Heinous sexual offences, which arouse public anger, present an opportunity as well as a danger for criminal justice reforms. They can either evoke a knee-jerk reaction or a considered response. The horrific December 2012 gang rape was just such an inflection point. Since the release last year of the juvenile involved in the crime, there has been a voluble demand for a Sex Offender Registry.
Though the government, by design or accident, has not been forthcoming on the proposed registry, media reports suggest it would provide the name and other identification details of all convicted and charge-sheeted sexual offenders freely over the internet. Doing so, it is presumed, would regulate the movement of sex offenders and forewarn the public to take precautionary steps against them.
But that is a simplistic understanding. There are, as it happens, many problems with the proposed registry. And while it is commendable that the government is thinking of ways to tackle crimes against women and children, one must question if such measures are really helpful, or if they worsen the situation and abrogate fundamental rights of the registrants.
1. Questionable assumptions
One of the primary assumptions behind the registry is that a large number of previously convicted sex offenders recidivate (commit the crime again post-conviction). If the offenders are tracked, the assumption goes, their chances of repeating the offence reduce. But a number of studies prove that recidivism in cases of sexual offences is actually less than for other crimes. Indeed, studies on recidivism offer varying conclusions. Therefore, basing a measure, on purely hypothetical beliefs – there’s no such study in India – to tackle a grossly underreported crime seems an ill-advised proposition at best.
For its proponents, the publication of personal identification details is justified on the ground that it would deter potential offenders since the registry is known to stigmatise and isolate registered offenders. The assumption here is that potential offenders are rational decision-makers who know the consequences of their actions and calculate the costs before committing an offence. This is far removed from reality. In many instances, offenders might not be aware of the registry and, even if they are, they are often risk-myopic – they underestimate the probability of being punished. The deterrence value of the registry would, therefore, be minimal, if any at all.
Finally, in line with its efforts to install CCTV cameras and policing desolate spots, the government here is fixing its attention on “stranger rapes” (instances where an unknown perpetrator sexually assaults the victim in a public place) which form a small percentage (14%) of the total rapes in India. The registry remains inadequate for combating “acquaintance rapes” – cases where the woman is abused by a known man in the privacy of a home.
2. Stereotyping rape
If the government goes ahead with the registry, it would only work to reinforce to the public the stereotype of stranger rapes as the “real” rape. This belief might prompt a child or woman to discount actual lived experiences which would qualify as rape. It will also intensify the problem of under-reporting of rape cases since a woman may be dis-incentivized to report an acquaintance rape in the knowledge that the acquaintance offender would face perennial public hostility if his name enters the registry.
Moreover, this state-endorsed stereotyping of stranger rape will contribute to the worsening of rape adjudication. Studies have acknowledged that if the victim or the accused does not fit into a stereotype (such as date rape scenarios), the probability of acquittal increases. Also, it’s known that the effects of a positive change in rape laws could be nullified if social attitudes and the culture surrounding rape law are allowed to breed myths – which is what the registry does.
3. Privacy concerns and the registry
The Attorney General last year argued before the Supreme Court in another case that there is no fundamental right to privacy in India. The law officer contended that the judgements of the Supreme Court recognising the right are bound by the larger benches of the court in MP Sharma v Satish Chandra (1954) and Kharak Singh v State of UP (1963), which had earlier decreed that there is no fundamental right to privacy. I disagree with the Attorney General’s contention.
As Gautam Bhatia argues, both the cases are distinguishable on facts and do not serve as binding precedent. MP Sharma is limited to the non-recognition of the right to privacy under Article 20(3) of the Constitution (right against self-incrimination) because the Indian Constitution does not have a provision akin to the Fourth Amendment in the US. And Kharak Singh was delivered by the Supreme Court in a situation where fundamental rights were considered distinct and separate. The right to privacy by its very nature is not found in a specific provision but is deduced as a penumbral right derived from the fundamental rights chapter. The isolated view of fundamental rights during the Kharak Singh era was altered by an 11-judge bench of the Supreme Court in the Bank Nationalisation Case (1970), and later affirmed in Maneka Gandhi v Union Of India (1978). With this, the basis of Kharak Singh was erased and hence the vires of the lower bench judgments delivered post the conjoint reading of fundamental rights cannot be questioned.
