Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018
Human trafficking is the third largest organized crime violating basic human rights. There is no particular law so far to deal with this crime in India. Therefore, the Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018 has been introduced.
This Bill aims to deal with issues of trafficking from a range of aspects and to fight persistent crimes against affecting the most vulnerable sections of society, in particular, women and children.
Human trafficking – mostly of women and children- in India is a growing concern. Bonded labour and child marriage in India are the two most important causes which lead to the trafficking of persons.
The Bill has the following features
The Bill addresses the issue of trafficking from the point of view of prevention, rescue, and rehabilitation.
Trafficking for the intention of forced labour, begging, trafficking by administering chemical or hormones to a person for the purpose of untimely sexual maturity, trafficking of a woman or child for the intention of marriage or under the ploy of marriage or after marriage, etc., are included in aggravated forms of trafficking.
Promoting /facilitating trafficking of person is punishable: it includes producing, printing, issuing, distributing unissued, tampered/fake certificates, registration/stickers as proof of compliance with government requirements; or committing fraud for procuring or facilitating the possession of clearances and essential documents from government agencies. Abetting, promoting and assisting trafficking will lead to imprisonment for 3 years.
The confidentiality of the victims is maintained. Recording the statements through video conferencing is done to maintain the confidentiality of victims/ witnesses/complainants. (This is also helpful in trans-border or inter-State crimes.)
Time-bound trial and repatriation of the victims and their rehabilitation, i.e., within a period of one year from taking into cognizance is envisaged.
Provision is made for immediate protection of rescued victims and their rehabilitation. The victim is entitled to interim relief immediately within 30 days to address physical, mental trauma etc. and further appropriate relief within 60 days from the date of filing of charge sheet.
State governments are required to form a Rehabilitation Fund. This will allot financial resources to protection homes. Rehabilitation Fund is to be formed for the first time and to 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, and so on. This fund will also be utilized for victim and witness protection, and for generating awareness to prevent this menace.
A designated session’s court for fast trials is also part of the provisions. An anti-human trafficking division is proposed to be set up, and it would be under a central investigation agency like the National Investigation Agency (NIA). A district-level anti-trafficking division with an anti-trafficking police officer is also proposed. The Bill forms dedicated institutional mechanisms at district, state, and central Level. These will be accountable for prevention, protection, investigation and rehabilitation work related to trafficking. NIA will carry out the tasks of Anti-Trafficking Bureau at the national level under the Ministry of Home Affairs.
The Bill largely addresses the international nature of the crime. The National Bureau will perform the functions of global coordination with authorities in foreign countries and international organizations; international support in the investigation; assist inter-State and trans-border transfer of evidence and materials, witnesses and others for expediting trial; facilitate inter-state and international video conferencing in judicial trial etc.
There are heavy penalties like life imprisonment for aggravated forms of trafficking and fine not less than Rs.1 lakh. The burden of proof rests on the traffickers. In order to break the organized nexus, both at the national and international level, the Bill provides for the attachment and forfeiture of assets of the accused.
The present legal protections
The Indian Penal Code and the Immoral Traffic Prevention Act (ITPA), 1986 are the main anti-trafficking provisions at present. The social welfare legislation on contract/bonded labour/inter-state migrant work is also in place.
In India, a combination of penal, labour and contract laws are used to impose obligations for better working conditions. These laws often cause impediments in the trial process. The Trafficking Bill would, therefore, be an umbrella legislation in this regard.
The shortfalls
The policy makers basically mistake trafficking to be equivalent only to sex trafficking and sex work. Therefore, the criminal laws like the ITPA normally target the men traffickers. The existing definition of trafficking in Section 370 of the IPC is also not restricted to sex work.
The Bill also creates an array of new institutions with ambiguous roles. They are given enormous powers including surveillance. However, there seem to be no answerability mechanisms. There is no precision on how the Bill relates to the ITPA and to labour laws. A ‘comprehensive law’ is expected to harmonize diverse approaches and incorporate existing laws into one but this Bill does not do that.
Various activist organizations point out that it still does not address the violation of the rights of sex workers and threatens free speech and labour rights in its present form. There is no provision provided if `victims’ do not desire to go to rehabilitation. The bill also violates Article 19(1)(g) of the Constitution which provides citizens the right to practise any profession or to carry on any occupation, trade or business.
The Bill will also end up further criminalizing and incarcerating those not trafficked, for example, the poor, beggars, sex workers, transgender, bonded labourers, juveniles, surrogates, in the name of rescue and rehabilitation instead of providing justice as the Bill claims to do. Even if this Bill is meant to carry out the purpose of Article 23 of the Constitution of protecting persons from exploitation, it cannot do so by violating protections embodied in Article 21 and Article 19. The notions underlying Article 21 are dignity and autonomy.
What should be done?
The legislation must be comprehensive enough to deal with all forms of trafficking.
It is thus necessary to create the required regulatory response to reduce the prevalence of trafficking in the first place. Appropriate enforcement of the rural employment guarantee legislation would help in this regard. This would also shun voluntary sex work and defend migrants’ mobility and rights.