INTRODUCTION
Crime has existed since the start of human civilization. The crime rate in India stands at 422.2% per lakh of the population, as per the ‘Crime in India’ 2022 Report compiled by the National Crime Records Bureau.[1] Further, crime may be said to have also co-opted channels in modern society, allowing it to operate as Organized Crime.
At the national level in India, no general provision existed till now that identified and punished ‘Organized Crime’ per se, though Sections of the IPC,[2] like S120A and S34[3] were routinely invoked to grapple with such instances. Thus, the new criminal code—Bharatiya Nyaya Sanhita 2023—[4] brings in Clause 111 to that extent.
This article seeks to analyze the Clause, examine its legal significance, and further evaluate the provision on the anvil of the existing legal system. A critical analysis is undertaken to reveal the shortcomings and inconsistencies within the provision.
DEFINING ORGANISED CRIME
Crime has been defined across a spectrum of definitions, ranging from substantive to procedural definitions. It is a product of the value consensus within society to criminalise and penalise specific actions, and this consensus is subject to change with time and place. Given the dynamic nature of ‘Crime’ itself, a precise definition of Organised Crime has remained elusive, and there is no general agreement among jurists and jurisdictions as to what constitutes Organised Crime.[5]
In the international arena, the United Nations Convention on Combating Transnational Organised Crime, 2000 (“UNCTOC”), also known as the Palermo Convention, gives a working definition of an ‘Organised Crime Group’ rather than that of ‘Organised Crime.’[6] —
“Organized criminal group shall mean a structured group of three or more persons, existing for some time and acting in concert to commit one or more serious crimes or offences established by this Convention, to obtain, directly or indirectly, a financial or other material benefit.”
We see that the definition defines ‘who’ commits the offence of organised crime. Other definitions have tried to define ‘who’ does the criminal activity, ‘what’[7] the criminal activity is,[8] ‘how’ the criminal activity takes place,[9] or ‘why’ the activity was undertaken. It should be noticed that the definition provided under BNS inculcates all of these broad parameters —
“Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, …… human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of …… behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime”[10]
We observe that Clause 111 does not provide for a definition of ‘material benefit’. This could have been done to allow the courts to interpret the provision purposively, as seen in the case of Prasad Shrikant Purohit v. State of Maharashtra (2015).[11] Thus, the lack of a definition for ‘material benefit’ should be construed as ‘constructive ambiguity’ that allows the court to interpret the provision in unique factual matrices. Nevertheless, lawmakers have done well in defining the offence of organised crime after taking inspiration and lessons from the existing literature on the subject matter.
ORGANISED CRIME WITHIN THE EXISTING LEGAL FRAMEWORK
This section seeks to evaluate the new provision for Organised Crime on the anvil of the existing legal framework in India.
THE INDIAN PENAL CODE
The IPC had stood the test of time, continuing in its application from the colonial regime to independent India. It would be false to state that the existing system established by the IPC could not address Organised Crime. The phenomenon, under the realm of IPC, has been addressed by —
- Principles of group liability like Common Intention (Section 34)[12] and Common Object (Section 149),[13]
- Criminal Conspiracy (Section 120A),[14]
- Dacoity and Robbery (Section 390,[15] Section 391).[16]
These sections sought to punish criminal activity performed in concert or with the aid and agreement of more than one perpetrator. The sections mentioned above combatted the phenomenon by giving particular importance to the number of offenders, yet failed to address the repeated nature that Organized Crime is characterized by. Hence, the new provision introduces the dynamic of (i) time and (ii) the number of times the crime is committed. This is done by adding the ingredient of ‘more than one chargesheet filed and taken cognizance of a court in the past ten years.’
Hence, the new clause on Organized Crime changes this by including two essentials: first, the principal offence should be a cognizable offence punishable by three or more years of punishment, and second, more than one charge sheet should have been filed and taken cognizance of by a competent court in the last ten years of the principal offence.
SPECIAL CRIMINAL LEGISLATIONS (CENTRAL)
Further context is provided by the following specialised criminal legislations enacted by the union government:
- The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (“COFEPOSA”), 1974.[17]
- The Narcotic Drugs and Psychotropic Substances Act (“NDPS”), 1985.[18]
These legislations address specific forms of organized crime like money laundering and smuggling of illicit goods. And not the offence of Organized Crime per se. These criminal acts equip the courts and enforcement agencies with special powers, for instance: The COFEPOSA allows the government to put people under preventive detention to prevent smuggling activities that are punishable under the act.[19] The NDPS, on the other hand, gives powers of seizure, entry, search and arrest without warrant.[20] Given the special powers entrusted to enforcement agencies through these special legislations, the possible reasons why the new provision has been introduced can be summarised as follows —
- First, these special legislations mandate investigations that strictly follow the safeguards put in place to prevent misuse. This often makes it difficult for agencies to combat the crime by using powers of detention, arrests, etc. A general provision brings down this threshold and expedites the process of investigation and justice.
- Second, though these legislations addressed Organized Crime in various forms, the liability accrues to an ‘individual’ without reference to the joint liability of the group engaged in the criminal act. The new provision provides this essential base of Organized Crime.
