Recently, Delhi witnessed large scale protests by various groups demanding stricter punishment and speedier trial in cases of sexual assault against women. In light of the protests, the central government has constituted a Commission (headed by Justice Verma) to suggest possible amendments in the criminal law to ensure speedier disposal of cases relating to sexual assault. Though the Supreme Court, in 1986, had recognised speedy trial to be a fundamental right, India continues to have a high number of pending cases. In 2012, the net pendency in High Courts and subordinate courts decreased by over 6 lakh cases. However, there is still a substantial backlog of cases across various courts in the country. As per the latest information given by the Ministry of Law and Justice, there are 43.2 lakh cases pending in the High Courts and 2.69 crore cases pending in the district courts.[1]
After the recent gang-rape of a 23 year old girl, the Delhi High Court directed the state government to establish five Fast Track Courts (FTCs) for the expeditious adjudication of cases relating to sexual assault. According to a news report, other states such as Maharashtra and Tamil Nadu have also begun the process of establishing FTCs for rape cases. In this blog, we look at the status of pending cases in various courts in the country, the number of vacancies of judges and the status of FTCs in the country. Vacancies in the High Courts and the Subordinate Courts One of the reasons for the long delay in the disposal of cases is the high number of vacancies in position for judges in the High Courts and the District Courts of the country. As of December 1, 2012, the working strength of the High Court judges was 613 as against the sanctioned strength of 895 judges. This reflects a 32% vacancy of judges across various High Courts in the country. The highest number of vacancies is in the Allahabad High Court with a working strength of 86 judges against the sanctioned strength of 160 judges (i.e. vacancy of 74 judges). The situation is not much better at the subordinate level. As on September 30, 2011, the sanctioned strength of judges at the subordinate level was 18,123 judges as against a working strength of 14,287 judges (i.e. 21% vacancy). The highest vacancy is in Gujarat with 794 vacancies of judges, followed by Bihar with 690 vacancies. Fast Track Courts The 11th Finance Commission had recommended a scheme for the establishment of 1734 FTCs for the expeditious disposal of cases pending in the lower courts. In this regard, the Commission had allocated Rs 500 crore. FTCs were to be established by the state governments in consultation with the respective High Courts. An average of five FTCs were to be established in each district of the country. The judges for these FTCs were appointed on an adhoc basis. The judges were selected by the High Courts of the respective states. There are primarily three sources of recruitment. First, by promoting members from amongst the eligible judicial officers; second, by appointing retired High Court judges and third, from amongst members of the Bar of the respective state. FTCs were initially established for a period of five years (2000-2005). However, in 2005, the Supreme Court[2] directed the central government to continue with the FTC scheme, which was extended until 2010-2011. The government discontinued the FTC scheme in March 2011. Though the central government stopped giving financial assistance to the states for establishing FTCs, the state governments could establish FTCs from their own funds. The decision of the central government not to finance the FTCs beyond 2011 was challenged in the Supreme Court. In 2012, the Court upheld the decision of the central government.[3] It held that the state governments have the liberty to decide whether they want to continue with the scheme or not. However, if they decide to continue then the FTCs have to be made a permanent feature. As of September 3, 2012, some states such as Arunachal Pradesh, Assam, Maharashtra, Tamil Nadu and Kerala decided to continue with the FTC scheme. However, some states such as Haryana and Chhattisgarh decided to discontinue it. Other states such as Delhi and Karnataka have decided to continue the FTC scheme only till 2013.[4]
Table 1: Number of Fast Track Courts and the pending cases in FTCs (As on March 31, 2011)
| State | No of FTC | No of cases transferred until March 31, 2011 | Pending cases |
| Arunachal Pradesh | 3 | 4,162 | 2,502 |
| Bihar` | 179 | 2,39,278 | 80,173 |
| Assam | 20 | 72,191 | 16,380 |
| West Bengal | 109 | 1,46,083 | 32,180 |
| Goa | 5 | 5,096 | 1,079 |
| Punjab | 15 | 58,570 | 12,223 |
| Jharkhand | 38 | 1,10,027 | 22,238 |
| Gujarat | 61 | 5,37.636 | 1,03,340 |
| Chattisgarh | 25 | 9,4670 | 18,095 |
| Meghalaya | 3 | 1,031 | 188 |
| Rajasthan | 83 | 1,49,447 | 26,423 |
| Himachal Pradesh | 9 | 40,126 | 6,699 |
| Karnataka | 87 | 2,18,402 | 34,335 |
| Andhra Pradesh | 108 | 2,36,928 | 36,975 |
| Nagaland | 2 | 845 | 129 |
| Kerala | 38 | 1,09,160 | 13,793 |
| Mizoram | 3 | 18,68 | 233 |
| Haryana | 6 | 38,359 | 4,769 |
| Madhya Pradesh | 84 | 3,60,602 | 43,239 |
| UP | 153 | 4,64,775 | 53,117 |
| Maharashtra | 51 | 4,23,518 | 41,899 |
| Tamil Nadu | 49 | 4,11,957 | 40,621 |
| Uttarakhand | 20 | 98,797 | 9006 |
| Orissa | 35 | 66,199 | 5,758 |
| Manipur | 2 | 3,059 | 198 |
| Tripura | 3 | 5,812 | 221 |
| Total | 1192 | 3898598 | 6,05,813 |
Sources: Lok Sabha Unstarred Question No.498, March 3, 2012; PRS
[1]. Rajya Sabha Starred Question no 231 dated December 10, 2012.
[2]. Brij Mohan Lal v Union of India (2005) 3 SCR 103.
[3]. Brij Mohan Lal v Union of India (2012) 6 SCC 502. [4]. Rajya Sabha Unstarred Question no 2388 dated September 3, 2012.
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.
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.
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.
