TRANSNATIONAL ORGANIZED CRIME: CHALLENGES IN INVESTIGATION AND PROSECUTION – AN INDIAN PERSPECTIVE

INTRODUCTION

A criminal of today sees the entire globe as his playground. He orchestrates a crime in a certain country receives the proceeds of that crime and stashes them in an offshore account in yet another country and then relocates to a different country. Changes in the political, economic, technological and sociological spheres as well as legislative, procedural and policy variations in various countries with respect to their engagement in mutual legal assistance in criminal matters has enabled organized crime syndicates to step up their cross-border criminal activities. Nowadays criminal organizations are actively utilizing the global incorporation of markets the obliteration of trade restrictions the growing mobility of international travel the easing of emigration control policies modern communication models and elaborate money laundering strategies to further their criminal activities and build coalitions with different criminals. They are involved in a range of illicit activities including illegal drug trafficking, money laundering, violence and extortion, corruption, women and child trafficking, illegal traffic arms and weapons, environmental crimes, credit card frauds, computer crimes, vehicle thefts and smuggling, industrial espionages and sabotage, maritime piracy and many more. The issues brought about by today’s revolution in technology.

CRIME SCENARIO IN INDIA

India comprises 28 states and 8 Union territories, that has been functioning under a written constitution since January 26, 1950, and carries British law as its system of law. The Indian Parliament has criminal laws under their jurisdiction along with other significant laws such as, ‘Bharatiya Nagrik Sanhita’, ‘Bharatiya Nagrik Suraksha Sanhita’, and the ‘Bharatiya Sakshya Adhiniyam’. Such laws are also applicable to Union territories as well. It is interesting to note that, the Indian legislative possesses the authority to criminal and criminal procedures apart from being controlled by the daily law, the Press with concerning issues of internal security of the state along with policing are the responsibility of the respective state governments, president, State Councils and the Governor. While America classifies policing as domestic, in India policing is regarded as an exclusive entity, worthy of singular jurisdiction and form of law. As previously mentioned, there are two separate types of policing organizations, those that fall under the central government and those under state governments. Each state and union territory has its own police force that administers investigations and handles crime registration. New Delhi has also established the Central Bureau of Investigation under the Delhi Special Police Establishment Act of 1946 which provides for the establishment of specialist agencies. The CBI has jurisdiction to investigate their Union Territories but must obtain permission from the State Government in case it has to work in the State[1]. Other government organizations such as the Enforcement Directorate, the Narcotics Control Bureau, the Central Board of Indirect Taxes and Customs and the Central Board of Direct Taxes deal Marriage cases under hearing. CBI continues to be the primary agency of the country associated with investigation with vertical scope of all the serious and sensitive cases throughout the country. Mumbai is known to be the worst region in India when it comes to organized crime, and the deepest roots of criminal activity can be traced back to Varadharajan Mudaliar. One of the most infamous criminal organizations was first led by Mudaliar in the 1960s which was involved in activities such as extortion, contract murders, gambling, gold smuggling, and illicit liquor. This further shifted the power balance towards Haji Mastan, Yusuf Patel and Karim Lala as they were involved in further criminal activities. As the country experienced an emergency in 1975, Mumbai transformed into a battle ground as several rival gangs such as Ibrahim Dawood and Pathans went head-to-head due to the rise of the Indian Mafia. After overpowering several gangs Ibrahim Dawood peaked in popularity around 1985. Due to a surge in police pressure in 1985, Ibrahim Dawood found himself fleeing the country. Ibrahim Dawood set off a sequence of bomb blasts in Mumbai in 1993 that resulted in 257 deaths, leaving 713 persons injured.[2] These attacks were suspected to be part of  a much larger plot that was made with the intention of weakening the economy and sowing fear. Organized crime exists in other cities too.[3] 

