Can punishment alone prevent crime?

On June 21, the central government notified the Prevention of Unfair Means in Public Examinations Act, 2024. Enacted in response to widespread document leaks, the law aims to prevent unfair practices in public examinations.

With strict penalties, including a minimum imprisonment of three years and up to five years for ordinary offenders and up to ten years for those in managerial positions in service providers involved in the examinations, the law is expected to provide penalties and serve as an effective deterrent against those who engage in unfair practices in public examinations. The government hopes that the principles of deterrence will significantly reduce cases of document leaks in the future.

The Anti-Document Leakage Act is certainly a welcome measure. However, despite its positive reception, there is still scepticism about its effectiveness and underlying motivations. We argue that the government’s enactment of the Act is more of a political and populist posturing, serving primarily to reassure the public of its commitment to combating document leaks than to provide practical solutions. The focus on punitive measures alone, without addressing the systemic problems that contribute to document leaks, raises questions about the effectiveness of the Act in preventing such crimes.

We put forward two arguments to support our claim: first, that passing legislation to punish offenders does not prevent crime, and second, that the theory of deterrence, which relies on harsh penalties to deter potential offenders, may not be sufficient to deter those who leak documents.

To address the first argument, punishment alone is not sufficient to control crime. Rather, it is proactive crime prevention strategies that mitigate crime, complemented by laws designed to punish crime. Crime prevention and crime punishment are distinct aspects of criminal justice, and the state should not absolve itself of its responsibility to prevent crime by imposing on individuals the burden of refraining from committing crimes under the threat of “further” punishment.

For example, the Anti-Document Leakage Law does not contain any socially rational solutions to prevent document leaks. In its current form, the law only uses punitive measures in the hope of deterring the perpetrators of these crimes, but does not even address the root cause of the problem.

If mere enactment of laws and adequate punishment were sufficient measures to curb document leaks, then states like Rajasthan or Uttar Pradesh, which enacted anti-document leak laws as early as 1992, would have completely eradicated this menace. However, despite anti-document leak laws, Rajasthan has seen 5 document leaks in 2021, 10 in 2022 and 5 in 2023, while Uttar Pradesh has seen 9 leaks in the last seven years. These statistics only highlight a critical oversight: the failure to curb these crimes is not due to the absence of punitive laws to punish the crime, but rather to inadequate enforcement and proactive measures to prevent them. This reflects a lack of monitoring, surveillance and social engineering solutions that are essential to maintain the integrity of public examinations.

While punitive measures have their uses, they are not enough to control crime or replace the responsibility of law enforcement to prevent it. If the government is serious about preventing document leaks, it must strengthen its law enforcement agencies, ensuring that they are well equipped and empowered to combat these crimes and prevent them before they occur.

Before moving on to our second argument, it is necessary to provide an overview of the deterrence theory of punishment, which has gained popularity since the 19th century. In simple terms, deterrence theory seeks to justify the imposition of punishment in order to deter individuals from committing a crime. The words “deter” and “terror” both share their etymological roots from the Latin word “terrere” which means “to frighten.” Thus, the goal is to reduce future crime rates by creating terror or the psychological coercion of punishment among individuals and to increase the cost of crime by making crime less rewarding for individuals. Its justification can be simplified into two parts: creating individual deterrence by deterring offenders from reoffending and creating general deterrence to prevent potential offenders from committing a crime.

Even by strengthening the exemplary value of the penalty for the offence of leaking documents, the current law will have difficulty creating a deterrent effect on offenders. Drawing on the lessons learned from the work of Arthur Koestler Thoughts on Hangingwhich deals with a virulent criticism of capital punishment, we see that deterrence does not necessarily frighten this breed of criminals who live by crime. Koestler explains this by giving a real-life example: at a time when pickpockets were being executed in England, other pickpockets were practicing their skills in the same crowd that had gathered to witness the execution of their colleagues.

The same applies to the perpetrators of leaks of confidential information. Some states have made allegations that a network of repeat offenders is involved in the commission of such crimes, often bordering on organized crime. In such a situation, it is not difficult to assume that the power of intimidation will only reach weak individuals who are not inclined to commit such crimes, and will not affect the more hardened ones. Their passion for wealth becomes so strong that they can face and overcome the fear of punishment.

In such cases, the value of punishment does not exceed the value of the expected profit from the crime, and offenders choose to commit the crime without being aware of the consequences they might face if caught. Their lifestyles and motivations are so deeply ingrained that the threat of punishment becomes secondary to the potential rewards they seek. In essence, for offenders involved in organized document leaking activities, the perceived value of potential profits tends to outweigh the deterrent value of punishment, and deterrence theory becomes ineffective.

This does not mean, however, that punishment can act as a deterrent. Deterrence is effective when the overall cost of a crime is perceived as too high for an individual to consider it worthwhile. Three key elements are needed to increase the cost of crime: certainty of arrest, speed in administering the sanction, and severity of consequences. When these elements, along with communication of the risk of arrest and punishment, are communicated to potential offenders, they understand that the risks and costs associated with committing a crime far outweigh the potential gains, thereby deterring them from committing document leaks and similar crimes.

The scale of the document leak problem is far too vast to be contained by simple harsh penalties. This situation demands a more nuanced approach. It is time to look at the problem realistically rather than appeasing populist sentiments, especially since the future of hundreds of thousands of students depends on the integrity of these exams. Let us focus on preventing crime before rushing to punish it. Only by combining rigorous law enforcement with systemic reforms can we truly protect the future of these students, ensuring that exams are fair, secure, and reflect true merit. Unfortunately, the current law falls short of the objectives set out in its preamble, as it fails to achieve its goal of overall effectiveness.

Dr GS Bajpai is the Vice-Chancellor of the National Law University, Delhi. Sahajveer Baweja is an advocate at the Rajasthan High Court.