Draft of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2021- A Brief Note

INTRODUCTION

To combat the issue of human trafficking and following the Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the  United Nations Convention against Transnational Organized Crime), Ministry for Women and Child Development invited for a consultation on the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016. After facing criticism on its criminal law approach, it further brought another bill in 2018 which lapsed in the Lower House. After taking into consideration the wide scale criticism on the previous Bill, the government now has brought in a Draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2021 on 30^th of June, 2021.

GENESIS AND OBJECT

Even having Immoral Traffic Prevention Act, 1986 in place, statistics showed India having 1.2 million girls engaged in child prostitution, according to a survey by Bachpan Bachao Andolan. To help in curbing the trafficking menace, the government wanted to come up with a more comprehensive law. The definition of trafficking in the current Bill has extended to include forced labor, bonded labor, slavery, servitude, sexual exploitation. It seeks for time bound relief, rehabilitation and institutional care for all victims of trafficking. It has imposed strict and harsher punishments.

Aggravated trafficking inviting death penalty with a fine of upto 30 lakhs whereas non-aggravated trafficking can invite a maximum of 10 years imprisonment with Rs. 1 lakh fine amount.

The purpose of the Bill is to –

“prevent and counter trafficking in persons, especially women and children, to provide for care, protection, and rehabilitation to the victims, while respecting their rights, and creating a supportive legal, economic and social environment for them, and also to ensure prosecution of offenders”.

The government had invited comments from the stakeholders by 14^th of July, 2021 which got backlash. The National Network for Sex Workers (NNSW) in a letter to Ministry of Women and Child Development, alleged government had taken 2 years to come up with current Bill in its present form whereas its giving only two weeks to the public voice their concerns. With less time to evaluate and assess the repercussions of the Bill on the sex workers, the NNSW had asked for extension in time and had put forth its comments in a letter[3] to Mrs. Smriti Irani, then Minister for WCD.

In the earlier 2018 version of the Bill, the UN had commented that it placed heavy reliance on criminal aspect of the Bill and was not victim-centric in its approach as was observed. India must revise its planned new legislation to tackle trafficking in persons so that the measures proposed are in line with international human rights law, said two independent UN human rights experts. Experts say by relying on a punishment-as-deterrence approach, the Bill is not addressing root causes of trafficking.

Clause 23 of the Bill is cited as a problematic whose Explanation 2 talks about “consent of victim shall be irrelevant and immaterial in determination of offence of trafficking in persons if any of the means in (b) is used to commit the crime.

Clause 23 (b) of the Bill mentions- by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of authority or vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person. Explanation 1 talks of inclusion of exploitation of prostitution of others and other forms of sexual exploitation that includes pornography, forced services, etc.” This implies that even sex workers who are willingly in the profession can end up in jail.

COMMENTS BY THE NNSW

National Crime Record Bureau (NCRB) collects data and present number of trafficking cases on the basis of this definition of 370. According to data, 95% of trafficked persons in India are forced into prostitution. The recent NCRB lists a total of 6,616 human trafficking cases as registered in India, out of which trafficking for the sex trade are highest in numbers. The National Network of Sex Workers (NNSW) is a pan-India network of over 1.5 lakh female, trans and male sex workers. They have raised the following objections-

• Impact of ‘Forced Workers as trafficked victims’ will cause forced rescue: Sex work is defined as an adult provision of sexual services for payment or goods. It is a dignified option of work adopted by millions of women, men and trans persons in India. It provides a vital earning through which adults support their families. 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
• Consequences of Equating Sex Workers with Victims of Human Trafficking: The fundamental flaw as per the comments by NNSW in reading the new Bill according to them arises when we are equating sex workers with that of victims of human trafficking. This conflation can lead to misuse application of the provisions in the bill by filing fake cases. The arresting of consenting adult workers and leave them without recourse to applying for bail. The bill also provisions for freezing of bank assets and places used for purpose of trafficking to be sealed.

The main law presently dealing with people in sex work is the Immoral Trafficking (Prevention) Act (ITPA) of 1986 which seeks to prevent trafficking of persons in India and prohibits most outward manifestations of sex work, including brothel operating and public solicitation. It also allows for eviction of sex workers from their residences in the name of “public interest.” The Immoral Traffic (Prevention) Act, an amendment of SITA, was passed in 1986. According to IPTA sex workers can practice their profession but activities including pimping and running a brothel are considered a punishable offence. Under Section -3 running a brothel or allowing premises to be utilized for a brothel is illegal. Under section 2(a) ‘Brothel’ has been defined as any house, room, or place which is used for prostitution. They have raised a valid question, “What if an adult, consenting sex worker claims to be a voluntary entrant? Would this voice carry any weight?” The Bill is silent on this.

