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.