In this context, the question that arises is on the presence of a protectable privacy right. The Supreme Court has declared that a prisoner has a privacy right regarding personal information.
It could be argued that most of the details in the registry are already available in the public domain and the offender, as a result, doesn’t enjoy a privacy right. But a distinction must be made between information that is generally available and the compilation of that information at a single source. By implementing a registry, the government effectively selects some information out of its repository of penal records – which otherwise would have never been seen – and publishes it with a warning.
An infringement of the right could still be justified if the regulation establishing the registry is a law per Article 21 of the Constitution (No person shall be deprived of his life or personal liberty except according to procedure established by law) and satisfies the two-fold test laid down in Gobind vs Madhya Pradesh (1975). In a scenario where the Parliament provides a statutory framework for the registry, the law still needs to satisfy the two-fold test of compelling public interest and narrow tailoring test. The public interest test relates to the importance of purpose for which the right to privacy is being infringed, while the tailoring test determines if the proposed measure is the least restrictive way of achieving that purpose.
It is plausible to demonstrate that the interests relating to protection of women and children against crime are compelling in today’s time. However, the registry will hit a roadblock when it comes to the narrow tailoring requirement because alternate measures like better treatment for sex offenders, coupled with educating the public about general precautionary measures, are narrower means of protecting children and women without infringing the privacy rights of registered offenders.
Lastly, the regulation or legislation establishing the registry will be constitutionally impermissible since the unbridled availability of information has the potential of misuse. As seen elsewhere, it could lead to abuse of privacy rights of the registrants, threats, assaults and even killings.
4. Ex post facto measures
The registry proposes to include details of sex offenders convicted and released prior to its creation. Such a measure, it can argued, violates the ex post facto provision in Article 20(1) of the Constitution because the offender is being subjected to a penalty greater than that which existed at the time of commission of the offence. A publicly accessible registry resembles a traditional form of punishment similar to public shaming practices prevalent in colonial India. This said, courts across the world have recognised the registry as a regulatory scheme to protect children and women.
In order to establish that the registry is a form of punishment, first the meaning of “penalty” under Article 20 of the Constitution would have to be delinked from the punishments prescribed under Section 53 of the Indian Penal Code, 1861. While interpreting Article 20(1), the courts have a tendency to refer to the IPC provision which lists punishments such as imprisonment and fine.
At the same time though, the constitutional protection under the ex post facto provision should be against any form of punishment, not just restricted to the Indian Penal Code.
For this reason, “penalty” has been defined to include any deprivation of liberty flowing from the conviction of an accused. Stringent reporting requirements placed on offenders along with the stigmatising effects of a publicly accessible registry act as a restraint and deny opportunities to the offender, curtailing his liberty. Second, there is a direct causal relationship between the conviction of an offender and his inclusion in the registry, which would indicate that the measure flows from the conviction, just like a punishment. Also, while the government might claim that its intention is to regulate sex offenders and reduce crimes against women, the measure is disproportionate to the objective and actually ends up serving a punitive purpose.
Finally, including charge-sheeted offenders (a stage at which the court frames charges against the accused for trial) will negate the most fundamental principle of criminal law: innocent until proven guilty.
At the cost of justice
Sex Offender Registries are nothing but a scathing indictment of the quality of the prison system, where rehabilitation takes a back seat. It reflects the state’s acceptance that it is releasing prisoners into society who it believes have a tendency to reoffend.
Rather than protecting the vulnerable, a registry will create a class of offenders who are forever named and shamed, thereby reducing their incentive to lead a crime-free life. The consequences of this – like difficulty in finding employment and vigilantism – raises significant concerns about the violation of human dignity, something the State is duty bound to protect. If the registry indeed materialises, populism will have trumped evidence-based law-making, at the cost of justice.