Drafted in a vacuum

ON July 26, the Lok Sabha passed the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. Known as the Anti-Trafficking Bill in short, it received mixed reviews. Though there was no disagreement over the need to tackle the menace of trafficking, society remains divided on the efficacy of the new Bill that awaits a nod in the Rajya Sabha.

Human trafficking is a serious problem, with thousands of men, women and children being transported and exploited in their own countries and outside every year. India ranks among the worst countries in terms of its prevalence. On any day in 2016, about eight million people were living under various forms of modern slavery in India, according to the Global Slavery Index.

According to the latest National Crime Records Bureau data, in 2016 there were 8,132 reported cases of human trafficking in the country. About 15,379 people were trafficked, of whom 9,034 were below the age of 18. In addition, 23,117 people were rescued from trafficking situations, of whom 14,183 were below the age of 18. The number of rescued victims is higher than the number of trafficked people as rescued victims may also include persons trafficked in the previous year.

Most of the rescued victims reported being trafficked for the purpose of forced labour (10,509 cases), followed by the purpose of prostitution (4,980 cases) and other forms of sexual exploitation (2,590 cases).

According to Minister for Women and Child Development Maneka Gandhi, the new Bill is victim-centric and “will not spare anyone who has trafficked a girl for sex work”. It includes rigorous punishment from a minimum of 10 years to life imprisonment and a fine not less than Rs.1 lakh.

Terms of the bill

As per the Bill, the victims are entitled to interim relief within 30 days to address physical and mental trauma and further appropriate relief within 60 days from the date of filing of the charge sheet. A Rehabilitation Fund has been created for the physical, psychological and social well-being of the victim, which includes education, skill development, health care, psychological support, legal aid and safe accommodation. The Bill creates dedicated institutional mechanisms at the district, State and Central levels that will be responsible for prevention, protection, investigation and rehabilitation work related to trafficking. The National Investigation Agency will perform the tasks of the Anti-Trafficking Bureau at the national level under the Ministry of Home Affairs.

In 2015, while disposing a public interest litigation petition filed by Sunitha Krishnan, co-founder of the NGO Prajwala, the Supreme Court bench of Justices Anil Dave, Madan Lokur and Kurian Joseph noted the submission of the government that it had set up a committee under the Ministry of Women and Child Development that would prepare a comprehensive law to deal with trafficking. The committee was supposed to study the various pieces of legislation relating to various aspects of trafficking. Currently, trafficking is addressed by a basket of laws, including Indian Penal Code (IPC) Sections 370-370A, 371, 372-373 and the Immoral Traffic (Prevention) Act (ITPA), 1956, which criminalise activities related to prostitution. The new law is expected to consider the gaps in the existing legislation from the point of view of prevention, pre-rescue, rescue, post-rescue and rehabilitation and to strengthen the victim protection protocol so as to ensure that victims are treated as victims and not as offenders. The Bill is being touted by the government as one that “addresses one of the most pervasive yet invisible crimes affecting the most vulnerable persons especially women and children”. But according to some activists, it does not do so.

According to Apne Aap Women Worldwide [a grass-roots movement to end sex trafficking], trafficking for the purposes of sexual exploitation is the most common form of human trafficking and yet the proposed Bill does not include “sexual exploitation” or the “prostitution of others” in its definition. “This means that India’s 16 million girls and women who are victims of trafficking will be cut off from vital services. It also means an increase in risk for the most vulnerable girls, most of whom are Dalits, Adivasis or OBCs.” The group asked for the decriminalisation of prostituted women and to punish sex buyers and sex traffickers instead. They started an online petition to demand that India include victims of sexual exploitation in the new law.

Unclear and ambiguous legal language in the Bill was another concern, as it could be misused, said Ruchira Gupta, founder, Apne Aap. “The language should be made more specific and detailed to ensure justice,” she said.

Criticism from the U.N.

The new Bill also came under flak from the United Nations for not being in line with international human rights laws. Special Rapporteurs (SR) of the U.N. felt that the Bill’s focus on addressing trafficking from a criminal law perspective was not sufficiently complemented by a human-rights based and victim-centred approach, and this risked further harming already vulnerable individuals.

