Abstract

This paper interrogates the emerging phenomenon of “encashable criminal offences” in India, where acts traditionally defined as criminal — medical negligence, non-penetrative sexual assault, statutory rape under POCSO, and coercive post-partum protest dharnas — are increasingly monetised through civil suits, settlements, and public spectacle. By default rather than design, criminal liability is transformed into financial transactions, eroding deterrence and distorting justice.

Medical negligence, though criminal under IPC, is routinely pursued under the Consumer Protection Act, converting adverse outcomes into lucrative compensation claims. Physicians, in turn, offset liability by inflating charges, perpetuating a cycle of monetisation. Similarly, inappropriate touching, equated with penetrative assault, becomes a reputational weapon in elite feminist movements, often resolved through financial settlements amplified by media spectacle. Statutory rape provisions under POCSO criminalise consensual adolescent intimacy, enabling coercive use by families and communities. Most disturbing is the practice of sit-in protests with deceased bodies in maternal deaths, where compensation is extracted on the spot under public and media pressure.

Together, these practices reveal a systemic drift: criminal offences are commodified, justice is privatised, and deterrence is undermined. The paper calls for calibrated reforms — medical audit panels, victim compensation boards, proportionality in sexual offence laws, and structured grievance redressal — to restore balance between accountability, deterrence, and fairness.

‘Encashable Criminal Offences’: A Troubling Reality

‘Encashable criminal offences‘’,‘ sounds odd but is unfortunately a fact of life in the country today. Offences that have become encashable by default rather than by design. The two classical examples are medical negligence and non-penetrative sexual assault/rape.

Medical Negligence And The Monetisation Of Criminal Liability

Medical negligence causes bodily harm and, therefore, is a criminal offence. However, a privileged class of patients, under the CPA Act, who have paid for the treatment, can, rather always do, file a civil suit to claim compensation for the alleged criminal offence. It has, by default, become a lucrative business. Any adverse outcome of a patient’s treatment, for which the patient has paid a contractual amount, can be alleged to be a criminal compensable legal proposition. A physician for his negligent act is ‘punished’ by awarding penal compensation to be paid to the injured patient or his relatives. However, in fact this does not operate to penalise the treating physician, who in turn converts it into an encashable proposition by a lucrative increase in the charges of treatment for all future patients; thus, a criminal offence, by default, ends in lucrative monetary gain for both the claimant-patient and the treating physicians.

Critical Analysis Of “Encashable Criminal Offences”

You’ve raised a sharp and unsettling observation — the phenomenon of “encashable criminal offences” — where acts that are criminal in nature morph into civil, compensable claims, creating a cycle of monetisation rather than deterrence. Let’s unpack, critique, and substantiate this idea in the context of medical negligence and non-penetrative sexual assault.

Medical Negligence as an Encashable Offence

• Criminal Nature: Bodily harm caused by negligence is punishable under IPC provisions (e.g., Sections 304A, 337, 338).
• Civil Overlay via CPA: Patients who pay for treatment can simultaneously pursue compensation under the Consumer Protection Act. This duality converts a criminal wrong into a civil “business proposition”.
• Cycle of Monetisation:
  • Claimant Side: Adverse outcomes are framed as negligence, with litigation promising “jackpot” compensation.
  • Physician Side: To offset risk, doctors inflate charges, pass indemnity insurance costs onto patients, and practise defensive medicine.
  • Result: The offence ceases to be penal in spirit; it becomes a financial transaction where both sides extract monetary value.

Critique

• The deterrent function of criminal law is diluted. Instead of disciplining negligence, the system incentivises litigation and price inflation.
• The poor, ironically, are excluded — they cannot afford litigation or inflated healthcare costs.
• Professional autonomy is eroded, as physicians treat every patient as a potential litigant.

Non-Penetrative Sexual Assault/Rape

• Criminal Nature: Acts of sexual assault, even without penetration, are serious offences under IPC and POCSO.
• Civil Encashment: Increasingly, settlements and compensation awards are negotiated outside or alongside criminal proceedings.
• Cycle of Monetisation:
  • Victims (or families) may accept monetary settlements in lieu of pursuing full criminal prosecution.
  • Accused individuals, especially from privileged backgrounds, convert criminal liability into financial payouts.
  • The offence, instead of being punished as a violation of bodily autonomy and dignity, is commodified into a negotiable sum.

Critique

• Justice is privatised — reduced to bargaining power rather than moral accountability.
• The deterrent effect of criminal law is undermined; offenders calculate financial risk rather than fear punishment.
• Victims may be pressured into settlements, perpetuating inequality and silencing genuine grievances.

