Dr. P.M. Nair, Chair-Professor, TISS, Mumbai (TISS is a hugely government aided university that follows Govt of India service rules)

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1 My comments limited to the Draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 Government of India Ministry of Women and Child Development released by the WCD Ministry Govt of India for public comments. Dr. Pravin Patkar Since the year 2005 the Govt of India has been intermittently releasing the drafts of amendment in the Immoral Traffic Prevention Act (ITPA) The ITPA is limited to sex trafficking. There are many other pieces of legislation to deal with the other offences of human trafficking such as labour trafficking or trade in human organs and organized beggary etc. In response to a Writ Petition the Govt of India in Nov 2015 constituted a national level Committee. Coming up with a new single anti trafficking law was one of its major objectives. The details are as follows; As per the letter of Mr. Samir Sinha the Under Secretary Ministry of Women and Child Development dated 17 th November 2015 (Ref. Cabinet Secretariat s I.D. No.293/1/3/2015- CAV dated 12th November, 2015) the Government of India constituted a Committee for preparing a Comprehensive Legislation on Trafficking. i) The Committee was comprised of the following bureaucrats; Secretary or their representative not below the rank of Joint Secretary, Ministry of Home Affairs, M/o Women & Child Development, M/o Labour & Employment, M/o External Affairs, M/o Overseas Indian Affairs, M/o Health & Family Welfare and D/o Legal Affairs Member-Secretary, National Commission for Women Member-Secretary, National Commission for Protection of Child Rights Principal Secretary/Secretary of Deptt. of WCD/Social Welfare from State/ UT Govt. of West Bengal, Maharashtra, Andhra Pradesh, Karnataka, Jharkhand, Chhattisgarh, Delhi and Odisha. Representative from National Legal Services Authority (NALSA), NALSA is a semi government body constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes. It is mostly composed of judges. Dr. P.M. Nair, Chair-Professor, TISS, Mumbai (TISS is a hugely government aided university that follows Govt of India service rules) ii) and the following members from civil society organizations; Mr. Ravi Kant, Shakti Vahini (New Delhi) Ms. Sunita Krishnan, Prajwala (Andhra Pradesh) Mr. Ajit Singh, Gudia Sansthan (Varanasi-UP) Mr. Roop Sen, Sanjog (Kolkata) The Committee was to submit its report in six months from the date of its constitution i.e. in May

2 The Terms and Reference of the committee were as follows: To study the various Acts/Legislations under the purview of different Ministries/Departments relating to various aspects of trafficking. To consider the gaps in the existing legislation, from the point of view of prevention, pre-rescue, rescue, post-rescue and rehabilitation aspects. To Strengthen victim protection protocol so as to ensure that victims are treated as victims not as offenders. To draft a comprehensive legislative framework covering all aspects of trafficking, as may be considered necessary. To provide for adequate shelter homes for the rescued victims. To prepare a comprehensive policy for law enforcing agencies, including for lady police officers for handling the victims of trafficking. The above entries in bold are most relevant to the present Draft as the output on those points should have reflected in the Draft of the proposed new law. When there were so many success stories, lessons learnt, and good practices evolved by some of the Indian anti human trafficking civil society organizations operating at the ground level and many impressive recommendations pending for the revision of the individual anti trafficking laws it is disappointing to come across a Draft that ignores them. It also shows gross ignorance about the existing legal provisions and ground realities. It indicates a lack of broad based, genuine and participatory consultations. The sense of priorities is missing too. Although in this note and at this stage I am not giving my exhaustive comments and recommendations for the proposed new law (in the first place in the last three decades in India I have never come across any significant demand for an integrated single piece of legislation against human trafficking) at this stage I am only offering my limited comments on the individual provisions in the Draft of the proposed new law circulated by the Govt of India. My comments are given in my individual capacity. They are in red fonts given in between the text of the draft which is in blue. Dr. Pravin Patkar- (The author is the Co-Founder & Director of PRERNA (India s leading and pioneering anti trafficking civil society organization, Retired Faculty TISS, Adjunct Professor-Amrita University (India s Best Private University for the past two years), ex Vice Chairperson ECPAT International, and Fulbright Scholar (Fulbright Nehru Academic and Professional Excellence Fellow ) OOOOO 2

