THE ROLE OF CRIMINAL LAW IN CURBING ORGANIZED CRIME IN INDIA

AUTHOR DETAILS:

NAME: R. SIVA SHANKARAN

AFFLIATION: THE CENTRAL LAW COLLEGE, SALEM.

COURSE: B.A.,L.L.B

SEMESTER: 5^TH SEMESTER

ABSTRACT:

            Crime is any act or omission which violates the law and is punishable by the state.  Crimes are considered injurious to society or the community.  The crimes have various types, the organized crimes are the one of the type, it describes criminal activity committed by formalized networks or groups that are methodically coordinated to use illegal means to further their financial or power based objectives.  Unlike random or individual crimes, organized crime has a clear hierarchy, long term planning, and frequently occurs over a prolonged period of time.  These organizations usually engage in a variety of illicit activities, and they frequently use violence, corruption and intimidation to keep power and grow.  These crimes used to include extortion, contract killing, bootlegging, smuggling, real estate fraud, and providing illegal weapons to terrorist and insurgents in India.  However, these days they also include drug trafficking and money laundering.  To monopolize in the market is the primary driving force behind these crimes.  The money gained from these crimes is the used to fund other endeavors and infiltrate lawful businesses.  A number of legislative frameworks such as “Narcotic Drug and Psychotropic Substances Act, 1988”, “Bharatiya Nyaya Sanhita, 2024”, “National Security Act 1980” have been implemented in India in an efforts to combat organized crime and to look into prosecute, and punish criminal activities, so this article is about to describe the role of criminal laws in controlling, preventing the organized crimes in India.

KEYWORDS: Crime, Organized Crime, Criminal laws, Narcotic Drug and Psychotropic Substances Act, 1988, Bharatiya Nyaya Sanhita, 2024, National Security Act 1980.

INTRODUCTION:

            A group of ongoing serious crimes carried out for a significant financial gain is referred to as organized crime.  An organized crime group is made up of criminals who have banded together to commit a specific crime or series of related crimes.  An extended network of disposable associates, along with a stable core of key personnel supported by a number of specialists, subordinates, and other more ephemeral members, are often the components of successful organized crime groups.  Families are occasionally the leaders of organized crime.  The primary motivation for organized crime is not to exact revenge or cause harm to others; rather, it is a form of illicit enterprise with the goal of making money Nonetheless, it is a natural consequence of the crime committed for there to be some sort of physical or psychological harm.      It uses illegal means such as terrorism, monopolization, tax evasion, and extortion to suppress or subjugate legitimate ownership and leadership and to siphon off illicit profits from the general populace.  In an effort to avoid interference from the government, organized crime also corrupts public officials, and it is getting more sophisticated.

In India, drug trafficking, illicit arms trading, money laundering, and the transportation of illegal goods are now added to the country’s traditional fields of activity, which included extortion, demanding protection money, contract killing, bootlegging, gambling, prostitution, and smuggling.  These new ventures are primarily driven by the country’s willingness to use violence and brute force.  Organized crime seeks to gain power for itself through monopolizing or nearly monopolizing through the corruption of public officials.  Afterwards, it infiltrates lawful business and a number of other related activities with the money and power it generate.  Recent events have demonstrated its attempts to sabotage and taint or democratic procedures.

NATURE AND CHARACTERISTICS OF ORGANISED CRIME:

MENS REA AND ACTUS REUS:

Fundamental principles of penal liability based on “Actus non facit reum nisi mens sit rea”- act does not become a crime unless done with a guilty mind.  Any criminal action starts with an interntion.  The two crucial components needed to demonstrate that a particular crime has been committed are the existence of mens rea and actus reus. The former suggests that the person is acting with guilt in mind, meaning that they are aware of their actions and that a successful attempt would result in a crime; the latter suggest that the person physically commits the crime or fails to act in way that contributes to it.

CONTINUITY AND STRUCTURE:

            The criminal organization is designed to withstand changes in leadership and endure longer than the lives of its individual members.  The criminal organization is extremely well-organized, and every aspect of the crime is carried out through a planned system.

OBJECTIVE OF EARING MONEY:

            It’s critical to realize that organized crime is not motivated by retaliation or personal injury; rather, it serves as a form of illicit commerce or a means for individuals to make money.  But ultimately, there is some sort of physical or psychological harm, and the crime that is committed is incidental to such activity.

