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Critical Analysis of The Trafficking of Persons (Protection, Prevention and Rehabilitation) Bill, 20

The Trafficking of Persons (Protection, Prevention and Rehabilitation) Bill, 2018, hereinafter refer as Bill, was introduced by the Minister of Women and Child Development and passed by the Lok Sabha last year. Soon after the introduction of the Bill, lots of controversies has been started related to the Bill.

Many experts said that, the Bill is inadequate and is introduced without any rationale and proper study. So far as, the current statics related to trafficking is concerned, according to the data provided by the National Crime Record Bureau 2016 (NCRB), under Indian Penal Code (IPC) total of 8,132 related to human trafficking were registered and 23,117 persons were rescued and out of that rescued persons, 45.5% were trafficked for the forced labour and 21.5% were trafficked for the prostitution while, the rest of the percentage includes person who were trafficked for child pornography (0.7%), Domestic Servitude (1.8%), Other of Sexual Exploitation (11.5%) etc.

The data provided by NCRB also reveals that there is a huge increase in the number of trafficking cases in the country. In comparison to the 2015 Data Report, there is an increase of 15% in the 2016 Report. One pertinent thing here which is needed to be noted that, most of the trafficking cases were not reported at all and, we cannot totally rely on the data provided by the government agencies. India, which is regarded as the hub of trafficking in South Asia, every year experienced cases of trafficking not only within India but, cross-border cases of trafficking as well, especially from, Bangladesh and Nepal.

One of the most important factors that lead to trafficking is the socio-economic condition of the person trafficked and in addition to that many other factors like, social insecurity, disasters also leads a person towards trafficking. Since India and its surrounding countries all are underdeveloped countries and countries with a great number of class inequalities, the issue of trafficking is very common in all these countries. Mostly, women and children are the victims of trafficking and have been trafficked for sexual exploitation, domestic servitude and many other things.

According to the Ministry of Women and Child Development, the victims of human trafficking in the year 2016 is about 19,223. The main reason behind is poverty, caste-based discrimination, natural disasters etc.

The Bill was passed with the aim that, the country needs comprehensive legislation that deals with all kinds of trafficking. The Supreme Court of India, inPrajwala v. Union of India[1], recorded the submission made by the Ministry of Women and Child Development that it had set up a committee that will scrutinize the existing laws and pointed out the gaps in the current legal framework of the trafficking and will draft a comprehensive law of trafficking which will cover all aspects of trafficking in one legislation.

There are so many legislations present in the country which deals with the issue of trafficking in various aspects, for example, the Immoral Trafficking (Prevention) Act, 1986 prohibits the commercial sexual activities and also talks about the rehabilitation of the sex workers. Similarly, The Bonded Labour System (Abolition) Act, 1976 (Bonded Labour Act), the Contract Labour (Regulation & Abolition) Act, 1970, the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, Children (Pledging of Labour) Act, 1933 and the Child Labour (Regulation and Prohibition) Act, 1986, which deal with forced labour, child labour, primarily through regulation and welfare-oriented measures and many other legislations the IPC and Juvenile Justice (Care and Protection of Children) Act, 2015 also deals with the issue of trafficking and also the protection of children.

Since, there are bundle of laws that deals with the issue of trafficking in various aspects, what was submitted by the Ministry of Women and Child Development was that, they will look upon the existing legislations and make a comprehensive law, under which all the trafficking issue will be dealt under one legislation.

1.To look into the Anti-Trafficking Bill, 2018 and, to highlight its key features.
2.To critically analyse the Anti-Trafficking Bill, 2018 and to find out the lacunas in the same.
3.To propose various recommendations related to the trafficking.

