20, Jul 2018 | Mansi Mehta
On Wednesday, July 18, 2018, the first day of the Monsoon Session of Parliament, Maneka Gandhi, the Union Cabinet Minister for Women and Child Development (WCD), tabled a Bill aimed at curbing human trafficking in India. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was first approved by the Union Cabinet in February 2018, and was drafted by the WCD Ministry.
A brief overview of the Bill
The draft anti-trafficking Bill separates offences into the categories of “trafficking” and “aggravated trafficking,” the Times of India has reported, with “trafficking” offences carrying a punishment of 7-10 years’ imprisonment. According to a release from the Press Information Bureau the Bill approaches trafficking with the aim of prevention, rescue, and rehabilitation. It addresses “aggravated forms of trafficking, which includes trafficking for the purpose of forced labour, begging, trafficking by administering chemical substance or hormones on a person for the purpose of early sexual maturity, trafficking of a woman or child for the purpose of marriage or under the pretext of marriage or after marriage etc.”
The Bill includes features such as the confidentiality of victims, witnesses and complainants, time-bound trials, and the immediate protection and repatriation of victims. It also calls for designated courts in every district to try the cases, along with the creation of a Rehabilitation Fund that will be “used for the physical, psychological and social well-being of the victim including education, skill development, health care/psychological support, legal aid, safe accommodation etc.” Under the Bill, punishment ranges from ten years’ to life imprisonment, and a fine of not less than Rs. 1 lakh. The Bill also seeks to punish those promoting or facilitating trafficking.
The tabling of the anti-trafficking Bill comes soon after the US State Department, in its annual Trafficking of in Persons Report, said “Government of India does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so.”
Arguments against the Bill
Several groups have raised objections about the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018.
Congress leader Dr. Shashi Tharoor, in a letter dated April 17, 2018, wrote to Maneka Gandhi, noting that there are multiple existing legislations addressing human trafficking. He noted that a comprehensive law would be one that “harmonizes all the laws related to that specific topic,” but said that the proposed draft anti-trafficking Bill “fails to do so, and instead creates more confusion among law enforcement agencies by adding to the existing range of laws.”
How the Bill could affect sex workers
Tharoor has also met with Gandhi, Live Law reported. He was accompanied by Anjali Gopalan, Director of the Naz Foundation, which works on sexual health and HIV/AIDS, Meena Seshu, the General Secretary of SANGRAM, which has worked with sex workers and on HIV/AIDS, as well as Aarthi Pai of the National Network of Sex Workers (NNSW). At the meeting he presented a collection of comments on the draft anti-trafficking Bill from 30 civil society groups, more than 240 lawyers and activists, and endorsed by more than 4,000 sex workers.
The comments note that while trafficking needs “strict measures to combat unscrupulous persons who exploit the vulnerability of workers,” but say that “all measures to deal with trafficking focus on the victims rather than the perpetrators of the crime.” The recently tabled Bill, the comments say, “criminalizes vulnerable individuals in the absence of comprehensive policies, programmes and measures that address the factors that make persons vulnerable to trafficking,” later adding that it is “focused solely on a surveillance mechanism that could be misused to target adults whose work is deemed immoral by the state. The Bill does not adopt measures to encourage victims to approach law enforcement when violated.” It notes that “The harmful impact of assuming all forced workers as trafficked victims will result in the ‘forced rescue’ of adults earning a livelihood and incarcerated in ‘Sudhar gruhas’ be they domestic workers, bonded labourers, beggars, sex workers or surrogate mothers.”
Particularly for sex workers, which the comments term “one of the most vulnerable sections,” they say that the Bill considers trafficking victims to be “on par with adult persons in sex work.” The comments state, “Trafficking of persons into forced or coerced labour (including sexual exploitation) should not be equated with sex work undertaken by consenting adults,” adding, “This conflation could lead to misuse and over-broad application of the provisions in this Bill.”
The NNSW itself has written to Gandhi, calling on her to “explicitly recognise the agency of adult women, men and trans people and remove adult consenting sex workers and their clients from the ambit of this proposed legislation” in adherence with the Justice Verma Commission, which drafted Section 370 of the Indian Penal Code, and defined trafficking as: “The members of the Committee wish to clarify that the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not be interpreted to permit law – enforcement agencies to harass sex workers who undertake activities of their own free will, and their clients.”
Dr. Smarajit Jana, who has served on a Supreme Court-appointed panel on the rehabilitation of sex workers, told News18 that the law would also negatively affect those with HIV, and that it could imperil HIV prevention and intervention.
How the Bill could affect the LGBTQ community
Activists have noted that the Bill could also put the LGBTQ community under threat. As Shyamala Nataraj, founder and executive director of South India AIDS Action Program (SIAAP) told the Times of India, “The Bill has 131 pages, 59 sections and 15 chapters and has no explicit definition of trafficking. If passed, it could be applied all forms of informal labour, migrants, sex workers, LGBTQ communities, beggars, surrogate mothers and the use of internet and e-applications such as Tinder and Grindr”. LGBTQ rights activist Vikramaditya Sahai noted that “When a law prescribes life imprisonment for trafficking leading to AIDS or begging or injecting of hormones, it will ultimately lead to criminalisation of trans-identities,” The Hindu reported.
