According to the National Crime Record Bureau [NCRB] data, rape accounts for 12% of all the crimes against women. In India the average rate of rape case is 6.3 per 100000 populations. Out of 34651 cases reported in 2015, NCRB states that in 33098 cases (i.e. 95.5% cases) convicts were known to the victims. The data further reveals that there are numerous evidences where the juveniles and the adult criminals have reported the same crime more than once. In 2016, 44171 juveniles were arrested and 5.2% of them were recidivist. In case of adults, out of 3737870 persons who were arrested, 5.1% were recidivist and of them 1% had convicted it twice and 0.3% had convicted it thrice or more.
Out of 7 union territories and 29 states, Chandigarh accounted for the maximum no. of recidivist (38.1%) followed by Tripura (29.2%), Jharkhand (20.5%), Mizoram (16.9%) and Delhi (12.2%). In absolute figures, no. of recidivist among adults were from M.P (35320), followed by Tamil Nadu (18841), Assam (11659), Telangana and Andhra Pradesh.
In comparison to the rest of the world, these figures are not very high but they largely suffer from under-reporting. Recent barbaric incidents of rape in different parts of the country have rekindled the conscience of the motherland. These records show that India is poor in protecting her women populace. A sustainable solution was necessary to stem crimes against women. A proposal for setting up Sexual Offender Registry was then announced by the government to overcome this problem.
What is a SOR?
The Sex Offender Register (SOR) is essentially a database maintained by the police to keep record of the convicted sex offenders about their activities. It was first mooted after the Nirbhaya gang rape case in 2012 by the United Progressive Alliance government. On 10th May, 2016 MHA drafted guidelines on national Sex Offenders Registry. The proposed guidelines by the MHA included offences like rape, stalking, voyeurism and aggravated sexual assault. Inclusion of juvenile offenders in the registry was also suggested by the ministry but as they are protected by the United Nations Convention on the Rights of the Child, they will be treated separately.
On September 2018 the Sex Offender Registry was launched by the government of India. The registry contained details of around 4.4lakh people who were who were convicted on the grounds various sexual offences from 2005 onwards across the country. India became the 9th country around the globe after the US, Australia, Ireland, Canada, New Zealand, Trinidad and Tobago, South Africa and the United Kingdom to maintain Sex Offender Registry. The registry would comprise of names, nicknames, pseudonyms, telephone numbers, addresses including temporary lodging information, employment information, alma mater information, D.O.B., criminal history, DNA sample, finger prints, Aadhaar no. , Pan card and Voter ID card details, travel and immigration documents, driver’s license and current photograph of the offenders. The law enforcement agencies will have the accessibility over this database for the purpose of investigation and surveillance. It will be maintained by the NCRB, which would also check on whether the records of the offenders are being regularly updated by the state police and district nodal officers.
Classification of the offenders will be based on their criminal history to ascertain how much danger they pose to the community. They would be classified under three categories- “low danger”, “moderate danger”, and “habitual offenders”. For offenders coming under “low danger”, data will be stored for 15 years, for “moderate danger” it will remain for 25 years and lifetime for “habitual offenders”. The
documents of the offenders “arrested and charge sheeted” will only be accessible to the law enforcement agencies whereas information on “convicted” offenders shall be available at the police stations for common citizens.
The registry might be helpful for law enforcement but there are some disturbing stories. Firstly, there is not much empirical evidence that such register have curbed crime or hindered recidivism. The database will contain information about people who are arrested but yet to be pronounced guilty thus it violates the constitutional right of the citizens’ which considers an individual to be innocent until proven guilty. It also violates the right to privacy [privacy being a fundamental right, it is protected under Article 21, hence its violation must be authorised by legislation].
Secondly, though there are advanced DNA identification technologies yet there are cases where errors in analysis or misinterpretation of tests were found which resulted in miscarriage of justice. Moreover, traces of DNA of different people are found in innumerable places as cells are shed. This leads to ridiculous mistakes as was seen in the case of the Phantom of Heilbronn.
Thirdly, the information in the database will be tabulated under 3 categories- “low danger”, “moderate danger”, and “habitual offender”. Cases in High Courts and Supreme Court take years to see denouement. Therefore, the fate of the accused will remain hanging until then. Including the names in the register after several years from the date of FIR will hardly serve its purpose. It remains to be seen on what basis sexual offenders shall be catalogued and at which juncture.
According to NCRB report 2015, the percentage of rape case pending were 86.2% whereas conviction rate was only 20%. A research on functioning of Children’s court in Delhi conducted by the Centre for Child and Law, NLSIU 2016 found that 67.5% victims do not depose against the accused. Moreover, the observation also certified that conviction only resulted in 16% cases.
In India rape is already under-reported because of reasons such as social stigma, inadequacy of the criminal justice system, victim-blaming, deficiency in national victim and witness protection law. Moreover, often the offenders being family friends or relatives, the chances of reporting such crimes decreases as their names will remain recorded in the national database permanently. Once the names are on the register, it will become very difficult for the convict to find a job or rent a house. They get side-lined by the society and also have to deal with harassment, threats, ostracism and violence. It stigmatizes their life, renders reformation and makes it almost impossible to lead a dignified life after prison which is a menace to the society.
As crimes against women and children are rising, urgent action had become a necessity to curb them. Sex Offender Registry is a competent step against the convicts but it will only be able to serve its desired purpose with improved investigations, speedy trial processes, minimising undue delays and supporting the victims to depose against the accused. Assuming that the lacunas in the judicial systems shall be covered at the earliest, it remains to be seen whether the individual whose name once gets into the registry ever gets a fair chance to integrate in the society.