Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant petition wherein an order of conducting a Test Identification Parade (TIP) after a gap of 11 years was challenged; the Bench of Suraj Govindraj, J., observed that after a period of 11 years, a person’s memory becomes frail, therefore the identification by such witnesses cannot be considered trustworthy, hence, such an identification parade carried out after a lapse of these many years will not serve any purpose at all.

In 2006, crime No. 244/2006 was registered by the Basaveshwara Nagara Police Station against Umesh Shetty, s/o Ponnappa and others for the offences punishable under Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956. Though the accused persons had been arrested and remanded to judicial custody, subsequently they were released on bail and one of the accused absconded and was not found.

The investigation into the matter was completed, a charge sheet was prepared and a non-bailable warrant was issued. Since one of the accused was still absconding at the stage of issuance of warrant, a proclamation was issued under Sections 82 and 83 of CrPC. Thereafter, the non-bailable warrant was sought to be executed against the petitioner.

However, when the petitioner informed the concerned officer that he was not K. Umesh Shetty S/o. Ponnappa but K. Umesh Shetty, S/o. Late Vittal Shetty, thus not the person named in the warrant; the prosecution then filed an application seeking to conduct a test identification parade. The Trial Court in 2017 issued directions for the conduction of TIP. The petitioner challenged this order before the High Court in the instant petition.

The counsel for the petitioner contended that the offences were committed way back in 2006, hence conducting a test identification parade in 2017 would not arise since the same would be unbelievable on account of lapse of a long period of time i.e. more than 11 years. It was further submitted that if the present year is added then 15 years have passed since the commission of the above-stated offences, therefore a TIP at this stage will serve no purpose.

Counsel for the respondent argued that the name of the petitioner is the same as that of the accused and that there is a reasonable doubt of the petitioner being accused. Since the proceedings did not continue on account of the absence of the accused, the TIP would aid the prosecution to proceed with the matter in the event of the identity of the petitioner is similar to that of the accused.

Perusing the facts and contentions raised in the petition, the Court observed that the purpose of the Test Identification Parade is to ascertain the identity of a person who is alleged to be the accused or the perpetrator of a crime. The TIP must be carried out at the earliest so that there is no failing memory or improper memory which can be attributed to the test identification parade.

Noting the lapse of 16 years, the Court observed that a TIP at this point will serve no purpose, especially when the fingerprints of the petitioner did not match with the fingerprints found at the scene of occurrence. The petition was therefore allowed.

[K. Umesh Shetty v. State of Karnataka, 2022 SCC OnLine Kar 1537, decided on 14-09-2022]


Advocates who appeared in this case:

C.H. Jadhav, Senior Counsel for M. J. Alva., Advocate for the petitioner

Mahesh Shetty, HCGP for the respondent


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case BriefsSupreme Court

Supreme Court: In a landmark case, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., upheld sex workers right to identity and issued detailed directions for their protection and upliftment.

The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof.

The Court invoked Article 142 of the Constitution to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. The Court remarked,

“The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

Constitution of Special Penal

By an order dated 19-07-2011, the Court had constituted a panel with Mr. Pradip Ghosh as the Chairman, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan to assist and advise the Court for giving suitable directions in the matter. The terms of reference made to the panel were:

“(1) Prevention of trafficking,

(2) Rehabilitation of sex workers who wish to leave sex work, and

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.”

Later on, by an order dated 26-07-2012, the Court had modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.

Penal Report and Recommendations

After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report and the recommendations made by the panel were considered by the Union Government and a draft legislation was published incorporating the recommendations so made. Thereafter, periodically adjournments were taken by the Union government on the ground that the Bill is on the anvil.

Noticeably, the panel had recommended in respect of the third term of reference in the following terms:

  • “When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. The panel noted, There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.
  • Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the CrPC, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
  • Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
  • The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
  • Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.

“It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens.”

  • The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.
  • The newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
  • Measures that sex workers employ for their health and safety (e.g., use of condoms, 12 etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
  • The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work.
  • The Central Government and the State Governments should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.
  • No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”

Directions by the Court

Considering that no legislation has been made till date even though the recommendations were made by the Panel in the year 2016, the Court exercised its powers under Article 142 of the Constitution to implement the abovementioned recommendations. Accordingly, the State Governments/ UTs were directed to act in strict compliance of the recommendations by the panel. Similarly, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 were directed to comply with the provisions of the Act while the Union Government was directed to file its response to the recommendations made by the panel within a period of six weeks. The Court added,

“It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”

Aadhaar Card for Sex Workers

With regard to non-issuance of Aadhaar Cards to sex workers as they were unable to produce proof of their residence, earlier, the Court had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of residence proof for the sex workers. The UIDAI had proposed that sex workers who are on NACO’s list can be issued Aadhar Cards without having to submit a residence proof, provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO (National AIDS Control Organisation) or the State Health Department certifying the particulars of the applicant.

Some suggestions had been made by the organisations representing sex workers for the procedure to be followed by UIDAI; i.e. the procedure to obtain Adhar by sex workers should be publicize through outreach under the Targetted Intervention Programmes and issuance of the Adhar Cards should not be restricted to sex workers on the NACO list but also be extended to those who are identified by CBOs after verification. Since UIDAI had accepted the given suggestions, the Court directed that Aadhar Cards shall be issued to sex workers. The Court emphasized,

“There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”

The matter is listed on 27-07-2022 for further hearing.

[Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704, order dated 19-05-2022]


Kamini Sharma, Editorial Assistant has put this report together


Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna J. allowed the petition and quashed the proceedings in the case pending on the file of the Civil Judge and JMFC, Devanahalli, Bengaluru.

