LegislationExamining the anti-trafficking Bill, 2018Roshni Sinha- February 13, 2019The 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 16thLok 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 ​Purpose2016(as a %)Forced labour10,50945.5Prostitution4,98021.5Other forms of sexual exploitation2,59011.5Domestic servitude4121.8Forced marriage3491.5Petty crimes2120.9Child pornography1620.7Begging710.3Drug peddling80Removal of organs20Other reasons3,82416.5Total persons23,117100Source: Human Trafficking, Crime in India, 2016, National Crime Records Bureau; PRSIn 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.What does the Bill seek to do?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.How does the Bill compare with existing trafficking laws?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,andthere 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.ParliamentFirst no-confidence motion of the 17th Lok Sabha discussed todayNiranjana Menon- August 8, 2023Discussion on the first no-confidence motion of the 17thLok Sabha began today.  No-confidence motions and confidence motions are trust votes, used to test or demonstrate the support of Lok Sabha for the government in power.  Article 75(3) of the Constitution states that the government is collectively responsible to Lok Sabha.  This means that the government must always enjoy the support of a majority of the members of Lok Sabha.  Trust votes are used to examine this support.  The government resigns if a majority of members support a no-confidence motion, or reject a confidence motion.So far, 28 no-confidence motions (including the one being discussed today) and 11 confidence motions have beendiscussed.  Over the years, the number of such motions has reduced.  The mid-1960s and mid-1970s saw more no-confidence motions, whereas the 1990s saw more confidence motions.Figure1: Trust votes in ParliamentNote: *Term shorter than 5 years; **6-year term.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.The no-confidence motion being discussed today wasmovedon July 26, 2023.  A motion of no-confidence is moved with the support of at least 50 members.   The Speaker has the discretion to allot time for discussion of the motion.  TheRules of Procedurestate that the motion must be discussed within 10 days of being introduced.  This year, the no-confidence motion wasdiscussed13 calendar days after introduction.  Since the introduction of the no-confidence motion on July 26, 12 Bills have been introduced and 18 Bills have been passed by Lok Sabha.  In the past, on four occasions, the discussion on no-confidence motions began seven days after their introduction.  On these occasions, Bills and other important issues were debated before the discussion on the no-confidence motion began.Figure2: Members rise in support of the motion of no-confidence in Lok SabhaSource: Sansad TV, Lok Sabha, July 26, 2023; PRS.Figure3: Number of days from introduction to discussion on no-confidence motionsNote: Number of days implies calendar days.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.On average, no-confidence motions (excluding the one being discussed today) have been discussed for 13 hours over three days.  Discussions have lasted longer than 20 hours on four instances, most recently in 2003.  Today’s no-confidence motion was allotted 12 hours discussion time by theBusiness Advisory Committee.Following the discussion, the motion is put to vote.  26 out of 27 no-confidence motions (excluding the one being discussed today) have been voted upon and rejected.  This means that no government has ever had to resign following a vote of no-confidence.   On one occasion, in 1979, the discussion on a no-confidence motion against the Morarji Desai government remained inconclusive.  He resigned before the motion was put to vote.  50% of all no-confidence motions (14 out of 28) were discussed between 1965 and 1975.  Of these, 12 were against governments headed by Indira Gandhi.Figure4: Duration of discussion on no-confidence motionsNote: This graph excludes the no confidence motion moved on July 26, 2023.Source: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.In comparison, confidence motions have a more varied history.  The first motion, brought in 1979 to demonstrate confidence in Charan Singh’s government, was not discussed at all.  The Prime Minister resigned before the discussion could take place.  Since then, 11 confidence motions have been discussed in Lok Sabha, with nine occurring in the 1990s.  During this period, several coalition governments were formed, and Prime Ministers sought to prove their majority throughconfidence motions.   These motions have been discussed, on average, for 12 hours over two days.Figure5: Duration of discussion of confidence motionsSource: Statistical Handbook 2021, Ministry of Parliamentary Affairs; PRS.Of the 11 confidence motions discussed in Lok Sabha, seven were accepted.  On three instances, governments had to resign as they could not prove that they had the support of the majority.  On one instance in 1996, the motion was not put to vote.  Following an eleven-hour discussion on this confidence motion, Prime Minister Atal Bihari Vajpayee announced his intention to resign on the floor of the House.  He resigned 16 days into his term.Vajpayee became Prime Minister again in 1999, and faced another confidence motion.   This time, it was put to vote.   The motion was defeated by a margin of one vote.  This has been the closest result on a trust vote in the history of Lok Sabha.  The next closest result was when a motion of no-confidence against P V Narasimha Rao’s government was defeated by 14 votes in 1993.  In most cases, results have been in favour of the government by a large margin.«12345678910»
LegislationExamining the anti-trafficking Bill, 2018Roshni Sinha- February 13, 2019