Students take part in a candlelight procession on April 13, 2018, as they protest over the rape and murder of an eight-year-old nomad girl, in Kathua, near Jammu. Photo: Reuters/ Mukesh Gupta
Students take part in a candlelight procession on April 13, 2018, as they protest over the rape and murder of an eight-year-old nomad girl, in Kathua, near Jammu. Photo: Reuters/ Mukesh Gupta

The Indian government has embarked upon an ambitious plan to create an expansive national sex-offenders registry, which it hopes to hand over to private contractors to operate and maintain.

In a country where people are frequently shocked by horrific sex crimes, the government has said the registry will help investigators and police pre-empt sexual offenses. It also plans to make the database open to the public.

According to one recent report, the Home Ministry has said that private contractors will develop the platform, maintaining the confidentiality of data, while officials from the National Crime Records Bureau (NCRB) will maintain the registry.

Some 450,000 individuals are already listed on the registry, from the data of the NCRB, and another 35,000 names are expected to be added this year.

Legal and gender justice experts, however, have questioned the legality of such a registry and raised issues of privacy and opportunities to reform their behavior, which are important to criminal justice.

Criminal lawyer and senior advocate Rebecca John described the plan as ‘disastrous’, saying it would have “a crippling effect” on individuals. “It bids adieu to the very concept of reformation of offenders,” she said.

Dubious legality

In 2015, India’s government informed the Supreme Court through an affidavit that the registry will include names of individuals listed by police on charge-sheets. But given that is simply a record made of charges against a person, experts say the register should only contain the names of people with at least be one conviction by a court of law.

“To call a person a criminal before a crime has been committed, is to say that the government will erode the very principle of presumption of innocence that is guaranteed in the constitution,” Indira Jaising, a senior advocate at the Supreme Court and gender justice activist, said.

The government has not specified if people named in the registry will face any restriction. It has also not said anything about what would happen if a conviction is overturned on appeal and if an individual’s name would then be taken off the registry.

Jaising told Asia Times: “This is the worst kind of profiling that is being undertaken by the government, even worse than racial profiling. We oppose the very concept of a Sex Offenders Registry since it results in discrimination and goes against the principle of trying to reform the criminal.”

In countries abroad, especially in the United States, the Supreme Court’s decisions have allowed the government to corral people and impose restrictions on the listed individuals’ mobility, which all places they can access, who they can interact with – which inevitably leads to marginalization.

These policies have come in for much criticism in recent years. That is because while upholding the validity of sex-offender registries in McKune v. Lile (2002), Smith v Doe (2003) and United States v Kabodeaux (2013), the US Supreme Court relied on theories of recidivism and psychology. These theories had little scientific and evidentiary basis, as former public defender David Fiege noted in the New York Times.

Doubts about offender registries

Sex-offender registries, and how they are operated have also been questioned for producing results which backfire, especially by putting child victims in greater peril.

In 2007, global non-profit Human Rights Watch (HRW) released a report on sex offender laws in the US, which was the first comprehensive study of those policies, their public safety impact, and the effects. It found that in many states, registration covers everyone convicted of a sexual crime, which can range from child rape to consensual teenage sex, with people listed regardless of their potential future threat to children.

It said: “Sex offender laws reflect public concern that children are at grave risk of sexual abuse by strangers who are repeat offenders. […] however, the real risks children face are quite different: government statistics indicate that most sexual abuse of children is committed by family members or trusted authority figures, and by someone who has not previously been convicted of a sex offense.”

Vidhya, co-ordinator at Tulir, a Madras-based organization helping sexual abuse victims, concurred. She said the government’s decision was “knee-jerk and completely counterproductive”, noting that data showed that 99% of sexual offenses go unreported in India and a sex-offenders registry would dissuade more victims from coming forward to report offenses, because in the majority of cases offenders are known to victims, and are often family members.

Unfettered public access to online sex-offender registries with no “need-to-know” restrictions could also put former offenders at risk from public vigilantism. The US laws also reflect the widely shared but erroneous belief that “once a sex offender, always a sex offender. Authoritative studies indicate that three out of four adult offenders do not re-offend.”

Features such as including individuals who are yet to be convicted by a court of law, and the option of making the database accessible to the public, indicate that India is leaning towards the US model.

Advocate Jaising asked if the government has the authority to distinguish between “soft rape” – in which the woman is underage so her consent is not taken as valid – and “rape”, that is, when a woman or man has not consented to sexual intercourse. “This entails sitting in judgment over people’s choices, which is a judicial function and outside the domain of a technology platform,” she said.