The facts of the case are such that an Assistant Immigration Officer at Bangalore International Airport caught 3 Indian nationals, who were intending to travel to Kaula Lampur by an Indigo flight being accompanied by another passenger by name Rajkumar – the petitioner. The passengers revealed that they were being taken by the petitioner to Kula Lampur for employment purposes on tourist VISAs. It was also informed that the petitioner was introduced to them by another agent named Kiran, based in Amritsar. Few of the persons who were questioned also indicated that they have paid some amounts to Rajkumar and others. Based upon the aforesaid interrogation and incident, a complaint came to be registered against the petitioner for offence punishable under Section 370 of the IPC. Aggrieved by the proceedings, the present petition was filed challenging the proceedings registered for the offences punishable under Section 370 of the IPC.

The Court after perusing complaint, charge sheet and Section 370 of the IPC observed that the petitioner had indulged himself in human trafficking and thus the soul of the provision is exploitation. There is no allegation in the complaint made by any victim alleging exploitation by the petitioner. The complaint, investigation and wavering statements of the persons, who accompanied the petitioner created suspicion in the mind of the Immigration Officer. The suspicion was on account of the statement of handing over of some cash to the petitioner by the people who accompanied him. This cannot in my considered view, be enough circumstance to prosecute the petitioner for offence punishable under Section 370 of the IPC for human trafficking.

The Court thus held “the petitioner would be acquitted for want of evidence, that would be an appropriate case where this Court would in exercise of its inherent jurisdiction under Section 482 of Cr.P.C., obliterate such proceedings.”

[Rajkumar v. State of Karnataka, 2022 SCC OnLine Kar 660, decided on 23-03-2022]


Appearances

For petitioners- MRC Manohar

For respondents- K P Yashoda


Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna J. allowed the criminal petition and quashed the proceedings in Crime No.347/2021 pending before the 32nd Additional CMM Court, Bangalore

The facts of the case are such that the petitioner was a customer in the brothel when the search was conducted by the respondent police. The instant petition is filed calling the petitioner before the Court for proceedings in an FIR registered for the offences punishable under Sections 3, 4, 5 and 6 of Immoral Traffic Prevention Act, 1956 (‘Act’ for short) and Section 370 of the IPC.

The Court relied on judgment Barath SP v. State of Karnataka, in Crl.P.No.1757/2022 disposed on 24-03-2022 and observed that a customer, in a brothel, cannot be hauled into criminal proceedings.

The Court thus held “the facts obtaining in the case at hand are identical, as the aforesaid criminal petition was also considering the case of a customer in a brothel at the time of search. It would, therefore, cover the case at hand on all its fours.”

[Babu v. State, Criminal petition No. 2119 of 2022, decided on 04-04-2022]


Appearances:

For petitioner- Mr. Ravi R

For respondent- Ms. Yashodha K P


Arunima Bose, Editorial Assistant has reported this brief.

Patna High Court
Case BriefsHigh Courts

Patna High Court: While addressing the plight of a minor girl who was first trafficked by her own maternal uncle and was later on thrown into prostitution for monetary gains, Rajeev Ranjan Prasad, J., emphasised on need for sensitization of Judicial Officers with regard to statutory provisions of POCSO Act, JJ Act and Immoral Traffic (Prevention) Act.

Background

A raid was conducted by Begusarai Police in the house of the accused (maternal uncle of the victim) from where a girl child aged about 15 years was rescued, the victim girl was found inside the room with an unknown person, two empty bottles of wine, medicine of Aids, pregnancy test kits, eleven used condoms and 100 unused condoms were found from there and the victim girl herself admitted before police that she was being subjected to prostitution forcibly and her maternal uncle and aunt were taking away the money. The victim disclosed that she did not remember name of her parents and on refusal to get involved in prostitution she was being beaten by the accused persons.

At this stage, the respondent 2 did not claim that she happened to be the mother of the victim. Though, at the time of making her statement under Section 164 CrPC, which was recorded ten days after she was produced before the Magistrate after her recovery from the brothel, the victim claimed that her mother was living with her for last one month.

Non-compliance of Statutory Safeguards

The prosecution case was that the Special Judge (POCSO) had erroneously directed release of the minor victim of alleged sexual offences in favour of respondent 2 who claimed herself to be the mother of the victim. The prosecution alleged that the impugned order was passed in non-compliances with the mandatory provisions of the Immoral Traffic (Prevention) Act, 1956, the provisions of Juvenile Justice Act, 2015 and the provisions of Protection of Children from Sexual Offences Act, 2012.

Analysis by the Court

After about four days when the statement of the victim was recorded under S. 164 of CrPC, the respondent 2 filed an application before the Special Judge to allow her to meet the victim girl in the Balika Grih which was allowed subject to proper identification. Later on, the Superintendent, Balika Grih, informed the Special Judge that respondent 2 could not be identified in CCTV Camera by the victim girl. Opining that the letter of the Superintendent should have been an eye opener for the Special Judge, the Bench stated that by that time the victim girl had not been approached, she could not be tutored and therefore she had not recognized respondent 2. However, the Special Judge allowed the respondent 2 to meet the victim.

“After six days, if the victim girl had disclosed the name of her mother as (respondent 2), there was a possibility that during these six days the accused persons would have been able to influence her to make statements favourable to the accused.”

Later on, the application for custody was taken up for consideration and on the same day the victim girl was handed over to (respondent 2) by just taking note of the fact that the victim had desired in her statement under Section 164 CrPC that she wanted to go with her mother.

