AN INSIGHT ON THE NEW PROVISION INTRODUCED IN BNS: ORGANIZED CRIMES IN INDIA BY - PALLA NAVANYA
AN INSIGHT ON THE NEW PROVISION INTRODUCED IN
BNS: ORGANIZED CRIMES IN INDIA
AUTHORED BY - PALLA
NAVANYA
ABSTRACT
Organized crime has become a global issue,
extending beyond national borders and growing increasingly complex. Though it
has existed throughout history, modern organized crime is far more
sophisticated. Advances in technology, communication, and transportation,
combined with globalization, have weakened traditional state boundaries,
facilitating cross-border activities with both positive and negative effects. Rapid
development has intensified issues such as population growth, resource
scarcity, poverty, and unemployment, which often lead to deviance or, in
extreme cases, criminal behavior. These factors have created an environment
where organized crime flourishes, emerging as a serious and violent aspect of
the modern criminal world.
This paper focuses on the types of organized
crime and the main reasons as to the reason of why it’s inclusion into the
national code. Further an analysis of an article is presented to gain further
understanding.
KEY WORDS
Organized crimes, cross-border activities,
unemployment, deviance
INTRODUCTION
Organized crime has become more complex in
modern India. The aspirational gap widened between aspirations and their
realization in urban areas has amplified the issue. Since independence, the
socio-political environment of India and the democratic framework have allowed
the development of such patterns. Conditions created by the Directive
Principles of state policy, in its objective of fostering socio-economic
equality in a diverse and constantly evolving democracy unintentionally have
legitimized certain forms of deviance and criminal activity. It has led to the
increased rate of economic crimes including financial frauds, tax evasions, and
money laundering.
The sentiment of the US Task Force Report for
the year 1967 best described organized crime as a "society" that
existed outside of and in control of the government and the people. It involved
thousands of criminals operating within complex organizations, as highly
sophisticated as large corporations, following rules that were more strictly
enforced than those of legitimate governments. Their crimes were not random
but, instead, interrelated in intricate conspiracies to various activities and
were all meant to reap enormous profits.
The legal definitions of organized crime are
critical in addressing and prosecuting it, though they vary from one nation to
another. While some countries clearly criminalize organized crime, others
embrace more general concepts. For example, the Italian Penal Code does not
clearly define organized crime. Instead, it describes a "criminal
association" as three or more individuals committed to several crimes,
with the organizers and promoters subject to imprisonment for 3 to 7 years.
Similarly, in the US Omnibus Crime Control and Safe Streets Act of 1968,
organized crime is defined as the illegitimate activities of disciplined
associations engaged in supplying illicit goods and services, such as gambling,
drug trafficking, and prostitution. The sweeping terminology of this act makes
it a catch-all law to encompass all possible criminal activities. The RICO Act
of 1970, however, focuses on racketeering, which consists of offenses such as
murder, kidnapping, extortion, and drug trafficking, where a pattern of at
least two such acts has to be established to prosecute. In Japan, there is specific
legislation that aims to curb gangster activities, focusing on the prevention
of violence and intimidation by criminal groups. Japanese law defines a gang as
any organization facilitating its members or affiliates in habitually engaging
in illegal acts of violence. Meanwhile, Interpol defines organized crime as any
enterprise or group involved in continuous illegal activities, often catering
to public demand for illicit goods and services through a client-public
relationship.
Organized crime also has some defining
features. According to John Dellow, Assistant Commissioner of the Metropolitan
Police in London, it involves highly structured and sophisticated groups
operating across nations, functioning outside governmental control, and
perpetuating themselves as criminal conspiracies. These groups use fear,
corruption, and legal protections to gain power and profit.
M.N. Singh, former Commissioner of Mumbai
Police further emphasized that such organized crime is actually the result of
well-planned criminal activities for the pursuance of profit and power.
It also establishes a client-public
relationship through supplying illegal goods and services. The MCOC Act of 1999
strengthens the same argument through its definition of organized crime as
persistent unlawful activities done by a single person or a group of people
employing violence, intimidation, or other forms of compulsion to achieve
economic or personal gains in which some promote insurgency.
Examples of organized crimes are involvement
of Bombay based criminal syndicate in the serial bomb blast which was happened
in 1993. The contract killing of political leaders and social leaders which
emerged as a serious challenge to the state.
