A study of Zero Tolerance Policies concerning the Indian Scenario

INTRODUCTION

Zero Tolerance Policy is a form of deterrent form of punishment[1] used by schools and countries to curb notoriety by the students and the citizens respectively. Laws relating to drugs and terrorism are zero tolerant in most countries e.g. India, Singapore, United States, China and Russia. In the United States, the agencies would go against the drug users and provide them with harsh punishments to reduce the demand for the product instead of going after the suppliers or transporters. This is one of the prime examples of using ZTP to create a deterrent towards future crimes.

(Routledge, 2011) Dangerousness expresses a concern shared by criminologists and sociologists, that legislation based on the notion of “dangerousness” has been “influenced by populist punitiveness” and marked by a “zero-tolerance policy to eliminate all offending behaviour”. The term dangerousness is quite subjective and often creates a problem in terms of analysing the criminals.

Zero tolerance is rooted in a strong stance based on public opinion towards a specific type of crime or infraction, and it mandates a specified course of action for those infractions.

ZTPs came around the time of the 1990s after the Columbine School Shooting where two twelfth grade students shot leaving 12 students and one teacher dead. Earlier to that, when a US cultural magazine, The Atlantic Monthly, published an article by James Q. Wilson and George L. Kelling about the broken windows theory of crime. The broken windows theory of crime states that punishments for minor violations will lead to the prevention of serious crime. 

This article deals with Zero-Tolerance Policy in India. Indian Government has adopted ZTPs against certain offences such as terrorism, corruption etc. This article further looks at the constitutional validity of ZTPs with special reference to Art. 21 and 22.

ZERO-TOLERANCE POLICY IN INDIA

India has been a pioneer in cutting down on terror and corruption through ZTPs. The Prime Minister of India in 1999 first mentioned about the Zero Tolerance Policy in India to crack down on corruption and terrorism. The Prime Minister had expressed its strategy to cut down corruption by using the expression ‘Zero Tolerance’.

India’s economy stands on the pillar on tax evasion and tax frauds. In a report of 1999 by the Central Vigilance Commissioner, it was said that “It is the evasion of the taxes and the failure of these departments to check illegal activities that have crystallised into the large percentage of black money in the economy. The quantum of black money has been estimated from Rs.40,000 crores to Rs.100,000 crores. Whole industries today depend on the black economy. The film industry, a substantial part of the construction industry and a large number of small industries are run based on black money.”

Although another report by the PIB in 2017 showed the government implementing policies to provide more transparency through the Right to Information. The report further stated that the government has ratified the United Nations Convention against Corruption of 2011.

A report by the Transparency International on corruption in the Asia-Pacific region which states that 53% of people in India were satisfied with the measures taken by their government to curb corruption. This report came in 18 years after the initial measure of the Prime Minister’s policy of Zero Tolerance towards corruption. Therefore, such policies were effective and delivered results in the conclusion.

Terrorism is one of the biggest problems act as a deterrence to tourism in India. India has consistently ranked in the top 10 countries in the Global Terrorism Index. India is the ground for a lot of terror organisations and Naxalites and therefore the government tries to curb terrorism by implementing Zero Tolerance towards those involved in terror activities.

The Current Government’s determination towards curbing terrorism is something which is applauded by the world. The Surgical Strikes of 2016 which were in reply to earlier attacks of Uri on Indian soil and demonetisation which was to curb terror funding were a few actions to curb terrorism.

India ranked 6^th in the Global Terrorism Index in 2014 with a score of 7.86 which fell to 7^th and a score of 7.518. Therefore we can see that even though there has been no significant change in the rank there has been a slight decrease in terrorism. We can say here that the government has only been slightly effective in curbing terrorism.

Therefore, we can see that the Zero Tolerance Policies are effective in curbing down the offences. This is majorly because there are often stricter and harsher punishments which acts as a deterrence to other people committing the act.

CONSTITUTIONAL VALIDITY

The Constitution under Art. 21 and 22 envisages Protection of Life and Personal Liberty and Protection against Arrest and Detention in Certain cases respectively.