Considering the prosecution case that no inquiry was made by the Special Judge to find out the genuineness of the claim of respondent 2 that she happened to be the mother of the victim and the order was passed in complete violation of the mandatory provision to make inquiry in respect of her age, parentage etc. in terms of sub-section (2) of Section 17 of the Act of 1956, the Bench opined that the Special Judge had acted in hot haste in passing the order of release of the victim minor girl in favour of respondent 2.

Opining that the identity of respondent 2 as mother of the victim girl was still shrouded by mystery, the Bench was of the view that the Special Judge had completely erred in abiding by the mandatory provisions and by not appreciating that the child who was being placed in the hand of respondent 2 was victim of alleged immoral trafficking as she had categorically stated before Police that she was being subjected to prostitution forcibly. While it was the duty of the Court to treat the victim girl as a child in need of care and protection and she should have been ordered to be produced before the Child Welfare Committee.

Conclusion and Directions

In the backdrop of above, the Bench held that the impugned order suffered from illegalities and infirmities rendering the order illegal and bad in law as also against the interest of the victim child. Accordingly, setting aside the order, the Bench remarked,

“The fact that victim child had been recovered again from the house of the accused persons and the report of social worker saying that at this stage of her life she being subjected to perform dance and stage shows to earn her livelihood and also the livelihood of her mother further shows that she is in need of care and protection.”

Further, noticing that presently the victim girl was with the Balika Grih and the medical Board had assessed her age between 16- 17 years, the Bench directed that until she attains majority, she would continue to stay in the Balika Grih itself and being major her release should be considered in terms of Section 46 of the J.J. Act with financial support in order to facilitate her reintegration into the mainstream of the society. Additionally, the Court directed the following:

  1. The Trial Court shall ensure that the accused persons and their pairvikar do not get access to the victim girl.
  2. Proper inquiry in accordance with law as to the genuineness of the claim of respondent 2 should be held as early as possible.
  3. With the view to sensitize all the stake holders the Bench directed the State through its Chief Secretary, the Home Secretary and the Director General of Police, as also the judicial officers across the State, Bihar State Legal Services Authority and the District Legal Services Authority to ensure that they look into the mandatory provisions of the aforesaid statutes whose aim and objects are to protect the child from all kinds of exploitations.
  4. The areas of these provisions which are required to be addressed be clearly identified, minuted and a monitoring cell be constituted to duly address and comply with the mandate of these legislations.
  5. Bihar State Legal Services Authority was directed to examine as to what extent the directions issued Apne Aap Women Worldwide Trust India v. State of Bihar, 2014 SCC OnLine Pat 5013, have not been complied with and bring it to the notice of the Chief Justice of the Court to consider registering an appropriate proceeding to monitor the implementation of those directions.
  6. Lastly, the Bench directed to circulate the copy of instant judgment to all the District Judges in Bihar with request to organize a workshop in their respective Judgeship with all the judicial officers and Members of the J.J. Board and the Child Welfare Committee to discuss the laws on the subject and ensure compliances therewith.

[Hanif Ur Rahman v. State of Bihar, 2021 SCC OnLine Pat 2775, decided on 4-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Kriti Awasthi, Advocate, Sambhav Gupta, Advocate, Navnit Kumar, Advocate and Shyam Kumar, Advocate

For the Respondents: Mr.Nadim Seraj, G.P.5

For the Respondent 2: Archana Sinha, Advocate

For the Respondent 4: Prabhu Narain Sharma, Advocate

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Singh Thakur, J., granted regular bail on grounds that she is a mother of an infant child dependent upon her breasts feeding.

The facts of the case are such that the victim left home for school and did not return. On her father contacting school authorities got to know that school was not open that day. He went to register a complaint at the police station under Section 363 Penal Code, 1860 i.e. IPC and investigation started. On investigation, it was found that her phone was being used in various locations and two numbers were contacted most frequently. The last location of the victim was Panipat after which the phone was switched off. The petitioner is the sister of the main accused Nazim who is charged under Sections 366A, 370(4), 506 and 120B IPC. The victim was recovered from the petitioner and after victim’s statement was recorded, the petitioner was brought to police station for interrogation and was arrested later. The Petitioner has approached this Court under Section 439 Criminal Procedure Code (i.e. Cr.P.C.), seeking regular bail.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that petitioner is a woman having her family and a permanent home in Village Dhakia, District Amroha, U.P., and there is no possibility of her fleeing from justice.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that that co-accused Ibad, who is husband of petitioner is not submitting himself to the Investigating Agency for interrogation and petitioner was actively playing role for hiding a minor girl (victim) and had been resisting handing over the girl to the police.

The Court observed that Section 437 CrPC deals with situation when accused is produced before the Magistrate and Section 439 CrPC devolves special power on the High Court and/or Court of Sessions regarding the bail and both Sections deal with different situations in different Courts, but it is also settled position that provisions contained in Sections 437 and 438 CrPC can also be taken into consideration at the time of considering bail under Section 439 CrPC. In fact, Section 437 CrPC refrains the Court, other than the High Court or Court of Sessions, from releasing a person, accused or suspect of commission of any non-bailable offence, who is arrested or detained for without warrant, or appears, or is produced before such Court and there appears reasonable ground for believing that he is guilty of an offence punishable with death, or imprisonment for life. However, an exception has been carved out enabling such Court to release such a person on bail, in case, such person is under the age of sixteen years, or is a woman, or is sick, or infirm, with the further provision that no such person shall be released without giving an opportunity of hearing to the Public Prosecutor.

