Supreme Court Reserves Judgment On Victim Protection Protocol For Victims Of Sex Trafficking

The Supreme Court today (December 17) reserved the judgment seeking comprehensive victim protection protocol for victims of sex trafficking, orally remarking that they will treat the matter "very seriously".

A bench of Justices JB Pardiwala and R. Mahadevan was hearing a miscellaneous application filed by the organisation Prajwala working in the areas of sex trafficking, in the main writ petition filed in 2004, for compliance with an order passed on December 9, 2015. Although the main petition was disposed of, an MA was filed by the organisation alleging that the order also suggested implementing the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, which lapsed in 2018 and was redrafted in 2021.

To summarise, the petitioner through Senior Advocate Aparna Bhat has argued: "Today, there is no institutional framework to comprehensively deal with human trafficking." Therefore, the existing framework should be strengthened. 

The Court had orally remarked during the hearing that the Union has at all complied with the 2015 order.

About the order 

As per the order, it was stated that the Ministry of Home Affairs shall set up the “Organized Crime Investigative Agency” (OCIA) before September 30, 2016, OCIA so that it can be made functional before December 1, 2016. The affidavit was filed by the Ministry of Women & Child Development (MW&CD), Government of India.

In an Office Memorandum dated November 16, 2015, the MW&CD has taken a policy decision to constitute a Committee under the chairmanship of the Secretary for preparing comprehensive legislation dealing with the subject of trafficking. In line with the Court's direction, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was introduced in the 16th Lok Sabha for consideration.

Though it was passed by the Lok Sabha on July 26, 2018, it could not be considered in the Rajya Sabha. Consequently, the Bill bill lapsed on the dissolution of the 16th Lok Sabha.

Change of Union's stance pursuant to the court's order 

Subsequently, Union filed an affidavit stating that instead of establishing a new agency, the National Investigation Agency would be assigned this responsibility at the national level. "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.

Petitioner's stand

When the matter was taken up on November 12, Bhat flagged non-compliance with the Court's order in two aspects: First, the Union's promise to set up an OCIA. She stated that the Union changed its position and stated that a new agency would not be required as NIA could investigate sex trafficking.

Bhat submitted that the petitioner did not press for this consideration that it was expected that Union would bring out a legislation. The Trafficking of Persons (Protection, Care and Rehabilitation) Bill, 2021 was re-drafted and introduced but no legislative progress has been made since then. Moreover, she added if the NIA now has the mandate, it should investigate. 

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

On December 17, Bhat reiterated that it is not expected that the NIA will investigate sex trafficking cases as whichever agency does must be expected to have inter-state or cross-border access. Therefore, local police are not in a position to investigate. She added that in 2016, the MHA had also established anti-trafficking units in the police stations but in many police stations, they were not established. Ultimately, local police handled these issues. 

Bhat also submitted that it was promised by the Union that the money involved in the sex trafficking could be traced by using laws including the Prevention of Money Laundering Act, 2002, which would then be used for compensation to the victims. 

She pointed out that the Union has again revisited its position stating that comprehensive legislation may not be required considering that Bharatiya Nyaya Sanhita, 2024 (BNS) has provisions on organised crimes (Section 143: Trafficking of person). It is their position that BNS provision does not take care of what was promised by the Union.

Justice Pardiwala questioned: "How do we compel the Union to bring around some legislation?"

Bhat responded: "We cannot [compel the Union]."

Ultimately, the hearing went around seeking suggestions by which the existing system could be strengthened.

Concluding, Bhat flagged that the Union should have abided by the commitments made to comply with the 2015 order. She suggested that a specialised agency to deal with all aspects of sex trafficking should be established. 

Union's arguments

As for the stand of the Union, Bhati submitted that BNS has adequate provisions to deal with sex trafficking. Moreover, the provisions are supplemented by certain schemes. As for the anti-trafficking units, Bhati stated that 827 such units are currently functional. She also pointed out that around 14,000 women helplines have been established by providing assistance of 1 lac under the Nirbhaya fund.

There is also a crime multi-agency centre (cri-mac) established, where every police officer has a login-id password. This allows police officers to have information cross-borders from State to State.

On victim compensation schemes, the mandate is for the States to establish victim compensation schemes for which 200 crores have also been given by the Union. Bhati also spoke about the Shakti-Sadan scheme for providing shelter to victims of sex trafficking, which is run on 60-40 fund sharing between the Union and States. As per her argument, 460 such shelter homes are currently been operational across the country.

Psychological and health-related counselling, skill development, and educational and vocational training are also provided in Shakti-Sadan, which is a part of the Mission Shakti Scheme. However, Bhat objected that the shelter homes should not merge the requirements of those who need the facilities of correctional homes and those who need protection. She pointed out that often the victims of sex-trafficking are those who are HIV-positive.

She added that under the Immoral Traffic (Prevention) Act, 1956, the act provides for a corrective institution (as defined under Section 2(b)) and protective home (as defined under Section 2(g)) separately. 

Justice Pardiwala, reading Section 21 of the Act, stated that establishing protective homes and corrective institutions may not be mandatory as the legislation uses the word 'may establish'. He said: "There is no mandate as such [to establish protective homes and correctional institutions]."

Case Details: PRAJWALA v UNION OF INDIA, MA 530/2022 in W.P.(C) No. 56/2004 

Appearances: Aparna Bhat, Senior Advocate (petitioner) & Aishwarya Bhati, Additional Solicitor General