Between Promise and Pretense

**Pushpendra

INTRODUCTION

Organised crime has become a significant threat to the social and legal frameworks of modern democracies, exploiting loopholes in existing laws to operate with impunity. The Indian Penal Code, 1860, a cornerstone of the nation’s legal system, lacked specific provisions to combat the complexities of organised crime. This legislative gap left law enforcement agencies unprepared to tackle the growing menace of criminal syndicates, which have increasingly sophisticated operations across state and national borders. 

The legislature introduced the Bhartiya Nyaya Sanhita (BNS) and the Bhartiya Nagarik Suraksha Sanhita (BNSS). Sections 111 and 112 of the BNS specifically target organised crime, complemented by procedural measures in the BNSS. These new laws have already been tested, with the Punjab Police becoming the first to arrest members of an interstate gang. Similarly, the Delhi Police and other agencies have used these laws to intensify their crackdown on criminal syndicates. While these early cases suggest a strengthened legal framework, a thorough analysis is required to evaluate the effectiveness of these provisions. 

This piece critically examines the newly incorporated sections of the BNS and BNSS, exploring their statutory language, implementation challenges, and broader implications for combating organised crime in India. The study aims to determine whether these new laws empower law enforcement agencies to dismantle criminal networks or if they represent another legislative effort that may fall short due to legislative oversight.

THE MUMBAI UNDERWORLD AND BEYOND: INDIA’S CRIMINAL SYNDICATE LANDSCAPE

India has witnessed a significant proliferation of criminal syndicates, especially during the latter half of the 20th century. The most prominent hotspot was the “Mumbai Underworld,” dominated by figures such as Haji Mastan, Karim Lala, and Varadarajan Mudaliar, who were involved in smuggling and extortion. In the 1990s, this criminal landscape grew with the rise of D-Company, led by the notorious criminal Dawood Ibrahim. D-Company expanded into drug trafficking, arms smuggling, and terrorism with the 1993 Mumbai bombings. Other prominent gangs of the time included the Chhota Rajan gang and the politically connected Arun Gawli gang.

The criminal syndicates were not limited to Mumbai. In southern India, Veerappan led a notorious forest brigade until the 2000s, engaging in poaching elephants, smuggling sandalwood, and kidnapping. Other notable syndicates included the land mafia in Delhi, the narcotics networks in Punjab—intensified by the insurgency of the 1980s—and the dangerous fusion of organised crime and politics in Bihar and Uttar Pradesh, driven by the Bahubali culture. 

Over time, the proliferation of organised crime networks exemplifies a persistent and evolving threat. These networks, akin to the mythical Hydra, exhibit a capacity for regeneration, where dismantling one facet leads to the emergence of another. The current focus on combating organised crime is highly warranted. 

BUILDING ON THE PAST: BNS AND THE PROVISIONS ON ORGANISED CRIME

This section references state-level laws addressing organised crime before the enactment of BNS, highlighting that such legislation existed without a central law and that BNS largely adopts the language of these earlier statutes in defining organised crime. 

Anatomy of Organised Crime 

Organised crime goes beyond gang wars or haphazard criminal networks; it represents a meticulously structured and highly coordinated form of illegal enterprise. Much like a legitimate business, these criminal organisations have a clear hierarchy, defined roles, and systematic processes, all shrouded in secrecy, making them a profound threat to society. Their operations are not confined to a single type of crime. These organisations engage in a broad spectrum of criminal activities, continually evolving their management patterns over time.

State Acts: Regional Crusades Against Organised Crime

In the absence of central legislation on organised crime, some state governments took the initiative to create their own laws to address this gap. Maharashtra was the first to enact such a law, introducing the Maharashtra Control of Organised Crime Act (MCOCA) in 1999, tailored to combat criminal syndicates. The Act gained prominence when underworld figure Chhota Rajan was arrested in 2000 under its provisions. Following Maharashtra’s lead, other states, such as Karnataka, introduced similar legislation. These laws share remarkably similar provisions in terms of definitions and procedures.

BNS:  Organised Crime

Section 111 of BNS has borrowed heavily from the prevailing state acts on organised crime; the definition of organised crime under this section comprises four elements:

• What– Continuing unlawful activity;
• Who– individuals acting in concert, singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate;
• How– by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means;
• Why– To obtain direct or indirect and material benefits, including financial benefits.