Organized crime in India is as old as ancient
times with gangs like the 'thugs' targeting travelers. Sir William Sleeman
broke their network in the 1830s, prosecuted thousands. In modern India, cities
like Mumbai saw the rise of gangs involved in smuggling, bootlegging, and other
illegal activities, headed by stalwarts like Haji Mastan, Dawood Ibrahim, and
Chota Rajan. Kidnapping emerged as the major activity of organized crime in
Delhi, and it was mainly the Tyagi and Rajesh Dahiya gangs that were
controlling the field.
TYPES OF ORGANIZED
CRIME
A. DRUG TRAFFICKING AND DRUG ABUSE
Drug trafficking is the most notorious illicit
activity and a major source of revenue for organised groups, regulated by three
international conventions controlling production, distribution, and possession
for medical purposes.
India's geographical situation between the Golden Crescent and the Golden
Triangle positions it both as a transit and destination country for illicit
opiates, largely fueling drug trafficking trends there. Heroin seizures
concerning diversion of legitimate opium remains debated. According to a joint
survey conducted by UNODC and the Ministry of Social Justice in 2004, high
substance dependence rates were reported: 10 million for alcohol, 2.3 million
for cannabis, and 0.5 million for opiates. The opiate consumption rate in India
is twice that of global averages, but treatment infrastructure only covers part
of the demand. India is also experiencing growing rates of HIV/AIDS, with IDU
augmenting the impact. HIV prevalence among IDUs in Delhi rose from 7.4% to
14.4% in 2003 and was strongly linked with female sex workers and their
partners and contributed to the 'feminization' of the epidemic.
B. HAWALA AND MONEY LAUNDERING
Money laundering is the concealing of the
illicit source of criminal proceeds. For instance, a trafficker would invest in
a legitimate construction firm so that illicit earnings could "blend"
with legitimate income from the company. This process makes the illegal money
seem legitimate. Money laundering is very important to organised crime because
it can integrate illicit funds into lawful businesses, banks, or real estate,
thereby becoming difficult to detect.
A FATF review showed that corrupt public
officials used money-laundering tactics very much like those of organized
crime: concealing ownership through corporate structures and trusts and using
intermediaries to send proceeds of crimes through both domestic and
international financial systems. They exploited their positions to grab state
assets, influence law enforcement, and even banks. The FATF observes some
common red flags of potential money laundering, such as frequent large cash
transactions, cash payments rather than through checks, multiple wire transfers
to or from known tax havens, large and rapid withdrawals from wire transfers, a
focus on secrecy about personal or business details, and a lack of
understanding about the customer's business.
C. TERRORISM
AND NARCO TERRORISM
Organized crime and terrorism are closely
interlinked through illegal activities such as drug and arms trafficking, human
smuggling, and money laundering. Terrorist groups, both locally and
foreign-backed, need arms and funding for their operations, and organized crime
syndicates provide the necessary infrastructure for trafficking and smuggling
across borders. In India, this connection operates at both domestic and
international levels. For northeastern India, a number of militias control
areas with the collection of money from inhabitants and indulges into
extortion, black marketing, sometimes even influencing some government
contracts and many essential products are diverted and sold at inflationary
prices, transnational crime - drug and arm syndicates keep these groups also
alive as their couriers would transport illegal stuff. This network of
organized crime syndicates and militants has penetrated the major entry points
such as Moreh and Cox's Bazaar, assuming control over trafficking routes that
were once dominated by criminal networks.
In Kashmir, the nexus between terrorism and
organized crime is unique. Militant groups are funded by external sources,
including large sums from Pakistan and Gulf countries, often routed through
organizations like Markaz Dawa al Arshad. Money laundering, including hawala,
is the primary means of transferring funds to these groups. In addition,
counterfeit currency is in circulation in Kashmir, further linking organized
crime to terrorism. The connection is also evident in incidents like the Bombay
blasts, which exposed the overlap between organized crime and terrorism in
India.
To sum up, organized crimes have been
prevalent in the northern parts of India, the escalation of this offence all
over India ascribed to the rocketing social network and internet and the
tremendous need of money as a consequence of poverty, unemployment or even
social grudges. Organized crime has become a common event across the country
requiring it to be established as an offence in the Indian code as a result
organized crimes as a non-compoundable offence has a place in the BNS under
section 111 and 112.
The intention behind this provision is to
reduce the crime rate, augment trust and intensify fraternity and unity among
the people of the country.
