January 10, 2025
For Victims Of Sex Trafficking, The Supreme Court Has Reserved Its Decision On The Victim Protection Protocol
Supreme Court

For Victims Of Sex Trafficking, The Supreme Court Has Reserved Its Decision On The Victim Protection Protocol

Dec 17, 2024

Last Updated on December 17, 2024 by Arti Kumari

The Supreme Court said orally that they will take the issue “very seriously” and postponed the decision to seek a complete victim protection procedure for sex trafficking victims today, December 17.

A miscellaneous application filed by the sex trafficking organization Prajwala in the main writ case filed in 2004 for compliance with an order made on December 9, 2015, was being heard by a bench of Justices JB Pardiwala and R. Mahadevan. The organization filed an MA claiming that the order also recommended adopting the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, which expired in 2018 and was revised in 2021, even though the original petition was dismissed.

In summary, Senior Advocate Aparna Bhat, on behalf of the petitioner, has contended that “there is no institutional framework to comprehensively deal with human trafficking today.” As a result, the current framework has to be reinforced.

During the hearing, the Court made an oral statement stating that the Union had complied with the 2015 ruling. According to the directive, in order for the “Organized Crime Investigative Agency” (OCIA) to be operational by December 1, 2016, the Ministry of Home Affairs must establish the agency by September 30, 2016. The Ministry of Women & Child Development (MW&CD), Government of India, submitted the affidavit.

The MW&CD made the policy decision to establish a committee chaired by the Secretary to draft comprehensive legislation addressing the issue of human trafficking in an Office Memorandum dated November 16, 2015. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was presented to the 16th Lok Sabha for consideration in accordance with the Court’s directive.

Despite being approved by the Lok Sabha on July 26, 2018, the Rajya Sabha was unable to take it into consideration. As a result, the law expired when the 16th Lok Sabha was dissolved.

Union’s position changed in response to the court’s directive

Union subsequently filed an affidavit indicating that the National Investigation body would be given this role at the national level rather than creating a new body. “For this purpose, the NIA Act, 2008 has been amended in 2019, adding sections 370 and 370A of the IPC in the Schedule, thus, empowering NIA to take up cases of human trafficking for investigation,” the affidavit stated.

The position of the petitioner

Bhat pointed out two areas of non-compliance with the Court’s decision when the matter was heard on November 12: First, the pledge made by the Union to establish an OCIA. According to her, the Union reversed course and declared that NIA could look into sex trafficking, negating the need for a new organization.

Bhat argued that since it was anticipated that the Union will introduce legislation, the petitioner did not insist on this factor. No legislative movement has been made since the Trafficking of Persons (Protection, Care and Rehabilitation) Bill, 2021 was redrafted and introduced. She also said that the NIA should look into it if it now has the mandate.

She stated: “In our knowledge, NIA has dealt with approximately 10 cases so far [as opposed to approx 1000 cases that is there ].”

Bhat reaffirmed on December 17 that the NIA is not anticipated to look into sex trafficking cases since any agency that does so must be expected to have access across state lines or internationally. The local police are therefore unable to conduct an investigation. She went on to say that although the MHA had set up anti-trafficking units in police stations in 2016, they were not present in many of them. These matters were ultimately resolved by the local police.

Bhat further argued that the Union had committed to use legislation such as the Prevention of Money Laundering Act, 2002, to track down the money used in sex trafficking and use that money to compensate the victims.

She noted that while the Bharatiya Nyaya Sanhita, 2024 (BNS) contains measures on organized crime (Section 143: Trafficking of Person), the Union has once again reexamined its opinion that comprehensive legislation may not be necessary. They contend that the BNS provision falls short of what the Union pledged.

According to Justice Pardiwala, “How do we compel the Union to bring around some legislation?”

The reply from Bhat was, “We cannot [compel the Union].”

In the end, the hearing asked for recommendations on how to improve the current system.

Bhat concluded by pointing out that the Union ought to have kept its end of the bargain on the 2015 order. She recommended the creation of a specialized organization to address every facet of sex trafficking.

Union’s claims

Regarding the Union’s position, Bhati said that BNS had sufficient measures in place to address sex trafficking. Furthermore, other schemes are added to the provisions. According to Bhati, there are currently 827 anti-trafficking units in operation. She also mentioned that 1 lac in aid has been provided by the Nirbhaya fund to about 14,000 women’s helplines.

Each police officer has a login ID and password at the established crime multi-agency center (cri-mac). This enables law enforcement officials to obtain information across state lines.

Regarding victim compensation plans, the Union has also provided 200 crores for the States to create victim compensation plans. Bhati also discussed the 60-40 fund-sharing arrangement between the Union and States that provides sanctuary to victims of sex trafficking through the Shakti-Sadan scheme. According to her, there are 460 of these refuge homes in operation nationwide at the moment.

As part of the Mission Shakti Scheme, Shakti-Sadan also offers skill development, educational and vocational training, and psychological and health-related counseling. Bhat, however, argued that the needs of individuals in need of protection and those in need of correctional home facilities shouldn’t be combined in shelter houses. She noted that people with HIV are frequently the victims of sex trafficking.

She went on to say that the Immoral Traffic (Prevention) Act of 1956 establishes a protective home (as defined by Section 2(g)) and a remedial institution (as defined by Section 2(b)) independently.

Reading from Section 21 of the Act, Justice Pardiwala said that while the word “may establish” is used in the legislation, the creation of protective homes and corrective institutions may not be required. According to him, there isn’t a specific mandate to set up correctional facilities and protective homes.

Case Details: PRAJWALA v UNION OF INDIA

Citation No: MA 530/2022 in W.P.(C) No. 56/2004

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