The BNS thoroughly defines crimes and corresponding punishments. However, it is difficult to be precise when dealing with crimes that resemble conspiracies but do not fit the traditional definition. As a result, while the outcome may be a criminal act, the methods used may not inherently possess criminal elements. For instance, Section 111(4) penalizes individuals for being members of an organised crime syndicate with the same severity as those who abet, attempt, conspire, or knowingly facilitate organised crime. This approach equates mere membership with intent, even though this intent is not linked to a specific offense but is considered an offense in itself.

Petty Organised Crime

Organised crime ranges from large-scale criminal enterprises to fragmented gang networks involved in relatively less severe criminal activities. Hence, Section 112 has been incorporated into the BNS to tackle petty organised crime. This inclusion shows that the legislature recognises the potential danger of even small-scale criminal syndicates, which could evolve into major criminal enterprises. The lawmakers’ intention is clear: any crime executed in an organised manner, whether it involves robbing ATMs, cheating, or gambling, significantly threatens society by instilling a sense of insecurity among the public. The inclusion of “selling of public examination question papers” in Section 112 is particularly commendable, given the ongoing issues of paper leaks in India.

THE STRUGGLE AGAINST ORGANISED CRIME: INSTITUTIONAL AND PROCEDURAL IMPEDIMENTS

The effective realisation of the legislative intent behind the introduction of specific provisions for combating organised crime hinges upon the integration of institutional and procedural frameworks. Therefore, the relevant frameworks are scrutinised below: 

Police Reforms

The responsibility to ensure that Sections 111 and 112 do not become mere formalities lies primarily with police officers. The police has been granted the necessary authority to combat organised crime. However, in the absence of comprehensive police reforms, these new provisions will likely have minimal impact on the criminal landscape. Four major issues have rendered police departments largely ineffective:

• Accountability to the executive

Police forces are under the control of the executive at both the central and state levels. A force intended to serve the public impartially often becomes a tool for political manipulation, with its powers frequently abused to serve the interests of politicians. 

• Police Complaints Authority

There is no neutral authority to investigate cases of police misconduct. Due to conflicts of interest, executive or departmental inquiries have consistently failed to yield satisfactory outcomes. The new laws have led to a manifold increase in the legal authority vested with the police authorities, which is prone to potential abuse. The establishment of an independent authority like that of the Civilian Complaint Review Board in New York is imperative.

• Understaffed and Overburdened

In India, the current ratio is 154.84 police personnel per lakh population, as against the sanctioned strength of 196.88. Assuming that recruitment drives are undertaken to reach the sanctioned strength, the figure remains dismal compared to the United Nations’ recommended ratio of 222 police personnel per lakh people.

• Infrastructural requirements

There are widespread infrastructural deficiencies, including shortages of weapons, police vehicles, inadequate forensic and technological support, and dysfunctional Police Telecommunication Networks (POLNET) across states. Further, the current training infrastructure is outdated, failing to provide essential knowledge on legal issues, forensic procedures, and cybercrimes. Alarmingly, nearly half of the funds allocated for police modernisation remain unutilized. 

On several occasions, the lack of political will to implement police reforms has prompted judicial intervention. In Prakash Singh v. Union of India (2006) 8 SCC 1, the Supreme Court issued directions to address the above-mentioned issues and focused on liberating the police authorities from the clutches of the political executive. However, this judgment failed to accomplish its intended purpose and exacerbated the situation to the extent that the Directors General of Police (DGPs) have now been reduced to mere figureheads. The other bodies envisioned as per the judgment have been formed solely to comply with the directions, lacking genuine political support.

Recently, the Standing Committee on Home Affairs’ released their report titled ‘Police – Training, Modernisation and Reforms’. Whether this will lead to any substantial outcome remains to be seen. What is apparent is that the police are already failing to discharge even the general duties; the added responsibility of dealing with organised crime in the absence of corresponding reforms could lead to disastrous outcomes.  