The Bill criminalises giving someone chemicals or hormones to accelerate their sexual maturity, News18 reported, potentially imperilling the transgender community. Nisha Gulur, a trans woman who heads the NNSW’s Executive Committee, told News18, “I was born a man and wanted to become a woman. I left my hometown to find others from my community and could help me change. My trans sisters helped me procure hormone therapy so that I could finally achieve my identity. What is wrong with that?” News18 noted that the Bill does not indicate such situations as exceptions; if it becomes law, those who helped Gulur could be considered accomplices to trafficking.
News18 stated that transgender activists have also criticised the Bill’s provision to send a trafficking victim back to their hometown, potentially endangering them further. As Gulur explained to News18, “I ran from home because of gender based violence. I joined the sex trade because of the lack of acceptance for transpersons in professional fields. I am a dignified person who has a job. But now this Bill makes me a ‘victim’ and sends me back to my hometown after allegedly ‘rehabilitating’ me from my chosen profession.”
How the Bill could affect children
The HAQ Centre for Child Rights, a partner of Citizens for Justice and Peace (CJP), has released collated comments on the proposed draft anti-trafficking Bill, emphasising that they “strongly believe that the concentration must be on better enactment and implementation rather than creation of new laws, especially Special Laws.” HAQ has highlighted that the Bill does not contain provisions clarifying if it will replace the existing Immoral Traffic (Prevention) Act, noting that Section 59 of the Bill “states that it is in addition to existing laws dealing with trafficking and will have an overriding effect in case of any inconsistency with provisions of the other existing laws.” HAQ has questioned if the investigative and justice mechanisms under the ITPA will work alongside those under the new Bill, saying that this has not been mentioned, “only allowing victims to be shunned from one authority to another“.
Moreover, HAQ has also stressed that while the Bill references the Juvenile Justice (Care and Protection of Children) Act, “children are also trafficked for labour, noting that this is recognised by IPC Section 370, as well as for marriage. Given this, HAQ has also question how the proposed Bill, if passed, “will intersect with the other relevant laws for children such as the Prohibition of Child Marriage Act…and Child and Adolescent Labour (Prohibition and Regulation) Act”. Moreover, HAQ has noted that it is also unclear how the bill would intersect with Protection of Children from Sexual Offences Act (POCSO) in cases where a child has been sexually exploited. HAQ has also stated that the “proposed Bill does not cover all forms of trafficking of children,” explaining that “many recognised and well documented forms of child trafficking such as trafficking for and through adoption, or trafficking of children by placement agencies for domestic servitude find no mention in the Bill.”
HAQ has questioned the wisdom in creating new bodies, with the Bill providing for the establishment of anti-trafficking units at the state and district levels, which HAQ has said “will only lead to multiplicity of authorities as there are already the State and District Child Protection Units that are in place, along with the Child Welfare Committees that have been mentioned in the Bill.” HAQ has questioned the units’ purpose, saying that “they will become yet another set of institutions that will intervene into the lives of victim children, leading to further victimisation and confusion.” Moreover, HAQ has noted the likelihood, given the “multiplicity of institutions and authorities” that “the child victim of trafficking will fall between the cracks and be denied justice and rehabilitation.”
HAQ has also specifically taken note of several specific sections of the proposed Bill and outlined the issues with these, and has suggested potential amendments to address these concerns.
A criminal law solution for a social problem
As The Wire noted in March 2018, the proposed anti-trafficking Bill “falls into the familiar trap of trying to use criminal law to solve a social problem,” and explained that it “relies on the raid, rescue and rehabilitation model,” which in its current form is nothing but victim detention”. It termed the Bill “vague and too broad,” since it “casts a wide net on who can be charged with the offence of trafficking.” For instance, “a bus driver whose vehicle is being used for trafficking without his knowledge can also be booked for aiding the process,” The Wire explained. It also noted that the Bill has human rights implications, contradicting human rights norms regarding proof to establish guilt. “If this Bill were to be passed into law, the burden of proof will rest with the offender to establish his/her innocence. These sorts of aggravated measures are unprecedented and rarely applied other than in counter-terrorism policies,” it stated. Moreover, the Bill’s “wide ambit and…vague clauses,” along with the stringent punishment, “it is bound to disproportionately affect those who are already vulnerable and marginalised,” including women, The Wire opined.
However, some trafficking survivors are pushing for the Bill to be passed. Reuters reported that a 23-year-old, who was trafficked when she was a teenager, said in a statement from Uthaan, a survivors’ organisation, that “Our lives depend on this and we cannot be held hostage to demands of adult sex workers, who choose to work”. Anti-trafficking activist Sunita Krishnan told the Thomson Reuters Foundation that consensual sex workers’ “apprehension is about livelihoods (of adult sex workers) being hit. If they are running a brothel and have trafficking victims, it will be hit. But if not, why will it hurt them?”
A group of activists that includes lawyers, transgender rights activists, lawyers, as well as child rights and labour rights groups have called for the Bill to be presented to a parliamentary standing committee, The Wire reported.