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The ongoing Monsoon Session of Parliament is being widely viewed as the 'make or break' session for passing legislation before the end of the 15th Lok Sabha in 2014. Hanging in balance are numerous important Bills, which will lapse if not passed before the upcoming 2014 national elections. Data indicates that the current Lok Sabha has passed the least number of Bills in comparison to other comparable Lok Sabhas. The allocated time to be spent on legislation in the Monsoon Session is also below the time recommended for discussion and passing of Bills by the Business Advisory Committee of the Lok Sabha. Eight out of a total of 16 sittings of the Monsoon Session have finished with only 15 percent of the total time spent productively. Success rate of the 15th Lok Sabha in passing legislation India’s first Lok Sabha (1952-1957) passed a total of 333 Bills in its five year tenure. Since then, every Lok Sabha which has completed over three years of its full term has passed an average of 317 Bills. Where a Lok Sabha has lasted for less than 3 years, it has passed an average of 77 Bills. This includes the 6th, 9th, 11th and 12th Lok Sabhas. The ongoing 15th Lok Sabha, which is in the fifth year of its tenure, has passed only 151 Bills (This includes the two Bills passed in the Monsoon Session as of August 18, 2013). In terms of parliamentary sessions, Lok Sabhas that have lasted over three years have had an average of fifteen sessions. The 15th Lok Sabha has finished thirteen parliamentary sessions with the fourteenth (Monsoon Session) currently underway. 
Legislative business accomplished in the 15th Lok Sabha For the 15th Lok Sabha, a comparison of the government's legislative agenda at the beginning of a parliamentary session with the actual number of Bills introduced and passed at the end of the session shows that: (i) on average, government has a success rate of getting 39 percent of Bills passed; and (ii) on average, 60 percent success rate in getting Bills introduced. 
The Monsoon Session of Parliament was scheduled to have a total of 16 sitting days between August 5-30, 2013. Of the 43 Bills listed for consideration and passage, 32 are Bills pending from previous sessions. As of August 18, 2013, the Rajya Sabha had passed a total of five Bills while the Lok Sabha had passed none. Of the 25 Bills listed for introduction, ten have been introduced so far. The Budget Session of Parliament earlier this year saw the passage of only two Bills, apart from the appropriation Bills, of the 38 listed for passing. These were the Protection of Women Against Sexual Harassment at Workplace Bill and the Criminal Law (Amendment) Bill. Time allocated for legislation in the Monsoon Session The Lok Sabha is scheduled to meet for six hours and the Rajya Sabha for five hours every day. Both houses have a question hour and a zero hour at the beginning of the day, which leaves four hours for legislative business in the Lok Sabha and three hours in the Rajya Sabha. However, both Houses can decide to meet for a longer duration. For example, Rajya Sabha has decided to meet till 6:00 PM every day in the Monsoon Session as against the normal working hours of the House until 5:00 PM. The Business Advisory Committee (BAC) of both Houses recommends the time that should be allocated for discussion on each Bill. This session's legislative agenda includes a total of 43 Bills to be passed by Parliament. So far, 30 of the Bills have been allocated time by the BAC, adding up to a total of 78 hours of discussion before passing. If the Lok Sabha was to discuss and debate the 30 Bills for roughly the same time as was recommended by the BAC, it would need a minimum of 20 working days. In addition, extra working days would need to be allocated to discuss and debate the remaining 13 Bills. With eight sitting days left and not a single Bill being passed by the Lok Sabha, it is unclear how the Lok Sabha will be able to make up the time to pass Bills with thorough debate.
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.
