WE DON’T NEED the ‘Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018’

By Tripti Tandon

 

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (commonly known as the ‘Anti-Trafficking Bill’) was sought to be introduced in the Lok Sabha on 16 March 2018 by the Minister for Women and Child Development (MWCD) – Ms. Maneka Sanjay Gandhi. Given its questionable purpose, ambiguous clauses and incomprehensible provisions, the Bill is a disaster, from whichever side you look at it. If the Government is serious about addressing trafficking, it must refer the Bill to a Standing Committee in Parliament.

 

Neither clear, nor comprehensive

For over a decade now, the narrative around anti-trafficking law has been that there is a need for a comprehensive legislation to address all aspects of trafficking in persons.

Importantly, in disposing off a petition on the subject of trafficking, i.e. Prajwala v Union of India W.P(C) No. 56 of 2004, the Supreme Court, in its order dated December 9, 2015, recorded the MWCD’s submission that it had set up a committee to study existing laws, identify gaps and draft a comprehensive legislative framework covering all aspects of trafficking.

This was what was expected from the government.

Presently, activities that constitute “trafficking of persons” are addressed by a range of laws, which includes:

  • Sections 370-370A of the Indian Penal Code, 1860 (IPC), which define and penalize trafficking in persons[2].
  • Section 371, IPC, which criminalizes slavery.
  • Section 372-373, IPC, which criminalizes buying and selling of underage girls for prostitution.
  • The Immoral Traffic (Prevention) Act, 1956 (ITPA), which criminalizes activities related to prostitution and provides rescue, rehabilitation and correction of sex workers, albeit through a moral lens.
  • The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), which provides a framework for protection of children who are missing or at risk of being trafficked.
  • The Bonded Labour System (Abolition) Act, 1976 (Bonded Labour Act), the Contract Labour (Regulation & Abolition) Act, 1970, the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, Children (Pledging of Labour) Act, 1933 and the Child Labour (Regulation and Prohibition) Act, 1986, which deal with forced labour, child labour, primarily through regulation and welfare-oriented measures.

The existing response is patchy and scattered across different laws, which approach trafficking from varied, and sometimes, inconsistent objectives. For example, while the ITPA focuses on removing and evicting sex workers from their occupation, the Bonded Labour Act protects the worker who was held in bondage from being evicted from the place where s/he was working.

Since trafficking of persons, as defined under section 370, IPC, is an act or rather, many connected acts of wide amplitude, there are other laws that are also relevant. These are:-the Indian Contract Act, 1872 (which deals with offer, consideration, consent and acceptance in the context of an agreement or contract), the Prevention of Begging Act, 1952 (which inter-alia criminalizes persons who employ or cause another to beg), as well as the Passports Act, 1967 and the Foreigners Act, 1946 (which deal with entry, exit and movement in and outside India).

A “comprehensive law” was expected to harmonize different approaches and integrate existing laws into one. The Anti-Trafficking Bill does not do that. All it does is add yet another legislation to the already fragmented landscape of laws on human trafficking, further complicating the legal framework and its enforcement.

 

No research or rationale behind the Bill

In the past, proposals to reform anti-trafficking laws have been informed by research and assessment of gaps in the response to trafficking. In 2002-2003, the National Human Rights Commission (NHRC) conducted a countrywide study of the problem and produced two voluminous reports on “Trafficking in Women and Children in India”. Findings of the NHRC report prompted the MWCD to move the Immoral Traffic (Prevention) (Amendment) Bill, 2006. Similarly, the Criminal Law Amendment Act, 2013 which led to the enactment of Sections 370 and 370A of the IPC against trafficking and exploitation of a trafficked person respectively, were based on the recommendations of the Justice Verma Committee Report, 2013, in relation to laws on sexual offences.

The Anti-Trafficking Bill has not been preceded by any substantial research or analysis. Given that the NHRC study is over 15yrs old and in between, new provisions have been enacted in the IPC against human trafficking, the MWCD ought to have commissioned a review before embarking on this legislative exercise. The government has not been to explain why it has chosen an additional law, when the need was for a comprehensive law on trafficking of persons.  