Section 370 A IPC is already arresting clients of sex workers without attempting to differentiate between a trafficked victim and a adult woman in sex work. Some courts have recognized agency of adult women and their right to consent to their work Kajal Mukesh Singh and Ors. Vs. State of Maharashtra, 24th September 2020 Cr W.P 6065 of 2020, High Court at Bombay while other courts continue to regard sex workers as victims of trafficking.[ Ku Priyanka vs. The State of Madhya Pradesh, 20 May 2020, Cr Rev No. 789/2019, High Court of Madhya Pradesh]

Under Section 2(25) and Section 23 (Explanation 1) and Section 25 (o) of the New Bill, it criminalises all third parties without determining those who support sex workers in their work from those who exploit using force, fraud, deceit and other methods to obtain consent. Treating third parties as per se criminal or exploiters of sex workers pushes them into exploitative conditions of unsafe working conditions and low payments.

• Victims as those who cannot consent: The Trafficking Bill in effect, by adopting a definition of trafficking which defines victims as those who cannot consent, in effect hits at the autonomy of the so-called victims. Even those who are trafficked have the right to make decisions about their life. By empowering authorities to place persons who are trafficked in custodial institutions without their consent,the Bill fundamentally negates the notion that individuals under the Indian Constitutional framework have autonomy of decision making.It also criminalises clients of the sex workers under Section 30 (1). A study reveals 193 out of a sample of 243 women picked up in raids in the state of Maharashtra were incarcenated in rehabilitation homes against their wishes. “Of these 28 women said that they had been incarcerated for periods between 6 months to 3 years before they were finally released”
• Violation of fundamental right under article 19 (1) (g): The Bill also violates Article 19(1)(g) of the Constitution under which a citizen has the right to practice any profession or to carry on any occupation, trade or business. Persons doing sex work are often at the bottom of the socio-economic hierarchy in India. They seek to make a livelihood in extremely difficult circumstances. Section 49(2) denies the accused person the right to anticipatory bail by specifically denying all persons accused of offences carrying a punishment of above two years; the right to approach the court under Section 438 for anticipatory bail.
• Trafficked vs Non Trafficked: In its efforts to curb trafficking, the Bill does not have any fool-proof mechanism of differentiating between the trafficked and non-trafficked, especially in the context of sex work.

In the case of Budhadev Karmaskar v. UOI [2011] 10 S.C.R.. 578., the Supreme Court brought attention to futility of stay in remand homes against the wishes of the victim. Further this case also instituted a Panel on Sex Work which in its Report stated provisions such as crèches, day care and night care facilities be set up for children of sex workers. However, the Bill is also silent on this.

While Section 13 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 takes understanding of disruption of income while rehabilitating the victims, similar understanding is not visible in the sex workers bill.

• Bail provisions under the Bill

In a study conducted by NNSW in 2019, around 100 cases were recorded in Maharashtra where clients were threatened arrest and let off after paying bribes.

Sec. 49(2) denies an accused the right to anticipatory bail by denying those who are carrying 2 years imprisonment as punishment, the right to approach under sec. 438 CrPC for anticipatory bail. This is a very draconian provision. This can lead to filing of many false cases.

Further Sec. 52(2)(b)(ii) lays down that there should be ‘reasonable grounds for believing that the accused is not guilty of such offence’ before granting bail, this amounts to virtual denial of bail.

Particularly, S. 25, 29, 30, 31 provisions expose individuals such as sex workers, their clients to non-bailable charges of abetment, conspiracy and attempt to commit a trafficking offence, leading to severe penalties of imprisonment. The Bill does not allow constitutional right to autonomy in decision making of an individual. It can be interpreted to violate Art. 19(1)(g) under which a citizen has the freedom to practice and carry on any profession or trade.

• District Anti Trafficking Committee have been given immense powers to decide on rehabilitation of the victim without any mechanism in place to hold them accountable in case of any violations, to be liable in civil and criminal law. There are 3000 AHTUs currently functioning, one in every district. Now the question is when NIA is involved, it needs to investigate even cases at local level, not limited to cross border cases.

CONCLUSION

Human trafficking is the second largest organised crime in India despite the fact that the Indian constitution accords rights to children as citizens of the country, and in keeping with their special status the State has even enacted special laws to protect them. Some of the rights include-

• Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e))
• Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment (Article 39 (f))

The Bill which has been brought to curtail the human trafficking is under eye of storm from stakeholders who are questioning majoritarian morality  view with that is prevailing over the state obligation to allow adults to exercise their own right to autonomy, dignity and freedom to practise profession of their choice. Another side of common debate that is triggered in new law is -many also opine that having legislations as : Juvenile Justice Act 2015, POCSO 2012, Section 370 IPC thus rather than bringing a new law and fuelling more confusion, it is more in state and public interest to make existing laws more effective in implementation.

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