Examining the anti-trafficking Bill, 2018

Roshni Sinha - February 13, 2019

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 is listed for passage in Rajya Sabha today.  Earlier this year, the Bill was introduced and passed in Lok Sabha.  It provides for the prevention, rescue, and rehabilitation of trafficked persons.  If the Bill is not passed today, it will lapse with the dissolution of the 16th Lok Sabha.  In this post, we analyse the Bill in its current form.

What was the need for a new law?

According to the National Crime Records Bureau, 8,132 human trafficking cases were reported in India in 2016 under the Indian Penal Code, 1860.[i]  In the same year, 23,117 trafficking victims were rescued.  Of these, the highest number of persons were trafficked for forced labour (45.5%), followed by prostitution (21.5%).  Table 1 provides details of persons trafficked for various purposes (as of 2016). 

Table 1: Victims rescued by type of purpose of trafficking ​

Purpose 2016 (as a %)
Forced labour 10,509 45.5
Prostitution 4,980 21.5
Other forms of sexual exploitation 2,590 11.5
Domestic servitude 412 1.8
Forced marriage 349 1.5
Petty crimes 212 0.9
Child pornography 162 0.7
Begging 71 0.3
Drug peddling 8 0
Removal of organs 2 0
Other reasons 3,824 16.5
Total persons 23,117 100

Source: Human Trafficking, Crime in India, 2016, National Crime Records Bureau; PRS

In India, the offence of trafficking is dealt with under different laws.  Trafficking is primarily an offence under the Indian Penal Code, 1860.  It defines trafficking to include recruiting, transporting, or harboring persons by force or other means, for exploitation.  In addition, there are a range of laws presently which deal with bonded labour, exploitation of children, and commercial sexual exploitation.  Each of these laws operate independently, have their own enforcement machinery and prescribe penalties for offences related to trafficking. 

In 2015, pursuant to a Supreme Court order, the Ministry of Women and Child Development constituted a Committee to identify gaps in the current legislation on trafficking and to examine the feasibility of a comprehensive legislation on trafficking.[ii]  Consequently, the Trafficking Bill was introduced in Lok Sabha by the Minister of Women and Child Development, Ms. Maneka Gandhi in July, 2018.

What does the Bill seek to do?

The Bill provides for the investigation of trafficking cases, and rescue and rehabilitation of trafficked victims.  It includes trafficking for the purposes of sexual exploitation, slavery, or forced removal of organs.  In addition, the law also considers trafficking for certain purposes, such as for begging or for inducing early sexual maturity, to be an aggravated form of trafficking.  These forms of trafficking attract a higher punishment.  

In order to punish trafficking, the Bill provides for the setting up of investigation and rehabilitation authorities at the district, state and national level.  The primary investigation responsibility lies with anti-trafficking police officers and anti-trafficking units constituted at the district level.  The authority at the national level can take over investigation of cases referred to it by two or more states. 

The Bill also provides for the setting up of Protection Homes and Rehabilitation Homes to provide care and rehabilitation to the victims.  The Bill supplements the rehabilitation efforts through a Rehabilitation Fund, which will be used to set up the Protection and Rehabilitation Homes.  Special Courts will be designated in every district to complete trial of trafficking cases within a year. 

Additionally, the Bill specifies penalties for various offences including for promotion of trafficking and trafficking with the aid of media.  All offences are cognizable (i.e. police officer can arrest without a warrant) and non-bailable.  If a person is found guilty under the Bill and also under any other law, the punishment which is higher will apply to the offender.

How does the Bill compare with existing trafficking laws?

The current Bill does not replace but adds to the existing legal framework.  As discussed above, currently a range of laws deal with various aspects of trafficking.  For instance, the Immoral Traffic (Prevention) Act, 1986 covers trafficking for commercial sexual exploitation while the Bonded Labour System (Abolition) Act, 1976 deals with punishment for employment of bonded labour.  These laws specify their own procedures for enforcement and rehabilitation. 

One of the challenges with the Bill is that these laws will continue to be in force after the Bill.  Since each of these laws have different procedures, it is unclear as to which procedure will apply in certain cases of trafficking.  This may result in overlap in implementation of these laws.  For instance, under the ITPA, 1986, Protective Homes provide for rehabilitation of victims of sexual exploitation.  The Bill also provides for setting up of Protection Homes.  When a victim of sexual exploitation is rescued, it is not clear as to which of these Homes she will be sent to.  Further, each of these laws designate special courts to hear offences.  The question arises as to which of these courts will hear the case. 

Are the offences in the Bill reasonably tailored?