The Court thus held “Considering entire facts and circumstances brought before me with respect to role of petitioner coupled with the fact that she is a mother of an infant child dependent upon her breasts feeding, I am of the opinion that at this stage, petitioner is entitled to be enlarged on bail”.

In view of the above, petition was dismissed.[Nasrin v. State of Himachal Pradesh, 2021 SCC OnLine HP 657, decided on 09-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

“Justice will not be served until those who are unaffected are as outraged as those who are.”

 – Benjamin Franklin

Objective

It is written with an objective to reflect on the laws currently in force in India, to tackle the global menace of human trafficking and contemplate the journey ahead to reach towards elimination of this socio-politico-economic evil through legislative competence, executive efficiency and judicial courage.

Introduction

According to the definition of United Nations: “trafficking is any activity leading to recruitment, transportation, harbouring or receipt of persons, by means of threat or use of force or a position of vulnerability”. Human trafficking is the trade of humans for the purpose of forced labour, sexual slavery, or commercial sexual exploitation for the trafficker or others. This may encompass providing a spouse in the context of forced marriage or the extraction of organs or tissues, including for surrogacy and ovary removal. It can happen in any community and victims can be of any age, race, gender or nationality. Traffickers might use violence, manipulation, or false promises of well-paying jobs or romantic relationships to lure victims into trafficking situations. People can be trafficked and exploited in many forms, including being forced into sexual exploitation, labour, begging, crime (such as growing cannabis or dealing drugs), domestic servitude, marriage or organ removal. Human trafficking is an egregious human rights violation that occurs throughout the world. Due to its complex cross-border nature, human trafficking requires a coordinated, multi-disciplinary national and international response. Human trafficking is the third largest organised crime after drugs and the arms trade across the globe.

Legal Framework against Human Trafficking in India

At present the legal regime of trafficking in humans is explicitly and implicitly governed by the following statutes towards curbing the menace. The table containing relevant provisions is as follows:

Immoral Traffic (Prevention) Act, 1956

Section 3 – It provides for punishment to a person for keeping a brothel or allowing premises to be used as a brothel or who is in charge of any such premises either by himself or through a tenant, occupier, etc.


Section 4 – It provides for punishment to any person over 18 years of age, living on the earnings of prostitution of another person.


Section  5 – It provides for punishment to any person who is involved in procuring, inducing or taking another person for the sake of prostitution.


Section 6 – It provides for punishment to a person who detains another person with or without his consent in any brothel or any premises for prostitution with an intent that such detained person may have sexual intercourse with any person who is not the spouse of such detained person.


Section 7 – Any person who carries on prostitution and the person with whom such prostitution is carried on in any premises which is within close proximity to a public place, including a hospital, nursing home, place of religious worship, hostel, educational institution, or in an area notified under the provisions of the Act, can be punished with imprisonment for a term of three months.


Section 8 – Seducing or soliciting for the purpose of prostitution is also an offence and punishable with imprisonment up to six months or a fine up to Rs 500, in the case of a first conviction. In case of a subsequent conviction, the prison sentence can be extended up to one year including a fine of Rs 500. However, if the person soliciting is a man, the statute provides that he shall be punishable with not less than seven days imprisonment which may be extended to three months.


Section 18 – A Magistrate can order the immediate closure of a place that is being used as a brothel or as a place for prostitution and is within 200 meters of any “public place” as referred to in Section 7 above, and direct the eviction from the premises from where any person is ostensibly carrying out prostitution on receipt of information from the police or otherwise. The occupier is given only seven days notice for eviction from such premises.


Section 20 – It empowers a Magistrate, on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, to issue notice to such person requiring him to appear before the Magistrate and show cause why he should not be removed from the place and be prohibited from re-entering it, and an order to be passed by the Magistrate effecting the same on merits, non- compliance of which will attract punishment in accordance with this section.


Section 21 – The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions when established shall be maintained in such manner as may be prescribed. Whoever establishes or maintains a protective home or corrective institution except in accordance with the provisions given shall be punishable under this section.


Section 22-A – If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the Official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the First Class, or, as the case may be, Metropolitan Magistrate, in such district or metropolitan area.


Section 22-B – Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a Magistrate [including the presiding officer of a court established under sub-section (1) of Section 22-A] and the provisions of Sections 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply to such trial

Constitution of India

Article 23 –  It specifically prohibits “traffic in human beings and begar and other similar forms of forced labour”.


Article 39 – It states that men and women should have the right to an adequate means of livelihood and equal pay for equal work; that men, women and children should not be forced by economic necessity to enter unsuitable avocations; and that children and youth should be protected against exploitation. It is enshrined in the Constitution in the form of a directive to be followed while formulating policies for the State.


Article 39-A – It directs that the legal system should ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.


 Note: Articles 14, 15, 21, 22 and 24 also emcompass certain provisions relating to human trafficking.

Penal Code, 1860

Penal Code, 1860 specifically deals with two kinds of kidnapping:
(a)  Section 360Kidnapping from India

(b) Section 361– Kidnapping from lawful guardianship


Section 362 – A trafficked person can also be subjected to an act of abduction covered under this section which involves using of deceitful means by another and thereby forcefully compelling this person to go from any place.


Section 363-A specifically punishes any person who kidnaps or maims a minor for purposes of begging.


Section 365 punishes any person who kidnaps or abducts another person with intent to secretly and wrongfully confine him/her.


