'Amendment To NIA Act May Not Protect Victims Of Sex Trafficking' : Supreme Court Seeks Union's Fresh Affidavit

The Supreme Court today (November 12)  gave one last chance to the Union Government to file a fresh affidavit in a petition seeking comprehensive victim protection protocol for victims of sex trafficking. 

The Court noted that the amendments made to the National Investigation Agency Act may not serve the purpose of protection, as the NIA can at best prosecute the offenders. The Court also noted that the Bill introduced by the Uniion to deal with human trafficking in 2018 has lapsed.

A bench of Justices J.B. Pardiwala and Pankaj Mithal heard 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. 

As per the order, an affidavit was filed by the Ministry of Women & Child Development (MW&CD), Government of India, in which 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.

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.

As for setting up OCIA, the Union filed an affidavit stating that instead of establishing a new agency, the National Investigation Agency will 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.

Senior Advocate Aparna Bhat (for petitioner) reiterated that her concerns are two-fold. First, on non-compliance with the setting up of OCIA, the Union has revisited its position and stated that an amendment in the NIA Act would do good. She stated that this direction for setting up OCIA was not pressed by her upon Union's taking a new stand because she had expected comprehensive legislation to consider the various factors raised by the petitioner. 

She said: "In the last 5 years, 2019-2024, this introduction of a new Bill which they ought to have done, as per the commitment made to your Lordship. Now, in November 2024, there has been no compliance. This application was heard in 2022, and that day an affidavit was also filed by them."

To this, Justice Pardiwala asked: "Let us for the time being proceed on this footing had this Bill been passed, and it would have taken the form of enactment, would it have taken care of everything?"

Bhat responded that the issue would have been significantly addressed had the Bill become an enactment. She added that sex trafficking has evolved and there is now the aspect of cybersex trafficking which the Bill may not have taken care of. 

ASG Aishwarya Bhati (for Union) spoke on the aspect of making NIA as an agency to monitor sex trafficking. However, Justice Pardiwala questioned the amendment to the NIA Act and said: "What will NIA do with this? How NIA will take care of all these issues? They will at the most prosecute the persons who have committed some crime. How will they protect the victims of sex trafficking? The matter of concern is what best we can provide to the victims so far as the protection part is concerned."

Bhati informed that she will have to take instructions on the status of Bill as the new Bharatiya Nyaya Sanhita, 2024 has provisions on organised crimes. She added that a fresh affidavit could be filed in this case including on the policies related to victim rehabilitation schemes. 

The court enquired if Bhat has to say anything about the rehabilitation schemes. Bhat responded that these schemes are untimely and there are a lot of lapses. Since the issue is not on record, she limited her response to this. 

Stating that the issue raised in the petition is important and the Court is willing to pass a detailed judgment on the next hearing. Justice Pardiwala orally remarked that "even those two directions [as per the 2015 order] have not been complied with".

The Court ordered: "We have heard Ms Aparna Bhat, the senior learned counsel appearing for the applicant/original petitioner and Ms. Aishwarya Bhati, the learned Additional Solicitor General appearing for the Union of India. It is not in dispute that a statement was made on behalf of the Union of India on oath in the form of an affidavit that the Ministry of Home Affairs would set up the “Organized Crime Investigative Agency” (OCIA) to take care of the victims of sex trafficking.

This Court, in its order referred to above, had expressed hope that before 30 September 2016, the OCIA is set up and it had also expressed further hope that it would be made functional before 1st December, 2016 having regard to the importance of the issue. This court also recorded in its order referred to above that a policy decision had been taken by the Ministry of Women and Child Development to constitute a Committee under the Chairmanship of the Secretary, Ministry of Women and Child Development, Government of India for preparing a comprehensive legislation dealing with the subject of sex trafficking. The terms of the reference were also looked into and have been made a part of the order passed by this Court."

The order further states: "It was pointed out to us that the Union of India, on second thought, dropped the idea of setting up the OCIA. Instead, it thought fit to amend the NIA Act by introducing two provisions in it. We are also informed that later the Parliament thought fit to introduce a Bill to enact a new Act, namely, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. We take notice of the fact that the amendment in the NIA Act in the form of insertion of two provisions has been undertaken. However, the 2018 legislation which was proposed, although passed in Lok Sabha yet could not be passed in the Rajya Sabha as the Parliament got dissolved.

The Bill was re-drafted as the Trafficking of Persons (Protection, Care and Rehabilitation) Bill, 2021 and published for the purpose of inviting suggestions. Thereafter, the said Bill, incorporating the suggestions and comments as received, was re-introduced afresh for Cabinet approval. Since then, there has been no legislative progress on this matter. Prima Facie, it could be said that as on date, no compliance or effect worth the name has been given to the order passed by this Court dated 9th December, 2015 and the issues raised by the petitioner still remains to be considered."

The Court has observed that issues involved in this litigation are highly sensitive and important. They relate to the protection that needs to be afforded to the victims of sex trafficking. Human and sex trafficking are crimes that dehumanizes the victim and violate the victim's right to life, freedom and personal security. Vulnerable sections of society, especially women and children are disproportionately affected by such crimes.

In this regard, the Court noted: "There exists a legislative vacuum as regards the establishment of a comprehensive rehabilitation framework for victims of sex trafficking, which needs to be urgently considered by the Union and it is their responsibility to take earnest and prompt measures to address the same."

The Court has given 3 weeks time to Bhati to seek further instructions in the matter and file a fresh affidavit in detail highlighting as to what steps the Union intends to take as regards the subject matter of this litigation. The Court has also directed the Union to look into the phenomenal increase in cyber-enabled sex trafficking and addressed this aspect in the affidavit. 

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

Appearances: Aparna Bhat, Sr. Adv (petitioner) & Aishwarya Bhati, ASG

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