CHALLENGES IN INVESTIGATING TRANSITIONAL ORGANIZED CRIME

Transnational organized crime possesses many difficulties due to its intricate and multifaceted character. Firstly, these cases are cross-border, and each country has its own legal systems, languages, and law enforcement protocols, so the cooperation is required among numerous countries. Jurisdictional disputes and differences in the legal framework are often the cause of unnecessary complications as some actions or evidence-gathering methods might be legal in one country but prohibited in another. On the other hand, the core issues with transnational criminal organizations are their operations; the masterminds of these organizations are very advanced and can use technologies to avoid detection. These groups rely on encrypted communication, digital currencies, and numerous other financial deals to minimize the likelihood of investigators tracing their activities. Consequently, the fact that the organizations are sub-regional and very huge is another obstacle to the investigation success. Mostly, they are involved in the trade of illegal substances, trafficking people, cybercrimes, and money laundering, among others.[4] And these activities require a unique set of skills to get enough evidence to arrest them. Also, it is often ambiguous whether data may be readily and efficiently transferred between nations. The issue usually lies in the lack of immediate and thorough information exchange, which can lead to either delay or even loss of crucial intelligence. Corruption and weak governance in some areas also slow down the whole process. The most common one is that criminals are protected by these networks by making use of the weaknesses. Budget deficits in law enforcement agencies, especially in developing countries, prevent them from launching thorough investigations or carrying out prolonged undercover operations. Throughout, the cast of cultural and political attributes that distinguish one nation from another is the major hindrance that would be in the way of the development of trust and mutual understanding, which are the key elements that are necessary for collaborative efforts to take place. These hurdles are even more challenging due to the likelihood of conflicts of interest where political or economic matters might dominate justice.[5]

CHALLENGES IN PROSECUTION OF TOC IN INDIA

TOC in India has many challenges, legal, institutional and practical. One of the big hurdles is the absence of a comprehensive, single law to deal with TOC. India has some laws to counter organized crime, UAPA and NDPS, but they don’t address the multi-dimensional, transnational nature of TOC.[6] There are gaps in tackling human trafficking, arms smuggling, cyber-crime and money laundering. Another big challenge is international cooperation. TOC groups operate across borders, so coordination between national law enforcement agencies and their counterparts in other countries is key. But legal and bureaucratic hurdles and lack of harmonization between the laws of different countries slow down the process. India’s extradition treaties and mutual legal assistance agreements with other countries may not always be effective or timely in TOC cases. Indian enforcement agencies also face capacity constraints. Despite some progress in building law enforcement capacity, there is still lack of specialized training, resources and technology to track and combat complex criminal networks. This leads to delayed investigations, inadequate gathering of evidence and challenges in prosecuting cases, especially cybercrime and money laundering cases. [7]Also, the judicial system is slow and overburdened, leading to long trials and pendency in cases. Witness protection is another big issue, as people involved in prosecuting such cases face threats and intimidation from organized crime groups.[8] Corruption in law enforcement agencies and political influence in some regions can hinder prosecution. Criminal syndicates have wide networks and can use their influence to block investigations, intimidate witnesses or manipulate legal process. [9]So, TOC in India needs better laws, international cooperation, capacity building in law enforcement, witness protection and a strong judiciary to tackle the menace of TOC.[10]

MAJOR AREAS OF CONCERN

1. Human Trafficking: India is a source, transit and destination for traffickers, women and children are trafficked across borders, especially from Nepal and Bangladesh for forced labour and exploitation. Extradition Act, 1962 which allows India to request the extradition of criminals involved in TOC who have fled to other countries. It facilitates the arrest and prosecution of individuals across borders, ensuring that international criminals are held accountable.
2. Drug Trafficking: Being a hub to the “Golden Triangle” and “Golden Crescent”, India is a major hub for drug smuggling. The high domestic demand for drugs makes it tough to control and enforce. Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 allows for controlled deliveries and undercover operations in narcotics-related crimes. Undercover agents can infiltrate criminal syndicates to collect evidence, identify operatives, and dismantle networks.
3. Cybercrime and Financial Fraud: With rise of cybercrimes like ransomware, phishing and cryptocurrency scams, organized crime syndicates are exploiting the gaps in Indian cybercrime laws making it difficult to track and prosecute these crimes. Information Technology Act, 2000 (Sections 65B, 66) supports the use of cyber forensics to track digital footprints, identify online criminal activities, and prosecute cybercriminals.
4. Terrorism Financing: Criminal networks are helping to fund terrorist organizations operating in India, complicating security scenario. Unlawful Activities (Prevention) Act (UAPA), 1967, Used to target terrorist groups, the UAPA allows for the seizure of assets and investigation into terrorism financing, which is often linked with organized crime.

