Following are my comments on the Draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016:
24. Presumption of certain offences Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 16 and 17 of this Act or offences under section 370-373 of Indian Penal Code, 1860, the Special Court shall presume that such person has committed the offence, unless the contrary is proved.
If by the word prosecution it is meant about start of trial after filing of charge sheet by police, then above section of the draft bill adds to the sweeping powers given to state/police/prosecutors to apprehend someone based on some given report, and then that person will have not only the problem of arranging bail for this non-bailable offence, but also have the burden of proving innocence while most likely being incarcerated, given the fact that Indian courts often tend to deny bail based on severity of alleged crime. It could easily mean some innocent people having to spend 9 months-1 year or more in jail without bail, and later been proven innocent after trial.
In cases of alleged rape/molestation etc, there are anecdotal reports already that police has acted in a dishonest and malafide manner, by colluding with complainant and trying to show her age as less than 18, and not filing charge sheet as the result of an honest investigation. If police is capable of making up such serious case about rape of a minor girl, where in fact there was no rape or the girl was not even a minor at the time; it is very much possible that police can be suitably ‘rewarded’ or pressurized to make a case of human trafficking against an innocent citizen, for whatever reasons the complainants may have behind it.
Further the scope of Section 24 is very broad: it shifts burden of proving innocence on accused for not only alleged committing of crime, but also for abetting, or attempting to commit the crime. When the level of police investigation is nothing to speak much about, and practically the Indian state can’t be prosecuted for compensation for wrongful prosecution or confinement of accused who is later proven innocent, adding such broad scope of provisions to law only open them for misuse and abuse. In Delhi, the acquittal rate in rape cases had reached 76% in last few years, and it is a clear trend that the rising knowledge of the law is not leading to situation of providing justice to victims, but the fear and power of law is being misused and abused by others for their own benefit or extortion etc.
Giving a generic excuse by lawmakers and some breast-beating NGOs that “all laws can be misused”, is not a convincing argument to those citizens who have to face the brunt of the wrongful prosecution, arrest, not getting bail, and losing reputation, careers, family etc. Almost never is the case that such wrongfully arrested and prosecuted people get any kind of compensation from the state.
Also, the drafters of the bill have included a “good faith” Section 34 which will allow bad investigation and wrongful prosecution to escape under that clause in many cases:
34. Protection of Action Taken in Good Faith No suit, prosecution or other legal proceeding shall lie against the Central Government, or the State Government or any person acting under the directions of the Central Government or State Government, as the case may be, in respect of anything which is done in good faith or intended to be done in pursuance of this Act or of any rules or regulations made thereunder.
So the drafters of the bill have not only shifted burden of proving innocence to the accused, they have conveniently absolved prosecutors/police/state from responsibility of possible bad investigation, wrong decisions, bad judgment hiding behind above “good faith” clause. If this is not a sample of draconian powers of state over public, I don’t know what else is!
In my opinion, this Section should be removed altogether. The normal principle of law “innocent until proven guilty” should suffice if the investigation and prosecution are done diligently and fairly, and there is no need to create such provisions which are more often misused and abused in Indian system.