RESEARCH
METHODOLOGY
This paper is of descriptive nature and the
research is based on secondary sources for the deep analysis of the offence of organized
crime in India. The methodology used here is that of a doctrinal research
methodology, which includes analyzing legal principles and legal precedents.
REVIEW OF
LITERATURE
Topic: “Unorganized” crime under the Bhartiya Nyaya Sanhita,
2023
Author: Sharmin Kapadia, Priyam Sharma
Source: Bar and Bench Website
The newly enacted Bharatiya Nyaya Sanhitha (BNS)
discourses and integrates provisions wrapping organized crimes at a national
level. The organized crime is defined under Section 111, as an economic
offence. It is indeed a commendable step to unify the offences which are of
continuing nature. Unfortunately,
the terms have been inserted inconsistently, which has affected clarity and
made the scope more complex.
Earlier, the Indian Penal Code, 1860 did not
engrave a special provision for organized crimes. The special laws such as the
Prevention of Money Laundering Act, 2002, the Prevention of Corruption Act,
1988, the Narcotic Drugs and Psychotropic Substances Act, 1985 and the State
Laws such as the Maharashtra Control of Organized Crime Act, 2015 and the
Gujarat Control of Terrorism and Organized Crime Act, 2015 described various organized
crimes and have provided harsh punishments.
AMBIGUITY OF THE PROVISION
The BNS replicates the definition of organized
crime from the MCOCA, a state law which is applicable in Maharashtra and Delhi
AND the GCTOCA, a state law applicable in the Gujarat. Under the MCOCA the
definition of organized crimes, is wide
enough to cover within its ambit any continuing unlawful activity by an
individual on behalf of the syndicate or as a member of the syndicate by use of
(a) violence (b) threat of violence (c) intimidation (d) coercion (e) other
unlawful means; to gain pecuniary benefits or economic advantage or to promote
insurgency.
Under
the GCTOCA, an attempt has been made to further broaden the definition by
including crimes such as extortion, land grabbing, contract killing, economic
offences, cyber-crimes, gambling rackets, and human trafficking.
Under the Section 111 of the BNS Act
sculptures out an inclusive definition of organized crime, such as kidnapping,
robbery, vehicle theft, extortion, land grabbing, contract killing, economic
offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods
or services, and human trafficking. The definitions of these words have not
been mentioned in the Sanhita leading to an ambiguity.
Some of the sections has
been defined under the special acts that are follows:
1.
The Hawala Transaction has been explained under Section
2(c)of the Foreign Exchange Management Act of 1999.
2.
Cybercrime is explained under the Information Technology Act,
2000
3.
Human trafficking was explained under the Immoral Traffic Prevention
Act, 1956
4.
“Land grabbing” has been defined in varied
state laws such as the Gujarat Land Grabbing (Prohibition) Act, 2020 (GLG Act)
and the Andhra Pradesh Land Grabbing (Prohibition) Act (APLG Act), 1982.
5. “Drug” has been defined
under Section 2 (b) of the Drugs and Cosmetics Act, 1940. It also remains
unclear if the term “drug” would incorporate “narcotic drugs” and “psychotropic
substances”.
The
BNS does not clearly specify whether a special court or a sessions court should
be approached in the case of a suit. Another concern is whether the Special
State Act takes precedence over the BNS. Additionally, the provisions related
to organized crimes under the BNS appear ineffective.
Recently,
during an investigation into land-grabbing cases in Bengaluru, authorities
discovered that the cases were linked to a gang of 18 individuals led by John
Moases. The Karnataka Control of Organized Crimes Act (KCOCA) has been invoked
against three of the accused. Moases, the mastermind behind the fraud, was out
on bail. However, CID police officers arrested him and presented him before the
court, which subsequently remanded him to judicial custody.
The
officers stated that a total of 108 cases have been registered against the
gang, with charge sheets filed in nearly 51 cases, while the remaining cases
are still under investigation. The gang was involved in forging property
documents, falsely presenting themselves as owners or tenants, and either
seizing the land or extorting money from property owners. Additionally,
numerous cases of murder and money laundering highlight the need for stricter
laws and more efficient enforcement to address such crimes in society.
Characteristics
of organized groups (Mumbai Gangs)
V.K.