3 Text in blue fonts original text of the Draft Bill Text in red font my comments Bill, 2016 Government of India Ministry of Women and Child Development Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill DRAFT A BILL to prevent trafficking of persons and to provide protection and rehabilitation to the victims of trafficking and to create a legal, economic, and social environment against trafficking of persons and for matters connected therewith or incidental thereto The Draft does not meet any of the above purposes. WHEREAS, clause (1) of article 23 of Constitution of India prohibits trafficking in human beings and beggar and other similar forms of forced labour, making a contravention of the same a punishable offence; It has been provided adequately in the various laws dealing with individual destinations of the crime of trafficking. Those provisions could have been further strengthened based upon field level experiences and pending recommendations. The Draft on the contrary shabbily adds a couple of peripheral crimes such as the registration of placement agencies. AND WHEREAS, article 21 of Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to the procedure established by law; AND WHEREAS, the Government of India has ratified the United Nations Convention on Transnational Organised Crime and its three Optional Protocols, including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children; In the adoption of the UN Protocol s definition of trafficking (in Sec 370 of Indian Penal Code in 2013) the words Abuse of position of vulnerability were dropped. Those could have been incorporated in order to follow the Protocol in text and spirit and to address the Indian realities. AND WHEREAS, trafficking of persons needs to be prevented and the victims need care, protection and rehabilitation. Be it enacted by Parliament in the Sixty-seventh Year of the Republic of India as follows: 3

4 CHAPTER I PRELIMINARY 1. Short title, extent, commencement and application. This Act may be called Trafficking of Persons (Prevention, Protection and Rehabilitation) Act, Except for the mandatory registration of placement agencies it has not even a single line on prevention. It has not spared a single line for the protection of victims or potential victims when there have been many long pending demands and recommendations. The Draft does not make any significant provisions on rehabilitation of the victims of trafficking. (2) It extends to the whole of India, except the State of Jammu and Kashmir. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Other than making the provisions of this proposed law overriding in nature the Draft remains silent on the status and future of the individual laws that deal with trafficking e.g. sex trafficking, labour trafficking, organized begging, human organ trade, etc. Since the Draft proposes a law that is extremely skeletal I presume the other laws shall continue to be in force. That in itself is the basis of the foreseen confusion, conflict and flawed overlapping induced by this Draft viz a viz the other laws. 2. Definitions- In this Act, unless the context otherwise requires,- (a) aftercare means making provisions for support, financial or otherwise as prescribed by the appropriate Government, to a victim, who has left the Special Home and in the opinion of the District Anti- Trafficking Committee ready to reintegrate to join mainstream society; (b) appropriate Government means the Central Government or a State Government, as the case may be; (c) child means a person who has not completed eighteen years of age; Already defined in the Juvenile Justice Act. In fact there is a move underway to bring in uniformity in the definitions of child given in various instrument. There was no need to again define it. 4

5 (d) District Anti-Trafficking Committee means a Committee established by the appropriate government under sub-section(1) of section 3; (e) Fund means the Anti- Trafficking Fund created under section 29; (f) narcotic drugs shall have the same meaning assigned to it in clause (xiv) of section 2 of Narcotic Drugs and Psychotropic Substances Act, 1985; (g) notification means a notification published in the Official Gazette; (h) placement agency shall mean a person or body of persons whether incorporated or not other than a Government agency, department or organisation engaged in the business of providing the service of employment to any person; (i) prescribed means prescribed by rules made by the appropriate Government under this Act; (j) Protection Home means a home established or maintained in every district or a group of districts, by the appropriate Government directly, or through voluntary or nongovernmental organisations, for the immediate care and protection of victims and for the purposes specified under section 8 ; 3 Already sufficiently and differently well defined in the ITP Act Leads to confusion. (k) psychotropic substances shall have the same meaning as assigned to it in clause (xxiii) of section 2 of Narcotic Drugs and Psychotropic Substances Act, 1985; (l) Special Home means an institution, established or maintained, in every district or two or more districts by the appropriate Government, either directly or through a voluntary or non-governmental organisation, and is registered as such for the purposes specified in section 9; (Already sufficiently and differently well defined in the J J Act) (m) Special Court means a Court of Session specified as a Special Court under section 23 (So many other laws have provided for the same although differently) (n) Special Agency means a Specialized Agency under section 7; (o) investigating officer means an officer designated as such under section 28; (p) State Anti-trafficking Committee means a Committee constituted by the appropriate Government under sub-section (1) of section 5; (q) victim means a person or persons on whom trafficking of persons is caused or attempted by any other person or persons; (r) Welfare Officer means a person in charge of the management of a Protection Home or Special Home and monitoring of individual care plans of all victims in such homes under this Act; 5