Substantiation: Why “Encashable” Fits

1. Default, Not Design: Neither CPA nor criminal law intended this monetisation. It emerged as a by-product of systemic inefficiency, litigation delays, and risk management economics.
2. Structural Incentives:
   • Courts take years; compensation offers immediate relief.
   • Hospitals embed litigation risk into pricing models.
   • Lawyers encourage civil suits for lucrative damages.
3. Social Fallout:
   • Trust deficit between doctor and patient, victim and system.
   • Commodification of dignity and bodily harm.
   • Escalation of costs and erosion of deterrence.

Bottom Line

“Encashable criminal offences” is not just a phrase — it captures a distortion of justice where:

• Criminal liability is sidestepped,
• Civil compensation becomes the dominant narrative, and
• Economic gain replaces moral accountability.

Medical negligence and non-penetrative sexual assault exemplify how offences meant to deter wrongdoing are transformed into lucrative exchanges, benefiting claimants, physicians, and sometimes even offenders — but corroding the very foundations of justice.

Another Example of ‘Encashable Criminal Negligence’: Sit-In Protest (Dharna/Gherav)

Another example of ‘encashable criminal negligence’ is widely adopted and more disturbing, sit-in protest (dharna/gherav), with or without the dead body, in cases of postpartum (usually normal vaginal delivery) or post-emergency caesarean deaths (seriously ill patients), demanding on-the-spot compensation. A police complaint for alleged criminal negligence is resorted to simultaneously to coerce the obstetrician and the hospital management. Also, the emotive nature of the case attracts ready visual media coverage and public support, as was the case of post-caesarean deaths recently reported from some peripheral hospitals of Rajasthan.

You’ve identified a particularly troubling manifestation of “encashable criminal negligence” — the practice of sit-in protests (dharna/gherav), often staged with the deceased’s body, demanding immediate compensation while simultaneously filing police complaints of alleged criminal negligence. Let’s critique, elaborate, and substantiate this phenomenon.

Nature of the Practice

• Immediate Coercion: Families and supporters demand “on-the-spot” compensation before any investigation or medical audit can establish cause of death.
• Dual Pressure: A police complaint alleging criminal negligence is lodged simultaneously, creating legal jeopardy for the obstetrician and hospital.
• Media Amplification: The emotive spectacle — grieving relatives, a body at the hospital gate, slogans — attracts instant visual coverage and public sympathy.
• Recent Example: Post-caesarean deaths in Rajasthan’s peripheral hospitals were framed in this way, magnifying outrage before root-cause analysis could be conducted.

Critique

1. Justice Short-Circuited
   • Criminal negligence is presumed without investigation.
   • Compensation becomes a bargaining chip rather than a judicially determined remedy.
2. Encashment by Default
   • Hospitals, under siege, often pay “settlement” amounts to defuse protests.
   • This transforms a criminal allegation into a financial transaction, bypassing courts.
3. Perverse Incentives
   • Families may be encouraged by local leaders or activists to stage dharnas for quick payouts.
   • Hospitals anticipate such coercion and factor it into pricing, raising costs for all patients.
4. Erosion of Professional Morale
   • Obstetricians, already dealing with high-risk emergency cases, face reputational damage and fear of mob justice.
   • Defensive medicine and avoidance of risky cases become the norm, harming maternal care access.

Substantiation

• Sociological Dimension: In India, public protest is a recognised mode of grievance redressal. But when applied to medical deaths, it weaponises grief into financial leverage.
• Legal Dimension: Filing a police complaint alongside a dharna creates a dual track — criminal liability and civil compensation — both encashable.
• Economic Dimension: Hospitals often capitulate to avoid violence or closure, treating payouts as the “cost of doing business”. This normalises encashment.
• Ethical Dimension: The dignity of the deceased is compromised when bodies are used as bargaining tools.

Bottom Line

This practice exemplifies how criminal negligence allegations are monetised by coercion and spectacle:

• The deterrent purpose of criminal law is undermined.
• Compensation is extracted without due process.
• Physicians and hospitals adapt by inflating costs, perpetuating the cycle.

It is more disturbing than courtroom encashment because it operates outside formal legal structures, relying on public emotion, media pressure, and mob coercion.

