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“Over-Criminalization”: Exploring Solutions in Constitutionalism and Constitutional Morality


The concepts of constitutionalism, constitutional morality, and legal moralism are intrinsically linked with the study of criminal law and are consciously employed by modern, civilised states in their exercise of criminalization of various human conducts. It is essential to briefly glance through the concepts of constitutionalism and constitutional morality to understand how they can curb the practice overzealous criminalization. Over-criminalization poses the threat of social ostracism and irreparable stigma to individuals coupled with the risk of confinement in prisons or other corrective institutions for even harmless or petty offences. A single instance of arrest can cause irreversible damage to one’s reputation. Therefore, criminalization as a tool of social control must be used sparingly and with great caution.

Constitutionalism and Constitutional Morality

The idea of constitutionalism is engrained in the basic principle of necessity to limit the unfettered exercise of power by the State. Conferment of absolute power would eventually lead to arbitrary, unreasonable restrictions on the liberties of citizens and constitutionalism thus seeks to reasonably restrict the arbitrary governmental discretion in making decisions for its people.

Adhering to the constitutional principles and commands is the foremost duty of not only the State but also of the people guided by the said Constitution. State functionaries must submit to the spirit and core values that inform our Constitution even in the exercise of discretionary powers. Dr. B.R. Ambedkar emphasized the need for the inclusion of administrative details and intricacies by invoking the principle of constitutional morality. The modern understanding of constitutional morality refers to the adherence to the principles which form the essence and core values of the Constitution. It is opposed to popular or mass morality in the sense that it commands disregard to the popular notions of morality subscribed by the society in the decision/ policy making process. For instance, popular morality may be opposed to homosexuality however, constitutional morality would permit it to protect the inalienable human right to sexual orientation.

Constitutionalism and Criminalization

A constitution may exist in a despotic regime but the principle of constitutionalism can certainly not exist in an arbitrary system of governance. A society in which constitutionalism informs the various institutions of the lives of citizens, the State would have to respect and uphold the innate rights and liberties of the citizens while exercising the tool of criminalization.

We look at the following instances of criminalization to better understand the role that constitutionalism can plausibly play in preventing over-criminalization:

· The British administration stigmatised and criminalized a number of indigenous tribes and manifested their racist and casteist approach to administration. Such criminalization rendered an entire community of people vulnerable to being stripped of dignity for centuries to come. The children born in the said communities were deemed criminal and hence subjected to perpetual suspicion. There cannot be any reasonable argument which can justify stigmatization of a group of people while blatantly disregarding their individual conduct and intentions to determine their culpability and therefore such an exercise of criminalization was arbitrary.

· Those were different times when the British ruled India, pillaged her wealth and ravaged her pride. We take a recent example of criminalization as well in the form of “Triple Talaq”. Imposition of fine and incarceration as a punishment for pronouncing “triple talaq” goes on to reflect the state’s penchant for criminal law to regulate what could easily be curtailed through the warrant of civil law. The pronouncement of “triple talaq” has been declared to be a nullity in the eyes of law and has been further, criminalized. The exercise of criminalization seems unreasonable in this scenario since there is no pressing need to criminalize an action that is absolutely inconsequential and has no real effect in law. It is difficult to understand the legislative intent behind nullifying and criminalizing a particular conduct in the same breath.

Today, constitutionalism, as a limit on the otherwise fathomless power of the state, can prevent excessive criminalization through arguably the most powerful instrument known to modern-day democracy- an independent judiciary. Prevalence of constitutionalism inherently requires a judiciary armed with the power to nullify any state action along with a process of free, unbiased and fair elections and trickling down of power to the lowest strata of social fabric[1].

Vexatious criminalization exercises must be controlled to protect the inherent rights of citizens and prevent them from being subject to stigma for harmless wrongs and constitutionalism can aid in this mission by enabling judiciary to strike down unconstitutional state actions and ensuring that the government remains answerable to the people for its decisions.