REGULARITY:

The fact that organized crime operates regularly, much like a business, rather than only occasionally, is another crucial feature of these types of crimes.  The term “organized” refers to this continuity since a structure has been established wherein comparable activities (crimes) are carried out on a regular basis in order to make money.

MEMBERS:

Restrictions on membership in the core criminal group are based on shared characteristics, such as common interests, criminal histories, or ethnicity.  The prospective members must demonstrate their value and allegiance to the criminal organization under intense scrutiny.  Secrecy, a willingness to do any act for the group is among the requirements for membership.  A member of criminal organization is rewarded financially.  With a certain level of prestige, and with protection from law enforcement for their loyalty.

VIOLENCE:

 A criminal organization cannot exist without the use of violence and the threat of violence.  To maintain discipline among group members and safeguard the group’s financial interests, violence or the threat of violence is employed against outsiders.  It is expected of members to engaged in, support, or condone violent behavior.

TYPES OF ORGANIZED CRIME:

            Organized crime can refer to a wide range of activities.  The following section discusses some of the most prevalent categories of organized crime in India, and in section 111 of Bharatiya Nyaya Sanhita, 2024, clearly defined about the organized crime and stated the acts which are falls in the ambit of organized crime.

CONTRACT KILLING AND KIDNAPPING:   

            Murdering someone on a contractual basis for financial gain is known as a “Contract killing.” This is typically seen with very powerful and well-known individuals who are being killed for a ransom by rivals or enemies via another criminal and which was punishable by death or with imprisonment for life and shall also be liable to fine[1].

            Kidnapping incidents are also common, in which the perpetrators demand a ransom from the victim or accept a payment in exchange for the victim’s freedom.  These crimes are carried out by organized crime groups that regularly carry out these kinds of operations, the kidnapping has two types such as kidnapping from India and kidnapping from lawful guardianship, and which was punishable by seven years, and liable to fine[2].

HUMAN TRAFFICKING AND PROSTITUTION:

            The Indian constitution forbids human trafficking outright in Article 23.  Additionally, a number of anti trafficking laws are covered in this Article; one of the biggest and most horrific organized crime is human trafficking.  This includes the trafficking of women, children, sex worker etc.  According to S. K. Ghosh’s book “Indian Mafia”, there are over 25 lakhs of prostitutes in the nation, and about 3 lakh new prostitutes enter the industry annually.  The underworld generates significant revenue from call girl and brothel operaions, with over a million prostitutes in Bombay, Calcutta, Pune, and Delhi, according to the Indian Health Organization.  Operating brothels of forcibly dragging young girls is illegal.

DRUG TRAFFICKING:

            Drug trafficking is another serious crime that threatens India’s younger population, it gives severe effects o both physical and mental health.  The geographic location of India is generally regarded as the primary cause of the high rate of drug trafficking.  The two biggest suppliers of illegal drugs in Asia are situated between it and the Golden Triangle, which includes Myanmar, Thailand, and Laos, and the Golden Crescent, which includes Pakistan, Afghanistan, and Iran, on the northwest.  As a result, the prevalence and importance of this type of organized crime has increased throughout the nation.

SMUGGLING:

            It consists of covert activities that result in trade that is not documented.  To maintain profits or continue their trade, companies smuggle goods that are either heavily taxed or illegal within the borders of India.  With its expansive 7,500 kilometers of coastline and open borders with Nepal and Bhutan, India is a prime location for large-scale drug trafficking, as well as the smuggling of precious jewels, electronics, specific fabrics, and other consumables.

MONEY LAUNDERING:

            One of the most serious crimes that can negatively impact nay economy in a number of ways is money laundering. It’s a means of disguising illicit funds obtained through human, drug, or other trafficking in order to give the impression that they originate from reputable sources.  This is a profession that many criminals work in, helping people who make money illegally to turn it into legal income.

