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All stakeholders, including citizens, NGOs, etc. have an important role in the law making process. But for many stakeholders, the process is not obvious or easily explained. In PRS, we often receive a number of requests from NGOs about how it is that they can get Parliament to make changes in legislation and what would be productive ways in which citizens can make a difference in the law making process. To address this, PRS has developed a short Primer on "Engaging with Policy Makers: Ideas on Contributing to the Law Making Process", in which we have tried to explain the process of how a Bill becomes an Act and some of the opportunities for citizen groups to become part of the process. Sometimes, large parts of a Bill that is introduced in Parliament may not be agreeable to some groups. In such cases there is a tendency among NGOs to sometimes decide to redraft the Bill. To the extent that NGOs think of redrafting a Bill as a tactical negotiating position, they may have a point in trying to redraft legislation. To the extent that NGOs think of such redrafting as a way to keep the discourse alive on the most important issues in any legislation, such efforts are welcome and useful. But if there is a belief that the Bill introduced in Parliiament will be withdrawn to introduce another Bill on the same subject as drafted by NGOs, then history suggests that the probability of that happening is close to zero. This is not a comment on the quality of the Bill that may be drafted by the group of NGOs, but rather a result of a complex set of issues about lawmaking in India. Despite the odds, there are some recent examples in which NGOs were able to bring about significant changes to Bills in Parliament. The Right to Information Act stands out as one of the best examples in recent times. On the recently passed Right to Education Bill, NGOs were able to exert sufficient pressure to bring about changes in the Bill, and also get the government to bring in an amendment Bill to make further changes. In the Seeds Bill which was introduced in 2004, the Government appears to have agreed to bring about important changes thanks to the efforts of a number of farmer groups approaching the government directly, and through their local MPs and political parties. It would be useful if we can get more examples/ comments/ suggestions about how some NGOs were able to bring about these changes in Bills. This will help more people understand how their voices can be heard in the corridors of power.
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.