 

Much of what is proposed already exists

The last legislation against trafficking, i.e. Sections 370 and 370A, IPC contains an all-embracing definition of trafficking in persons, which takes care of concerns of a narrow, purpose-specific application of the law. Section 370, IPC prohibits all forms of trafficking for exploitation. Explanation 1 to Section 370 of the IPC, which indicates what exploitation means is inclusive and covers “any act of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude.” Trafficking for any purpose – whether begging, domestic work, farm or factory work – is part of section 370, IPC, which lays down a minimum punishment of 7 years imprisonment, which may extend to 10 years and fine.

The Anti-Trafficking Bill does not redefine trafficking but incorporates the existing definition under section 370, IPC. It, however, creates a new category of “aggravated forms of trafficking”, which carry a minimum sentence of 10 years, which may extend to life imprisonment. Some of the aggravated forms of trafficking introduced in the Bill are “trafficking for the purposes of forced labour, begging, marriage and child-bearing”, which, as noted above, are already criminalized under section 370, IPC. This is borne out by the National Crime Records Bureau (NCRB) reports, which provide purpose-wise disaggregated data on human trafficking cases under the IPC. According to the NCRB, in 2016, the police registered 10,357 cases of trafficking for forced labour, 349 cases of trafficking for forced marriage and 71 cases of trafficking for begging. The claim that these are “new” forms of trafficking that are not addressed under existing laws is totally baseless.  

Similarly, the so-called “new offence” of administering hormones or committing trafficking by administering alcohol or drugs is already incorporated in section 328 of the IPC, which punishes a person who: “administers to, or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to ….. commit or facilitate the commission of an offence…, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Repeat offenders, trafficking of more than one person are all punishable under existing law.

Prevention, rescue and rehabilitation are also incorporated in current laws. For example, the JJ Act seeks to prevent child trafficking through protective mechanisms like the Child Welfare Committee. The Bonded Labour Act provides for vigilance committees in every district to carry out surveys and surveillance, with the aim of preventing bonded labour practices. Rescue and rehabilitation measures under ITPA are all too well known.

There is nothing “new” or “different” in the Anti-Trafficking Bill, which is a rehash of legal provisions that already exist, including those that have failed to work. The Bill appears to be an exercise in one-upmanship, with the government keen to “show” that it is doing more and better than its predecessor, when, in fact, all that it is doing is “more of the same”.   

 

Recommendations of the Supreme Court-appointed panel ignored

In 2011, while hearing an appeal in Budhadev Karmaskar v. State of West Bengal (Criminal Appeal No. 135 of 2010, the Supreme Court constituted a panel to examine legal issues in relation to: 1) prevention of trafficking, 2) rehabilitation of sex workers who wish to leave sex work, and 3) conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India. Over the next few years, the Court-appointed panel submitted a set of interim as well as final recommendations on the three terms of reference. One of the key recommendations of the panel was to adopt community-based rehabilitation, i.e. alternatives that are not contingent on trafficked women staying in state-run “homes”. Another suggestion was to revise laws like the ITPA so as to distinguish between those coerced into sex work and those who engage in it voluntarily, so that interventions are tailored to those who need them. None of these ideas, which emerged from in-depth analysis and multi-stakeholder deliberations, have been taken on board in the Anti-Trafficking Bill.

Yet, in its affidavit dated March 2017 before the Supreme Court, the MWCD expressed agreement with the panel’s findings and stated that it is “taking steps to implement recommendations of the panel”. The affidavit further submits that the Panel’s recommendation to create awareness amongst sex workers about their rights “is very important” and that “the government is taking steps to create awareness amongst sex workers regarding their social as well as legal rights”.

In light of the contents of the Anti-Trafficking Bill, this is nothing but double-speak.  