SPECIAL CRIMINAL LEGISLATIONS (STATES)
Without central legislation dealing with Organised Crime, states like Maharashtra, Gujarat and Karnataka have enacted specialised state legislations, defining and prescribing liability for Organised Crime. These include —
- The Maharashtra Control of Organised Crime Act (“MCOCA“), 1999.[21]
- The Karnataka Control of Organised Crime Act (“KCOCA“), 2000.[22]
- The Gujarat Control of Terrorism and Organised Crime Act (“GCTOCA“), 2019.[23]
It shall be noted that these legislations have been solely devoted to addressing the problem of Organized Crime in the respective states. The definition and punishment provided under these statutes are roughly the same as those in BNS Clause 111.
Nevertheless, certain lacunae need to be pointed out in Clause 111. It is observed that these legislations have specific evidentiary rules well-suited for a trial for Organised Crime,[24] along with the provision for a Special Court to be set up to conduct the trial.[25] On the other hand, we observe that the BNS, BNSS, and BSA do not have these distinct legal formulations. Thus, the new provision is not aided by the new laws on procedure and evidence. The situation could be ameliorated by taking lessons from the state legislation. The absence of this harmonising exercise is a grave concern that casts doubt over the new provision.
In the states with such special legislations, the overriding provisions acts would apply notwithstanding any law in force.[26] However, what results in the states where no such special legislation exists? In such states, the enforcement agencies and the courts would have to rely upon one provision, i.e., Clause 111 of BNS, in isolation from any distinct, complementary rule of either procedure or evidence. This can be contrasted with the S120A of the IPC.[27] The provision in the IPC has been complemented by Section 10 of the Indian Evidence Act of 1872.[28] This dynamic aids the courts in making certain presumptions and admitting evidence only limited to cases falling under the realm of S120A, which may ease the court’s work and expedite justice. Similarly, the state Organised Crime legislations empower the judiciary to hold presumptions in a particular class of cases.[29] Such evidentiary thresholds and powers are absent in the new Bharatiya Nyaya Sanhita,[30] Bharatiya Nagrik Surakhsha Sanhita[31] and Bhartiya Suraksha Adhiniyam.[32]
CONCLUSION
On the academic front, lawmakers have done well with the task of defining organized crime, enriched by national and international discourse on the matter. Acting special evidentiary and procedural provisions and taking inspiration from state enactments would go a long way in establishing a robust system of law that is in harmony with the existing framework.
The Special criminal legislations enacted by the Government do not address the ‘joint’ and ‘continuing’ nature of the offence of Organized Crime as analysed. Ultimately, it is concluded that a novel provision has been enacted because of the rising incidence of Organized Crime; there is a stark absence of procedural and evidentiary provisions that would aid and supplement the system envisaged.
Author(s) Name: Bhavya Gujral (NALSAR University of Law, Hyderabad)
References:
[1] National Crime Records Bureau, ‘Crime in India 2022’ (2023)
[2] The Indian Penal Code 1860, s 120A
[3] The Indian Penal Code 1860, s 34
[4] The Bharatiya Nyaya Second Sanhita 2023, cl 111
[5] Institutional Author, ‘Changing Times, Changing Crimes’ (Colorado College, 31 August 2023) <https://sites.coloradocollege.edu/hip/criminality-and-criminalization/changing-times-changing-crimes/#_ftnref1> accessed 16 July 2024
[6] UN Convention Against Transnational Organized Crime (adopted 15 November 2000) 2225 UNTS 209 (UNCTOC) art 2(a)
[7] Letizia Paoli & Cyrille Fijnaut, ‘Organised Crime and Its Control Policies’ (2006) 14 Eur. J. Crime, Crim. L. & Crim. Just. 307, 308
[8] Michael Woodiwiss, ‘Organized Crime—The Dumbing of Discourse’ (1999) 3 British Criminology Conference: Selected Proceedings 3, 3-4
[9] Van Duyne, Organized Crime in Europe (Nova Science Publishers 1996) 1-2
[10] Bharatiya Nyaya Sanhita 2023, cl 111
[11] AIR 2015 SUPREME COURT 2514
[12] The Indian Penal Code 1860, s 34
[13] The Indian Penal Code 1860, s 149
[14] The Indian Penal Code 1860, s 120A
[15] The Indian Penal Code 1860, s 390
[16] The Indian Penal Code 1860, s 391
[17] The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974
[18] The Narcotic Drugs and Psychotropic Substances Act 1985
[19] The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, s 4
[20] The Narcotic Drugs and Psychotropic Substances Act, s 42
[21] The Maharashtra Control of Organised Crime Act 1999, s 2(e)
[22] The Karnataka Control of Organised Crime Act 2000, s 2(e)
[23] The Gujarat Control of Terrorism and Organised Crime Act 2019, s 2(e)
[24] The Maharashtra Control of Organised Crime Act 1999, ss 14-18
[25] The Karnataka Control of Organised Crime Act 2000, ss 5-7
[26] The Gujarat Control of Terrorism and Organised Crime Act 2019, s 24
[27] The Indian Penal Code 1860, s 120A
[28] The Indian Evidence Act 1872, s 10
[29] The Karnataka Control of Organised Crime Act 2000, s 18
[30] The Bharatiya Nyaya Sanhita 2023
[31] The Bharatiya Nagrik Suraksha Sanhita 2023
[32] The Bharatiya Suraksha Adhiniyam 2023