SOLUTIONS AND RECOMMENDATIONS

To combat the Transnational Organized Crime (TOC) in India requires a legally, operationally, and socially oriented approach. The first step to facilitate this is the enhancement of legal frameworks. India must ratify international conventions like the United Nations Convention against Transnational Organized Crime (UNTOC), thereby enhancing cooperation with other countries in tackling cross-border crimes such as human trafficking, drug smuggling, and terrorism financing. Besides, existing domestic laws must also be amended to address the very nature of modern organized crime, which is complex and transnational, including the UAPA, NDPS, and the PMLA.[11] We must focus on building capacities as a primary item. There should be specialized training for law enforcement and the judiciary with respect to TOC-related matters, cybercrime, human trafficking, drug trafficking, and financial crimes. The knowledge and gadgets familiarized with each operative will greatly enhance the success of investigations and prosecutions. Investing in advanced technologies for cyber forensics and surveillance will be another help in tracing and dismantling criminal syndicates operating across borders. There must be a better coordination between the various agencies to have effective enforcement. [12]There must be task forces with representatives from the CBI, IB, and NIA, dedicated to combating specific areas of TOC. The partnership established with international organizations such as INTERPOL and UNODC will facilitate relentless sharing of information, which is the cornerstone for joint operations necessary for addressing crimes that are transborder. Bilateral and multilateral treaties should be negotiated to facilitate extradition treaties and Mutual Legal Assistance Treaties, among other things. Working closely with such countries as Nepal, Bangladesh, and Myanmar is very important for overcoming shared challenges such as human traffickers and drug smugglers. Public awareness and big society involvement make for the right direction in combating threats of O.C.

Initiatives aimed at public education should apprise the citizens about the dangers of organized crime by raising awareness about human trafficking and cybercrime. This will empower common citizens in creating avenues for reporting suspicious activities in local communities through a system of anonymity and rewards. Lastly, Witness Protection Scheme, 2018 must be enforced independently to guarantee that those who are vital for prosecuting TOC cases are secured. [13]

CONCLUSION

While organized crime is a primarily national concern, it could easily become a global problem without active intervention. Effective law enforcement, especially against mundane crimes, is imperative to maintain continuous pressure on criminal elements, thus preventing the development of independent organized crime syndicates from operating to encourage organized crime. It takes a combination of legal reforms and good criminal justice systems to effectively deal with organized crime.[14] Domestic crime, which many times spills over to the international level solidarity. The global community should harmonize their extradition and expulsion laws and limit the definition of “political offences” in these matters. A coordinated framework supported by the media is crucial for control measures to succeed. A legislative framework with able implementation is needed to effectuate long-term changes in the fight against organized crime at its core.[15]

REFERENCES

[1] Crime in India: National Crime Records Bureau, New Delhi (1996)

[2]Task Force Report – The Presidents’ Commission on Law Enforcement Administration of Justice, 1967 (page 1)

[3] The Politics and Economics of Crime by Herbert E. Alexander and Gerald E. Caiden (page 9)

[4] Criminal Justice: Problems and Perspectives by S. Venugopal Rao (page 131)

[5] Organised Crime: Concept and Control by Denny F. Pace and Jimmie C. Styles (page 248

[6] Uncivil Wars by Med Marwah (page 390)

[7] Collaboration and boundaries in organized crime: A network perspective. Crime and Justice, 49(1). doi:10.1086/708435

[8] Based on a paper published by the author titled ‘Crime Scenario in India: Need to Strengthen Criminal Laws’ in CBI Bulletin (1996)

[9] Studying organized crime networks: Data sources, boundaries and the limits of structural measures. Social Networks. doi: 10.1016/j.socnet.2020.03.002

[10] Nichos Farrelly. December, Organized Crimes Control in Aisa Experiences from India, China and the Golden Triangle, SSRN, 2014

[11] INDIAN’S PERSPECTIVE ON TRANSNATIONAL ORGANIZED CRIME Indian Journal of Integrated Research in Law Volume IV Issue V | ISSN: 2583-0538

[12] TRANSNATIONAL ORGANISED CRIME IN INDIA: A NEW FRAMEWORK OF ANALYSIS European Journal of Social Sciences Studies ISSN: 2501-8590 ISSN-L: 2501-8590

[13] https://www.unodc.org/documents/organized-crime/Digest_Organized_Crime.pdf

[14] . Chakrabarty, B (2016). Ethics in Governance in India. Abingdon: Routledge

[15] Jyosna, D. (2012) “Organized crime in India”, OverBlog, 25 Sept. kutumbkayda.over-blog.com/2015/08/organized-crime-in-india-publishedseptember-25-2012-jyosna-dighe-asst.html