Making trafficking a capital crime in India
Protesters demand the death penalty for the murderers and rapists of an 8-year-old girl. – Open democracy
Should India really add such unreliable punishment to an already complex context? Zeba Sikora writing
INDIA’s 2021 anti-trafficking bill, aimed at preventing and prosecuting trafficking offenses and rehabilitating trafficked victims, appears to be a well-intentioned move. Trafficking is serious in India, and it has been further exacerbated by the Covid pandemic. The draft law broadens the scope of trafficking offenses and also includes cases of cross-border trafficking.
However, the bill has also been widely criticized. This is in particular due to the emphasis placed on criminalization and punitive measures, as well as its disinterest in contributing factors, such as impoverishment, which require lasting solutions based on development and social protection policies. The bill makes reporting of trafficking offenses mandatory and does not make victim consent mandatory in rescue and rehabilitation efforts, thereby neglecting those engaged in consensual sex work and victims who do not wish to file a complaint. criminal complaint. Perhaps most serious, the bill introduces severe penalties for trafficking, including the death penalty for aggravated and repeated offenses.
Project 39A, the criminal justice research and intervention center I work for, has engaged in empirical and doctrinal research on the administration of the death penalty and the problematic implications of keeping it in the system. Indian legal. Based on the evidence we have gathered, I can say with certainty that including the death penalty in the proposed bill will not solve the problem of trafficking. This will, however, add further complications to an already dysfunctional system.
Clause 25 of the bill lists a wide range of aggravated forms of human trafficking. These include cases of death or sexual violence against the victim, when the victim is mentally ill or otherwise debilitated, and also includes cases of forced labor and forced begging (or begging). While setting the penalty for such aggravated offenses, Article 26 (4) provides for the death penalty for repeated and aggravated offenses against children under 12 and rape against women. Then, article 28 provides for sanctions for the offenses of trafficking and its aggravated forms against more than one person or on more than one occasion. Here the death penalty is introduced as a punishment when the victim is a child.
The death penalty is not the solution
THIS decision to introduce severe penalties, in particular for sexual violence against women and children, is not new. This is part of a much larger trend of paternalistic and punitive action by the Indian state in response to such crimes. Other examples include the introduction of the death penalty for aggravated forms of rape in the Indian Penal Code and for aggravated sexual abuse of children in the Protection of Children from Sexual Offenses Act. This tendency to introduce extreme penalties to appease public outrage is also evident in the efforts of various state governments. For example, Andhra Pradesh’s Disha Bill and Maharashtra’s Shakti Bill provide for the death penalty as a punishment for sexual offenses and also introduce a fast-track trial process.
Such efforts are based on the assumption that they will create fear and reduce the frequency of crime. And to show that this is serious, lower courts have steadily increased the frequency with which they hand down the death penalty in cases of sexual violence. However, this assumption is wrong.
Our work has shown that the death penalty does not have a significantly greater deterrent effect than life imprisonment. The report of the Death Penalty Law Commission (2015) came to the same conclusion. At the same time, research on the impact of high mandatory sentences for rape has suggested that tougher sentences for sexual violence offenses may lead to a reduction in the number of convictions, due to systemic reluctance. to impose severe penalties for non-violent sexual offenses. At the same time, harsh penalties fail to resolve the myriad of other obstacles to investigation and prosecution which also lead to underreporting and low conviction rates. In the context of sexual violence against women and children, obstacles such as reluctance to report known perpetrators, failure of a trial because the victim becomes hostile or withdraws the complaint, and a inherently patriarchal criminal justice mechanism, have a negative impact on access to justice.
Likewise, there are several obstacles to effective investigation and prosecution of trafficking cases, which recorded a 73% acquittal rate in 2019 according to the National Crime Records Bureau. Trafficking cases tend to involve complex power dynamics between perpetrator and victim, which are often deeply entangled in fiduciary or family relationships, and these can have a negative impact on the reporting and prosecution of such cases. offenses. Most of those trapped in trafficking come from socio-economically vulnerable communities, including oppressed castes, religious minorities, women and children, who may be constrained by economic necessity. Those who wish to get out of the exploitation of their situation might not have the capacity to seek legal redress against an organized crime network, which often involves the complicity or active participation of political authorities and / or representatives of the State, and may face reluctance on the part of the police to register and investigate trafficking complaints.
In addition, from the limited political will directed at reducing trafficking, attention is largely directed to sex trafficking instead of forced labor. The latter is a much more serious problem in India. The focus on sex trafficking also inadvertently impacts female sex workers, many of whom choose to voluntarily engage in their work due to a lack of alternative lucrative opportunities.
An arbitrary and discriminatory system
In such a complicated context, the introduction of the death penalty will not have an impact on the causes of the problem, but could add additional difficulties in an already heavy system. The Death Penalty in India Report (2016) maps the socio-economic context of death row inmates and their experiences with the criminal justice system. It demonstrates that the death penalty weighs disparately on the most marginalized individuals and communities, those who cannot afford adequate legal representation and must bear the consequences of coercive investigative techniques. and prison violence.
In addition, the imposition of the death penalty is based on the subjective decision-making of particular judges. The result is inconsistent and arbitrary results, despite judicial standards requiring that principled sentences and death be imposed only in the rarest of cases.
The imposition of the death penalty for non-murderous offenses raises other problems. The exceptional nature of the death penalty has been clearly expressed in case law and in the report of the Death Penalty Law Commission (2015). This is in line with the international human rights framework, where the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights recognize that the death penalty is contrary to human dignity. For states that maintain the death penalty, Article 6 (2) of the ICCPR provides that the death penalty should only be imposed for very serious offenses. General Comment No. 36 states that sexual offenses, although serious, cannot be punished proportionately with the death penalty where death has not occurred.
While the Indian legal system already provides for the death penalty for some non-murderous offenses, such as aggravated forms of rape and child sexual abuse, some provisions have come under judicial review. The results have been mixed. For example, the constitutionality of the death penalty for the offense of kidnapping has been challenged in the Supreme Court. The court, while upholding the constitutionality of the law, further suggested that the death penalty should only be imposed in situations where death had occurred or in cases of terrorism. In contrast, the Bombay High Court upheld the constitutionality of the death penalty for repeated rape offenses, arguing that it is a more serious offense than death because of its impact on the dignity of the human person. victim and his lasting trauma.
This inconsistency and lack of clarity as to when death is a proportionate punishment is inevitable in the administration of the death penalty under Articles 26 and 28 of the proposed anti-trafficking legislation. Aggravated trafficking offenses cover a wide range of forms of offense, from physical violence and sexual assault to forced labor and begging. This leaves the determination of the appropriate sentence entirely to judicial discretion and to a potential inconsistency.
Strict punitive measures can give the appearance of government action, but they often do not impact the root cause of the crime. They also have little or no effect on practical barriers to justice. Given the complexities that exist in prosecuting trafficking offenses, it would be counterproductive to include the unreliable and deeply flawed death penalty system in the fray.
OpenDemocracy.net, August 4. Zeba Sikora is a researcher at Project39A, a criminal justice research and intervention center based at the National Law University of Delhi.