Saraf's study of the Mumbai underworld reveals the following profile of gang
membership and activities:
Demographics:
The majority of gangsters (66.5%) are between the ages of 19 and 28, while 26%
fall within the 29 to 38 age group, and only 6.5% are over 40. In terms of
education, 29% have completed only primary education, 42.5% have a secondary
education, and 5% hold college degrees. Many come from economically
disadvantaged backgrounds, with approximately 30% originating from outside
Maharashtra.
Gang
Structure: Gangs are not formed based on regional or religious affiliations.
However, following the 1993 serial blasts, many Hindu gangsters distanced
themselves from Dawood Ibrahim's gang. Gang members are often violent and
resort to terrorist tactics when confronted or threatened.
Membership
and Loyalty: While there are no formal initiation rituals, potential members
are tested through involvement in criminal activities. Gang leaders show
concern for members' families during times of crisis, and decisions are often
made collectively. However, loyalty to the boss is of utmost importance, and
betrayal is met with the severest consequence ie death.
Gang
Composition: Gang members are classified into sharpshooters, money collectors, and
liaison agents, with the latter handling legal matters. Smaller gangs may merge
with larger ones while retaining some level of independence. Additionally,
auxiliary members play a crucial role by supporting gang operations, providing
shelter, and supplying necessary resources.
SUGGESTIVE
MEASURES:
The
increasing number of gangs and organized crimes can be attributed to
individuals fulfilling their political and economic needs. Groups that already
exist would rather continue their illegal ways of doing business since there is
a demand for such goods and services that they supply. They are inclined to
ignore the law and sometimes cooperate with government agencies. The lack of
political will and insufficient support from the government are also causes of
the development and proliferation of criminal gangs.
In our
society, liquor, drugs, smuggled electronics, and lack of solidarity between
individuals are some of the main causes for illegal activities. This trend is
particularly noticeable in cities, where political or business rivalries often
lead to contract killings, also known as "Supari." However, there are
various ways to address and curb these causes of organized crime.
One
of the measures to struggle with organized crime effectively is the
identification, listing, and holding accountable criminals within such networks.
With unclear and ambiguous legal provisions, it will be challenging to
eradicate organized crime. The development of effective laws and investigation
methods is pivotal in the effective process of prosecution. The essential step
to prevent organized crime is to differentiate between traditional crimes and
organized crimes. This requires an efficient legal framework that can clearly
identify and address the various criminal groups without confusion. Law
enforcement authorities must be given the necessary powers to enforce strict
laws against organized crime and gangs.
Key
provisions of new laws may include:
·
Amending the bail provisions for criminals involved in organized crime.
·
Holding government servants, professionals, and others who assist
criminals accountable.
·
Confiscation of assets and properties gained through organized crime.
·
Offering protection to the police from frivolous charges and inquiries.
·
Expanding the period of investigations and charge sheeting.
·
Ensuring prompt trials for organized crime cases.
The
Maharashtra Control of Organized Crime Ordinance 1999 was a milestone in
dealing with organized crime, and similar laws should be set up for
high-security jails in each state for gangsters. These prisons should not be
allowed to detain more than 100 inmates at any given time, and the staff of
these prisons must be supervised by other higher officials. In addition, an
auditing wing must be formed in the Special Task Force to oversee the extensive
movable and immovable properties that gang members and their associates
possess.
Political
will is an important answer to the challenge of organized crime. If the
government is truly serious about the annihilation of organized crime, this can
dramatically limit illegal activities. Assuming that the authorities are
seriously interested in following through with measures, there has to be a
multi-dimensional assault on the criminal empires operating in India. The
initial effort should focus on the weak underbelly of the underworld-in other
words, their power base, which should be degraded before the knockout punch.
Other
measures that include neutralizing abettors, taking appropriate action, and
proper organization of task forces may reduce the impact of organized crimes.
CONCLUSION
Organized crime remains a
serious problem and is often linked to political, economic, and social factors.
The rise of such criminal activities is often attributed to personal and group
interests, the demand for illicit goods and services, and at times, a lack of
political commitment to effectively address these issues. This is a very
complex problem, and a holistic approach involving legal, social, and political
efforts can help reduce its impact on society.
The root causes and
vulnerabilities of organized crime, as well as ensuring efficient law
enforcement and legal accountability, can help in reducing its effects.
Collective commitment from authorities and the public can create a safer and
more secure environment, free from the negative consequences of organized
crime. With sustained effort and cooperation, the harmful reach of such
criminal activities may be significantly reduced to the benefit of society at
large.
