Earlier this year, the Delhi Police arrested Spiderman. This one wasn’t called Peter Parker and didn’t live in New York City. Instead, Aditya was a resident of Najafgarh in the National Capital Territory who dressed up in a Spiderman jumpsuit and rode on the bonnet of a car near the Delhi airport. The police slapped several charges — dangerously driving a vehicle, riding without a seat belt and so on — under the Motor Vehicles Act on Spiderman and his assistant who was driving the car. These charges carry significant monetary fines as well as jail terms. Perhaps they would have also slapped him with the offence of rash riding under Section 281 of the Bharatiya Nyaya Sanhita, which would have carried a maximum jail term of six months and a fine of one thousand rupees (or both), had they been fully trained in the new laws. But whether under the MVA or the BNS, the question that arises is a fundamental one — do we really want Spiderman in prison?
To put someone who “catches thieves just like flies” himself behind bars seems ironic. After all, Spiderman is meant to fight crime, not cause it. The Najafgarh Spiderman too, while he is not fighting crime, is certainly not committing a crime by dressing up like a superhero and roaming the streets. We live in a free country where everyone has the right to wear whatever they choose to, even if it is an outlandish masked outfit, or like Mahatma Gandhi, not very much at all.
When riding on the bonnet of a car however, Spiderman-outfitted Aditya is both a danger to himself, as well as to drivers of other cars around. Who knows how they can be thrown off track by this arachnoid anomaly? It is reasonable to deter him from repeating this act. But is making the act a crime and putting Aditya in prison for a few months going to work?
Philosophically, a crime is a wrong action that affects the whole community. In that sense, Aditya’s friend driving a car in an unlawful manner and him being sprawled on its bonnet can properly be called crimes. But all crimes do not require imprisonment. To understand whether imprisonment is the most optimal way to deter Aditya, one first needs to understand whether he was merely performing a one-off stunt to impress a Mary Jane, or more like his adversaries, Green Goblin or Mysterio, had some evil intent. Without getting to the bottom of this, simply slapping a few sections and threatening Aditya with jail time will not work to prevent him from coming back on the streets. More creative deterrents need to be thought up.
The three new criminal laws that came into force on July 1, 2024 have taken a step in this direction by introducing community service as one of the alternatives to imprisonment and monetary fines. This is a positive step, but more needs to be done. As a recent report, How India Punishes, demonstrates, community service is only available for six, seemingly randomly selected, offences ranging from a public servant unlawfully engaging in trade to drunken misconduct. Other minor offences such as those relating to unlawful driving do not give the option to the judge of ordering community service.
Even when community service can be ordered, these could include actions ranging from making the offender collect garbage in his locality for a month to acting as an assistant to a traffic policeman. The BNS provides no guidance in this respect. Imagine if the BNS and the MVA gave judges the option to send Aditya to a one-month regimen of cleaning a local juvenile justice home, while only being allowed to watch superhero videos in his breaks. There would be a better chance of Aditya finding his purpose in life, instead of making Spiderman himself a public nuisance, as he has done now.
Such a suggestion is based on the need to fundamentally reimagine criminal law for the 21st century. It is obvious that the police neither have the capacity nor the training to charge offenders based on which method of punishment would work best to deter and reform them. This was the promise of the new criminal laws — that they would decolonise Indian criminal law and bring it into the modern age. The impulse was a right one and some of the steps — like the introduction of community service and investing in forensics and digital methods of evidence gathering — are laudable. But the laws needed to do more to follow through on this impulse. Instead, they have doubled down on old colonial habits.
There were 11 offences under the old Indian Penal Code under which the death penalty could be awarded; under the BNS it is 15. The BNS allows a sentence up to life imprisonment for procuring any gun without a licence (procuring, not using), counterfeiting a mark for authentication purposes, or fraudulently defacing a will. These are harsh and disproportionate. At the same time, there is very little attention paid to the retraining of police personnel, prosecutors, and judges on these new laws. Any retraining will require significant funds. But the Financial Memorandum accompanying the legislation curiously says that enforcing it is not likely to incur any expenditure! Without investing in enforcement — training of policemen, hiring of forensic experts, empanelment of criminal psychologists, and establishing digital infrastructure — criminal laws can be rewritten but neither reimagined nor decolonised.
A modern, post-colonial, 21st century democracy cannot enforce its will by putting petty offenders in prison. The Government of India has grasped this when it comes to businesses. It has proceeded through the Jan Vishwas Acts to decrminalise a number of offences and remove jail terms to facilitate the ease of doing business in India. However, at the Union level alone, over 6,000 offences that deal with everyday actions inthe country still remain on the books. These range from failing to file one’s tax returns on time to riding on the bonnet of a car. It is time to decriminalise and reimagine these offences not only to ease business but also to ease living for ordinary citizens and reduce police discretion. The government has the power to do so. It would do well to remember Uncle Ben’s words to Spiderman — “with great power, comes great responsibility.”
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal
