Govt Mulls Lifer For Repeat Offenders For Human Trafficking

Coming straight to the key issue, it is a matter of great satisfaction to learn that the government is now all set to introduce a new law to guard against human trafficking. It has proposed a 10-year punishment for those engaging in “aggravated forms of trafficking” while seeking life imprisonment for repeat offenders. Trafficking any person just for the sake of earning extra cash and thus ruining the entire life of that person is a completely unpardonable offence which must invite the strictest of punishment. Even death penalty will not be too harsh and must be used as long as this death penalty itself is not abolished!

To be sure, this landmark Bill which has been proposed to identify various forms of trafficking, including for the purposes of bonded labour, sexual exploitation, pornography, removal of organs and begging, has proposed severe punishment for those engaging in the heinous crime. Very rightly so! No leniency is warranted under any circumstances for such despicable and ghoulish crimes!

To put things in perspective, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2017, initiated by the Women & Child Development Ministry, is currently with a Group of Ministers (GoM) that will take a final view on the matter. The draft Bill was released in May 2016. The Bill proposes the establishment of a national anti-trafficking bureau, which shall be entrusted with the gamut of issues aimed at controlling and tackling the menace under various forms. These include coordination, monitoring and surveillance of illegal movement of persons and their prevention.

It is noteworthy that the national anti-trafficking bureau will also be entrusted with increasing cooperation and coordination with authorities concerned with organisations in foreign countries for strengthening operational and long-term intelligence for investigation of trafficking cases, and driving in mutual legal assistance. This will certainly go a long way in ensuring that trafficking cases don’t go on unchecked and those involved in it are prosecuted and punished according to the law of the land! There can be no denying it.

Let me bring out here that while listing out the ‘aggravated forms of trafficking’, the Bill speaks about offences such as bonded labour, by using violence, intimidation, inducement, promise of payment of money, deception or coercion. It also mentions trafficking after administering any narcotic drug or psychotropic substance or alcohol, or for the purpose of marriage or under the pretext of marriage. The aggravated form also includes trafficking for begging or forcing those who are mentally ill or are pregnant.

No doubt, such aggravated forms of trafficking must invite the strictest punishment. Even lifer is not enough. It must invite death. No person can be allowed to indulge in trafficking of any person and then escape with just lifer! This is just not done under any circumstances!

Let me also bring out here that this Bill proposes specifically that, “Whoever commits the offence of aggravated form of trafficking of a person shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to life imprisonment.” For repeat offenders, it suggests imprisonment for life “which shall mean imprisonment for the remainder of that person’s natural life”, apart from a fine that will not be less than Rs 2 lakh. I very strongly feel that for repeat offenders the punishment should be mandatory death penalty and fine should not be less than Rs five lakh.

While craving for the exclusive indulgence of my esteemed readers, let me also inform them that as per data released by the National Crime Records Bureau (NCRB), human trafficking numbers rose by almost 20% in 2016 against the previous year. NCRB said there were 8,132 human trafficking cases in 2016 against 6,877 in 2015, with the highest number of cases reported in West Bengal (44% of cases), followed by Rajasthan (17%). How can all this be allowed to go unchecked and unpunished? This alone explains why this Bill proposes stringent punishment for those indulging in human trafficking!

For my esteemed readers exclusive indulgence, let me also inform them that of the 15,379 victims who were caught in trafficking, 10,150 were female and 5,229 males. NCRB revealed that the purpose of trafficking included forced labour, sexual exploitation for prostitution; other forms of sexual exploitation; domestic servitude; forced marriage; child pornography; begging; drug peddling; and removal of organs. It is widely believed that the numbers recorded by NCRB are a far cry to actual incidences of trafficking as many cases went unreported with many people still unaware of the crime or lacking faith and confidence in seeking police help.

As it turned out, for those engaging in ‘buying or selling’ a person, the Bill proposes rigorous imprisonment for a term not less than seven years which can be extended to 10 years with a fine upwards of Rs 1 lakh. It must be pointed out that the Bill also seeks punishment for those engaging in trafficking with the help of media, including print, internet, digital or electronic. It stipulates a punishment of not less than seven years which can extend up to 10 years and a fine of not less than Rs 1 lakh.

It is also pertinent to mention here that it is provided explicitly that, “Whoever distributes or sells or stores, in any form in any electronic or printed form showing incidence of sexual exploitation, sexual assault or rape for the purpose of extortion or for coercion of the victim or his/her family members, or for unlawful gain, shall be punished with rigorous imprisonment for a term which shall not be less than three years but may extend to seven years.”

Truth be told, apart from the national bureau, the proposed Bill also aims at having state-level anti-trafficking officers who shall also provide relief and rehabilitation services through district units and other civil society organisations. The Bill also spells out measures towards relief and rehabilitation for the victims of trafficking. This is really commendable!

What I like most about this proposed Bill is that in a sharp departure from the past, it does not treat a trafficked person as an offender but a victim. It has to be noted with deep regret that the existing laws do not take this laudable approach and instead most atrociously and unfairly treats both the trafficked person and the trafficker as criminals which under any circumstances can never be justified!

