Legal But Dangerous: Govt Plan for Sex-Offender Database

The proposal to maintain a database of sex offenders is fraught with dangerous consequences.

Is it a good idea to build a database of molesters and rapists in India? Yes, but with essential safeguards.

In the backdrop of impending release of the juvenile confined for three years for his role in the 16 December 2012 gangrape in Delhi, the government seems to have caved in to public opinion and come up with a plan to have in place a sex-offender registry in order to keep a tab on, and protect society from possibly murderous predators.

Nothing Wrong With Govt Position

There is nothing wrong with the government’s decision, which it communicated to the Supreme Court in an affidavit, because such registries are commonplace in many countries. Unless of course, it goes on a head-on collision course with constitutionally-mandated fundamental rights and inviolable tenets of criminal jurisprudence. But this is precisely what the government’s plan is doing, and hence it must be subjected to strong criticism and minute scrutiny.

Concerns That Can’t be Ignored

In every jurisdiction where the practice of maintaining public sex-offender registries are in vogue, the government and law enforcement agencies wait for at least one conviction before they put any individual on the list. But the government is determined to brand even chargesheeted offenders, whose guilt is yet to be conclusively established in a court of law.

Even if a person is convicted by a trial court, it does not mean that his guilt has been finally established, because many convictions are overturned on appeal to the high courts or the Supreme Court.

If an individual is listed in a sex-offender registry, he is inevitably subjected to a host of penal restrictions- for example, forced stay in segregated neighbourhoods, without access to regular employment, besides of course, the crushing burden of social ostracisation. Then, isn’t it essential that he should be convicted by at least one court before being subjected to such crippling restrictions?

What also needs to be questioned is the legal validity of such convictions. In a country where many charged with criminal offences can barely afford effective legal representation, what is the guarantee of them having a free and fair trial? And when it comes to high profile cases, or those which are hyped up by a media which cares little for the principles of justice, the situation gets all the more fraught.

Then there are cases where adolescents are prosecuted under child sex abuse laws just because they happened to be sexually active, sometimes by the parents of their partners. Why should those youngsters be made to live under a shadow of odious guilt for their entire lives ?

Of Dubious Effectiveness

In 2013, the US Supreme Court upheld the validity of sex offender registries, but it still isn’t clear whether they are as effective as they are thought, or touted to be. In 2008, a study conducted for the U.S. Department of Justice suggested that they’re not always as effective as their advocates and proponents had hoped.

Not only that, these registries, unless they adhere to certain essential protocols, have come in for criticism because they impinge upon civil liberties and amount to “disproportionate sanctions”.

Of late, the parents of Jyoti Singh Pandey (popularly termed as Nirbhaya), the woman who was brutalised and killed in the 16 December 2012 gangrape incident, have been petitioning the government to reveal the details of the juvenile (now a major) who was one of the rapists. They believe that he poses a mortal threat to women in society and hence must be kept under strict surveillance and in incarceration for the rest of his life.

Quite often, governments tend to side with public opinion instead of constitutional principles. In the present case, it is imperative for the government not to fall for knee-jerk and potentially unconstitutional policy measures.