“The development of an appropriate legal framework that is consistent with relevant human rights standards is key not only to ensure that victims are identified, assisted and referred to appropriate protection services, but also to guarantee more effective investigation and prosecution of perpetrators. The proposed Bill seems to promote ‘rescue raids’ by the police, and the institutionalisation of victims in the name of rehabilitation, rather than applying appropriate screening methods and standard operating procedures for the identification and referral of victims or potential victims of trafficking and social integration programs which are respectful of their rights,” said Maria Grazia Giammarinaro, SR on trafficking in persons, especially women and children, and Urmila Bhoola, SR on contemporary forms of slavery, including its causes and consequences.

In a detailed critique, the SRs were concerned that the “over-broad and vague nature” of some of the Bill’s provisions could lead to blanket criminalisation of activities that do not necessarily relate to trafficking. The Bill also seemed to conflate trafficking and smuggling of migrants by adding the aggravated circumstance of “encouraging or abetting any person to migrate illegally into India, or Indians to some other country”. This could lead to the criminalisation of all irregular migrants, including victims or potential victims of trafficking, who, because of a lack of safe, orderly and regular migration channels, are forced into the hands of smugglers or traffickers, according to the SRs.

Moreover, the SRs shared with the government their concern over prolonged detention of irregular migrants, especially women and children, including potential victims of trafficking who were not promptly identified. They pointed out that such treatment was in contrast with current international efforts, including the Global Compact on Migration, which aimed at addressing protection gaps for migrants in vulnerable situations. “We also regret that provisions requiring the Central government to allocate a budget to the rehabilitation fund for victims of trafficking as well as to put in place accountability mechanisms and periodic revision of protection systems included in the previous drafts have not been retained in the current Bill,” they said.

Most opponents of the Bill pointed out that the Bill conflated sex work with trafficking for the purpose of sexual exploitation, which was not in line with the Palermo Protocol. A document signed by 4,300 sex workers, endorsed by 247 individuals and 30 organisations was sent to Maneka Gandhi highlighting sex workers’ concerns with the Bill. Over the past few months, the National Network of Sex Workers held consultations with stakeholders, including bonded labour, trade unions, women’s groups, and freedom of expression and health activists in seven States. Under the banner of a Coalition for an Inclusive Approach on the Trafficking Bill, they said that the harmful impact of assuming all forced workers as trafficked victims would result in the “forced rescue” of adults earning a livelihood and incarcerated in sudhar grihas (shelter homes), be they domestic workers, bonded labourers, beggars, sex workers or surrogate mothers.

‘Rescue raid’ model

The Coalition also called attention to the “rescue raid” model whereby law enforcement swoops in and uses the police to “pick up” victims. The mode of raids by police and anti-human-trafficking units to rescue trafficked victims traumatises victims who have no clue why they are being rescued, the group said. Dr Prabha Kotiswaran, who has studied the legal response to trafficking internationally, lamented the Bill’s uncritical application of raid, rescue and rehabilitation in “homes” which are used in sex work to other situations of exploitation. “Protection homes remain the mainstay of rehabilitation for trafficked victims. There is no compensation, monetary assistance or livelihood guarantee, which is what victims need most to rebuild their lives. The Bill has been drafted in a vacuum, devoid of social realities. The Bill ignores the recommendations of a Supreme Court-appointed panel on prevention of trafficking and rehabilitation of sex workers who wish to leave sex work,” she said. Dr Smarajit Jana from Kolkata suggested the adoption of community-based rehabilitation, that is, alternatives that are not contingent on trafficked women staying in State-run homes.

All too often, Section 370 of the IPC is interpreted as absence of consent over a livelihood choice, especially in the case of sex work and surrogate mothers. “In the case of sex workers, the Bill would also make way for the district committees to use provisions under the ITPA and police repression as a significant method in creating fear, increasing vulnerability to violence and unsafe working conditions. Fear of police makes it difficult for workers to report violations and other crimes by perpetrators who carry out violence with impunity. Besides, legal constructions of sexual services as exploitation contribute to a climate of stigma and scorn towards persons in sex work and the work itself, thus endorsing State violence and discrimination,” said the Coalition.