Key Features of the Bill
# The Bill has 59 sections which have been divided into 15 chapters. The bill seeks to deal with all kind and trafficking and also with the rehabilitation, protection and rescue of the person trafficked.
# The Bill also seeks to establish the rehabilitation and investigation authorities at the District, State and at the National level. These authorities will investigate all the case related to trafficking and also responsible to protect and rehabilitate the victims of trafficking.
# To rescue victims and investigate the cases, the Anti-trafficking unit will be set up. And, for the rehabilitation, the Rehabilitation Committee will set up, as provided under the Bill.
# The Bill classifieds trafficking into two heads, one is trafficking and another one is ‘aggravated form’ of trafficking. The aggravated form of trafficking is trafficking for the purpose of forced labour, bearing children, begging, or for inducing early sexual maturity.
# The Bill provides for more stringent punishment in comparison with the present laws of the country that deals with the trafficking.
# The Bill also takes care of the confidentiality of the victim, complainant and witnesses by not disclosing their identity. The statement of the victims to be recorded through video conferencing which will help in inter-state and trans-border cases as well.
# All the proceedings shall be time-bound and shall conclude in one year from the date of taking the cognizance.
# The Bill also provides for the repatriation of the victims of trafficking.
# Immediate relief and rehabilitation to the victims of trafficking- interim relief within 30 days which deals with the mental, physical problems etc. and further relief within 60 days from the date of filing of charge sheet.
# For the first time, the Bill seeks to create the rehabilitation fund for the victims of trafficking which will be used for their education, skill development, health etc.
# The Bill also addresses the issue of trans-border trafficking and will set up National anti-Trafficking Unit which in coordination with the international agencies combat the trans-border and international trafficking.

Critical Analysis of the Bill
As submitted by the Ministry of Women and Child Development to the Supreme Court of India, that, they will look upon the existing laws and will come up with the more comprehensive single legislation that will cover all forms of trafficking, the Bill which came is not up to the mark that will cover all the ambits of trafficking and looks like, without any proper research the government came up with this Bill.

The Criminal Law (Amendment) Act, 2013 which was based on the recommendations made by the Justice Verma Committee, introduced two new sections in the IPC that deals with the trafficking i.e., Section 370 and 370A. Section 370 of the IPC deals with all kind of trafficking and its Explanation 1 states that, exploitation means “any act of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude.”

The explanation includes all forms of trafficking whether it is for sexual exploitation, domestic servitude, and bonded labour or for any other purpose. The penal sanction imposed by the section is a minimum sentence of seven years which may extend to ten years.

The Bill does not redefine the definition of trafficking but, only includes one separate category of trafficking, that is, the ‘aggravated form’ of trafficking which includes trafficking for the purpose of, forced labour, marriage, childbearing and begging. The penal sanction imposed under the Bill is minimum imprisonment of ten years which may extend to life imprisonment.

Surprisingly, trafficking for the purpose of sexual exploitation does not come under the definition of aggravated form of trafficking. After arms and organ trafficking, trafficking for the sexual exploitation comes at number three. But, unfortunately, the Bill does not include it under the aggravated form of trafficking. As stated above, more than 30% of the victims who were rescued were related to sexual exploitation, whether it is for prostitution or for any other form of sexual exploitation.

Another important point to be noted that, the Bill does not create any new form of trafficking like “victims of trafficking during disasters” but, only rephrase the existing forms of trafficking. NCRB data of 2016, stated that, the police registered 10,357 cases of trafficking for forced labour, 349 cases of trafficking for forced marriage and 71 cases of trafficking for begging. Hence as claimed by the MWCD, that new forms of trafficking are included in the Bill is not true. The Bill also talks about the penal action against the offence of inducing early child maturity again, the same has been addressed by the IPC under Section 328.

So far as the rescue and rehabilitation is concerned, the Bill like the present laws, adopted the confinement method of rehabilitation, which is not very adequate and also many thinkers also believes that the rehabilitation method must be based on the community learning and peer support not like to confine a person in one place and will teach them works like sewing, cooking etc.

