The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018

Myth vs. Fact

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018 was passed by the Lok Sabha on 26th July 2018. While a large section of civil society welcomed the move for a comprehensive and stringent law to combat trafficking of persons, especially of women and children, there were some who raised concerns on its approach and implications. A thorough understanding of the proposed provisions of the Bill and its spirit will help address the concerns. This article is aimed atobjectively delineating myths surrounding the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill from the facts of it.

1. What is proposed in the Bill already exists, and the Bill does not propose anything new.

Fact

The current law on trafficking only criminalises the act of trafficking. There is no framework of prevention of trafficking, or the protection and rehabilitation of victims. The Bill creates thisdedicated three-tier institutional framework at national, state and district level to ensure the effective implementation of the law at all levels.

Rationale

Section 370 of the Indian Penal Code 1860 and other existing laws like the Bonded Labour System (Abolition) Act 1976 and the Immoral Trafficking (Prevention) Act 1956 defines and criminalises trafficking and related offences. Existing laws like address specific matters pertaining to bonded labour or prostitution. Trafficking is closely linked to these issues, but is distinctively independent from them. Some of the new provisions proposed in the Bill are: 1. It creates economic deterrence by attachment and forfeiture of property and freezing of bank accounts used for trafficking. 2. It directs surveys, awareness generation and community-based rehabilitation and the creation of a special action plan for prevention of trafficking. 3. International cooperation of cross-border trafficking. 4. It provides a right to rehabilitation to survivors through (i) Special rehabilitation agencies at all levels (ii) a dedicated Rehabilitation Fund for survivors for assistance in the form of psychological, social and economic rehabilitation, that is not contingent upon conviction. (iii) It provides capital, infrastructure and skill development to survivors to become self-dependent. 5. Designated courts and special prosecutors for time-bound prosecution of offenders.

2. The Bill employs a crime-centric approach rather than a survivor-centricand human rights- approach.

Fact

The Bill employs a combination of both approaches, keeping the welfare of the survivor at its core.

Rationale

Trafficking is an organized crime. The dynamic and nature of the crime of trafficking cannot be addressed linearly by a single approach. The Bill synthesizes both of these approaches in a manner that protects victims while prosecuting offenders to deter further crimes. This ensures that both the demand and supply sides of the economic nature of the crime are addressed. The survivor-centric provisions include (i) preventive measures at the community and institutional level, (ii) immediate protection through rescue from place of exploitation, and protection as victims and witnesses, (iii) immediate rehabilitation through protection and rehabilitation homes (iv) long-term psychological, social and economic rehabilitation (v) burden of proof on the offender. The crime-centric provisions include (i) stringent punishment and fines (ii) rime bound trial (iii) attachment and forfeiture of property (ii) freezing of bank accounts (iii) cancellation of anticipatory bail There is no greater human rights violation that the buying and selling of humans as slaves. All provisions converge into the protection of the human rights of the vulnerable especially women and children as provided for in its Statement of Object and Reasons: The Bill aims to- prevent trafficking of persons, especially women and children and to provide care, protection and rehabilitation to the victims of trafficking, to prosecute offenders and to create a legal, economic and social environment for the victims and for matters connected therewith or incidental thereto.

3. The Bill forcefully picks up adult voluntary sex workers and detains them in homes, thus disrespecting their consent and agency.

Fact

While the Bill protects and rehabilitates child victims of trafficking, but leaves it to the choice and agency of an adult sex worker to accept or decline the option of rehabilitation. It does not resort to institutionalisation but only provides its option to survivors as an alternate safe place to stay in its absence. The Bill ensures a comprehensive model of statutory model, and not mere institutionalisation.