 

Problems with the Bill

The Anti-Trafficking Bill is deeply flawed, with provisions that are both problematic and make little sense. Some of these are noted below:

  • Conflating unauthorized migration with trafficking: In a provision that could have serious implications for cross-border movement of people including refugees, the Anti-trafficking Bill categories a person who encourages another person “to migrate illegally into India or Indians to some other country”, as having committed an act of ‘aggravated form trafficking’, punishable with 10 years imprisonment. It is important to remember that migration, which is voluntary movement of persons, does not partake elements of threat, coercion, fraud or exploitation, which are central to the crime of trafficking. Unauthorized travel and movement of citizens and foreigners is already dealt with under the Passports Act, 1967 and the Foreigners Act, 1946 respectively. The attempt to criminalize migration in the guise of trafficking is deeply disturbing and questionable, especially in light of the refugee and migration crisis in South Asia.
  • Gradation of offences is illogical: The Anti-trafficking Bill categorizes trafficking for certain purposes as “aggravated forms of trafficking”, with a punishment of 10 years or life imprisonment. Logically, offences that are graded higher must be more serious or culpable than the acts that constitute trafficking under Section 370, IPC, which attract punishment of 7-10 years imprisonment and fine. But that is not the case. Trafficking for the purposes of begging is considered “aggravated”, whereas trafficking for sexual exploitation is simple trafficking, even though the MWCD maintains that its primary concern is sexual abuse and exploitation of women and children. Further still, “slavery and practices similar to slavery and servitude”, which capture the most egregious forms of coercion and bondage under domestic and international law, are also simple trafficking.
  • Vague, overbroad and impractical provisions: The Bill criminalizes a host of activities, which lack culpability and criminal intent. For example:

The Bill introduces offences in relation to, and authorizes closure of premises, which are “to be used” as a “place of trafficking”. “Premises”, which is widely defined to include land, location and conveyance, may be a home, factory, farm or a vehicle used for public transport. Applied in the context of labour trafficking, the law would allow factories and farms to be “closed down”, merely on the basis of a complaint by the Police or any other person that the said premises is to be used for trafficking. A public transport bus in which a trafficked person may travel could also be seized. These are absurd consequences, to say the least.    

Penal provisions against “promoting or facilitating trafficking of persons” are equally vague and cast a wide net. IT companies, travelogues and employment sites should be worried as hosting materials or advertisements that “promote trafficking of person” will attract punishment, as will provisions like “committing trafficking of person with the aid of media” including internet, digital or electronic media.  

Provisions for confiscation of property are also framed in an overbroad manner. Properties may be attached not only when they are used for the commission of an offence, but also if they are “likely to be used” for the commission of an offence under the Act. There is no guidance as to when and under what circumstances such that a likelihood would arise so as to warrant attachment of the property. Yet another clause in the Bill confers power on the trial Court to direct “auction of premises or any part thereof”, upon conviction of a person. Notably, the premises in question do not require to have any connection with the accused or the offence.

  • No due process: Criminal justice safeguards and due-process guarantees have been watered down considerably, without any justification. The breadth of offences under the Bill makes provisions like “presumption of guilt” even more worrisome. Application for, and grant of anticipatory bail has been barred.
  • No protection for victims: One of the long-standing demands of anti-trafficking activists including sex workers has been that persons who have been trafficked must not be treated as criminals or prosecuted for acts committed in the course of trafficking or pursuant thereto. The MWCD has also consistently supported this stand. But the Anti-trafficking Bill miserably fails on this count also. The ‘so-called’ immunity to victims is only available for crimes that are punishable with death, life imprisonment or 10yrs. In reality, trafficked victims are charged with offences like travelling without a passport [in case of foreign nationals], soliciting [in the case of sex work] or working without authorization or employment papers [in the case of labour trafficking], which do not attract the kind of punishment provided in the Bill. Secondly, the protection is available only where the victim can show that s/he committed the offence under coercion, compulsion or intimidation or threat or undue influence by another person and where at the time of committing the offence, s/he was subjected to reasonable apprehension of being killed or subjected to grievous hurt or any other injury to her/himself or another person in who s/he is interested in. This is a very high threshold which very few victims will be able to satisfy, thus making the clause unworkable.
  • Reliance on rescue and rehabilitation, which is outdated: The Bill falls back on the outmoded and failed methods of “rescuing and detaining” victims in the name of rehabilitation. ‘Protection homes’ and ‘rehabilitation homes’ remain the mainstay of rehabilitation under the Anti-trafficking Bill, despite the fact that institutionalization of victims in “homes”, ostensibly for their protection and rehabilitation is antithetical to fundamental rights and re-integration. The United Nations Special Rapporteur on Trafficking in Persons, especially Women and Children, has explicitly noted that “..detention of victims of trafficking is incompatible with a rights-based approach to trafficking because it inevitably compounds the harm already experienced by trafficked persons and denies them the rights to which they are entitled”.