As we all know the role of law enforcement agencies in providing assistance to the people involved in the trafficking. As per the NCRB data of 2016, there were 4764 cases has been registered against the government officials and out of that only 1071 has been convicted and the rest will result into an acquittal. The Bill seems to be again relying more on the existing machinery without any proper check on them. With the new name, the old officials will hold the department and without any proper training to them, they will instead of protecting and rescuing again exploit the victims of trafficking.

The Bill overlooked some of the basics of the criminal justice system, for instance, the Bill presumed that the owner of the premises has knowledge about the fact that, the offence of trafficking has been carried out in his/her place. Under the criminal justice system, the onus of proof is on the prosecution, however, there are other laws as well where the onus is on the person to prove that he has not committed the crime, but, at the same time, all those laws provide the proper safeguards as well. However, the Bill without providing any safeguard shifted the burden on the accused to prove his innocence.

This thing will give rise to one important question and that is, whether the existing Bill which shifted the Burden on the accused violate Article 21 of the Constitution? The court in plethora of its judgments held that, the law shall be just, fair and reasonable. The ITPA, 1986 also shifted the burden on the accused to prove his innocence but, it also provides some kind of safeguard as well. Like, under the ITPA, the burden of proof shifted on the owner when he knowingly permits the premises to be used for the purpose of prostitution. But, it provides some safeguards as well, like, the law presumes knowledge on the part of owner only if,
(i) a newspaper report is published to report that the premises have been found to be used for prostitution, or
(ii) a copy of all things found during the search of the premise are given to the person.”[2]

The Bill does not give the proper rationale on various points where it shows some biases, for instance, if the victim of trafficking is child, women or any disabled person (mentally or physically) it is presumed by the law that the accused has committed the offence and that burden to prove his innocence is on him. There is no rationale given by the Bill, why the burden is shifted here on the accused to prove his guilt and why the bill discriminates between the above-mentioned victims with the adult male victims. No doubt, women and children are the most vulnerable sections of the society and trafficking of women and children are more but, at the same time, we cannot deny the fact that, in this society, where there is a huge amount of class inequality the trafficking of males for organs are not there. And trafficking for organs, which comes at the second number after arms trafficking the adult males is more targeted.
The Bill provides a very harsh punishment to those, whose acts may result in trafficking. The acts which lead to trafficking includes- solicitation or electronic publication, taking or distributing obscene photos and videos, solicitation of tourists. A person shall be punished with the imprisonment of a minimum of five years which may extend up to ten years and also with the fine of rupees fifty thousand which may extend up to one lakh. However, the Bill does not look into the ‘intent’ of the person who is accused of the offence, which makes it very difficult to determine whether the act will actually result into trafficking or not.

The Bill is not clear with its actual aim and encroaches on other offences as well which are not connected with the crime of trafficking. For instance, the Bill provides the punishment of three years which may extend up to seven years to the person who is engaged in the activities like, “distribution or sale of material showing sexual exploitation or assault for the purpose of extortion, coercion, or unlawful gains” which is clearly in no way connection with the offence of trafficking. The same offence has been punished under the IPC under Section 383 and provides the imprisonment of three years and/or fine.

The Bill introduces the aggravated form of trafficking which attracts the higher amount of punishment in comparison to the simple trafficking, however, as per the Bill, trafficking for the purpose of begging comes under the aggravated form of trafficking but, trafficking for the purpose of organs and sexual exploitation does not come under the aggravated form of trafficking. Which is a huge lacuna in the Bill. Also, the definition of trafficker as given in the Bill includes a person who ‘recruits’ other person for the exploitation and, the same attracts the punishment of seven years and fine. While the person who ‘hires’ other person for exploitation attracts the punishment of three years only. The Bill is clearly silent, on what basis they made such a distinction between the ‘hirer’ and ‘recruiter’.

Anti-Trafficking Bill and Sex Workers
The Supreme Court of India inBudhdev Karmaskar v. Union of India[3], constituted the panel to examine the legal issues in relation to the following-
(i). prevention of trafficking,
(ii). Rehabilitation of sex workers who wish to leave sex work, and
(iii). conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.”