Section 366 – punishes any person who kidnaps, abducts or induces woman to compel her marriage against her will, or be forced/seduced to have illicit intercourse.


Section 366-A punishes any person who by any means whatsoever induces any minor girl under the age of 18 years to go from any place or to do any act that such girl may be forced or seduced to have illicit intercourse with another person.


Section 370 – By the Criminal Law (Amendment) Act, 2013, this section punishes all acts of trafficking in human beings and their exploitation.


Section 372 – If any person sells, lets to hire  or disposes of any other person who is a minor i.e. under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.


Section 373 – If any person buys, hires or obtains possession of  any other person who is a minor i.e. under the age of 18 years for purposes of prostitution, etc. shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.


Sections 354, 354-A , 354-B , 354-C, and 354-D – These sections punish any person who assaults or uses criminal force on a woman intending to outrage modesty, disrobe her, or to commit an offence of voyeurism or stalking. Sections 354, 354-A, 354-B, 354-C, and 354-D were added by the Criminal Law (Amendment) Act, 2013.


Section 366-B – Any girl under age of 21 years being imported from a foreign country by a person with an intent that she will be forced or seduced to illicit intercourse with another person, the person so importing shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.


Sections 375 and 376 – These sections were added to make the justice-delivery system more responsive to the sexual offences against women. It explicitly deals with the definitions of rape, gang rape, repeatedly raped which is a major consequence of trafficking and also lays down punishments for such acts under the said sections.


Section 374 –The section defines that any person who compels another person to labour against his will shall be punished with imprisonment up to 1 year or fine or both. This section punishes those people who are involved in trafficking in humans with an intention to forced labour and grave exploitation.


Bonded Labour System (Abolition) Act, 1976

[Read here]

An Act to provide for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people. The Act prohibits anyone from making any advance or compelling any person to render any bonded labour and states further that any agreement or custom requiring any person to do work as a bonded labour is void and provides for punishment for anyone who compels any person to render bonded labour or advance any bonded debt. Punishment in both cases is imprisonment up to 3 years and fine up to 2000 rupees. The bonded laborers are to be treated as victims and not as offenders.


Child and Adolescent Labour (Prohibition and Regulation) Act, 1986

[Read here]

An Act to prohibit the engagement of children in all occupations and to prohibit the engagement of adolescents in hazardous occupations and processes. It prohibits employment of children in hazardous industries and lays down safety measures and other requirements which shall be met irrespective of what is stated in other labour legislations.


Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

[Read here]

An Act to prevent the commission of offences related to atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences. Many victims are from marginalised groups because traffickers are targeting on vulnerable people in socially and economically backward areas. This Act provides an additional tool to safeguard women and young girls belonging to SC/ST and also creates greater burden on the trafficker to prove his lack of complicity in the crime. This can be effective if the offender knows the status of victim. It specifically covers certain forms of trafficking, forced or bonded labour and sexual exploitation of women. A minimum punishment of 6 months is provided that could extend up to 5 years in any offence covered under the Act regarding trafficking in humans.


 Transplantation of Human Organs and Tissues Act, 1994

[Read here]

This Act deals with criminal responsibility in cases of harvesting of organs and trafficking of persons for this purpose. The perpetrator includes traffickers, procurers, brokers, intermediaries, hospital or nursing staff and medical laboratories and their technicians involved in the illegal transplant procedure. Section 11 declares prohibition of removal or transplantation of human organs for any purpose other than therapeutic purposes and Section 19 deals with commercial dealing in human organs and clarifies that it punishes those who seek willing people or offer to supply organs and such traffickers and alike shall be punished with imprisonment for a term which shall not be less than five years but which may extend to ten years and shall be liable to fine which shall not be less than twenty lakh rupees but may extend to one crore rupees.


Protection of Children from Sexual Offences Act, 2012

[Read here]

It has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children. Sexual offences are currently covered under different sections in Penal Code. However, Penal Code, 1860 does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.


Criminal Procedure Code, 1973

[Read here]

Responsibility for providing compensation to trafficking victims is fragmented between the Central Government and individual States. This is largely the result of Section 357 and Section 357-A CrPC. When the punishment itself contemplates sentence or fine Section 357 CrPC provides that the fine can be passed on to the victim. Even if that is not so, Section 357-A CrPC have the fund — a State fund, which can be extended to the victims of any crime (not limited to trafficking) who have suffered loss or injury. However, it fails to note the form or degree of such compensation.


Evolution through Judicial Pronouncements

 What is Human Trafficking

It was clearly laid down as early as in 1953 in Raj Bahadur v. State of W.B., 1953 SCC OnLine Cal 129 that traffic in human beings mean to deal in men and women like goods, such as to sell or let or otherwise dispose of. It would include traffic in women and children for immoral or other purposes.

Heinous Nature of the Crime vis-à-vis Moral Culpability

The Court observed in Vishal Jeet v. Union of India, (1990) 3 SCC 318 that:

“The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. It is highly deplorable and heartrending to note that many poverty stricken children and girls in the prime of youth are taken to ‘flesh market’ and forcibly pushed into the ‘flesh trade’ which is being carried on in utter violation of all cannons of morality, decency and dignity of humankind. There cannot be two opinions—indeed there is none—that this obnoxious and abominable crime committed with all kinds of unthinkable vulgarity should be eradicated at all levels by drastic steps.”

 Human Trafficking and Child Prostitution

In Vishal Jeet v. Union of India, (1990) 3 SCC 318  the Court laid down following directions in this regard:

  1. All the State Governments and the Governments of Union Territories should direct their law enforcing authorities concerned to take appropriate and speedy action in eradicating child prostitution.
  2. The State Governments and the Governments of Union Territories should set up a separate Advisory Committee within their respective zones to make suggestions regarding the measures to be taken and the social welfare programmes to be implemented for the children and girls rescued from the vices of prostitution.
  3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatrists and doctors.
  4. The Union Government should set up a committee of its own to evolve welfare programmes on the national level for the care, protection, rehabilitation, etc. of the young fallen victims and to make suggestions of amendments to the existing laws for the prevention of sexual exploitation of children.
  5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
  6. The Advisory Committee can also delve deep into devadasi system and jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.

Human Trafficking and Bonded Labour

The Supreme Court in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 has elucidated the rehabilitation of bonded labour and directed the Government to award compensation to released/rescued bonded labour under the provisions of Bonded Labour System (Abolition) Act, 1976 after taking note of serious violation of fundamental and human rights:

“The rehabilitation of the released bonded labourers is a question of great importance, because if the bonded labourers who are identified and freed, are not rehabilitated, their condition would be much worse than what it was before during the period of their serfdom and they would become more exposed to exploitation and slide back once again into serfdom even in the absence of any coercion. The bonded labourer who is released would prefer slavery to hunger, a world of ‘bondage and illusory security’ as against a world of freedom and starvation.”

It may be pointed out that the concept of rehabilitation has the following four main features as addressed by the Secretary, Ministry of Labour, Government of India to the various States Governments:

  • Psychological rehabilitation must go side by side with physical and economic rehabilitation.
  • The physical and economic rehabilitation has 15 major components, namely, allotment of house sites and agricultural land, land development, provision of low cost dwelling units, agriculture, provision of credit, health medical care and sanitation, supply of essential commodities, education of children of bonded labourers and protection of civil rights, etc.
  • There is scope for bringing about an integration among the various central and State sponsored schemes for a more qualitative rehabilitation and to avoid duplication.
  • While drawing up any scheme/programme of rehabilitation of freed bonded labour, the latter must necessarily be given the choice between the various alternatives for their rehabilitation and such programme should be finally selected for execution as would meet the total requirements of the family of freed bonded labourers to enable them to cross the poverty line on the one hand and to prevent them from sliding back to debt bondage on the other.

The Supreme Court in PUCL v. State of T.N., (2013) 1 SCC 585 directed the District Magistrates to effectively implement Sections 10, 11 and 12 of the Bonded Labour System (Abolition) Act, 1976 and expected them to discharge their functions with due diligence, empathy and sensitivity, taking note of the fact that the Act is a welfare legislation.

Human Trafficking and Child Labour

In Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 P.N. Bhagwati, J., observed:

6. It is obvious that in a civilised society the importance of child welfare cannot be over-emphasised, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a ‘supremely important national asset’ and the future well-being of the nation depends on how its children grow and develop.”

The Supreme Court in M.C. Mehta v. State of T.N., (1996) 6 SCC 756 seeing the severe violation of fundamental rights in cases of child labour observed:

“… if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. Therefore, unless the family is assured of income aliunde, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended.

… if employment of child below the age of 14 is a constitutional indiction insofar as work in any factory or mine is concerned, it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfilment of legislative intendment behind enactment of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.”

 In view of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs 20,000 which is to be deposited in Child Labour Rehabilitation-cum-Welfare Fund.

Constitution of Committee to Combat Trafficking in Humans

In Gaurav Jain v. Union of India, (1997) 8 SCC 114, the Supreme Court passed an order directing, inter alia, the constitution of a committee to make an in-depth study of the problems of prostitution, child prostitution, and children of prostitutes, to help evolve suitable schemes for their rescue and rehabilitation.

The Supreme Court observed:

27. … The ground realities should be tapped with meaningful action imperatives, apart from the administrative action which aims at arresting immoral traffic of women under the Immoral Traffic (Prevention) Act through inter-State or Interpol arrangements and the nodal agency like the CBI is charged to investigate and prevent such crimes.”

The Central Government pursuant to the directions issued by the Supreme Court in Gaurav Jain case constituted a “Committee on the Prostitution, Child Prostitutes and Plan of Action to Combat  Trafficking and Commercial and Sexual Exploitation of Women and Children”.  

Vocational Trainings and Social Welfare Boards

The Supreme Court in Budhadev Karmaskar v. State of W.B., (2011) 11 SCC 538 had issued notice to all States while noting down the concern on the pathetic conditions of sex workers:

 “… we strongly feel that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation all over the country for physically and sexually abused women commonly known as prostitutes as we are of the view that the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed.

A woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body. Hence, we direct the Central and the State Governments to prepare schemes for giving technical/vocational training to sex workers and sexually abused women in all cities in India.”

Critical Analysis — Old Wine in a New Bottle

There need to be a comprehensive single legislation that will cover all forms of trafficking. Hence, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was introduced in Lok Sabha by the Minister of Women and Child Development, Ms Maneka Gandhi on 18-7-2018 and passed in that House on 26-7-2018 which eventually lapsed later due to dissolution of the 16th Lok Sabha. The Bill provided for the prevention, rescue, and rehabilitation of trafficked persons. The present legislation/well intentioned but lapsed Bill ignored the factors that drive people to risky situations and failed to integrate the lessons learned by anti-trafficking stakeholders since the adoption of the United Nations Trafficking Protocol popularly known as “Palermo Protocol”. It adopted a belief that trafficking can be stopped through harsh punishments, rather than addressing root causes, and this indeed may have undermined, rather than protected, the human rights of trafficked persons. Implementing a rights-based approach that facilitates, and does not criminalise migration and one that promotes decent work is the most constructive approach to prevent human trafficking.  This is expected to be the litmus test while drafting the next Bill.