6 (s) words and expressions used but not defined in this Act and defined in the Juvenile Justice (Care and Protection of Children) Act, 2015 shall have the meanings respectively assigned to them in that Act. Ignores many important terms. Leaves the definition of trafficking in the Indian Penal Code Hence the idea of integrating the provisions into one piece of law fails. CHAPTER II DISTRICT ANTI- TRAFFICKING COMMITTEE 3 (1) The appropriate Government shall, by notification, constitute for every district, a District Anti Trafficking Committee, for exercising the powers and performing such functions and duties in relation to prevention, rescue, protection, medical care, psychological assistance, skill development, need based rehabilitation of victims as may be prescribed. (2) The District Anti Trafficking Committee shall consist of the following members, namely:- (i) the District Magistrate or District Collector- Chairperson; (ii) two social workers out of which one shall be a woman to be nominated by the District Judge Member; (iii) one representative from the District Legal Services Authority nominated by the District Judge- Member; (iv) District Officer of the Social Justice or Women and Child Development Department of the concerned States/UTs- Member Secretary. (3) The District Anti- Trafficking Committee shall meet at least once in three months. (4) The District Anti- Trafficking Committee shall regulate its own procedure for conducting its meetings. Vague functions and duties Unnecessary duplication of bureaucratic structures There is no justification for adding this structure. Instead the existing structures should be made to deliver. 4. Procedure in relation to victims of trafficking of persons (1) A victim, after rescue shall be produced before the Member Secretary of the District Anti- Trafficking Committee by:- (i) investigating officer or any police officer; or (ii) any public servant; or 6

7 (iii) any social worker or public spirited citizen; or (iv) by the victim himself, including if the victim is a child. Each specific law (e.g. Bonded labour, ITP Act, Child Labour, IPC etc) makes its own peculiar demand in terms of the procedures to be followed after Rescue. They are not highly dissatisfactory or conflicting. Making it compulsory to produce the victims before the Member Secretary DATC Committee will create confusion about which system to follow. The overriding nature of the law suggested under this Draft will make its provisions compulsory. The Draft makers have not taken into consideration the capability and role of the District WCD officer (Member Secretary of DATC) and the current pressures on him. Producing every victim before him is not only impractical but absurd as well. While the J J Act for example is structured to handle every procedure in a child friendly manner the DATC is not. The CWC is carefully constituted to have specialised experts. The District WCD or Social Justice Officer is an administrator and not a helping professional unlike counsellor, social worker or psychologist. When there are complaints that a full time fully equipped body like Child Welfare Committee is not able to take the pressure of attending the child victims how can one District Officer handling multiple administrative responsibilities do that? CHAPTER III STATE ANTI-TRAFFICKING COMMITTEE 5(1) The appropriate Government shall establish State Anti Trafficking Committee to oversee the implementation of this Act and advise the State/UT Government and District Anti-Trafficking Committee on matters relating to prevention of trafficking, protection and rehabilitation of victims of trafficking in persons and to perform such other functions and duties as maybe prescribed. (2) State Anti Trafficking Committee constituted for a State/UT, shall consist of the following members, namely:- (i) the Chief Secretary- Chairperson; (ii) Secretary to the Department of the State dealing with Women and Child-Member; (iii) Secretary of the State Home Department - Member; (iv) Secretary of the State Labour Department- Member; (v) Secretary from State Health Department- Member; 7

8 (vi) Director General of Police of the concerned State- Member; (vii) Secretary of the State Legal Services Authority - Member; (viii) two social workers out of which one shall be a woman and to be nominated by the Chief Justice of the High Court Member Two decades ago the Central Advisory Committee at the central level and the high power State Level Advisory Committees (SLACs) were created and they functioned in proportion with the government s politico-administrative will. Both of them had significant representation of the civil society. Both these structures need to be urgently reenergised. As against that what is the point in making yet another structure? A responsible policy making body should first evaluate the existing structures and based upon the findings and recommendations conceptualize the next step. CHAPTER IV 6. Central Anti- Trafficking Advisory Board (1) The Central Government shall constitute a Central Anti Trafficking Advisory Board headed by the Secretary, Ministry of Women and Child Development and representatives from the concerned Ministries, State/UTs and members from civil society organisations as may be prescribed; (2) Central Anti Trafficking Advisory Board shall oversee the implementation of the Act 6 and advise the appropriate Government on matters relating to prevention of trafficking, protection and rehabilitation of victims, in the manner as maybe prescribed. Same as above. Central Advisory Committee has been in existence and has been consulting the civil society occasionally. CHAPTER V 7. Special Agency The Central Government shall constitute a Special Agency for investigation of offences under the provisions of the Act. The Central Bureau of Investigation (CBI) has already been appointed as the Trafficking Police Officer at the national level. It was in response to our own individual representation at the level of the Dy. Prime Minister of India Mr. Lalkrishna Advani who was also the Union Home Minister that the CBI s appointment was made. As per Sec 13 of ITP Act the CBI was appointed as the Trafficking Police Officer and was given suo motu responsibilities in combating trafficking at the national and international levels. In one of our own Writ 8