Non-Penetrative Sexual Offences and Statutory Rape Under POCSO

Similarly, by equating inappropriate touching of a female body part as a non-penetrative sexual offence, equal to penetrative sexual assault, it has, by default, in the hands of the ‘me too’ elite feminist movement, turned it into a lucrative extortion proposition, especially by making it a highly visible media-hyped spectacle. The concept of statutory rape, under the POCSO Act, of all consensual sexual acts amongst adolescents, is another coercive provision. True, though, that the heinous crime of sexual assault on children, on a sharp rise in the country, is being severely punished.

You’ve touched on two highly contentious areas — non-penetrative sexual offences under IPC/POCSO and statutory rape provisions under POCSO — both of which illustrate how criminal law can, in practice, be coercively encashed or weaponised. Let’s critique, elaborate, and substantiate this.

Non-Penetrative Sexual Offences

Legal Position

• IPC and POCSO define inappropriate touching of sexual body parts as “sexual assault”, even without penetration.
• The law equates it in seriousness with penetrative assault in terms of stigma, though punishments differ in degree.

Critique

• Dilution of Gravity: Equating inappropriate touching with penetrative assault risks conflating vastly different harms. This can trivialise the trauma of penetrative rape while simultaneously exaggerating minor misconduct.
• Encashment Potential: In the hands of high-visibility movements (e.g., MeToo), allegations of inappropriate touching can become media-hyped spectacles. The accused, fearing reputational ruin, may settle financially rather than contest.
• Extortion Risk: The imbalance of power — where accusation alone destroys careers — creates scope for misuse as a lucrative proposition.

Substantiation

• Globally, debates exist about the proportionality of punishment for non-penetrative acts.
• In India, courts have occasionally struggled to distinguish between “outraging modesty” (IPC 354) and “sexual assault” under POCSO, leading to inconsistent outcomes.
• Media amplification magnifies the coercive potential — reputational damage is immediate, and financial settlement becomes the pragmatic escape.

Statutory Rape Under POCSO

Legal Position

• Any sexual act with a person under 18 is automatically “rape/assault”, regardless of consent.
• Consent of adolescents is legally void ab initio.

Critique

• Biological vs. Legal Reality: Adolescents post-puberty often engage in consensual intimacy. Criminalising all such acts ignores biological and social norms.
• Coercive Provision: Families or communities can weaponise POCSO to punish relationships they disapprove of, especially across caste/class lines.
• Encashment Potential: Allegations of statutory rape can be leveraged for compensation, settlements, or coercive bargaining.

Substantiation

• Judicial unease is evident: many POCSO cases involve consensual adolescent couples, yet the boy is prosecuted.
• The Law Commission and child rights groups have debated lowering the age of consent to 16, aligning with global norms (UK, Canada, Australia).
• In practice, POCSO prosecutions often collapse or convert into negotiated settlements, reinforcing the “encashable” dynamic.

The Paradox

• True Protection: Heinous crimes of sexual assault on children are rightly punished severely — and rising incidence justifies strong statutory safeguards.
• Collateral Effect: By equating inappropriate touching with penetrative assault and by criminalising consensual adolescent intimacy, the law creates zones of coercion and monetisation.

Encashment Cycle

1. Allegation → Media spectacle → Reputational damage → Financial settlement.
2. Criminal liability morphs into civil encashment, bypassing deterrence and due process.

Bottom Line

Your phrase “encashable criminal offences” captures the distortion:

• Non-penetrative sexual assault becomes a reputational weapon, monetised through settlements.
• Statutory rape under POCSO criminalises consensual adolescent intimacy, enabling coercive use by families or communities.
• While heinous child sexual assaults are rightly punished, the overbreadth of definitions creates fertile ground for extortion and encashment.

Concluding Plea

The phenomenon of “encashable criminal offences” reveals a systemic distortion where criminal liability is routinely converted into financial transactions, coercive settlements, or media spectacles. Whether in medical negligence claims, post-partum protest dharnas, non-penetrative sexual assault allegations, or statutory rape prosecutions under POCSO, the deterrent purpose of criminal law is undermined, justice is privatised, and dignity is commodified.

To restore balance, reforms must be urgently pursued: independent medical audit panels to assess negligence before compensation, structured victim compensation boards to prevent mob coercion, graded proportionality in sexual offence laws distinguishing misconduct from heinous assault, and recalibration of statutory rape provisions to protect children without criminalising consensual adolescent intimacy.

Only by embedding such safeguards can India move from a culture of encashment to one of accountability, fairness, and genuine justice.

Written By: Dr Shri Gopal Kabra – MBBS, LLB, MSc, MS (Anatomy), MS (Surgery)
Director, Clinical Services, Bhagwan Mahaveer Cancer Hospital, Jaipur-302017
Email: [email protected], Ph no: 8003516198

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