New Delhi: Four minor girls who were rescued from sex trafficking have submitted draft guidelines to the Supreme Court to allow women and children forced into prostitution to claim damages from owners of properties being used to either run a brothel or keep trafficking victims.
The guidelines, which the court took note of last week, concern the rights of survivors of trafficking for sexual exploitation to seek payment of damages from owners of properties that were used to traffic them, as a civil tortious remedy.
The draft guidelines, in a key suggestion, demand that a property owner should not be granted leave to defend the suit for damages filed by a rescued person if found negligent and the same is corroborated in the First Information Report (FIR) registered in connection with the offence.
Under the Civil Procedure Code (CPC), if a defendant satisfies the court that he/she has substantial defence, which is a defence that is likely to succeed, then he/she is entitled to file a written statement to defend the suit.
According to the draft guidelines, a civil suit against the property owner would be in addition to the criminal prosecution under the Immoral Traffic Prevention (ITP) Act, which punishes landlords who allow their premises to be used as a brothel. However, such a provision imposes criminal liability only upon actual knowledge of such use. Hence, it becomes impossible for victims of trafficking as well as the prosecutors to prove beyond reasonable doubt, apart from requiring lengthy criminal investigations. This renders the remedy under the ITP Act “illusory and ineffective as a deterrent against trafficking”, the submissions mention.
The guidelines were part of a 2019 petition filed by the four minor girls, who were illegally confined and forced into prostitution. Through their petition, the girls highlighted the “gaps” in the existing special law that criminalises prostitution and have asked the court to read down section 3 of ITP Act to disallow a property owner from taking “lack of knowledge” as a defence during the trial. The petitioners want the landlord to be strictly liable for their conduct of letting their property being used for an illegal act.
On 7 April, a bench led by Justice Hrishikesh Roy took note of the guidelines. Senior advocate Anita Shenoy, appearing for the rescued girls, contended that the suggested guidelines would fill the vacuum in the existing legal framework that does not give such children room to seek compensation from errant landlords. Shenoy mentioned that the guidelines are in no way an adversarial litigation embarked upon by the children.
The bench asked Additional Solicitor General Aishwarya Bhati to look into the guidelines and revert with a government response. The National Commission for Protection of Child Rights (NCPCR) was also asked to submit its remarks on the draft guidelines for exemplary damages.
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‘Breaching duty of care owed to victims’
According to the draft guidelines, trafficking for commercial sexual exploitation, including that of children, is made possible only through properties that are used to further the crime. Such property owners become direct or indirect recipients of the proceeds of crime, involving repeated sexual exploitation of persons, particularly vulnerable children.
While children and women “suffer irreversible physical and emotional harm”, the property owners enjoy complete immunity despite repeatedly participating in the offence, the draft guidelines further state. Owners of such properties ought to be held liable in civil law “for breaching a duty of care owed to victims of trafficking for sexual exploitation”.
The guidelines claim that such a property owner cannot plead lack of knowledge or ignorance about the alleged use of their premises for the illegal act.
This should not be a ground to exempt them from the liability for negligence because the only way one could “maintain this ignorance is by wilful blindness to the overwhelming evidence of commercial sexual exploitation occurring in the localities where their property is situated”. Even this act of ignorance warrants imposition of strict liability in damages for harm caused to those exploited on such properties, the guidelines recommend.
Seeking the court’s intervention, the applicants said that the draft rules would protect the fundamental rights of trafficking victims and a judicial order to this effect would fill the legislative vacuum created due to the State’s failure to take adequate measures for preventing and dis-incentivising the repeated use of properties to traffic children and women.
According to the guidelines, the claim for damages can be raised by a person rescued from a brothel, but in the case of a minor, a guardian, parent or an authorised individual of a shelter home having custody of the child should be allowed to seek the compensation.
The property owners, the minors’ petition has sought, should be presumed to be negligent if their name is part of revenue records as landlord of the premises used as a brothel. Negligence should also be presumed if the owner fails to produce a registered lease agreement for letting out the property, it adds.
In case any court takes judicial notice of a property in a red-light area or even outside being run as a brothel and if such a fact is within the common knowledge of the public, or if any survey conducted with the financial support of the State also acknowledges it, then it should be deemed that the flat or building was being used for sexual exploitation of trafficked persons.
The draft guidelines further state that if the person seeking damages is unable to ascertain the ownership of the property being used for unlawful activity, then a court commissioner can be appointed to determine the same.
If the court commissioner opines in his or her survey that the petitioner was released from the unlawful property, and if the court finds the property owner to be defendant, then the latter should not be granted leave to defend the suit, the guidelines submit.
(Edited by Gitanjali Das)
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