9 Petitions in the Mumbai High Court the Court had directed the CBI to perform its role when it was unwilling to do so. What is the point in adding one more vague structure? The scope of the TPO currently under the ITP Act could have been extended to cover the other fronts of trafficking. CHAPTER VI SUPPORT SERVICES 8. Protection Homes (1) The appropriate Government shall maintain either directly or through voluntary organisations, protection homes selected and managed in the manner, as may be prescribed for the immediate care and protection of the victims. (2) Protection Homes shall provide for shelter, food, clothing, counselling and medical care that is necessary for the rescued victims and such other services in the manner, as may be prescribed. Protective Homes have been in existence under the ITP Act This Draft defines them in Sec 2 and merely creates confusion. The roles of Protective Home envisioned under this Draft and the ITP Act are quite different. 9. Special Homes The appropriate Government shall maintain either directly or through voluntary organisations or use the existing shelter homes, as the case may be, one or more Special Homes in each district for the purpose of providing long- term institutional support for the rehabilitation of victims, in the manner as may be prescribed. The Committee should have known that Special Homes have been in existence under the JJ Act and are doing relatively well. They can and need to be improved. This Draft defines Special Home once again completely differently and leads to confusion. With the overriding nature of this Bill/Act the provision in J J Act for Special Home will become void. The Special Home as per the J J Act is for the children in conflict with law which is quite different from what the above Draft provides. As against that the suggestion for the special home as given in this Draft is not based on facts or study. It is also not an attempt to redefine and improve the existing Special Homes. 10. Registration of Homes Notwithstanding anything contained in any other law for the time being in force, the Protection Homes and the Special Homes, shall be registered under this Act in such manner as may be prescribed by the appropriate Government. 9

10 Unnecessary repetition ab initio! The J J Act and the ITP Act have been requiring such registration and re-registration. The long drawn process of registration and re-registration may have just come to completion in the country. This provision adds confusion and incorrect repetition. CHAPTER VII REHABILITATION AND SOCIAL INTEGRATION 11(1) The appropriate Government shall frame schemes and programmes, in such manner as may be prescribed, for the purpose of providing rehabilitation, support and after care services necessary for the social integration into mainstream society of the victims and to prevent retrafficking. (2) The State Government shall create specialised schemes for victims, especially for women engaged in prostitution or any other form of commercial sexual exploitation, to enable them to come forward and reintegrate into mainstream society, in a manner as may be prescribed. Why call it a new law for rehabilitation when all it says is that the government should frame appropriate schemes for rehabilitation? The Draft fails to derive from the vast and qualitatively rich experience on rehabilitation in the field and the success stories therein. CHAPTER VIII REGISTRATION OF PLACEMENT AGENCIES 12(1) Every placement agency, whether registered under any law for the time being in force or not, shall be registered for the purposes of this Act, within such time and manner as may be prescribed by the appropriate Government. (2) The period of registration and the conditions for registration shall be in the manner as may be prescribed, by the appropriate Government. (3) Notwithstanding anything contained in any other law for the time being in force, if any placement agency which violates any of the conditions of registration under sub-section (2) of section 12, the registration of such placement agency is liable to be suspended, cancelled or revoked, as the case may be. Provided that the placement agency shall be given an opportunity to be heard before any action is taken against it. 10

11 The definition of placement agency arbitrarily excludes government agencies. It uses the words engaged in the business of providing employment which is open to divergent interpretations. There are many well meaning non profit making organizations which provide employment. Will they be considered as placement agencies? The Draft could have derived from the Child Labour ( Prohibition & Regulation) Act 1986 especially in terms of the detailed provisions made for regulating the working conditions and maintenance of records with respect to lawful child labour. (This is not to mean that I agree with the idea of regulation of child labour as against unconditional ban on it.) CHAPTER IX OFFENCES AND PENALTIES 13. Any person in-charge of Protection Home or Special Home providing shelter to the victims contravenes any of the provisions of section 10, shall be punished with imprisonment which may extend to one year or with a fine not less than one lakh rupees, or with both. 14. Any person who contravenes the provisions of sub-section (1) of section 12 of this Act, shall be punishable with fine which may extend to one lakh rupees and any person who contravenes the provisions of sub-section (2) of section 12 shall be punishable with imprisonment for a term which may extend to 3 years or with fine which may extend to fifty thousand rupees, or with both. 15. Punishment for disclosure of identity (1) No report, or any newspaper, or magazine, or audio- visual media, or any other form of communication regarding any investigation or judicial procedure shall disclose the name, address, or any other particulars which may lead to the identification of a victim, or witness of a crime of trafficking in persons under this Act, or any other law for the time being in force, nor shall the picture of any such victim be published. (2) The publisher or owner of the media or studio or photographic facilities or any person incharge of publication who contravenes the provision of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one lakh rupees, or with both. As far as the child victims are concerned the provision has already been in existence for quite some time in the J J Act. Hence it is redundant. More seriously, the proposed law having an overriding effect will make an earlier superior provision void and replace it with a poorly articulated one. If an adult female victim wishes to tell her story before the world this provision denies her that freedom of expression by blocking the platforms and media that can give her the time, 11