Conclusion

While the lapsed Bill was a well-timed and well-intentioned attempt by the Indian Government to enact a comprehensive legislation which will tackle human trafficking and its fundamental problems. However, the Government was supposed to adopt a broader perspective towards trafficking in accordance with Expert Committee recommendations. Ensuring effective legislation and its implementation will take time and patience but considering Modi Government has a clear majority in Parliament and that the Women and Child Development Ministry is fully devoted towards fighting this menace, it is hoped that any new Bill will bring all stakeholders on board to enact a people-centered social legislation which addresses some of the problems identified here and in line with the expert committee recommendations.

Thus, it may be concluded using the words of Justice V.R. Krishna Iyer, without prejudice to any one gender,

“No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free — free to live without sale of their young flesh to lascivious wealth or commercialising their luscious figures….”

OP. ED.

“You may choose to look the other way but you can never say again that you did not know.”

-William Wilberforce

30th July is marked as the day to spread awareness of the plight of human trafficking victims with a message to make this world a better place to live in.

Human Trafficking manifests modern-day slavery, which is the most brutal form of crimes and one of the most serious human rights abuses. An individual suppressing another by using force and taking advantage of the person’s vulnerability while ravaging dignity and integrity in the most extensive form is what constitutes human trafficking.

Diminishing the self-worth of a person and leading him/her to an environment that is nothing less than prison and forcing an individual to put themselves on exhibit and act like a profit-making machine for the predators/traffickers is the essence of human trafficking.

The primary cause of this phenomenon is poverty, which draws the victim towards the trafficker by putting up their dignity on display with costs. Sometimes in the semblance of religious beliefs or at times parents trying to repay their debts push their young ones into this horrendous trap.

The three most common types of human trafficking are Forced Labour, Sex trafficking and Debt Bondage.

Trafficking in persons is defined by the UN as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.

According to the United Nations, following are the elements that constitute Human Trafficking:

The Act (What is done)

Recruitment, transportation, transfer, harbouring or receipt of persons

 The Means (How it is done)

Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim

 The Purpose (Why it is done)

For the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs.

 Human Trafficking is one of the gruesome acts for which several organisations have been fighting for more than a decade now.

Prevalence of a generic thought about Human Trafficking, which acts as a common belief among society is sex trafficking. This myopic belief draws a conclusion in the mind of people which is restrictive in nature in turn diluting the understanding of the real aspect of this humongous term.

Every occurrence of human trafficking, which ranges from being forced, tricked or misled into modern-day slavery or enslaving individuals for personal benefit in any manner is disastrous for any individual. If these people are able to escape a shrouded abduction and hidden enslavement, they have specific needs that are unique to their situation. We have leading agencies working on rehabilitation, but the question arises that are we as a society raising enough awareness to tackle this syndrome and put an end to it.

Traffickers lure these victims with the promise of a superior and better life and eventually leads them to be blinded and getting abused. 

Human Trafficking is one of the ugliest forms of human rights violations. It is a torturous web wherein people fall prey to being tortured and exploited with no mercy on them. This gruesome act has no boundaries or discrimination, in fact, a person as old as 60 years to a child aged 5 years could also be in the line of victims/survivors.

This condemnable crime can take a step back every day if we keep taking steps forward in becoming more prudent as individuals and create awareness among people.


† Legal Editor, EBC Publishing Pvt. Ltd.

Case BriefsHigh Courts

“No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free – free to live without sale of their young flesh to lascivious wealth or commercializing their luscious figures….”

— Justice V.R. Krishna

Orissa High Court: S.K. Panigrahi, J., while addressing a petition observed that,

“…crime of trafficking girls is dehumanizing as well as utterly shameful to our civilized society.”

Accused in the present matter is allegedly notorious for his aplomb in identifying girls and capitalising their distress condition but caught red-handed by police.

Factual Matrix

Inspector of Police, Alok Kumar Jena had received information that Ibrahim Khan and Rukhsar Begaum from District were engaged in regularly trafficking girls from Kolkata and other places and further engage them in sexual exploitation for commercial purposes from which the two persons mentioned derived income.

These girls were forcefully sent to various hotels and lodges where they were subjected to sexual abuse and exploitation.

Raid was conducted on receiving the information.

During the examination of the victims, it was revealed by them that Ibrahim Khan and Ruksar Begum and certain other unknown persons have procured them from Kolkata and on some false pretext of employment in beauty parlors forced them into sexual slavery and prostitution.

Petitioner was forcibly sending them to various hotels and lodges and were arranging customers for such illegal act.

Petitioner herein was acting in concert with aforesaid principal accused by making wide publicity among the prospective customers to be in touch with them for such act.

Ibrahim Khan and Ruksar Begum had confessed that they were running a prostitution racket by forcefully exploiting victims.

Further victims on being rescued were kept in shelter home and the accused persons were apprehended under Section 4 and 5 of the Immoral Trafficking (Prevention) Act read with Sections 370(3), 467, 471 & 120B/34 of Penal Code, 1860. An FIR was filed against the said accused persons.

Court

Bench while perusing the above, stated that girls statement reveals that the accused persons were threatening them to face starvation in case they try to flee from the said house.

Prima facie, it appears to be a complete racket run by the principal accused and his accomplice though the complete picture will emerge from a thorough trial.

