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Synopsis

The Supreme Court has asked the Union government to take urgent and prompt measures to address the issue of legislative vaccum with regard to the establishment of a comprehensive rehabilitation framework for victims of sex trafficking.

On November 12, a bench of Justices J B Pardiwala and Manoj Misra granted three weeks to the Union government to file an affidavit also detailing the proposed steps to look into a phenomenal increase in cyber-enabled sex trafficking. 

Dealing with an application concerning directions issued in a writ petition filed by NGO Prajwala on December 9, 2015, the court noted that it was not in dispute that a statement was made on behalf of the Union government 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, had expressed hope that before 30 September 2016, the OCIA would be 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," the bench said. 

This court also recorded 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 bench noted.

Additional Solicitor General Aishwarya Bhati for the Union government informed the court 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.

Later, 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," the bench noted.

"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 bench said.

Additional Solicitor General Bhati submitted that some further time may be granted to enable her to seek further instructions and file a fresh affidavit in details highlighting as to what steps the Union intends to take as regards the subject matter of this litigation.

"We may only say that the 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 violates the victim’s right to life, freedom and personal security. Vulnerable sections of society, especially women and children are disproportionately affected in such crimes," the bench said.

The court further pointed out that the victims of such crimes are often mistreated by their traffickers and have to endure physical and mental forms of violence that are inflicted upon them. They stand at a greater risk of sustaining several life-threatening injuries, and contracting infections and illnesses, including sexually transmitted diseases.

Additionally, the mental health consequences can range from anxiety disorders, Post Traumatic Stress Disorder (PTSD), depression and substance abuse as well. A majority of such victims may require continuous access to doctors and other mental health professionals who can tend to their specific needs. Alienation and ostracism by the larger society is also inherently associated with such crimes. Individuals who are trafficked are often abruptly alienated from their immediate family and other social groups due to the attribution of sentiments like guilt and shame on the victims, the court noted.

"This has the unfortunate consequence of them being further isolated, secluded and withdrawn from society. The crime is also of such nature that it seriously hampers the pursuit of further education and learning. Once the victims stop going to schools or colleges, it is all the more difficult to reintroduce them into the formal education system and equip them with advanced education which is quintessential for their right to live freely. Victims might also need support in order to get job opportunities and secure their means of livelihood," the bench said.

Observing that this would be tantamount to only a fraction of the issues associated with the crime of sex trafficking, the bench said that while the prevention of trafficking of persons, along with the prosecution and punishment of the offenders who commit such heinous crimes is important, yet it is equally important that legislative mechanisms focus on providing care, protection and rehabilitation to the victims of trafficking. 

"This must be done by creating a larger legal, economic and social environment that secures the well-being of the victims. It is the need of the hour to adopt a human rights and rehabilitative approach to such crimes," the bench said.

Having granted time to the Union government to file a comprehensive response, the bench scheduled the matter for further consideration on December 10, 2024.

Case Title: Prajwala Vs Union of India