Rationale

Section 17(4) of the Bill allows for an adult victim to make an application along with an affidavit to the Magistrate declining rehabilitative services. After due assessment of the immediate threat, coercion and duress the victim may be under, the application will be accepted by the Magistrate. The statutory rehabilitation model in the Bill includes: (i) National, State and district level agencies for relief, rehabilitation and repatriation (ii) A dedicated Rehabilitation Fund for overall care and rehabilitation for survivors including psychological, social and economic rehabilitation, that is not contingent upon conviction. (iii) capital, infrastructure and skill development to survivors to become self-dependent.

4. The Bill does not include a definition of sexual exploitation.

Fact

The Bill uses and extends the existing definition of trafficking as provided for in Section 370 of the Indian Penal Code 1860. The term ‘exploitation’ in this Section includes both physical and sexual exploitation.

Rationale

Section 2(w) of the Bill states that ‘trafficking of persons’ will be defined as per Section 370 of the Indian Penal Code which defines exploitation as “any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.”

5. The Bill criminalises voluntary sex work.

Fact

The Bill does not criminalise voluntary sex work. It is aims at criminalisation of trafficking in line with the already existing definition of trafficking under Section 370 of the Indian Penal Code 1860.

Rationale

The list of offences under Chapter XII of the Bill only criminalises a person who buys and sells other persons for the purpose of exploitation. At no point is the victim held as a criminal, or detained against his/her will. Infact it also guarantees immunity to victims who may also be offenders, in certain situations.

6. The Bill does not protect the privacy of survivors.

Fact

The Bill protects the identity and confidentiality at all stages and criminalises its violation.

Rationale

Section 42 of the Bill states that‘No report or newspaper or magazine or news-sheet or audio-visual media or any other form of communication regarding any inquiry or investigation or judicial proceedings at any stage shall disclose the name, address or any other particulars, which may lead to the identification of a victim or witness of trafficking of person under this Act shall be published” Even a Court will only be able to share the identity of a victim to a relevant agency after providing their reasons in writing if it is in the best interest of the victim. This will include to trace a child victim or his/her parents/guardians and granting police protection. The Court will issue directions for securing that the identity and address of the witnesses. Moreover, the Bill provides for in camera trial and trial by video conferencing for the victim so that he/she does not need to face the victim and their identity is not disclosed at any point of the process.

7. The Bill does not address issues of transgenders.

Fact

The Bill is gender-neutral and all genders will be protected under its ambit.

Rationale

Special vulnerabilities of transgenders such as threat of HIV and forced engagement in begging have been addressed as aggravated offences within the Bill.

8. The Bill will arbitrarily forfeit property.

Fact

Property is only attached till the time of conviction, and will only be forfeited thereafter. The process has all necessary checks and balances so it is used only is cases where trafficking has been proved.

Rationale

Section 29 (1) provides for the attachment of property only in cases where ‘the property is concealed, transferred or dealt with, in any manner which may result in frustrating any proceedings under this Act’. This will place the necessary checks and balances against misuse.

9. The Bill employs a crime-centric approach rather than a survivor-centricand human rights- approach.The Bill is not in compliance with global standards and requirements.

Fact

The Bill is a giant step by India’s to not only achieve, but also set the highest international standards of combatting trafficking in persons.

Rationale

India has taken the lead in achieving the UN Sustainable Development Goals by the year 2030. Goal 8.7 pertains to the need to take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers by 2030, and by 2025 end child labour in all its forms; and Goal 16.2 seeks to end abuse, exploitation, trafficking and all forms of violence against and torture of children. India has also signed and ratified the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime which required India to formulate a comprehensive approach to eliminate all forms of trafficking. The Global Compact of Migration will in no way be violated since all institutions and processes will strictly function within the boundaries of the definition of trafficking and related offences as established under Section 370 of the Indian Penal Code 1860. Additionally, this Bill sets international precedent in bringing statutory rehabilitation, together all aspects of prevention, protection, online forms of trafficking, statutory rehabilitation and organized crime approach in one single comprehensive legislation so that there is a single point of support to all survivors.

