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Picture Courtesy:   THE HINDU

Context:

Supreme Court ruling redefines police discretion in responsible criminalisation.

About Criminalisation

Criminalisation is the process where the state declares certain actions as crimes and punishes those responsible. Principled criminalisation means this process follows clear, fair guidelines to avoid state power.

Criminal law in India splits into two key parts: substantive law and procedural law. Together, they ensure justice, but they play different roles.  

Substantive Criminal Law

It defines what actions are crimes and sets their punishments. In India, the Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code (IPC) in 2023, is the main substantive law.

BNS lists crimes like murder, theft, or promoting enmity between groups and decides penalties. It reflects society’s moral and legal values, deciding what behaviors are unacceptable.

Legal thinkers like Tatjana Hörnle suggest criminal laws should only target actions that harm collective interests, involve violence, or violate personal rights. 

• The BNS tries to follow these principles, but sometimes, certain groups or behaviors get unfairly targeted (over-criminalized) or ignored (under-criminalized) due to biases or sloppy enforcement. This is where procedural law steps in.

Procedural Criminal Law

It lays out the steps for investigating, prosecuting, and judging crimes. In India, the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the Code of Criminal Procedure (CrPC) in 2023, governs these processes.

BNSS covers everything from registering a First Information Report (FIR) to arresting suspects, conducting trials, and delivering verdicts. Without procedural law, substantive law is just words on paper.

It ensures the state doesn’t misuse its power to punish people. For example, procedural rules protect rights like freedom of speech by requiring police to follow specific steps before acting. If these steps are ignored, innocent people could face harassment, or fundamental rights could be trampled.

Imran Pratapgarhi v/s State of Gujarat (2025)

Imran Pratapgarhi, a Congress Rajya Sabha MP, posted a poem on Instagram that Gujarat police claimed was inflammatory. They filed an FIR against him under BNS sections like 196 (promoting enmity) and 197 (false information). But the police skipped a key procedural step.

Under Section 173(3) of the BNSS, for crimes punishable by three to seven years (like Pratapgarhi’s alleged offense), police must conduct a preliminary inquiry within 14 days to check if there’s enough evidence before filing an FIR. The Gujarat police didn’t do this inquiry and jumped straight to the FIR.

The Supreme Court quashed the FIR. It ruled that the police’s failure to follow Section 173(3) made the case invalid. The Court stressed that procedural safeguards protect constitutional rights, like Article 19(1)(a) (freedom of speech).

The judgment called out the police for not being sensitive to constitutional values. This case proves procedural law isn’t just technical—it’s the backbone of fair justice. 

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Source: 

THE HINDU