12 and space. The provision does not take into account the dynamic scenario in the field. These days more and more adult victims want to tell their story to the world. Eventually, all adult victims should gather the courage as they are not at fault. Disclosure is very severe in the case of victims of sex trafficking but not the same with the victims of labour trafficking. Bundling them together indicates ignorance about the ground level realities. 16. Using narcotic drugs, psychotropic or alcoholic substances for trafficking Notwithstanding anything contained in any other law for the time being in force, whoever uses any narcotic drug or psychotropic substance, or alcohol, for the purpose of trafficking shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees. 17. Use of chemical substance or hormones for the purpose of exploitation Notwithstanding anything contained in any other law for the time being in force, whoever administers any chemical substance or hormones to a trafficked woman or a girl or a child for the purpose of early sexual maturity and exploitation shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees. If integration of the various offences of trafficking in a single piece of legislation was its purpose then the Draft should have at least elaborated the core offences and tried to bring them together. The Draft leaves the definition of trafficking in the Indian Penal Code (Sec 370), the sex trafficking offences in the ITP Act, the labour related offences in the Bonded Labour Act and Child Labour Act or the other IPC provisions and incorporates some peripheral offences in this draft in the name of integrating and arriving at a single well coordinated anti trafficking Act. This is one of the glaring failures of this Draft. The Draft neither seems to have been informed by wider consultations nor learnt from the lessons of the past 18. General Penalty Whoever, violates any of the directions given by the appropriate Government under this Act shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to twenty thousand rupees, or with both. This is the substantive contribution of the Draft... adding structures, and empowering the bureaucrats 12

13 19. Offence to be cognizable and non- bailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) no person accused of an offence under sections 16 and 17 shall be released on bail or on his own bond unless- (i) the Special Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Special Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (a) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail. Bail is an important part of natural justice and should not be denied in a sweeping manner. The Draft could have come up with some guidelines for the judiciary to grant or deny bail on case to case basis.. CHAPTER X CONFISCATION, FORFEITURE AND ATTACHMENT OF PROPERTY 20(1) Where a person is in possession or ownership of any property, and is accused of having committed an offence under section 16 and 17 of this Act or offences under section of Indian Penal Code, 1860 and it is likely that such property be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings, the Special Court may confiscate such property. (2) Where a person has been convicted of any offence punishable under an offence referred to in sub-section (1), the Special Court may, in addition to awarding any punishment, by order in writing, declare that any property, movable or immovable or both, belonging to the person, which has been used for the commission of that offence or accrue thereby, shall stand forfeited to Government. (3) Where any person is accused of any offence referred to in sub-section (1), it shall be open to the Special Court trying him to pass an order that all or any of the properties, movable or immovable or both, belonging to him, shall, during the period of such 10 trial, be attached, and where such trial ends in conviction, the property so attached shall be liable to forfeiture to the extent it is required for the purpose of realization of any fine imposed by the Special Court. 13

