FYI, The Breakthrough Voice 28th March, 2018
Trafficking Law In India: Too Many Unanswered Questions.

Recently, the Cabinet approved the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. This Bill is not yet available to the public. But the process of introducing a Bill that dealt with trafficking in India started a few years back and a Bill was made available to the public for their comments in 2016. This was the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016. This blog makes an attempt to give a short history of trafficking regulations in the country since independence, bring forth some of the important provisions of the Bill of 2016 and critique the same.

Back in 1956, the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) was passed. This Act was amended in 1978 and then in 1986 when there was a change in nomenclature of the Act and since then it has been known as the Immoral Traffic (Prevention) Act, 1956 (ITPA). The definition of prostitution was also amended and the Act applied to persons in prostitution and not just females since it was first passed. Although the name contains the word ‘traffic’, the Indian law for the longest did not define trafficking and this Act focussed only on prostitution in the country.

From the Lok Sabha debates regarding SITA, 1956 it can be understood that the legislators felt that sex between two consenting adults falls under private domain and thus the State has no control over the act, even if there is an exchange of money. According to them, it would have also been futile to ban prostitution without having an effective infrastructure to rehabilitate women. The intention thus of the parliamentarians was only of restricting the practice and only controlling it from being carried out in an organized way.

The ITPA 1956 defines prostitution as ‘the sexual exploitation or abuse of persons for commercial purposes.’ Essentially meaning that all prostitution is sexual exploitation and abuse. At the same time we had IPC sections that punished buying and selling of minors for the purpose of prostitution. Even with the intention set out above, research showed that the law was implemented in a moralistic manner to punish women in prostitution which meant that most arrests were of women soliciting in public.

In 2011, India ratified the United Nations Convention against Transnational Organised Crime, 2000, supplementing which was the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (Palermo Protocol). Subsequent to this the Criminal Law Amendment Ordinance, 2013 and then the Criminal Law Amendment Act, 2013 was passed. Both, for the first time, defined trafficking under Section 370. This definition is based on the Palermo Protocol and can be divided into three parts: i) the act including recruiting, transporting, harbouring, transferring and receiving a person, ii) using means of threats, force, abduction, practicing fraud, deception, abuse of power or inducement in order to gain consent, iii) prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the forced removal of organs.

The Ordinance again considered all prostitution as sexual exploitation. The Act made some amendments to this section to include under exploitation, any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or forced removal of organs. Prostitution was dropped from the Act after some collectives objected to its equation to sexual exploitation. But the Palermo Protocol considers ‘prostitution of other’ as a form of exploitation which would mean someone profiting from the prostitution of another person and this term would have been a better inclusion to the section 370 instead of what it is today. The other terms under exploitation in this section remain undefined.

The Bill made available to public in 2016 failed to define trafficking, nor did it mention that trafficking may be defined as per section 370 of IPC.

The Bill builds an unnecessary parallel structure like the district, state and central anti trafficking committees and homes. A ‘protection home’ under Section 8 of the Bill is a parallel structure. There is a ‘protective home’ even for longer detentions for the purposes of proper care, guardianship, education, training and medical and psychiatric treatment under Sections 21 of the ITPA as well. But from Section 8 of the draft law it seems that a protection home under this law it would be a short-term home to provide immediate need of food, shelter, clothing and medical care. Instead, the condition of these homes already under ITPA could be improved.

There is a provision of establishing a district anti trafficking committee under Section 3 of the draft law. This committee would meet at least once in 3 months and this is where a victim would be produced after rescue. But there is no clarity of the rescue procedure to be followed under this law. Under ITPA those rescued (section 16) or found during a search (section 15) are produced before the appropriate Magistrate under section 17 who then decides on the safe custody of the victim. Under Chapter VI of the JJ Act, the Child Welfare Committee makes such decisions for children in need of care and protection (section 2(14)) which can include trafficked children or those vulnerable to trafficking. In both the cases, the system is well defined and established. Producing victims in front of the district anti-trafficking committee under this draft law would only be in addition to the above system.

But apart from some of these practicalities, the Bill does not clarify on the definitions of the terms under trafficking. Clarity in definitions will also make it easier to identify victims on ground which may not be easy. Because men, women and children will continue to migrate for better opportunities, out of distress and may end up getting exploited in different ways that fit the definition of trafficking. It might also be suggested that efforts be made to tackle the vulnerabilities rather than only focus on destination-based strategies of rescue and rehabilitation.

The Bill also follows the same intent as in ITPA of rescuing and rehabilitating those rescued from trafficking. This would mean, even rescue of adults with little scope of respecting their agency to move and work even if it means under exploitative conditions. It might also be helpful to consider alternatives like community-based programs to the rescue-rehabilitation model. With the introduction of the Bill, there is no discussion on deletion of section 8 of ITPA which punishes soliciting for prostitution and is the most misused section.

The present Act under chapter VII proposes creating specialised schemes for victims, especially women engaged in prostitution or any other form of commercial sexual exploitation leaving out from the focus other victims of trafficking which might include labour trafficking, organ trafficking, etc. The next chapter requires for the registration of placement agencies with the intention of preventing trafficking for labour but there is no punishment for agencies that might indulge in trafficking for labour. Mere registration may not be sufficient. The general penalty under section 18 is too vague which punishes violation of any directions by the Government under this proposed Act. The Bill proposes punishment of forfeiture of property in order to break the organized nexus of trafficking. The Bill also fails to provide any concrete steps to prevent trafficking although the word ‘prevention’ is retained in the title.

Of some positives is the establishment of Special Courts at the level of Court of Session unlike the ITPA where it is at the level of the Court of Metropolitan Magistrate.

Very recently the Cabinet approved a new draft. Although not in the public domain yet, there are various commentaries on it. The press release by the government sheds some light on what the Bill contains. It introduces something called ‘aggravated offences’ which had been missing in the earlier draft. But some of the institutional replications remain. It also remains to be seen how NIA would be involved in investigating cases of trafficking because as the laws are implemented today, the investigation hardly moves put of the place where the rescue is conducted, in most cases even source and transit traffickers are not traced.

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