Recommendations on trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, Draft Bill Proposed Changes Rationale

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1 Recommendations on trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, Sl. No. Section No. 1 2 (a) Aftercare means making provisions for support, financial or otherwise as prescribed by the appropriate Government, to a victim, who has left the Special Home and in the opinion of the District Anti- Trafficking Committee ready to reintegrate to join mainstream society; 2 2 (q) Victim means a person or persons on whom trafficking of persons is caused or attempted by any other person or persons 3 3(1) The appropriate Government shall, by notification, constitute for every district, a District Anti Trafficking Committee, for exercising the powers and performing such functions and Draft Bill Proposed Changes Rationale Aftercare means making provisions with assistance from voluntary or nongovernmental organization, for support, financial or otherwise as prescribed by the appropriate Government to a victim, who has left the Special Home and in the opinion of the District Anti- Trafficking Committee ready to reintegrate to join mainstream society; Victim means a person or persons on whom trafficking of persons is caused who is trafficked or trafficking of such person is or attempted by any other person or persons The appropriate Government shall, by notification, constitute for every district, a District Anti Trafficking Committee, for exercising the powers and performing such functions and duties in relation to prevention, rescue, Cooperative efforts of the organizations that work at the grassroots level are essential. Language is confusing A victim s right to psycho socio legal assistance needs to be recognized. The provision does not adequately clarify the roles and responsibilities of the Committee 1 Submitted by Centre for Child and the Law, National Law School, Bangalore

2 duties in relation to prevention, rescue, protection, medical care, psychological assistance, skill development, need based rehabilitation of victims as may be prescribed. 4 3(3) The District Anti- trafficking Committee shall meet at least once in three months 5 4(1) Procedure in relation to victims of trafficking of persons (1)A victim, after rescue shall be produced before the Member Secretary of the District Anti- Trafficking Committee by:- (i) investigating officer or any police officer; or (ii) any public servant; or (iii) any social worker or public spirited citizen; or (iv) by the victim himself, including if the victim is a child. protection, medical care, psycho socio legal assistance, skill development, need based rehabilitation of victims as may be prescribed. The functions and responsibilities of the Committee needs to be described The District Anti- trafficking Committee shall meet at least once in three months a week. The Member Secretary or any member of the Committee nominated by him/ her should be available for production of a victim on a daily basis Further, the functions of this Committee need to be elaborated in the Act. The title of the provision to be rephrased as procedure in relation to production of the victim. The provision also needs to clarify as to the venue of the meeting of the committee A committee should be available on a daily basis to hear matters of urgency. A committee as a whole needs to meet more often to take important decisions. It is not clear where the victim needs to be produced.

3 6 5(1) The Appropriate Government shall establish State Anti- Trafficking Committee to oversee the implementation of this Act and advise the State/UT Government and the District Anti- Trafficking Committee on matters relating to prevention of trafficking, protection and rehabilitation of victims of trafficking. 7 7 Special Agency- The Central Government shall constitute a Special Agency for investigation of offences under the provisions of the Act. The procedures relating to the State Anti Trafficking Committee needs to be elaborated with respect to their role in terms of implementation of the Act and as an advisory body. The venue, number of meetings and the manner in which they function also needs to be clarified The connection between Section 7 & 28 is not clear. The purpose, level (taluk, district or State) and the need of this agency is not laid down. The investigating powers should also be vested with police officers in local police stations. They may also be empowered to search without warrant on the suspects The procedures relating to the Committee needs to be clarified for it to be an effective body The provision for special investigative agency should not defeat the purpose of its niche cadre by allowing only higher ranks or notified officers to search without warrant or arrest the suspects during the investigation. Section 15 of the ITPA Act, 1956 is one such section where there is a mandatory presence of a notified SPO required at the time of arrest without warrant.

4 8 8 Protection Homes (1) The appropriate Government shall maintain either directly or through voluntary organisations, protection homes selected and managed in the manner, as may be prescribed for the immediate care and protection of the victims. (2) Protection Homes shall provide for shelter, food, clothing, counselling and medical care that is necessary for the rescued victims and such other services in the manner, as may be prescribed. 9 Special Homes The appropriate Government shall maintain either directly or through voluntary organisations or use the existing shelter homes, as the case may be, one or more Special Homes in each district for the purpose of providing long- term institutional support for the rehabilitation of victims, in the manner as may be prescribed. The provision need to clarify the authority that orders the placement of the victim in the protection home. The authority to decide on such matters in case of child victims should be the Child Welfare Committee and with respect to other victims, it should be the Anti Trafficking Committee. Further, it needs to state the duration for which a victim should be kept in the protection home for immediate care and protection. This provision does not clarify if every person who comes to protection home needs to be sent to Special Home and on what basis There has to be a mention of body/authority that is competent to decide whether the victim person is ready to be reintegrated into the society. This body has to consider the opinions of the relevant experts/professionals while making such decisions. Further, there has to be a maximum time limit for which a person can be kept in the Special Home. If the person needs special interventions, they may be shifted to relevant institutions. The victims should be aware of their rehabilitation scheme. They are not detained in the shelter homes for an indefinite period. It needs to be borne in mind that a person cannot be detained indefinitely on the grounds that he/she is not ready for integration. If there are special circumstances due to which person cannot be sent out, such person should continue to be the under the care of the State.