Court observed that, despite constitutional dictums and legal provisions, the humanity is still struggling to combat human trafficking.

Bench also added that unfortunately, despite the protection afforded by the Constitution, the stringent laws and large number of treaties and conventions, commercial sexual exploitation with its concomitant human rights abuse is expanding multi-fold.

Such exploitation is now not confined to conventional brothels, but is spreading everywhere including residential areas, hotels, clubs etc. as apparent in the present case.

High Courts of several states have not only recognized the menace of human trafficking but also taken up cases for strengthening the Institutional Machinery and various statutory agencies mandated by various laws.

Heinous Crime

Even if the accused had a limited role in selling the victims or in the prostitution business, no leniency can be shown to him inasmuch as he played a major role in the racket to push the helpless and innocent girls into prostitution.

Supreme Court in its decision of Vishal Jeet v. UOI, (1990) 3 SCC 318, while discussing the evils of prostitution, observed the need for the courts and law enforcement agencies to take stringent action to curb the menace.

Sex Rackets

Kingpins behind the sex rackets exert considerable influence in the area and are bound to intimidate the victims.

Nature of crime is such that grant of bail will only embolden such hardened criminals, who keep evading the law and punishment, to perpetuate such heinous crimes.

Collective Morality of society and markedly skewed legislations

Complex and troubling issue as emerged in the instant case demonstrates a conflict between collective morality of the society and markedly skewed legislations which mismatches the culpability of the participants in questions and the recipient of the services.

There seems to be an all-pervasive puritan, moral, anti-prostitution posture of the Government, but in practice, there is a yawning gap between the law and its enforcement which results in abysmally low conviction rates.

The accused in present case have already been granted bail. Thus the court is constrained to grant bail to the accused in the instant case on the grounds of parity alone.

Hence, in view of the above, present bail application was disposed of. [Panchanan Padhi v. State of Odisha, 2020 SCC OnLine Ori 492 , decided on 29-06-2020]

NewsTreaties/Conventions/International Agreements

The Union Cabinet has given approval for the Memorandum of Understanding (MoU) between India and Myanmar on bilateral cooperation for the Prevention of Trafficking in Persons; Rescue, Recovery, Repatriation and Re-integration of Victims of Trafficking.

The MoU aims:

  • To strengthen the bonds of friendship between the two countries and to increase bilateral cooperation on the issues of prevention, rescue, recovery and repatriation related to human trafficking.
  • To strengthen cooperation to prevent all forms of human trafficking and to protect and assist the victims of trafficking
  • Ensure speedy investigation and prosecution of traffickers and organized crime syndicates in either country.
  • To strengthen immigration and border controls cooperation and implementation of strategies with relevant Ministries and Organizations to prevent trafficking in persons.
  • Setting up Working Groups/ Task Force to make efforts to prevent human trafficking
  • Develop and share database on traffickers and victims of trafficking in a safe and confidential manner and exchange information through designated focal points of India and Myanmar
  • Capacity building programmes for the agencies concerned of both countries.
  • Formulation and adoption of Standard Operating Procedures for Rescue, Recovery, Repatriation and Integration of the victims of trafficking.

Background:

Human Trafficking has national as well as international ramifications. The complex nature of human trafficking calls for a multidimensional strategy in tackling it at domestic, regional and international level. Being global in scope, international cooperation and collaboration is essential to check trafficking in persons.

Strengthening cooperation between border control agencies and the establishment of direct channels of communication between India and Myanmar can be an effective tool in countering trafficking in persons and promoting cross-border and regional cooperation.


Cabinet

[Source: PIB]

[Press Release dt. 27-11-2019]

Case BriefsHigh Courts

Bombay High Court – In the light of  increasing incidents of human trafficking and misuse of the provisions of bail by the accused in such cases, the division bench of Roshan Dalvi and Shalini Phansalkar Joshi, J.J, issued stringent guidelines for the grant of bail in cases of trafficking under the Immoral Trafficking (Prevention) Act, 1956 (ITPA). The Court reiterated the functions of police officers, prosecutors and judicial officers in the conduct of such cases and devised a bail check-list proforma, to be used and kept in the records and proceedings of the cases, by the Magistrates and Judges, while deciding the application for bail. Furthermore, the Commissioner of Police, Pune was directed to set up a team under a Special Police Officer to trace the accused in such cases.

The PIL was filed in the Court by Roshani Joseph, on behalf of Freedom Firm against the Commissioner of Police, Pune and the State, contending that the accused in cases of human trafficking exploit the provisions of bail to stall proceedings under the ITPA, and abscond as soon as there is satisfactory evidence to merit their conviction. Sharmila S. Kaushik, counsel on the behalf of the State, argued that the Police has no control over the accused, as once released on bail they flee to Nepal or Bangladesh.  Both counsels were in agreement with the view that it is necessary to have guidelines, to be followed, while releasing the accused on bail.

The Court held that, not being trafficked is a fundamental right of every Indian citizen, under Article 23 (1) of the Constitution and the prosecution has failed to use the legitimate weapon of bail cancellation, when the accused absconds. Addressing the contention of the Police, the Court stated that under Article 1 of the Treaty of Extradition between Government of India and Nepal, the countries have agreed to deliver accused criminals in each others territory, on the basis of strict reciprocity. Aggrieved by the sordid state of criminal justice machinery, the Court further laid down rigorous conditions for acceptance of sureties if the accused is released on bail. [Freedom Firm v. Commissioner of Police., 2015 SCC OnLine Bom 4265 decided on 30-10- 2015]