DACOITY AND RELATED OFFENCES:

            It is one of the oldest forms of crimes in India and which is done purely fothe the purpose for looting, in the India which is punishable up to life imprisonment or with rigorous imprisonment for a term which may extend to ten years and also with fine.[3]

TERRORISM:

            One major issue that India is dealing with is terrorism.  From a conceptual standpoint, terrorism is not classified as organized crime since its primary motivation is political and/or ideological rather than monetary gain.  However, the experience in India demonstrates that criminals operate under the cover of terrorist organizations, carrying out a wide range of crimes including murders, rapes, kidnappings, weapon trading, and drug trafficking.  The leaders of terrorist’s organizations are making use of the current criminal networks.  In the 1980s, Punjab in India experienced severe issues; however, these have since been resolved with the installation of a popular government. Terrorist organizations there receive some funding for their operations from extorting businessmen and capturing tea garden executives for ransom.

LEGISLATIVE FRAMEWORKS FOR CURBING ORGANISED CRIMES IN INDIA:

BHARATIYA NYAYA SANHITA, 2023:

            The Indian penal code (IPC) was replaced by the Bharatiya Nyaya Sanhita, 2024 (BNS), which is the country’s new criminal code.  The BNS aims to modernize india;s legal system, facilitate access to justice, and streamline legal processes.  July 1^st, 2024 the Bharatiya Nyaya Sanhita, 2024 was enforced.  In this Act there are certain new offences have been added, particularly it has the provision for Organised crime[4], petty organized crime[5], terrorist act[6].

            Section 111(1)of  Bharatiya Nyaya Sanhita, 2024, defines organized crime: any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, contract killing, economic offences, cyber crime, trafficking of persons, drugs, weapons etc or by any person or group of persons acting in concert, singly or jointly either as a member of or on behalf of an organized crime syndicate  or by use or threat of violence, intimidation, coercion or any unlawful means or to obtain direct or indirect material benefits including financial benefits, and which is an cognizable offence which means the police authority can arrest without the warrant and trial conduct by the court of session.

“Organised crime syndicate” means, a group of two or more persons, acting either singly or jointly, as a syndicate or gang indulging in continuing unlawful activity.

Section 111(2) deals with the punishment:  (a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine which shall not be less than ten lakh rupees; (b) in any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.

 section 111(3): Whoever abets, attempts, conspires or knowingly facilitates the commission of an organised crime, or otherwise engages in any act preparatory to an organised crime, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.

Section 111(4): Any person who is a member of an organised crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.

Section 111(5): Whoever, intentionally, harbours or conceals any person who has committed the offence of an organised crime shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees:

Section 111(6): Whoever possesses any property derived or obtained from the commission of an organised crime or proceeds of any organised crime or which has been acquired through the organised crime, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than two lakh rupees.

Section 111 (7):  If any person on behalf of a member of an organised crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than one lakh rupees.

Section 112 of Bharatiya Nyaya Sanhita, 2024, deals with the petty organized crime: section 112(1) Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime, and which is also an cognizable offence and trial conduct by the Magistrate of first class.

Section 112(2): Whoever commits any petty organised crime shall be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

PREVENTIVE LAWS:

NATIONAL SECURITY ACT, 1980:

            The Central or State government, or any other officer designated by the government for his purpose, may prevent or detain individuals under the provisions of this act.  To restrict an individual’s activities that endangers India’s security or damage diplomatic ties with other nations.  The criminal is imprisoned for a year.  Hard core gangsters and anti national elements are targeted by India’s expression security.  This is a good time to point out that the executive issues detention orders; the court is not involved in this case.

PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCES ACT, 1988:

            Another preventive law that was passed with the intention of regulating the activities of those involved in the illicit trafficking of drugs and other narcotic substances is the Prevention of Illicit Traffic in Narcotic Drug and Psychotropic Substances Act, 1988.  If it is discovered that someone is involved in drug trafficking, they may be detained for up to a year under this law.  Depending on how serious the case is, this time frame may e further extended in some circumstances to include an additional year.

CUSTOMS ACT, 1962:

            It limits smuggling and regulates imports and exports in an effort to combat organized crime.  It makes it possible to coordinate with other agencies, prosecute offenders, and seize illicit goods.  It targets transnational criminal networks engaged in illegal trade across borders, uprooting operations such as drug trafficking, gold smuggling.