The Applicability of the Principle of Legal Moralism in a Heterogeneous Society

Legal moralism as one of the major principles of criminalization commonly forms the basis of the state action to criminalize certain conducts which the state inherently accepts as opposed to moral standards of the society. Notably, such conduct may not result in any harm or detriment to the society or to the individual who engages in such a conduct. Recognising what constitutes the correctconduct based on popular notions of right and wrong is a sensitive task in a pluralistic society and might result in the breakdown of social cohesion in the long run. Where the state claims to represent everyone, law cannot serve a few by imposing unreasonable restrictions on the liberties of others.

The Indian society is vastly diverse and morals, usually understood as the approved standards of conduct and behaviour are therefore different for various sections of people due to this apparent diversity. Ipso facto, the deviant conduct also differs depending upon the standards of morality subscribed by different groups of people. Consensual sex work may appear heinous to some but tolerable to a more liberal populace. In a pluralistic society, constitutional morality must act as a regulator of criminalization to prevent state induced societal disintegration. Criminalization is a treacherous weapon in the hands of the state which must be used with abundant caution and it is humbly opined that criminalization as a tool of regulating behaviour and conduct should be used in a minimalist manner.

Constitutional Morality and Legal Moralism

The issue around the enforcement of morality through the legal route got its due attention in the form of the Hart - Devlin Debate. Devlin advocated the requirement of the state to play the role of a protector and enforcer of public morality for the sustenance of society at large. This was met with a sharp reply from Hart who denounced the idea of compulsory imposition of values and ideals as regards how one should conduct oneself simply because these ideals enjoyed popular support while thwarting the due social reformation.

It is not the purpose of this paper to argue that law should have nothing to do with the enforcement of what is considered as “good and moral behaviour”. Law and morals cannot represent two exclusive figures in a Venn diagram incapable of having a common ground. However, recognition of social standards of behaviour through law must be made liberally while diligently respecting the innate liberties and private domain of citizens i.e., constitutional morality must be observed while undertaking such an exercise. Lifting the total ban on dance performances in restaurants and bars is an instance of triumph of constitutional morality over an attempt of the state to resort to legal moralism in prohibiting what is largely considered indecent and immoral. Fundamental rights guaranteed under Part III of the Constitution are instrumental in the protection against arbitrary state action and act as effective tools to establish social and civil egalitarianism and therefore serve as a check on unreasonable criminalization.

Homosexuality may be opposed to hetero-normative moralistic standards of certain sections of society but that certainly cannot justify its arbitrary criminalization for the moral satisfaction of certain fractions of people. Sexual orientation is an inseparable aspect of one’s being which cannot be regulated, let alone be criminalized. Decriminalization of homosexuality is an exemplary employment of constitutional morality as a replacement of popular morality which had been legally enforced to the prejudice of innumerable homosexual people.

A pluralistic society where the government represents the varied interests of different sections of people, constitutional morality is a potential replacement for legal moralism to accommodate the conflicting interests of people.


Cautious exercise of criminalization is always encouraged since criminalization endangers our innate right to liberty and the right to live with dignity. A mere insinuation of commission of criminal offence can irreparably malign one’s reputation. It has been suggested above that criminal law should be used in a minimalist manner and this suggestion has been made to prevent irreversible damage to one’s reputation due to mere legal prohibition of what is widely considered as deviant conduct.

Further, if there is an inevitable need to regulate moral conduct, the regulation should be framed and enforced through other branches of law such as tort law instead of resorting to the stigmatizing tool of criminal law. Adultery has recently been decriminalized in our country and rightly so given how this deviant conduct might serve as a ground for divorce but certainly doesn't deserve to be criminalized. Our Constitution envisions a society where social justice is guaranteed to the citizens. It is essential to take into consideration the interest of the impoverished, the downtrodden and the social outcasts to realize the constitutional vision of social justice and adherence to constitutional morality ensures that the concerns and interests of some sections are not discounted to pave way for the realization of interests of others. Modern society is home to individuals with diverse interests and traits and constitutional morality respects and protects the said diversity. For instance, adherence to constitutional morality would prevent the criminalization of begging induced by necessity and protect the interests of the impoverished. Enforcement of a unified, constitutional morality, as opposed to popular morality, can prevent social disintegration in a pluralistic society and achieve a workable harmony between law and morality in modern society.

[1] MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis Publications 2014).


Anushka is a law student, pursuing LL.M at National Law University, Delhi

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