Public Examinations (Prevention of Unfair Means) Act: Can punishment alone prevent crime?

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

With stringent penalties, including a minimum three-year jail term extendable up to five years for general offenders, and up to ten years for those in managerial roles at service providers involved in the examinations, the Act is expected to provide punishment and to serve as a strong deterrent against those involved in unfair means in the public examinations. The government hopes that the principles of deterrence will significantly reduce instances of paper leaks in the future.

The anti-paper leak law is indeed a welcome legislation. However, despite the positive reception, skepticism persists regarding the law's effectiveness and underlying motivations. We argue that the government's enactment of this law is more about political and populist posturing, serving primarily to reassure the sentiments of the public of its commitment to combating paper leaks than offering practical solutions. The emphasis on punitive measures alone, without addressing the systemic issues that contribute to paper leaks, raises questions about the law's efficacy in preventing such crimes.

We make two arguments to build our claim: firstly, enacting the law to punish offenders does not result in the prevention of crime, and secondly, the deterrence theory of punishment, which hinges on severe penalties dissuading potential offenders, may fall short in deterring those who are engaged in paper leaks.

Addressing the first argument, punishment alone does not control crime. Instead, what truly mitigates crime is the proactive crime prevention strategies which are then supplemented with laws to punish the crime. Prevention of crime and punishment for crime are distinct aspects of criminal justice, and the State should not shift its onus and responsibility of prevention of crime by placing the burden on individuals to refrain from committing crime under the threat of “newly-offered” punishment.

For instance, the anti-paper leak law lacks any just, socially engineered solutions aimed at preventing paper leaks. The law in its present shape only employs punitive measures with the hope of deterring the crime, but does not even touch the root cause of the problem.

If the mere enactment of laws and adequacy of punishment were sufficient measures to curb paper leaks, then states like Rajasthan or Uttar Pradesh, which have had anti-paper leak laws enacted as early as the year 1992, would have completely eradicated this menace. However, despite anti-paper leak laws, Rajasthan has witnessed 5 paper leaks in 2021, 10 in 2022, and 5 in 2023 whereas Uttar Pradesh has witnessed 9 leaks in the last seven years. These statistics only underscore a critical oversight: the failure to curb such crimes is not due to the absence of punitive laws to punish the crime, but rather the inadequacy in execution and proactive measures to prevent them. It reflects a gap in monitoring, oversight and socially engineered solutions that are crucial for maintaining the integrity of public examinations.

While punitive measures have their place, adequacy of punishment alone cannot control crime on its own nor substitute the responsibility of law enforcement agencies in preventing it. If the government genuinely aims to prevent paper leaks, it must toughen its law enforcement agencies, ensuring they are well-equipped and empowered to tackle and prevent such offences before taking place.

Now, before we proceed to our second argument, it is necessary to give an overview of the deterrence theory of punishment which has gained a lot of popularity since the 19th century.  Simply put, the deterrence theory aims to justify the imposition of punishment as it intends to deter individuals from committing a crime. Both the words 'deter' and 'terror', share their etymological roots from the Latin word 'terrere' which means “to frighten”. Thus, the aim is to reduce future crime rates by creating terror or psychological coercion of sanctions amongst individuals and to increase the cost of crime by making crime less rewarding for individuals. Its rationale can be simplified as two-fold - to create individual deterrence by deterring offenders from re-offending and to create general deterrence to prevent potential offenders from committing a crime. 

Even by enforcing the exemplary value of the punishment for the crime of paper leak, the current law will struggle to create a deterrent effect on offenders. Drawing on insights from Arthur Koestler's work Reflections on Hanging, which deals with a searing indictment of capital punishment, we find that deterrence does not necessarily frighten that race of criminals who live off crime. Koestler explained this by giving a real-time example that at a time when pick-pockets were executed in England, other pick-pockets exercised their talents in the same crowd that had gathered to witness the execution of their colleagues.

Similar is the case of offenders involved in paper leaks, where some states have leveled allegations that a network of repeat offenders are involved in committing such crimes, often bordering on organised crime. In such a situation, it is not difficult to presume that the power of intimidation will only reach the soft individuals who are not drawn towards committing such crime, and would not affect the hardened ones. Their passion to attain fortune becomes so strong that they can confront and overpower the fear of punishment.

In such cases, the value of the punishment fails to outweigh the value of the expected profit from the offence, and the offenders choose to commit the offence irrespective of being aware of the known consequences if they are caught. Their lifestyle and motivations are so deeply rooted that the threat of punishment becomes secondary to the potential rewards they seek. In essence, for offenders entrenched in organised paper leak activities, the perceived value of potential profits tends to outweigh the deterrent value of punishment, and the theory of deterrence becomes ineffective.

However, this does not discount punishment's potential role as a deterrent altogether. Effective deterrence occurs when the overall cost of doing a crime would be perceived as too high for an individual to consider it cost-effective. To increase the cost of crime, it requires three key components: certainty of being caught, celerity in administering punishment, and severity of the consequences. When these components, along with the communication of risk of arrest and punishment are communicated to potential offenders, they understand that the risks and costs associated with committing a crime far outweigh any potential gains, thereby deterring them from committing paper leaks and similar crimes.

The scale of the paper leak problem is far too vast to be curtailed by stringent punishments alone. This situation demands a more nuanced approach. It's time to realistically examine the issue rather than appease populist sentiments, especially since the futures of lakhs of students hinge on the integrity of these exams. Let's focus on preventing crime before rushing to punish it. Only by combining robust enforcement with systemic reforms can we truly safeguard these students' futures, ensuring that examinations are fair, secure and reflective of genuine merit. Unfortunately, the current law falls short, failing the test of comprehensive effectiveness in meeting out the goals in its preamble.

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