The Indian government has reportedly launched the National Registry of Sexual Offenders that contains names, addresses, photographs, fingerprints, DNA samples, and PAN and Aadhaar numbers of convicted sex offenders. This information can only be accessed by law enforcement agencies. The registry will also store details of persons arrested or chargesheeted for sexual offences, but access to this information will be limited to officers with requisite clearances. In all, the registry is said to list over 4.5 lakh people to begin with.
India is the ninth country in the world to have such a registry, emulating the United States, Britain, Ireland, Canada, Australia, New Zealand, South Africa, and Trinidad and Tobago. Though billed as a firm response to the problem of sexual assault and rape in India, the database has been set up without assessing the economic and social costs or the privacy and civil liberty implications of collecting and storing such sensitive personal material as DNA samples of a large number of people. In fact, the registry is likely to cause more problems than it solves.
First of all, there is no legal basis for creating such a database. Indeed, it seems to have been set up through executive action. It is now settled, particularly after the Supreme Court upheld privacy as a fundamental right, that any violation of fundamental rights must be authorised by legislation. This requirement is partly premised on the idea that parliamentary debate and public consultation ensure concerns are addressed and sufficient safeguards added before individuals are deprived of their rights. Other countries that have compiled registries of sexual offenders such as Canada, Ireland and South Africa have done so by amending their laws.
The few details available about India’s registry indicate that vast troves of sensitive personal information will be stored for 15 years for “low danger” convicts; 25 years for those presenting “moderate danger”; and for life for “habitual offenders, violent criminals, convicts in gangrape and custodial rape” cases. We do not yet know on what basis sexual offenders will be classified as presenting “low danger or “moderate danger”, or the rationale for storing their information for such long periods. But it appears that even a person convicted of sexual harassment under Section 354A of the Indian Penal Code – which entails maximum imprisonment of one year for making a “sexually coloured” remark – will have his name, photograph, address, fingerprints, DNA samples, and PAN and Aadhaar numbers stored in the database for 15 years.
The European Court of Human Rights and the European Court of Justice have both ruled that storing sensitive personal data for long periods or permanently for “future prevention of crime” is illegal. This is because a permanent database of personal information serves to vilify offenders even after they have served their sentences, and undermines the idea of rehabilitation in prison. Being listed in such a registry will likely cause social and economic harm to the convicts, who are often already poor and marginalised – they will have difficulty finding jobs or face harassment from police.
Interestingly, the Request for Proposal for the “Creation and Maintenance of National Database of Sexual Offenders”, issued by the home ministry in May, notes that the registry will be used for “keeping a watch of habitual offenders”, which is code for surveillance and harassment.
No quick fix solution
If this was not enough, the registry will have personal information of arrested and chargesheeted offenders as well, with the only additional safeguard being that it can be accessed only by officers with special clearances. Given the inexorable delays plaguing India’s criminal justice system and that nearly 68% of the country’s prison population comprises undertrials, storing sensitive information of arrested and chargesheeted offenders flies in the face of presumption of innocence and ignores the reality of the judicial system.
Government officials have said juvenile offenders are likely to be added to the registry in future, even though they are required by law to be treated separately and enjoy additional protections under the United Nations Convention on the Rights of the Child.
There is also no clarity on the procedure for the collection, storage and deletion of the data; safeguards to ensure its confidentiality and privacy; or the economic and social consequences of being listed in the registry. We are hurriedly creating semi-permanent and permanent databases of people accused and convicted of a range of offences – from consensual intercourse between minors to child and custodial gangrape – without a clear idea of its consequences or demonstrable benefits. In fact, it is not even established that the majority of sexual offences are committed by persons with a pattern of sexual assault. The National Crime Records Bureau’s Crime in India, 2016 report found only 6.4% recidivism among people arrested under penal provisions and 5.2% among juveniles. There is no data on recidivism among convicts or sexual offenders.
No doubt, crimes against women and children, including sexual assault and rape, are on the rise and urgent action is needed to curb them. It is also true, however, that 94.6% of reported rapes are committed by acquaintances. The solution lies in improving investigation and trial processes, avoiding undue delays, and providing support to the victims to come forward and testify in court, without further harassment. A registry of sexual offenders is not the quick fix solution that our politicians desire. For a workable solution, time, effort and money need to be spent on long-term institutional reforms.
Vrinda Bhandari is a Supreme Court lawyer.