Article 21 talks about Protection of Life and Personal Liberty and states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” Central Government in a report against Zero Tolerance Policy[2] of them towards corruption had made the process simpler by setting up of additional Special Courts exclusively for the trial of CBI cases in different states and ratification of the United Nations Convention against Corruption (UNCAC) in 2011.

The UNCAC has under Article 30(2) has stated that “Each State Party shall take such measures as may be necessary to establish or maintain, per its legal system and constitutional principles, an appropriate balance between any immunities or jurisdictional privileges accorded to its public officials for the performance of their functions and the possibility, when necessary, of effectively investigating, prosecuting and adjudicating offences established per this Convention.” Further the Central Government in the Lokpal and Lokayukta Act, 2013 has ratified the UNCAC. Therefore, the Act has been passed according to Article 21 with the due procedure of law. 

The issue of corruption is very common in India. India ranked 80^th in the corruption index in 2020[3] and therefore it is of utmost importance to curb corruption. The government has adopted a zero-tolerance policy towards corruption and still, it is very rampant in almost all parts of the country. Zero tolerance and a robust and consistent anti-corruption programme in the power sector can be the strongest pummel in a brawl against corruption.[4]

The Supreme Court in S. Sreesanth vs. BCCI,[5] talked about the Zero Tolerance Policy towards Corruption. The court had relied on the Anti-corruption code of the BCCI. The court mentioned that in such a case zero tolerance means taking cognizance of the offence and awarding suitable punishment. Therefore, the policy is only towards the cognizance and any action which is further taken concerning the trial and punishment is according to the laws established. However, there can be certain obstruction of justice due to the ZTPs like in the case of Shivprasad S Naik vs. State of Goa[6] where the petitioner was punished due to the ZTP of the government towards corruption. The punishment was quashed by the High Court.

Discrimination against North-Eastern students is common in India. A survey report in 2014 reported as many as 54 per cent people from the northeast to feel that discrimination is a reality in the national capital. In case of Discrimination against Indian students, the Supreme Court in Karma Dorjee vs Union of India[7] said that the Union Government has termed “Zero Tolerance” in its stand against the discrimination against Indian students of North-Eastern origin.

The Supreme Court in the State of T.N. vs. K. Balu[8] mentioned Zero Tolerance Policy towards driving under the influence of alcohol. Section 185 of the Motor Vehicles Act, 1988 is indicative of a parliamentary intent to follow a zero-tolerance policy towards driving under the influence of alcohol. The Bombay High Court in Nikhil Wagle vs. the State of Maharashtra[9], urged the Central Government to implement a ZTP against drunk driving incidents. The court mentioned that alcohol in the blood no matter how less puts risk to third parties. The police in no way should be burdened with proving that the alcohol levels in the blood were or were not above a particular limit. The Madras High Court

Therefore, the Zero Tolerance Policy is only a policy which talks about the cognizance of an offence. The procedure which further follows is according to the procedure established by law hence Art 21 and Art 22 both apply in case of the zero-tolerance policy.

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References

[1] refers to a form of punishment which is harsh and swift in nature to deter other people from committing a similar form of crimes. 

[2] Press Information Bureau, Zero Tolerance Policy, Ministry of Personnel, Public Grievances & Pensions (2017) available at https://pib.gov.in/newsite/PrintRelease.aspx?relid=160118

[3] S. Choudhury,  India ranked 80th in Corruption Perception Index, India Today, (January 24, 2020),

https://www.indiatoday.in/india/story/india-ranked-80th-in-corruption-perception-index-1639648-2020-01-24, (Last visited on February 20, 2020)

[4] Harsha Rajwanshi, Combating Corruption in Power Sector, (2019) PL (EL) December 77

[5] (2019) 4 SCC 660

[6] 2016 SCC OnLine Bom 12759

[7] (2017) 1 SCC 799

[8] (2017) 2 SCC 281

[9] (2016) 2 Bom CR 114

ABOUT THE AUTHOR

Adwait Kolwalkar is a student of NMIMS School of Law. He is an avid reader of politics, criminology, sociology and public policy. The author has also published papers in the field of Management and Law and runs blog which simplifies laws and contemporary issues into brief.  

In Content Picture Credit: MyAttorneyUSA