Making trafficking a capital offence in India

Should India really be adding such an unreliable punishment to an already complex context?

India’s Anti-Trafficking Bill 2021, geared towards preventing and prosecuting trafficking offences and rehabilitating victims of trafficking, appears to be a well-intentioned move. Trafficking is severe in India, and it has been further exacerbated by the Covid-19 pandemic. The proposed bill expands the scope of offences under trafficking, and also includes cases of cross-border trafficking.

However, the bill has also been widely criticised. This is particularly due to its emphasis on criminalisation and punitive measures, as well as its disinterest in dealing with contributing factors, like impoverishment, which require enduring solutions based in development and welfare policies. The bill mandates reporting of trafficking offences and does not make consent of the victim mandatory in rescue and rehabilitation efforts, thereby overlooking individuals engaged in consensual sex work and victims who do not want to register a criminal complaint. Perhaps most seriously, the bill introduces harsh punishments for trafficking, including the death penalty for aggravated and repeat offences.

Project 39A, the criminal justice research and intervention centre that I work for, has been engaged in empirical and doctrinal research on the administration of the death penalty and the problematic implications of its retention in the Indian legal system. Based on the evidence we have gathered I can say with confidence that the inclusion of the death sentence in the proposed bill will not solve the problem of trafficking. It will, however, add additional complications to an already dysfunctional system.

Harsher punishments for offences related to sexual violence might lead to a reduction in the number of convictions.

Clause 25 of the bill enumerates a wide range of aggravated forms of trafficking in persons. These include cases of death or sexual violence against the victim, where the victim is mentally ill or otherwise impaired, and also encompass instances of bonded labour and forced beggary (or begging). While laying down the punishment for such aggravated offences, clause 26(4) provides the death penalty for repeat, aggravated offences against children less than 12 years of age, and rape against women. Next, clause 28 provides punishment for offences of trafficking and its aggravated forms against more than one person or on more than one occasion. Here the death penalty is introduced as a punishment when the victim is a child.

Death penalty is not the solution

This move to introduce harsh punishments, particularly for sexual violence against women and children, is not novel. It is part of a much broader trend of paternalistic and punitive action by the Indian state in response to such crimes. Other instances include the introduction of the death penalty for aggravated forms of rape in the Indian Penal Code (IPC), and for aggravated child sexual abuse in the Protection of Children from Sexual Offences Act (POCSO). This tendency to introduce extreme punishments to assuage public outrage is also evident in the efforts of various state governments. For instance, Andhra Pradesh’s Disha Bill and Maharashtra’s Shakti Bill provide for the death penalty as a punishment for sexual offences, and also introduce a fast track trial process.

Such efforts are based on the assumption that they will create fear and reduce the occurrence of the crime. And to show that this is meant seriously, lower courts have been steadily increasing the frequency with which they hand down the death penalty in cases of sexual violence. However, this assumption is flawed.

Our work has shown that the death penalty does not have a significantly higher deterrent effect than life imprisonment. The Law Commission Report on the Death Penalty (2015) reached the same conclusion. At the same time, research on the impact of high mandatory sentences for rape has suggested that harsher punishments for offences related to sexual violence might lead to a reduction in the number of convictions, because of a systemic reluctance to impose severe punishments for non-violent sexual offences. At the same time, harsh punishments fail to resolve the myriad other impediments to investigation and prosecution that also lead to under-reporting and low conviction rates. In the context of sexual violence against women and children, hurdles such as hesitancy in reporting against known offenders, breakdown of a trial due to the victim turning hostile or withdrawing the complaint, and an inherently patriarchal criminal justice machinery, adversely impact access to justice.

The burden of the death penalty disparately falls on the most marginalised individuals and communities.

Similarly, there are several impediments to effective investigation and prosecution of trafficking cases, which had an acquittal rate of 73% in 2019 according to the National Crime Records Bureau. Cases of trafficking tend to involve complex power dynamics between perpetrator and victim, which are often deeply enmeshed within fiduciary or familial relationships, and these might adversely impact reporting and prosecution of such offences. Most of those entrapped in trafficking are from socio-economically vulnerable communities, including oppressed castes, religious minorities, and women and children, who might be compelled by economic necessity. Those who wish to exit the exploitation of their circumstances might lack the capacity to seek legal redressal against an organised crime network, which often involves the complicity or active participation of political authorities and/or state officials, and might face police reluctance in registering and investigation of trafficking complaints.

Moreover, of the limited political will directed towards curtailing trafficking, attention is largely directed towards sex trafficking instead of forced labour. The latter is a much graver problem in India. Focus on sex trafficking also inadvertently impacts sex workers, many of whom choose to voluntarily engage in their occupation due to a lack of alternate lucrative opportunities.

An arbitrary and discriminatory system

In such a complicated context, the introduction of the death penalty will not impact the causes of problem, but might add further difficulties in an already fraught system. The Death Penalty in India Report (2016) maps death row prisoners’ socio-economic context and experiences with the criminal justice system. It demonstrates that the burden of the death penalty disparately falls on the most marginalised individuals and communities, those who are unable to afford adequate legal representation and must bear the consequences of coercive investigative techniques and custodial violence.

Additionally, the imposition of the death penalty is based on subjective decision-making of particular judges. This results in inconsistent and arbitrary outcomes, despite judicial standards requiring principled sentencing and death to be imposed only in the rarest of rare cases.

Awarding the death penalty for non-homicidal offences opens up further issues. The exceptionality of the death penalty has been clearly articulated in judicial precedent and the Law Commission Report on the Death Penalty (2015). This is in line with the international human rights framework, where the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) recognise that the death penalty is against human dignity. For states which continue to retain the death penalty, ICCPR Article 6(2) provides that the death penalty must only be awarded in very serious offences. General Comment No.36 states that sexual offences, through grave, cannot be proportionately punished with the death penalty where death has not occurred.

While the Indian legal system already provides for the death penalty for certain non-homicidal offences, like aggravated forms of rape and child sexual abuse, certain provisions have been opened to judicial scrutiny. The results have been mixed. For instance, the constitutionality of death penalty for the offence of kidnapping was challenged before the Supreme Court. The court, while upholding the constitutionality of the law, further suggested that the death sentence must only be awarded in situations where death had occurred or in cases of terrorism. In contrast, the Bombay High Court upheld the constitutionality of the death penalty for repeat offences of rape, arguing that it is an offence graver than death because of its impact on the dignity of the victim and its enduring trauma.

This inconsistency and lack of clarity about when death is a proportionate punishment is bound to arise in the administration of the death penalty under clauses 26 and 28 of the proposed anti-trafficking legislation. Aggravated offences of trafficking cover a vast range of forms of the offence, from bodily violence and sexual assault to forced labour and beggary. This leaves the determination of appropriate punishment completely open to judicial discretion and potential inconsistency.

Strict punitive measures might create an appearance of government action, but they often fail to impact the root cause of the crime. They also have little, if any, effect on practical impediments to justice. Considering the existing complexities in prosecuting trafficking offences, it would be counterproductive to include the unreliable and deeply flawed system of the death penalty to the fray.

Zeba Sikora is with Project 39A at the National Law University, Delhi. The views expressed are personal. This article first appeared in OpenDemocracy and can be accessed here.