14 Notwithstanding, anything contained under section 20, any order passed by the Special Court for confiscation, attachment or forfeiture of the property, as the case may be, shall not prejudicially affect the claim of any third person who acquired any right, claim or interest in the property through lawful consideration with lawful object. The Draft seems unaware that since 2002 provisions have been made in the Prevention of Money Laundering Act by including some of the offences in the Schedule (paragraphs 3,4, and 7 in different years). There have been revisions of those entries subsequently. The Committee should have reviewed the functioning of those provisions and added to them and strengthened them instead of coming up with as redundant an idea as this Section. It wastes a valuable opportunity in elaborating something administrative/procedural which should actually go in the Rules and Regulations or Government Circulars. 21. Burden of proof The burden of proving that the property so attached and confiscated as per Section 20, is not acquired or used in the commission of the offence under this Act, which he is named as accused shall be on such person. As stated elsewhere in this note the provision of placing the Burden of Proof should not be arbitrarily used. Such provisions should not be made to suit the prosecution s zestlessness. 22. Application for attachment of property (1) Where the appropriate Government has reason to believe that any person has committed (whether after the commencement of this Act or not) any offence under this Act, the State Government or, as the case may be, the Central Government may, whether or not any Court has taken cognizance of the offence, authorize the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on business, for the attachment, under this Act of the money or other property which the State Government or, as the case may be, the Central Government believes the said person to have procured by means of the alleged offence, or if such money or property cannot for any reason be attached, or other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property. (2) The provisions of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908, shall apply to proceedings for an order of attachment under this Act as they apply to suits by the Government. 3) An application under sub-section (1) shall be accompanied by one or more affidavit, stating the grounds on which the belief that the said person has committed any scheduled offence is founded, and the amount of money or value of other property believed to have been procured by means of the alleged offence and the application shall also furnish the following:- 14

15 (i) any information available as to the location for the time being of any such money or other property, and shall, if necessary, give particulars, including the estimated value, of other property of the said person; ii) the names and addresses of any other persons believed to have or to be likely to claim, any interest or title in the property of the said person. The Draft seems unaware that since 2002 provisions have been made in the Prevention of Money Laundering Act by including some of the offences in the Schedule. There have been revisions of those entries subsequently. The Draft should have reviewed the functioning of those provisions and added to them and strengthened them instead of coming up with as redundant an idea as this Section. It wastes the valuable opportunity on elaborating something administrative/procedural which should actually go in the Rules and Regulations or Government Circulars. CHAPTER XI SPECIAL COURTS AND POWERS OF SPECIAL COURTS 23. Special Court Notwithstanding anything contained in the Code of Criminal Procedure, 1973 for the purposes of providing a speedy trial of offences involving and punishable under sections 370 to 373 of the Indian Penal Code, 1860 and the offences under this Act, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district, a Court of Session to be a Special Court. There are already many provisions for Special Courts e.g. Special Court for trafficking cases under Sec 22 of the ITP Act 1956 (the output of the Mumbai Special Court 1 st in the country which was set up in response (Order 4-k) to our own Writ Petition no of 2003 in Mumbai High Court has been very good right from the beginning). Sec 25 of the National Commission for the Protection of Children s Rights as well as Sec 28 of the POCSO Act (Protection of Children from Sexual Offences Act 2012) also have provisions for Special Courts. The text of these legislations as regards Special Courts is not uniform and hence there are gaps and variations. e. g. The ITPA provides for Special Courts which are exclusive in nature while the POCSO Act does not provide for exclusive Special Courts. There is a need to bring in uniformity in these provisions. Hundreds of Special Courts have already been made functional under the POCSO Act. There are special courts for labour related offences. The definition under 2(m) of this Draft and the provision for overriding other laws will make the existing Special Courts void besides creating confusion over their status and role. 15

16 Making yet another Special Court especially for the limited and largely peripheral offences covered under this Draft is unnecessary and wasteful. 24. Presumption of certain offences Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 16 and 17 of this Act or offences under section of Indian Penal Code, 1860, the Special Court shall presume that such person has committed the offence, unless the contrary is proved. Presumption of guilt is not to be used in a sweeping manner as it goes against natural justice in many cases. The offences covered in this Draft are very few and comparatively peripheral. The legislations dealing with sex trafficking does not have the provision of presumption of guilt except for part of the offence of detention under Sec 6 (ITPA). It is already there in the Bonded Labour Act 1976 but not w.r.t to child labour or beggary. This draft thus leaves those core offences untouched and makes provision for presumption of guilt for offences like disclosure of victim s identity, use of psychotropic substance or alcohol etc in trafficking. In short, as per this Draft for offences of procuring, detaining an adult, wrongfully confining, pimping on a person, seducing, keeping brothel, the guilt will have to be established by the prosecution but the guilt for using alcohol while trafficking can be presumed. 25. Application of Criminal Procedure Code, 1973 to proceedings before the Court Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Special Public Prosecutor. 26. Special Public Prosecutors (1) For every Special Court, the appropriate Government shall, by notification in the Official Gazette, specify a Special Public Prosecutor for the purpose of conducting case or cases falling under this Act and offences under sections 370 to 373 of the Indian Penal Code, What happens when a case involves these and some more offences under some other relevant Acts? There are many questions that crop up with this provision. (2) Every person appointed under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974). 16

