A pair of standard issue handcuffs sits on a table. (Photographer: Jerome Favre/Bloomberg)

National Database On Sexual Offenders: Kosher On Data Protection?

BloombergQuintOpinion

On Sept. 20, 2018, the central government launched the National Database on Sexual Offenders, a centralised database wherein personal information and sensitive personal information such as the name, address, fingerprint details and photographs of individuals convicted for charges of rape, gang rape, eve teasing, and for offences under the Protection of Children from Sexual Offences Act, 2012 will be maintained and operated by the National Crime Records Bureau.

The purpose behind establishing the NDSO is fairly clear. It facilitates effective monitoring and investigation of sexual crimes. The NDSO is, however, accessible only to the law enforcement authorities and it is not open for viewing to the general public. While the intent behind the launch of the NDSO is arguably a welcome measure, a number of uncertainties have sprung to public attention vis-à-vis its operation and implementation and it has consequently sparked public debate across the nation.

Data Storage And Review

Although the government has specified that the NDSO will be operated by the NCRB, the manner in which the portal will be managed and regulated is quite imprecise at the moment. For instance, there is no clarity on whether there will be a regular review of the information stored in the NDSO to ensure that the information being stored is correct, complete, and not stored beyond the time period necessary.

The NDSO has been brought into effect through an executive action of the Central Government and does not have any legislative sanction.

The present data protection regime in India—The Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011—do not regulate the storage, handling, or use of personal information and sensitive personal information by government authorities and, therefore, currently there is no statutory construction which permit or regulate the storage or handling of such information by government authorities.

In the landmark Puttaswamy judgment, the Supreme Court observed that ‘an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable’.

Given that, there is no alternative other than to amend the present legislative framework for regulating the storage of the desired information.

In the absence of any legislative endorsement, the NDSO may well be seen as an infringement of an individual’s fundamental right to privacy.
The Supreme Court of India. (Photograph: Bloomberg)
The Supreme Court of India. (Photograph: Bloomberg)

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Further, a structure needs to be prescribed for protecting the privacy of the individuals whose information is being stored in the portal. This is important given the fact that storing information for long durations of time (for e.g., storing information of habitual offenders, violent criminals etc. for perpetuity), that is, after an individual has served his/her sentence in prison, is likely to create a perception that perpetuates social stigma and may harm the individual socially as well as economically, and in certain instances it may also disparage him/her after the sentence has been served.

The duration for which the Information will be stored in the NDSO depends upon the seriousness of the sexual crime committed.

The central government has suggested that for ‘low danger’ convicts and ‘moderate danger’ convicts, the information is likely to be stored in the NDSO for 15 years and 25 years respectively. However, it has been suggested that information related to habitual offenders, violent criminals and convicts of gang rape and custodial rape, will be stored permanently in the NDSO.

There is no transparency with respect to how the classifications are being arrived at and the corresponding time frames for storage of the information.

Given that the NDSO will store data of individuals convicted of sexual crimes, the present framework is not clear on whether information of an individual who has appealed against his conviction to an appellant court of law will also be stored. If so, it is likely to jeopardize the interest of the individual in the long run, creating a perception of guilt in the minds of the judges. This is clearly against the fundamental principle of criminal jurisprudence that an accused is presumed to be innocent until he has been proven guilty.

Since the primary objective is to safeguard the safety of citizens, it is critical to ensure that the information in the portal is kept updated at all times.

It is equally crucial to ensure that the information is not misused by law enforcement agencies at any point of time. In this regard, the ideal solution may be imposition of penalties and sanctions for misuse of the portal or a failure to keep it updated.

Done In A Hurry?

The Indian government has, in the recent past, in implemented several measures to address sexual offences in the country.

With the launch of this portal, India now becomes one of the few nations in the world that maintains a centralised database for sexual offenders.

It, however, seems that the decision to launch the portal has been hurried due to the wave of strong public opinion that has stirred the entire nation on account of sexual crimes. While this database was perhaps inevitable, it is equally non-negotiable that the database exists within legislative framework and sanctions to ensure that it is legitimate, effective, and serves the original purpose for its creation.

Avik Biswas is a partner and Ivana Chatterjee is an associate at IndusLaw.

The views expressed here are those of the authors and do not necessarily represent the views of BloombergQuint or its editorial team.