Be it noted, the Bill mandates that the constitution of District Anti-Trafficking Committee for every district. This Committee will perform various functions pertaining to the prevention, rescue, protection, psychological assistance etc of the victims. There will also be a State Anti Trafficking Committee to oversee the implementation of the law and advise the state government on matters pertaining to the prevention of trafficking and protection/rehabilitation of victims. A Central Anti-Trafficking Advisory Board will perform similar functions at the Union level.

It cannot be lost on us that the Bill also takes into account various aspects of trafficking and the punishments as defined in Sections 370 to 373 of the Indian Penal Code. It also cannot be ignored that the Bill also aims to include other offences which are not dealt with in other laws for the purpose of trafficking, such as punishment for disclosing the identity of the victim, using narcotics/alcohol for the purpose of trafficking etc. The Bill stipulates mandatory reporting within 24 hours by a police officer, public servant, any officer/employee of protection homes or special homes having custody of the victim to the District Anti-Trafficking Committee or in case of child victim to the Child Welfare Committee.

Let me hasten to add here that a separate chapter on offences and the penalties is also a part of the Bill. It seeks to establish special courts in each district of the country and simultaneously also ensure that special prosecutors are appointed to fast-track the trials and increase prosecution. It also envisages the creation of a fund for rehabilitation of victims of trafficking.

It would certainly not amount to an exaggeration to say that the earlier this landmark proposed Bill is passed, the better it shall be in the interests of those who are trafficked and their families because it is they who are ultimately the worst affected in the whole process. Once this landmark Bill is finally approved by the Cabinet after giving it the requisite thoughtful consideration, it will then be tabled in Parliament where MPs of different parties would be free to give their valuable suggestions and then it will be referred to the Select Committee before being taken up for debate and getting it passed!

It merits no reiteration that the menace of human trafficking has acquired serious proportions in last few decades. It has to be addressed on a war footing. This certainly entails strict punishment for offenders indulging in human trafficking and strictest punishment for repeated offenders! The Bill must be promptly enacted into a law and implemented swiftly and strictly to ensure that those indulging in it reap the consequences of their heinous acts and don’t escape lightly!

All said and done, human trafficking is the worst form of crime for which there can be no justification. Those indulging in it must be awarded not just life term but death penalty also especially repeated offenders! Only then will a right, strong and clear message go out to all those indulging in it that they will have to face either life term or death penalty and also would have to pay a very heavy penalty not less than Rs 5 lakh for daring to indulge in it!

It brooks no more delay and the punishment prescribed must be enhanced significantly especially in case of repeated offenders much more as I have spelt out so that those indulging in it are made to pay through their nose! Only then will it go a long way in serving as an effective deterrent in discouraging potential offenders from indulging in it! Hope so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

BCI Mulls Ban On Practice By Lawmakers

Coming straight to the nub of the crucial matter, let me begin at the very beginning by first and foremost pointing out that it has been very rightly demanded by some eminent lawyers, activists and leaders in a letter written to the Bar Council of India (BCI) that those lawyers who become MPs and MLAs should be stopped from practising. The main ground on which they are demanding that the MPs and MLAs should be stopped from practicing is that they are drawing salary just like in any other profession. Then why should they be allowed to practice?

More specifically, let me reveal here that a prominent BJP leader has requested the Bar Council of India to debar MPs and MLAs from practicing as advocates, saying that it was against the spirit of BCI rules which require advocates not to be engaged in any full-time trade, business, occupation or profession. There can be no denying or disputing it! The earlier this is done, the better it shall be in the long term interests of the legal profession which must have full time lawyers and not part time lawyers!

Elaborating further, let me also reveal here that in a letter written to the BCI Chairman – Manan Kumar Mishra, the Delhi BJP leader Ashwani Kumar Upadhyaya who is also an advocate stated clearly and categorically that the practice of lawmakers doubling up as advocates also went directly against the Supreme Court’s landmark verdict in Dr Haniraj L Chulani v Bar Council of Maharashtra & Goa (1996). In this landmark verdict it was held that, “Legal profession requires full time attention and would not countenance an Advocate riding two or more horses at a time”. This merits prompt and positive response.

It is heartening to note that the BCI has also taken serious note of it. This alone explains that why a high powered Committee constituted by it would deliberate and decide this all-important issue in next three days! Before deciding, it will certainly go into all aspects and consider each issue in detail!

Truth be told, the letter – a copy of which has also been sent to CJI Dipak Misra cited BCI rules to list out restrictions on MPs and MLAs on taking up any employment and sought to highlight that those working with the executive and the judiciary were not allowed to practice as advocates. Upadhyaya who had pointed out this glaring anomaly has termed it a violation of right to equality and right to non-discrimination guaranteed under Article 14 and 15 of the Constitution. Absolutely right!