17 (3) A person shall not be qualified to be appointed as Special Public Prosecutor under this section unless possess ten years active practice as an Advocate before a Court of Session having good record of prosecution. Most public prosecutors have little incentive, financial or otherwise, in taking up such cases seriously and in fighting them energetically. A decade old amendment in the Code of Criminal Procedure has made it possible for the victim to have her/his own lawyer. The Draft should have attempted to strengthen that component or created some incentive for the Special PP. 27. Procedure for recovery of fines (1) Where, on preliminary inquiry, a Special Court or a District Anti- Trafficking Committee, as the case maybe, finds that any amount is due to a victim, including backwages for the period of employment, or any other losses, it shall order for the recovery of the same as per the provisions of section 421 of the Code Criminal Procedure. Redundant procedural provision (2) Notwithstanding anything contained in any other law applicable for the time being in force, where a person has been convicted of an offence of trafficking the Special Court may, in addition to the punishment prescribed under the relevant laws also order the accused to pay all backwages, or any other arrear or any other amount due to the victim, in addition to a fine which shall not be less than Rupees five lakhs for each victim engaged by such trafficker. Redundant procedural provision (3) Where an offender has been sentenced to pay a fine, the Special Court shall initiate action for the recovery of such fine as an arrear of land revenue as per the section 421 of the Code of Criminal Procedure. 13 Redundant procedural provision CHAPTER XII MISCELLANEOUS 28. Investigating Officer The State Government shall designate a police officer of the rank of Gazetted Officer to be an Investigating Officer for investigating offences under this Act and under section 370 to 373 of the Indian Penal Code, Section 13 of The ITP Act 1956 has a provision for appointment of a Special Police Officer at the level of each police station which was neglected for over 50 years by the governments. 17

18 It was made in the State of Maharashtra when we had moved the Mumbai High Court (Writ Petition no 1694 of 2003). The Court gave elaborate orders (Order no. 2 and 3) to strengthen the functioning of the SPO. In response to our advocacy at the level of the Union Home Minister / Dy Prime minister the CBI was appointed as the Trafficking Police Officer at the Central level to combat the trafficking crime suo motu. As it was a subject matter of the ITP Act it remained limited to the offence of sex trafficking. The same could have been elaborated, further strengthened and made applicable to the other fronts of anti trafficking interventions. Instead the Draft makes a vague provision of two and a quarter line for an Investigation Officer. The provision is for trafficking offences under this Act and a few provisions of IPC. What happens when a case involves these and some more offences under some other relevant Acts? Many such questions crop up with this provision. As the provisions are overriding they could lead to utter confusion besides damaging the accomplishments of the earlier provisions. 29. Anti-Trafficking Fund (1) The appropriate Government, as the case maybe, shall create a fund for the effective implementation of this Act and also for the welfare and rehabilitation of the victims, as maybe prescribed. (2) There shall be credited to the fund such voluntary donations, contributions or subscriptions as may be made by any individual or organisation. (3) The fund created under sub-section (1) shall be administered by the appropriate Government in such manner and for such purposes as may be prescribed by that Government. This provision reaches out to donors before placing the prime burden of anti trafficking fund on the offenders which is in violation of natural justice. The Draft elsewhere makes provisions for confiscation of property of some offenders but remains silent on the disposal of the proceeds of such confiscation. Since 1998 we have made elaborate recommendations for the confiscation of the assets of the offenders and the merger of its proceeds in a victim rehabilitation fund. The Draft refuses to learn anything from the long pending well articulated demands and suggestions. Such provisions have already been made in the Prevention of Money Laundering Act The Draft could have elaborated and strengthened those provisions by studying their implementation since Procedure for Mandatory reporting Any police officer or a public servant, or any officer or employee of Protection home or Special home, who finds or takes charge of, or who is handed over the custody or care of a 18