Witness Protection

Witnesses are indispensable in dealing with crime in society, earning them the title of “collaborators of justice.” Therefore, witness protection programmes are crucial, especially when dealing with organised crime, where the danger is significantly higher. In Mahendra Chawla v. Union of India (2019), the Supreme Court declared the Witness Protection Scheme, 2018, introduced by the Centre, as law under Article 142 of the Constitution. The Court stated that this scheme would remain in force until appropriate legislation is enacted by both the Centre and the states. However, the scheme has had limited success, as many witnesses have faced intimidation, leading some to turn hostile.

Section 398 of the BNSS requires states to prepare witness lists and categorise them based on threat perception to strengthen the witness protection mechanism. However, the resources needed to maintain an effective witness protection programme are substantial. The programme’s effectiveness will be compromised if these resources are spread thin. Thus, it is advisable to allocate most resources towards witness protection for severe crimes that have a ripple effect, particularly those involving organised criminal syndicates and terrorist organisations.

A witness-centric approach should be the norm to combat organised crime effectively. In certain cases, the safety of a vulnerable witness may need to take precedence over the defendant’s right to direct cross-examination. Several protective measures can be employed, such as having the witness testify in the defendant’s absence, blocking eye contact, or using technology like an audio link with a voice changer. Additionally, questions could be relayed through a judge, who would act as an intermediary to prevent the witness’s identity from being revealed.

Procedural Relaxations and Intrusive Surveillance

Criminal syndicates often operate within highly insulated structures, leaving little to no trace. This insulation makes it difficult for law enforcement to dismantle these organisations while following standard procedures. Law enforcement agencies should be granted enhanced powers to combat these criminal networks effectively. 

Procedural relaxations could include discretionary authority for searches, seizures, and arrests based on reasonable suspicion, and permission to use covert surveillance measures, including hidden cameras, audio bugging, GPS tracking, undercover agents, drones, and cyber monitoring. Section 111 of the BNS does not incorporate procedural provisions within the BNNS to effectively deal with these crimes.

Cross-border Co-operation

Criminal syndicates operate beyond the borders of a single nation, maintaining transnational networks to facilitate their activities. Therefore, India must collaborate with neighbouring countries to combat these syndicates effectively. Unfortunately, cross-border cooperation between law enforcement agencies in South Asia lags significantly.

In contrast, most European Union member states participate in the Schengen Agreement, enabling effective cooperation between neighbouring law enforcement agencies. However, a similar agreement in South Asia is highly unlikely, given the current economic and military distress faced by India’s neighbours, including Pakistan, Afghanistan, Sri Lanka, Bangladesh, Myanmar, and the Maldives.

CONCLUSION

The incorporation of Sections 111 and 112 in BNS marks a significant legislative attempt to eradicate the menace of organised crime in India. This endeavour demonstrated that the law-makers have taken cognizance of the pernicious nature of organised crime. 

However, the absence of corresponding procedural relaxations and a cohesive witness protection framework will limit the capacity of law enforcement and prosecutorial agencies to effectively address the issue. Moreover, police reforms can no longer be disregarded, as their neglect undermines the legislative intent behind the provisions related to organised crime and also the broader objectives of the legal system. Finally, bilateral and multilateral cooperation is indispensable for dismantling organised crime networks and preventing any potential resurgence. 

The current legal framework falls significantly short of effectively combating, let alone eradicating, organised crime. These deficiencies require prompt attention if the government intends to curb the growing menace of organised crime. Addressing organised crime in its current state of affairs will be the true test of the government’s resolve and capability.

** Pushpendra is a third-year law student at Hidayatullah National Law University (HNLU),
Raipur, with a keen interest in Public Policy, especially in the domain of legal policy-making. His
academic journey has been marked by a deep engagement with the critical analysis of
governmental legal policies, where he focuses on evaluating their implications and formulating
constructive recommendations. His approach is grounded in a strong commitment to
understanding the broader social and legal frameworks that shape policy decisions, which
drives his pursuit of solutions that enhance the effectiveness of legal governance. Through his
studies and extracurricular activities, he has developed a solid foundation in legal theory and
practice, and he is motivated by the potential for law to effect positive change in society. He
has also actively participated in research projects, legal aid initiatives, and internships, further
honing his analytical and advocacy skills. He aspires to contribute meaningfully to the realm of
legal reforms in India.