10. The Bill perpetuates bureaucracy expansion by setting up 10 additional agencies.

Fact

The Bill sets up one new agency and institutionalizes already existing agencies in a single line of institutions from the National to the district level to implement the law. It also only assigns additional profiles to existing bureaucrats and does not employ new ones.

Rationale

The proposed institutions under the Bill are: (i) National Anti-trafficking Bureau (ii) National Anti-trafficking Relief and Rehabilitation Committee - State Anti-trafficking Relief and Rehabilitation Committee - District Anti-trafficking Relief and Rehabilitation Committee - Anti Human Trafficking Units (AHTUs) By establishing these committees the Bill will provide statutory direction for existing institutions like the AHTUs. This will bring both focus and accountability within them.

11. The Bill unnecessarily creates a gradation of offences by adding aggravated forms of trafficking.

Fact

The Bill employs a combination of both approaches, keeping the welfare of the survivor at its core.

Rationale

The Bill acknowledges the heinous nature of all cases of trafficking by employing the existing definition of trafficking as under Section 370 of the Indian Penal Code 1860 which provides the minimum punishment of seven years. However enhanced punishment of a minimum of 10 years is assigned in cases where the victim’s heightened vulnerability is exploited, or the victim is trafficked, held in bondage and consistently exploited over a period of time. These aggravated forms of trafficking include trafficking by administering any chemical substance or hormones on a person for the purpose of early sexual maturity, by causing or exposing the person to a life-threatening illness including acquired immuno deficiency syndrome or human immuno deficiency virus orby causing serious injury resulting in grievous hurt or death of any person, amongst others. These crimes are added exploitative situations on top of a victim who has been trafficked.

12. The Bill employs a crime-centric approach rather than a survivor-centricand human rights- approach.

Fact

The Financial Memorandum of the Bill establishes adequate initial funds for the National Anti-Trafficking Bureau and the Rehabilitation Bill. Additionally, no cap has been placed on these amounts so that they may be subsequently increased as much the need may be.

Rationale

The Financial Memorandum attached with the Bill clearly states- ‘The financial implication arising from the establishment of National Anti-Trafficking Bureau is estimated as recurring expenditure of Rs. 10 Crores in the first year and Rs. 20 crores each in the next two years and for Rehabilitation Fund it is estimated as an initial allocation of Rs. 10 crores and to be augmented subsequently on need basis’

13. The United Nations has taken a stand condemning the Bill.

Fact

The Article titled “India must bring its new anti-trafficking Bill in line with human rights law, urge UN experts” on the official OHCHR is the opinion of individual Special Procedure experts of the UN that to not represent the stand of the UN.

Rationale

The said article clearly states- “...Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.”

14. There are gaps in processes and enforcement of the law that are not given in the Bill.

Fact

The rules for the Act will provide for the procedural aspects of the law, which will address any issues pertaining to its implementation.

Rationale

Any Bill or Act provides the substantive law for addressing a crime or issue. The Rules, which are formulated subsequent to the passing of a Bill, provide the procedural law for the implementation of the substantial law. The same process will be followed in this case so any concerns about its enforcement are addressed.

15. The Bill was formulated in a hurry without consulting relevant stakeholders.

Fact

Over a period of almost three years, all relevant stakeholders and civil society at large were consulted at all stages of formulation of the Bill, and their suggestions incorporated.

Rationale

The process of formulation of the law began in August 2015, when a multi-stakeholder committee was established for its drafting. In May 2016, the Ministry placed the draft on its website for public suggestions. All subsequent drafts of the Bill were also shared on the website of the Ministry of Women and Child Development, and comments and suggestions were invited by anyone who wished to do so. The Ministry received over 300 suggestions from public and civil society. Regional consultations were held in all the main cities which over 60 NGOs, Government Departments and Police participated in. All stakeholders including sex workers and labour unions were consulted.Extensive discussions with the Members of Parliament were also conducted.