As discussed earlier, the Bill imposes penalties for various offences connected with trafficking.  One of the offences states that if trafficking is committed on a premise, it will be presumed that the owner of the premise had knowledge of the offence.  The implication of this would be that if an owner lives in a different city, say Delhi, and lets out his house in Mumbai to another person, and this person is discovered to be detaining girls for sexual exploitation on the premise, it will be presumed that the owner knew about the commission of the offence.  In such circumstances, he will have to prove that he did not know about the offence being committed on his premise.  This provision is a departure from the standard principle in criminal law where the guilt of the accused has to be proved and not presumed.   

There are other laws where the owner of a property is presumed guilty.  However, the prosecution is required to prove certain facts before presuming his guilt.  For instance, under the Narcotics and Psychotropic Substances Act, 1985 it is presumed that the owner has knowledge of an offence committed on his property.  However, the Bill clarifies that the presumption will only apply if the prosecution can prove that the accused was connected with the circumstances of the case.  For instance, an owner of a truck is not presumed to be guilty only because his truck was used for transporting drugs.[iii]  However, he may be considered guilty if he was also driving the truck in which drugs were transported.[iv]  The Bill does not contain such safeguards and this provision may therefore violate Article 21 of the Constitution which requires that laws which deprive a person of his life or personal liberty should be fair and reasonable.[v] 

Does the Bill provide any protection to trafficking victims compelled to commit crimes?

The Bill provides immunity to a victim who commits an offence punishable with death, life imprisonment or imprisonment for 10 years.  Immunity to victims is desirable to ensure that they are not prosecuted for committing crimes which are a direct consequence of them being trafficked.[vi]  However, the Bill provides immunity only for serious crimes.  For instance, a trafficked victim who commits murder under coercion of his traffickers may be able to claim immunity from being tried for murder.  However, if a trafficked victim commits petty theft (e.g. pickpocketing) under coercion of his traffickers, he will not be able to claim immunity. 

Further, the immunity is only available when the victim can show that the offence was committed under coercion, threat, intimidation or undue influence, and there was a reasonable apprehension of death or injury.  Therefore, it may be argued that the threshold to claim immunity from prosecution may be too high and may defeat the purpose for providing such immunity.  

[i]. ‘Crime in India’ 2016, National Crime Records Bureau.

[ii]. Prajwala vs. Union of India 2016 (1) SCALE 298.

[iii]. Bhola Singh vs. State of Punjab (2011) 11 SCC 653.

[iv]. Sushant Gupta vs. Union of India 2014 (308) ELT 661 (All.).

[v]  Maneka Gandhi vs. Union of India 1978 AIR 597.

[vi]. Guideline 7, ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking’, OHCHR,  https://www.ohchr.org/Documents/Publications/Traffickingen.pdf.

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Explainer: Removal of Judges from Office

Roshni Sinha - April 20, 2018 1 Comment

Today, some Members of Parliament initiated proceedings for the removal of the current Chief Justice of India by submitting a notice to the Chairman of Rajya Sabha.  A judge may be removed from office through a motion adopted by Parliament on grounds of ‘proven misbehaviour or incapacity’.  While the Constitution does not use the word ‘impeachment’, it is colloquially used to refer to the proceedings under Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the removal of a High Court judge).

The Constitution provides that a judge can be removed only by an order of the President, based on a motion passed by both Houses of Parliament.  The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968.  The Act sets out the following steps for removal from office:

  • Under the Act, an impeachment motion may originate in either House of Parliament. To initiate proceedings: (i) at least 100 members of Lok Sabha may give a signed notice to the Speaker, or (ii) at least 50 members of Rajya Sabha may give a signed notice to the Chairman.  The Speaker or Chairman may consult individuals and examine relevant material related to the notice.  Based on this, he or she may decide to either admit the motion or refuse to admit it.
  • If the motion is admitted, the Speaker or Chairman (who receives it) will constitute a three-member committee to investigate the complaint. It will comprise: (i) a Supreme Court judge; (ii) Chief Justice of a High Court; and (iii) a distinguished jurist.  The committee will frame charges based on which the investigation will be conducted.  A copy of the charges will be forwarded to the judge who can present a written defence.
  • After concluding its investigation, the Committee will submit its report to the Speaker or Chairman, who will then lay the report before the relevant House of Parliament. If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated.
  • The motion for removal is required to be adopted by each House of Parliament by: (i) a majority of the total membership of that House; and (ii) a majority of at least two-thirds of the members of that House present and voting. If the motion is adopted by this majority, the motion will be sent to the other House for adoption.
  • Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.
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