It was widely felt that adult sex workers were among the most vulnerable sections that might be adversely impacted by the Bill. “The fundamental flaw with the Bill is that it treats victims of human trafficking on a par with adult persons in sex work. Trafficking of persons into forced or coerced labour (including sexual exploitation) should not be equated with sex work undertaken by consenting adults. This conflation could lead to misuse and over-broad application of the provisions in this Bill,” said the Coalition.

Adding to the concerns over the draft, Asmita Basu, Programmes Director, Amnesty International India, said: “The Bill’s main focus is on the criminal aspects of trafficking. It does not address the root causes of trafficking or provide for effective protection and rehabilitation of victims. The Bill was drafted without meaningful consultation with the very people it should protect, victims of trafficking and sex workers, as well as other stakeholders such as civil society organisations. The Rajya Sabha must refer the Bill to a parliamentary standing committee to address the serious concerns raised by these key stakeholders.”

A group of civil society representatives, labour unions, sex workers, child rights activists, legal experts and human rights groups also urged Maneka Gandhi to refer the Bill to a parliamentary standing committee. They felt that the Bill merely adds to “legislative clutter and will be an implementation disaster, defeating the very purpose of the exercise”. At least 10 different laws currently address activities that constitute trafficking of persons, sometimes at cross purposes with each other. These include the Juvenile Justice (Care and Protection of Children) Act, 2015, which provides a framework for protection of children; the Bonded Labour System (Abolition) Act, 1976; the Contract Labour (Regulation & Abolition) Act, 1970; the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; the Children (Pledging of Labour) Act, 1933; and the Child Labour (Regulation and Prohibition) Act, 1986, which deal with forced labour and child labour, primarily through regulation and welfare-oriented measures.

“This Bill adds yet another piece of legislation to this list. Worse still, it proposes to set up a parallel anti-trafficking bureaucracy with at least 10 new agencies. This, despite the government’s undertaking in 2015 to the Supreme Court that it would draft a comprehensive legislative framework by harmonising and consolidating existing laws. For the police, prosecutors and judges, enforcing multiple laws will be a nightmare. The accused will stand to benefit from this,” the group said. “What we need is accountability of state actors under existing laws and not new or more laws on trafficking,” said Enakshi Ganguli of HAQ: Centre for Child Rights.

Tripti Tandon of the Lawyers’ Collective pointed to the lack of due process and said that criminal justice safeguards had been watered down considerably without any justification. The breadth of offences under the Bill makes provisions like “presumption of guilt” even more worrisome. According to her, the Bill will have a chilling effect on the health and social security programmes for vulnerable communities, including sex workers, who tend to fall under the punitive framework of anti-trafficking laws. “Contrary to claims that the Bill does not affect sex workers, proposed offences such as trafficking and exposure to HIV and AIDS and pregnancy reveal a definite intent to target sex work. The tendency to incriminate sex workers in trafficking offences through ‘guilt by association’ has increased the fear among peer and outreach workers carrying out public health or social protection initiatives with sex workers. More so when the ITPA and other punitive laws will continue to be applied. India can ill-afford to put its National AIDS Control Programme under risk or threat, especially when its success is founded on large-scale targeted interventions with female sex workers,” she said.

The criticism notwithstanding, there are people, such as the Nobel laureate Kailash Satyarthi, who have welcomed the Bill. Shikha Phillips, CEO and executive director, Free a Girl India, took a cautious approach: “More than 18 million people are estimated to have been trafficked for sexual exploitation within the country, and the main targets of this organised crime are minors and young girls in particular. Extreme levels of exploitation and menacing impunity remain a looming threat. The Trafficking Bill responds to this impending peril with a comprehensive and structured solution. We hope that this will become a robust, responsive and accountable institutional framework of prevention, protection and rehabilitation.”