The panel which has been set up by the Supreme Court made many recommendations like, community and peer-based rehabilitation of the sex workers instead of detaining them to the ‘correctional homes’.

Another important recommendation made by the court is, to revise the ITPA so that a clear distinction can be made between those who are voluntarily doing the sex work and those are doing out of compulsion and are coerced to do the same. However, the Bill clearly ignored both of the very two important recommendations of the panel. The Bill has no provision that distinguishes between the sex workers who are voluntarily doing it and those who are coerced to do so. The Bill again like the available laws rely on the “correctional homes” for the rehabilitation of the sex workers.

The Bill will ultimately impacts the sex workers in a very harsh way, as per the Bill, any person who use photographs or videos for solicitation shall be punished with minimum imprisonment of five years which may extend to ten years, as we all know that sex workers nowadays used such kind of thing to attract more customers and the Bill prohibits such kind of activities and also penalised the same in a very harsh way. Which will results in more and more convictions of the sex workers.

The Bill again targets the sex workers by making exposure to HIV and AIDS and pregnancy an offence, which is more in sex work also the Bill also criminalises the “guilt by association” which means those organisation and NGO’s who are working for the eradication of the HIV/AIDS in the red light areas would also be penalised.

The Bill clearly overlooked the actual conditions of the brothels, where sex workers used to live. An old age sex worker has no hope of life and they used to beg and work as a maid either in homes or in the brothel itself for their survival. There is no provision in the Bill which talks about the rehabilitation of these women. Another important point to be noted is, the Bill does not define what the “red light” area is, where most of the sex workers who are the victims of trafficking used to live.

Recommendations and Conclusion
The Bill needs to be reconsidered by the Parliament Standing Committee and that needs to be clearer with its objectives and aims. As mentioned above, the Bill clearly ignored the recommendations made by the panel of the Supreme Court, the Bill needs to consider those recommendations otherwise the Bill, like most of our present laws results into more exploitation of the victims by the authorities.

Since, the Bill is very much inclined towards the bureaucratic authorities, the Bill, also needed to include separate provision relating to the penal action against the person in charge who acts arbitrarily and exploits the victims of trafficking. The Bill, needs to come up with better rules for its proper implementation and the rules must be simple so that the implementing agency must understand it easily.

The Bill seeks to set-up so many new anti-trafficking agencies to combat trafficking, for that, more manpower and skills are required, the government first needs to give proper training to their anti-trafficking officers and must keep an eye on them so that they work hard to combat this serious issue. Since, trafficking and disaster are closely related to each other and during any kind of disaster the issue of trafficking has been increased, the Bill needs to mingle with the Disaster Management Act, 2005 as well so that, Disaster Relief Force would be trained in such a way that they can combat trafficking during disaster as well.

The Bill simply increases the punishments of the already existed offences without having any proper rationale behind that. The government needs to understand that increased punishment does not affect the crimes. In reality, many a times the victims of trafficking would be treated as the accused (especially in sex work) and that giving such a harsh punishment to any of the person who him/herself was the victim of trafficking would definitely go against the very intent of the Bill and is also against the very natural right to life of the person.

India has been placed in the tier 2 watch list of the United States Trafficking in Persons Report[4]for “its failure to show increasing effort to tackle this large and multidimensional problem.” The Government of India has set up Anti-Human Trafficking Units in order to control the trafficking but still, the effort seems to be inadequate because of the fact that till now only 85 Anti-Human Trafficking Cells has been set up. The government first needs to increase its man-force so that any law can be implemented in a better way. Also, the Bill talks about the speedy trial which is a distant dream in the country like India, neither the country has such kind of infrastructure that will provide speedy justice nor the country has that amount of judges. The government needs to look and work into the present lacunas of the available system instead of coming up with a new law, which is not easy to implement.

[1] W.P(C) No. 56 of 2004.
[2] Section 3 of the Immoral Traffic (Prevention) Act, 1986.
[3] Criminal Appeal No. 135 of 2010.

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