It would be pertinent to mention here that it has been noticed that several MPs and MLAs appeared as advocates during Parliament and Legislative Assembly sessions, which was not only immoral and unethical but also in violation of Rule 49 of BCI Rules. Upadhyaya wrote in his nine-page long letter dated December 18 that, “A legislator enjoys better salary, allowance and post-retirement benefits than members of executive and judiciary. It is an honourable and fulltime profession but does not remain noble merely by calling it as such, unless he is dedicated for welfare of people. Legislators are expected to put fulltime service to public and their constituents ahead of their personal interests. Nobility of the profession of law also has to be preserved and protected. Therefore, provisions of the Advocates Act and BCI rules must be given effect in letter and spirit to maintain clean and efficient Bar to serve the cause of justice.”

To put things in perspective, according to BCI Rule 49 those who are drawing salary in any field are not entitled to practice as a lawyer. BCI Rule 49 reads as follows: “An Advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an Advocate so long as he continues in such employment”. The BCI will decide on this key issue in next three days. A high powered Committee has been constituted to look into this entire matter after a meeting held on this key issue decided on the same.

Be it noted, BCI Chairman and senior advocate Manan Kumar Mishra said that, “The three-member panel is examining the provisions of the Advocates Act and the Bar Council of India Rules in this respect. They will file their report in the next few days.” Ashwini Upadhyay who filed the petition contended that MPs and MLAs draw their salaries from the Consolidated Fund of India, hence, are “employees of the state”. Upadhyay also submitted before the BCI that, “Under Section 21 of the Indian Penal Code and Section 2(c) of the Prevention of Corruption Act, MLAs and MPs are public servants. Hence, allowing them to practice as an advocate and restricting other public servants is arbitrary, irrational and violation of Articles 14-15 of the Constitution.”

It is also noteworthy that Ashwini contended that it amounted to “professional misconduct” that MLAs and MPs who get salary and other benefits from the public fund, appear against the government. Some of these lawmakers even hold corporate retainer-ships. He also rightly submitted that, “They appear against the State to defend their lawbreaker clients in the Court of Law, which is the matter of conflict of interest.” The petition which Ashwini submitted also pointed out that while an advocate should be fully dedicated to his profession, legislators are also expected “to dedicate their fulltime to public and their constituents ahead of their personal and financial interests.”

While craving for the exclusive indulgence of my esteemed readers, let me inform them that among the members of the Committee are DP Dhall, RG Shah and BC Thakur. According to the Prevention of Corruption Act, 1988, MPs and MLAs come under the category of public servants. In such circumstances, it is considered highly inappropriate that MPs and MLAs are allowed to still practice while other public servants are explicitly barred from doing so! The plea submitted by Ashwini very rightly submitted that the lawmakers – Members of Parliament and Members of the State Assemblies should be banned from doubling up as practising advocates, saying they are salaried public servants and cannot ride two horses at the same time.

Isn’t this the worst case of hypocrisy, double standards and discrimination of the highest order? If this is not, then what else is? This has been allowed to happen since last more than 70 years but anyway it is better to be late than never. It must now be set right!

Why MPs and MLAs are given relaxation everywhere? Why are they treated as above others? Why are the same rules not applied to them like others?

They are many such grey areas and what is most unfortunate is that everywhere it is MPs and MLAs who have been given the long rope! No person can get any government job even if someone maliciously files a false case in any police station but to become an MP or an MLA even if you have many cases pending against you like late Phoolan Devi you can still freely contest elections! All such highly discriminatory practices must be thrown in the dustbin of history!

Why MPs and MLAs alone have the unfettered right to increase manifold their salary without being checked by anyone when even Judges have no such similar rights? Why MPs and MLAs can fight elections even from jail? Why MPs and MLAs alone enjoy so many colonial privileges like providing many of them whomever the government of the day likes with the highest security at taxpayers cost? Why should they not be abolished?

It still remains to be seen what the high powered Committee recommends on this. But I am quite certain that it will henceforth explicitly bar MPs and MLAs from practising and put a full stop to this entire controversy! It needs no rocket scientist to conclude that when BCI Rule 49 explicitly bars salaried class from practicing then why should MPs and MLAs be treated on a different parameter and exempted from the same when they not just get huge salary but also lots of other benefits like housing, vehicles, pension and a lot more!

All said and done, this should have been done a lot earlier probably right after independence. But seventy years down the lane we see still nothing being done till now in this direction. But again like a true optimist I would say that it is better to be late than never!

It cannot be denied that a good beginning has been made by the Bar Council of India in this direction after getting complaints from leaders, lawyers and others. Let us hope that in the next three days we would see some decisive action on this. It is highly inappropriate that MPs and MLAs who don’t get time for even talking are allowed to continue as lawyers for namesake only!

This must be discarded and I am cent percent sure that now this will be done soon! A uniform policy must be framed to restrict the public servants, people’s representatives and members of the judiciary to practice other professions in violation of Articles 14 and 15 of the Constitution and such conflict of interest must be treated as criminal misconduct to check what has been going on unabashedly since last more than 70 years in our country!