There is ample evidence not only of the ineffectiveness but also the harm of “rescue, raid and rehabilitation” imposed on sex workers under the ITPA. As a result, sex workers have developed alternate community-led models of peer-support and oversight and self-regulatory boards, which have been more effective in removing unwilling persons from sex work. Instead of examining such approaches and finding alternative means to offer support, the Anti-Trafficking Bill proposes to continue and extend rescue and institutional rehabilitation to all victims of trafficking.

  • A maze of bureaucratic committees and institutions: Instead of streamlining enforcement, the Anti-Trafficking Bill swells up institutional bureaucracy, by creating 10 different agencies including anti-trafficking officers, units, committees and a bureau at the district, state and national levels to counter the problem, which will result in chaos and policy-indecision as well as “passing the buck” on questions of accountability. Besides, none of the proposed bodies have any representation from affected communities, whose participation and perspective is vital for addressing trafficking successfully. As noted above, involvement of sex workers in oversight committees and anti-trafficking boards was strongly recommended by the Supreme Court appointed panel, in light of their effective role and contribution. This has been overlooked completely.
  • Implementation will be a disaster: For police, Courts and other enforcement authorities, implementing the numerous anti-trafficking laws will be a nightmare. The Bill lays down powers and procedures which will apply in addition to other laws. To illustrate, the ITPA provides a specific procedure for raiding premises suspected of carrying out prostitution as well as for the removal of persons from such premises. The proposed law lays down another procedure for this, and it is unclear whether the Police will have to follow one or the other, or both, especially where the persons and/or premises in question also attract liability under the Anti-trafficking Bill. Persons accused of trafficking crimes, will, on the other hand, benefit from such confusion, as it is common knowledge that in criminal prosecution, the more the number of laws that apply, the easier it is to find loopholes in the case and secure a discharge or acquittal. This defeats the very objective of the anti-trafficking Bill.
  • Chilling effect on health and social protection programmes: The new Anti-Trafficking Bill will have a chilling effect on 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 fear among peer and outreach workers carrying out public health or social protection initiatives with sex workers. More so, when 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 has been founded on large-scale targeted interventions with female sex workers, whose peer educators play a key part in the prevention programmes.
  • No wisdom in applying criminal law to a development problem: The problem of trafficking cannot be disassociated from poverty, livelihood, displacement and security. People have and will always move for work, whether out of distress or for better opportunities. Prisons cannot capture or confine the dreams and aspirations of people, especially the poor and the marginalized. If the development mantra is to be used, it must be used here, in the response to trafficking. Adopting a carceral approach to what is largely a socio-economic phenomenon is misplaced and unwise.

The Anti-Trafficking Bill does not serve any logical or legitimate purpose. All that it does is add yet another legislation to the already fragmented landscape of laws on human trafficking, exposing vulnerable communities to draconian punitive overkill and making enforcement a virtual nightmare. It is a shoddy piece of legislation, which should not be taken forward or introduced in Parliament. And if tabled, it must be referred to the Standing Committee for careful scrutiny, which has evaded the Bill till now.

Find the full text of the Bill here. 

Tripti Tandon is an Advocate and Deputy Director of Lawyers Collective, HIV/AIDS Unit 

 

[1] Tripti Tandon is lawyer and the Deputy Director of the Lawyers Collective HIV/AIDS Unit

[2]Section 370: Trafficking of person - (1) “Whoever, for the purpose of exploitation, a)recruits, b) transports, c)harbours, d) transfers or, e) receives a person or persons, by –

First, using threats, or

Secondly, using force or any other form of coercion or

Thirdly, by abduction, or

Fourthly,   by practicing fraud or deception, or

Fifthly, by abuse of power, or

Sixthly, by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received,

Commits the offence of trafficking.

Explanation I: The expression ‘exploitation’ shall include, any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Explanation II: The consent of the victim is immaterial in a determination of the offence of trafficking.”