Naming and shaming

Thousands of column inches have been dedicated to the role of the state in curbing sexual crimes. Towards the end of 2015, the NDA government passed controversial amendments to the Juvenile Justice Act, which, among other things, allows for juveniles 16 years or older to be tried as adults for heinous offences like rape. The previous UPA government passed an anti-rape law in 2013. Various institutions, including our Supreme Court, have recommended wholesale reforms in the way sexual assault investigations are conducted. Kerala, however, went a step further and decided to establish a registry of sex offenders. In other words, a record of people who have committed sexual crimes will be available to the public. This decision comes a week after a famous Malayalam movie actress was abducted and sexually assaulted. The incident had resulted in widespread protests across the state with the Opposition and members of Malayalam film fraternity questioning the state's capacity to protect women from such heinous crimes. What is the format of this sex registry, and how will it work?

At the time of publication, the Kerala government did not provide answers to these crucial questions, but affirmed that the records would be available for employers to profile potential job-seekers. The inspiration for such a move probably comes from the United States Department of Justice's National Sex Offender Public Website, which collates the sex offender lists of various states. Among the information listed in public are the name, photograph and current location of those convicted of sex crimes. Prima facie, a potential registry of sexual offenders seems like a real deterrent since it would name and shame the offender. There are numerous cases in India where repeat offenders escape the long arm of the law, despite committing heinous sexual crimes because of the social stigma attached to rape. We have read many horror stories of how survivors of sexual assault are compelled to compromise with their attackers instead of filing a First Information Report. Time and again the judiciary has landed on the wrong side of a sexual assault case, where offenders either get away with lighter sentences or judgements that take an eternity. In rural India, there are even cases of village councils and families forcing survivors to marry their attackers.

These institutional failures allow the offender to hide behind the wall of anonymity and give them the license to commit such crimes in the future. Nonetheless, any decision to set up a registry for sex offenders should follow some important principles of criminal justice. The Kerala government has not yet clarified whether names would be added to the list after a conviction or after a case is registered. It must explain its position, and ideally include only those who have been convicted by a court of law. One of the fundamental principles of criminal justice is that every accused is innocent until proven guilty. Any decision to establish a sex registry should not forget this fact. This is how it works in countries like the US and the United Kingdom, where such records exist. Including people on whom cases have merely been registered is fundamentally against the principle of innocent until proven guilty. If the registry does not follow this simple rule, individuals will be named and shamed even before the courts admit the charges against them. These checks are imperative to prevent misuse. Admittedly, the criminal justice system in India moves at a snail's pace. Trials drag on for years and repeat offenders get out on bail. However, this does not mean that the name of those potentially innocent is dragged through the mud. Going further, the establishment of a registry is not a one-stop solution to preventing sex crimes. Instead of dragging innocent people onto the list, our judicial system needs to undergo wholesale institutional reform.