Parliament is expected to take up a motion for impeaching Justice Soumitra Sen of the Calcutta High Court. We wrote an FAQ on the process of impeachment and the facts of this case for Rediff. See: http://www.rediff.com/news/report/faq-on-impeachment-of-judges/20110816.htm The full text is reproduced below. What is the importance of Parliament's discussion on the Justice Sen issue? The Rajya Sabha is scheduled to discuss a motion for the removal of Justice Soumitra Sen of the Calcutta High Court. Till date, no judge of the higher judiciary (Supreme Court and High Courts) has been successfully impeached. What is the legal framework regarding impeachment of judges? The Constitution has measures to ensure the independence of the judiciary from executive action. This helps judges give judicial decisions in a free and fair manner without any inducements. The Constitution also provides checks against misbehaviour by judges. It states that a judge may be removed only through a motion in Parliament with a two thirds support in each House. The process is laid down in the Judges (Inquiry) Act, 1968. How is the motion initiated? What is the process after that? A motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha MPs. If the motion is admitted, the Speaker of Lok Sabha or Chairman of Rajya Sabha constitutes an inquiry committee. The committee has three members: a Supreme Court judge, a High Court Chief Justice, and an eminent jurist. The Committee frames charges and asks the judge to give a written response. The judge also has the right to examine witnesses. After the inquiry, the committee determines whether the charges are valid or not. It then submits its report. What happens then? If the inquiry committee finds that the judge is not guilty, then there is no further action. If they find him guilty, then the House of Parliament which initiated the motion may consider continuing with the motion. The motion is debated. The judge (or his representative) has the right to represent his case. After that, the motion is voted upon. If there is two-thirds support of those voting, and majority support of the total strength of the House, it is considered to have passed. The process is then repeated in the other House. After that, the Houses send an address to the President asking that the judge be removed from office. Has this process taken place earlier? Yes, there has been one such case. Justice Ramaswamy of the Supreme Court faced such a motion. The inquiry committee found that the charges against him were valid. However, the motion to impeach him did not gather the required support in Lok Sabha. What are the charges against the Justice Sen? There are two charges. He is accused of misappropriating large sums of money which he received as a receiver appointed by the Calcutta High Court. He is also accused of misrepresenting facts in this regard to the High Court. What is the charge of misappropriation? What did the inquiry committee conclude? Justice Soumitra Sen was appointed Receiver in a case by an order of the Calcutta High Court on April 30, 1984. As a Receiver, Justice Sen had the power to collect outstanding debts and claims due in respect of certain goods. The Receiver is required to file and submit for passing, his half yearly accounts in the Office of the Registrar of the High Court. However, Justice Sen did not comply with this rule. As a Receiver, Justice Sen was required to open only one account and not move funds without prior permission. However, the Inquiry Committee found that two separate accounts were opened by Justice Soumitra Sen as Receiver, with ANZ Grindlays Bank and Allahabad Bank. A total sum of over Rs 33 lakh was transferred in these accounts from the sale of the goods which was unaccounted for. Justice Sen claimed he could not account for this amount since it was invested in a company called Lynx India Ltd. to earn interest. The Inquiry Committee found this claim to be false as well. It was found that the amount transferred to Lynx India Ltd. had been made out of an account opened by Justice Sen in his own name. The Committee concluded that (a) there was a large-scale diversion of fund, and (b) such diversion was in violation of the orders of the High Court. The purpose for such diversion remains unexplained. This action was done by him as an advocate? Are there any charges against him after he was appointed as a judge? Justice Soumitra Sen was appointed a High Court Judge on December 3, 2003. The Inquiry Committee noted that Justice Sen's actions were, "an attempt to cover up the large-scale defalcations of Receiver's funds". After he became a Judge he did not seek any permission from the Court for approval of the dealings, as required by the Court, nor did he account for the funds. Is there any other case? What is the status? Another such motion has been initiated against Chief Justice Dinakaran of Sikkim High Court. An Inquiry Committee is looking investigating the issue. However, Mr Dinakaran has reportedly sent in his resignation to the President. If the resignation is accepted, then the motion to remove him will become ineffective.
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.
