Ruling will help prevent accused from absconding
“I hold that the more helpless a creature, the more entitled it is to protection by men, from the cruelty of men.” from Freedom Firm vs. Commissioner of Police, Pune & Ors, quoting Mahatma Gandhi
Mumbai: On October 30, 2015, the High Court of Bombay issued a landmark judgment that laid out guidelines to prevent the misuse of bail by human sex trafficking perpetrators under the Immoral Trafficking Prevention Act (ITPA). The Division Bench of Justice Roshan Dalvi and Justice Shalini Phansalkar – Joshi passed the judgment in a Criminal Public Interest Litigation (PIL) filed by Justice Ventures International (JVI) partner, Freedom Firm. JVI lawyers represented Freedom Firm on the case working closely with public prosecutors and civil society organizations throughout the proceedings.
In its Judgment, the Court observed the sorry plight of several survivors of sex trafficking who suffer from a miscarriage of justice due to the misuse of bail provisions. In one such case, a person accused of cruelly trafficking a 12 year old girl for sexual exploitation, and against whom the very survivor had bravely testified, absconded after getting bail in the final stages of the case. Since January 2010, the trial has been indefinitely stalled with the police failing to trace the accused, while the victim still painfully awaits justice.
Freedom Firm, filed the PIL after 21 of their cases originating from the Faraskhana Police Station, Pune were stalled on account of perpetrators who had obtained bail and had absconded from being present at the trial. On further investigation it was found that there are at least 42 cases from the Faraskhana Police Station alone, where the accused disappears after obtaining bail, thereby stalling the trial. Freedom Firm’s main grievance was related to the misuse of the bail provisions allowing those accused of offences under the ITPA to escape prosecution by fleeing the area, depriving victims of justice and restoration.
Freedom Firm and JVI lawyers, after consulting with various stakeholders, submitted proposed guidelines regarding bail at the High Court’s request. The High Court then circulated those guidelines among various district Magistrates. Based on the final recommendations provided, the High Court issued new bail guidelines to prevent the misuse of bail by human trafficking perpetrators. For example, the Court ruled that unless exceptional, special and compelling reasons exist, bail should be denied to repeat offenders and in cases where the victim is a minor. In addition, bail should be denied in cases where there is evidence of violence against the victims. The Court also set out that anticipatory bail must be denied in ITPA Cases. Finally, the ruling spelled out restrictive conditions that should be set where bail is, in fact, granted and ordered that legal aid services should be provided to victims at the earliest.
The High Court concluded that “an accused” who is a trafficker in humans who has criminal antecedents, has been violent as seen from the statements of the victims of witnesses, who has no permanent local address, who is an illegal migrant or nonlocal resident or a foreign national on a lapsed tourist visa, who has trafficked a minor or who has absconded and is arrested upon NBW issued, or a brothel owner whose brothel has not been sealed after due procedure cannot be granted the privilege of being released on bail.”
According to Freedom Firm’s National Director Greg Malstead, “This ruling should go a long way in stopping traffickers from disappearing at the time of trial and ultimately in securing justice for victims of sex slavery in India.”
JVI advocate Abishek Jebaraj stated, “It is most commendable the way the Court has marshalled its directions after seeking suggestions from trial court judges, prosecutors, civil society organizations and others. My hope is that this judgement will be used as a firm step towards ending the horrific ordeal of trafficking for hundreds of thousands of men, women and children in India.”
The Judgment comes at a crucial juncture when India is reported to have the highest number of modern slaves in the world, and where human trafficking for sexual exploitation worsens due to ineffective systems in place. It is hoped that the implementation of the judgment will further effective prosecution of human trafficking offenders and enhance legal representation for survivors of human trafficking.