PREVENTION OF MONEY LAUNDERING ACT, 2002:

            Targeting money laundering activities that pass of illicit funds as legitimate, the act prohibits these kinds of transactions in order to combat organized crime.  Authority to look into seize, and take possession of property connected to proceeds of crime is granted through monitoring financial transactions, it upends the financial networks of syndicated involved in organized crime, discouraging venture such as drug trafficking, financing of terrorism, and corruption, and guaranteeing financial system transparency.

IMMORAL TRAFFICKING (PREVENTION) ACT, 1956:

            Organized crime engaged in human trafficking of the purpose of commercial sexual exploitation is the target of this Act.  It allows law enforcement to prosecute traffickers and rescue victims by criminalizing soliciting, maintaining brothels, and engaging in trafficking.  By safeguarding the weak and combating the systematic exploitation of women and children, the Act seeks to undermine networks of human trafficking.

FOREIGN EXCHANGE MANAGEMENT ACT, 1999:

            In order to control foreign exchange transactions and stop unauthorized money transfers this act was passed.  By regulating illegal foreign exchange transactions, money laundering, and hawala networks, it took aim organized crime.  It assisted in containing the financial activities of criminal syndicates engaged in illicit trade and capital flight by keeping an eye on cross-border financial flows.

STATE LEGISLATION:

MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999:

            Maharashtra passed the Maharashtra control of organized crime act in 1999 in response to the thing levels of organized crime in Mumbai. It includes may rules addressing the admissibility of evidence, witness protection, the court’s presumption that those accused of a crime have done so upon the fulfillment of specified requirements, etc.  And following MCOCA other states also enacted their respective state laws to deal with these issues for instance, there is the Karnataka Control of Organized Crime Act, 2001, the Gujarat Control of Organized Crime Act, 2003, the Uttar Pradesh Control of Organized Crime Act, 2003, The Rajasthan Control of Organized Crime Bill, 2023, The Haryana Control of Organized Crime Act, 2023.[7]

CONCLUSION:

            Orgnaised crime, including drug trafficking, human trafficking, money laundering, and contract killings, as for financial gain over personal injury, despite causing, there are various central and state laws such as Bharatiya Nyaya Sanhita, 2024, PMLS, NDPD Act, etc to curb and govern the organized crimes.  The state has not been able to significantly reduce these crimes even with the existence of multiple laws.  This is a result of the State’s numerous problems, including inadequate enforcement, a dearth of resources, sluggish trials, challenges in obtaining evidence, etc.  Given these condition, the parliament must enact laws that specifically address organized crime and establish diplomatic ties with other countries, as many of these crimes have a transnational component.

REFERENCE:

1. Bharatiya Nyaya Sanhita, 2024, Act. No, 45 of 2023
2. National Security Act, 1980, Act no. 65 of 1980
3. Prevention Of Illicit Traffic In Narcotic Drug And Psychotropic Substances Act, 1988:
4. Customs Act, 1962, Act. No. 52 of 1962
5. Prevention Of Money Laundering Act, 2002, Act No. 15 of 2003
6. Immoral Trafficking (Prevention) Act, 1956, Act No. 104 of 1956
7. Foreign Exchange Mangement Act, 1999, Act No. 42 of 1999
8. Maharashtra Control Of Organised Crime Act, 1999,
9. Karnataka Control of Organized Crime Act, 2001
10. The Gujarat Control Of Organized Crime Act, 2003
11. The Uttar Pradesh Control Of Organized Crime Act, 2003
12. Monika Sharma, Organised Crimes: An overview. Indian J Law Hum Behav. 2019;5(2):169-175
13. https://www.legalseriveindia.com
14. https://www.indiacode.nic.in

[1] Bharatiya Nyaya Sanhita, 2024, section 103, Act. No, 45 of 2023

[2] Bharatiya Nyaya Sanhita, 2024, section 137, Act. No, 45 of 2023

[3] Bharatiya Nyaya Sanhita, 2024, section 310, Act. No, 45 of 2023

[4] Bharatiya Nyaya Sanhita, 2024, section 111, Act. No, 45 of 2023

[5] Bharatiya Nyaya Sanhita, 2024, section 112, Act. No, 45 of 2023

[6] Bharatiya Nyaya Sanhita, 2024, section 113, Act. No, 45 of 2023

[7]  Aishwarya Prandey, An Analysis of the Legislative Framework of Organised Crime in India, vol. 6, International Journal of Legal Science and Innovation, 107, 111, (2024).