5 16 & 17 Using narcotic drugs, psychotropic or alcoholic substances for trafficking Use of chemical substance or hormones for the purpose of exploitation Notwithstanding anything contained in any other law for the time being in force, whoever administers any chemical substance or hormones to a trafficked woman or a girl or a child for the purpose of early sexual maturity and exploitation shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees. 19 Offence to be cognizable and non- bailable (2)The limitations on granting of bail specified in clause (a) of subsection (1) are in addition to the limitations under the Code of Sections 16 & 17 could be merged and titled as Trafficking Offences of aggravated nature. It should also include the following categories- Administers any unprescribed contraceptive pill/medication. Forces any person to come in direct contact of any hazardous chemicals during the course of employment offences by persons in position of trust and authority, taking advantage of a person s disability, forces to have unprotected intercourse shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees Offence to be cognizable and nonbailable (2)The limitations on granting of bail specified in clause (a) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, A definition to cover aggravated situations need to be included. There needs to be measures taken to check the high risks of unprotected sex and side effects of taking un prescribed drugs amongst sex workers. Most often, the sureties are bought, who produce false documents. It becomes a task for the investigative agency when the accused are absconding, especially at the time of trial. Such sureties also pledge for more than one accused

6 Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail. 23 Special Court Notwithstanding anything contained in the Code of Criminal Procedure, 1973 for the purposes of providing a speedy trial of offences involving and punishable under sections 370 to 373 of the Indian Penal Code, 1860 and the offences under this Act, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district, a Court of Session to be a Special Court. 26(3) Special Public Prosecutors (3)A person shall not be qualified to be appointed as Special Public Prosecutor under this section unless possess ten years active practice as an Advocate before a Court of Session having good record of prosecution (2 of 1974), or any other law for the time being in force on granting of bail. (3)Verification of sureties is necessary by the Prosecutor or a special agent designated by the Court. The provision should specify the nature of the offences the designated Court can hear in addition to offences under this Act. The language adopted by the POCSO Act under Section 28 proviso should be included here Special Public Prosecutors (3)A person shall not be qualified to be appointed as Special Public Prosecutor under this section unless possess ten seven years active practice as an Advocate before a Court of Session having good record of prosecution. persons. This provision can help in allocating cases that are totally unrelated to this issue. The eligibility requirement for Special Prosecutors should be uniform under all legislations Ref: Section 32(2) of POCSO Act

7 31 Repatriation to another state A victim, on an order of the District Anti-Trafficking Committee or the Special Court may be repatriated to the home State or to another State for increased protection; 32 Repatriation to another Country Where a victim from foreign country has been rescued and the State anti- Trafficking Committee is of the opinion that the victim needs to be repatriated to the country of origin, it may be dealt with the matter under any law for the time being in force. Repatriation to another state A victim, on an order of the District Anti-Trafficking Committee or the Special Court in consideration of the report of the District Anti Trafficking Committee may be repatriated to the home State or to another State for increased protection; Repatriation to another Country Where a victim from foreign country has been rescued and the State anti- Trafficking Committee is of the opinion that the victim needs to be repatriated to the country of origin, it may be dealt with the matter under any law for the time being in force. The Special Court shall be the authority to pass an order of repatriation to another country. The procedures for repatriation needs to be clearly laid down under the law. It is confusing to place responsibility on the two authorities. The repatriation clause permits victims of trafficking to be repatriated, but does not specify the procedural aspect involved by the courts or the aftercare. There is no specific provision in Cr.P.C. to ask for orders on repatriation. Additional points with respect to specific provisions 1. Section 2(s)- The Child Labour (Prohibition and Regulation) Act, 1986 and the Indian Penal Code also needs to be included in this definition. 2. Section 3(2)- District Officer or Inspector from the Labour Department should be included in the Committee. 3. Section 3(3)- The authority to deal with child victims should be with the Child Welfare Committees 4. Section 8 & 9- The law should also clarify as to who should monitor the protection and special homes

8 5. Section 10- There has to be clarity on whether a protection/special home under this Act needs to be registered under JJ Act also if it houses children. 6. Section 29- The authority to disburse the fund should be mentioned. Suggested additions to the Bill 7. Rescue and Repatriation needs to be included in the preamble of the Bill. 8. Repatriation has to be defined. Separate teams to rescue child and adult victims of trafficking needs to be constituted under the Act. Ref: Protocol issued by Ministry of Labour and Employment on the Prevention, Rescue, Repatriation and Rehabilitation of trafficked and Migrant Child Labour, A reference to Section 370 of the IPC has to be drawn with reference to definition of trafficking 10. Measures for speedy trial by Special Courts including timelines for disposal of cases needs to be included. 11. Detailed provisions relating to rehabilitation plans need to be included. 12. Conditions before placing a person rescued to parents/guardians as applicable are to be included in the Act. Ref: Section 17-A of Immoral Traffick (Prevention) Act, A provision for alternate punishment should be included in this Act. Ref: Section 42 of the POCSO Act 14. Compensation to victims of trafficking needs to be added. 15. Reference to Victim Compensation Scheme is to be made. 16. Aggravated punishment to accused and compensation if a victim dies as a result of human trafficking and other assault related to it. 17. The eligibility criteria of the District Anti Trafficking Committee members including qualification, years of experience, background and functions of the Committee should be mentioned. 18. The Act needs to have specific provisions relating to prevention efforts of the government including enforcement drives against persons accused of human trafficking 19. There has to be provisions relating to awareness generation programs at schools, communities through media ads, radio ads etc 20. A recommendation for strong Victim Protection Scheme needs to be made. 21. A mention of Special Courts receiving status report of victims of trafficking needs to be included. 22. The Special Court should take cognizance of the offence under this Act Ref: Section 33(1) of the POCSO Act 23. Need for annual report on human trafficking in country through concerted efforts of both the Government and the nongovernment agencies.