Offences For Improving Business Sentiment

Government of India
Ministry of Finance
Department of Economic Affairs

***

12 June, 2020

Statement of Reasons:

Decriminalisation of Minor Offences For Improving Business Sentiment And Unclogging Court Processes

Decriminalisation of minor offences is one of the thrust areas of the Government. The risk of imprisonment for actions or omissions that aren’t necessarily fraudulent or the outcome of malafide intent is a big hurdle in attracting investments. The ensuing uncertainty in legal processes and the time taken for resolution in the courts hurts ease of doing business. Criminal penalties including imprisonment for minor offences act as deterrents, and this is perceived as one of the major reasons impacting business sentiment and hindering investments both from domestic and foreign investors. This becomes even more pertinent in the post COVID19 response strategy to help revive the economic growth and improve the justice system.

Given the nature of pendency in all tiers of the courts and the time taken for disputes to be resolved, legislative measures have been considered to help restore trust in doing business. In this pursuit, it is also important that a balance be found so that malafide intent is punished while other less serious offences are compounded. Accordingly, a framework is required such that a penalty levied is sufficient to act as a deterrent. Actions taken for decriminalisation of minor offences are expected to go a long way in improving ease of doing business and helping unclog the court system and prisons. It would also be a significant step in the Government of India’s objective of achieving ‘Sabka Saath, Sabka Vikas and Sabka Vishwas’ .

Criminalizing procedural lapses and minor non-compliances increases burden on businesses and it is essential that one should re-look at provisions which are merely procedural in nature and do not impact national security or public interest at large. The following principles should be kept in mind when deciding on reclassification of criminal offences to compoundable offences: (i) Decrease the burden on businesses and inspire confidence amongst investors; (ii) Focus on economic growth, public interest and national security should remain paramount; (iii) Mens rea (malafide/ criminal intent) plays an important role in imposition of criminal liability, therefore, it is critical to evaluate nature of non -compliance, i.e. fraud as compared to negligence or inadvertent omission; and (iv) The habitual nature of non -compliance.

Given the importance of this exercise as also its large -scale impact across society, Government of India is conducting a stakeholder consultation exercise. In order to develop consensus, the Department of Economic Affairs, which administers the Acts indicated at ANNEX, invites the comments of State Governments/ UT Administrations, Civil Society/ Non-Government Organisations, Academicians, Public and Private Sector Entities, Multilateral Institutions and members of the public to submit their suggestions to the Department. The relevant Acts administered by the Department and their specific Sections containing criminal provisions are provided in ANNEX.

Stakeholders may kindly propose and submit their comments/ suggestions regarding decriminalisation of a particular Act or particular Sections of an Act, along with the rationale for the same. The comments/ suggestions may kindly be submitted to the Department at the email address deepak.ranjan@nic.in within 15 days, i.e., by 27 June, 2020.

ANNEX

Ministry / Department: Department of Economic Affairs (DEA)

Comments and Feedback:

1) Name of the Institution / Organization / Member of the Public:

2) Correspondence Address:

3) Category (Please indicate): State/ UT/ Civil Society/ NGO/ Academic/ Public Sector/ Private Sector/ Multilateral Institution/ Member of the public