19 victim shall within twenty four hours, give information to the nearest police station, or a District Anti- Trafficking Committee or in the case of a child victim, to a Child Welfare Committee, or a child care institution registered under the provisions of the Juvenile Justice (Care and Protection) Act The provision leads to confusion.. The mandatory reporting provision made under POCSO Act 2012 has already created considerable terror and confusion and has affected a lot of child protection work instead of bolstering it. The culprit is not mandatory reporting per se but the vagueness with which it is drafted in the POCSO Act If at all one does not see the chaos in the field today it is because the provision of mandatory reporting has not been implemented seriously by the police. Once the police start enforcing them it will lead to havoc. The Draft refuses to learn from the experience of POCSO since The poor drafting is self evident; e.g. it means A police who takes charge of a victim shall inform the nearest police station within 24 hours An officer or employee of Protection home or Special home (who gets the custody of a victim only when given by the CWC or handed over by the police under the provision of POCSO Act has) is to inform the nearest police station in 24 hours As the Draft makes the provisions of this law overriding with anything inconsistent stated in any other laws it will lead to utter confusion as regards the existing well established practices and systems of reporting the cases to special juvenile police unit or to the semi judicial bodies like Child Welfare Committees (CWC), Juvenile Justice Boards (JJB) etc. It will also clash with the procedures laid down in the ITP Act w.r.t the victims of sex trafficking post rescue. 31. Repatriation to another state A victim, on an order of the District Anti-Trafficking Committee or the Special Court may be repatriated to the home State or to another State for increased protection; Provided the District Anti-Trafficking Committee of the recipient district may take over the rehabilitation of the victim in such manner as may be prescribed by the appropriate Government. The term repatriation is used largely to mean returning to one s original citizenship or country. It is better left for that purpose rather than creating confusion over the use of the term for intra-country restoration. District Anti-Trafficking Committee is not a judicial body. It is an administrative body. The DATC cannot decide whether to repatriate a victim or not. Further, it cannot be made conditional to the willingness of the DATC of the recipient District to take over the rehabilitation. Unlike in the case of an offender in the case of a victim the right to repatriation cannot be denied. This is in complete violation of the victim s right to return to her/his own country. 19

20 32. Repatriation to another Country Where a victim from foreign country has been rescued and the State anti- Trafficking Committee is of the opinion that the victim needs to be repatriated to the country of origin, it may be dealt with the matter under any law for the time being in force. Same as above. 33. Appeal (1) Notwithstanding anything contained in the Criminal Procedure Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court under sections 16 and 17 of this Act and sections of the Indian Penal Code 1860 to the High Court both on facts and on law. (2) Every appeal under sub-section (1) shall be heard by a Division Bench of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. Why a time-frame only for the appeal why not for the very first trial of the case itself? In our own Writ Petition 1694 of 2003 at Mumbai High Court our prayer for a 6 months time frame to dispose off a case of child trafficking (Ordrr 6(h) was granted by the high court in April (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days. 34. Protection of Action Taken in Good Faith No suit, prosecution or other legal proceeding shall lie against the Central Government, or the State Government or any person acting under the directions of the Central Government or State Government, as the case may be, in respect of anything which is 15 done in good faith or intended to be done in pursuance of this Act or of any rules or regulations made thereunder. 20

21 The bureaucracy provides to protect itself well. The maximum and challenging anti trafficking work in this country has been done by the civil society organizations who are working on the coalface. The crime they are fighting is serious. They have been demanding some minimum element of immunity and protection. The Courts and governments have also been inclined to make such provision for the protection of the whistle blowers in the fight against corruption. A number of activists working to implement the Right to Information Act have been attacked. 35. Power of Central Government to make Rules The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act on the subject specified under this Act; Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government is required to make rules and where any such model rules have been framed in respect of any such matter, they shall apply to the State mutatis mutandis until the rules in respect of that matter are made by the State Government and while making any such rules, they conform to such model rules. The State Governments may lose their independence offered by the federal system. The inactivity and procrastination on the part of the Central government would slow down the State governments. e. g. The Goa Children s Act 2003 was a forerunner. I was commissioned by the Andhra Pradesh government to draft a child protection law for the state which was released for public comments in After that the central government came out with POCSO Act Power of the State Government to make rules (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act. (2) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature. procedural 37. Power to give directions The appropriate Government may give such directions as it may deem fit to any individual, person or body of persons or organisation, whether incorporated or not, in respect of any matter under this Act. Very vague 21

22 38. Laying of Rules Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agrees in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may 16 be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. Procedural 39. Power to Remove Difficulty If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, not inconsistent with the provisions of this Act, remove the difficulty: Provided, that no such order shall be made after the expiry of the period of two years from the commencement of this Act. Procedural 40. Section 360 of the Code and Probation of Offenders Act not to apply to persons committing an offence under this Act The provisions of section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of Offenders Act, 1958 (20 of 1958) shall not apply to any person above the age of eighteen years who is found guilty of having committed an offence under this Act. Although in some high profile cases recently we might have witnessed the misuse of the provision of probation of offenders in reality however it has not happened on a significant scale to justify making the complete provision inapplicable. It would amount to throwing away the baby along with the bath water. As a society evolves the soul and the substance of justice also evolve and move away from retributive justice to corrective / reformative justice. A better monitoring of the provision of probation by higher level judges could have been suggested instead of making it inapplicable. 41. Act to override other laws Save as otherwise provided in this Act, the provisions of this Act or any rule made thereunder or any order made under any such rule shall, have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having the force of law. 22