Last week, the Trafficking of Persons Bill, 2018, has been introduced to the Parliament by Minister of Women and Child Development, Mrs. Maneka Gandhi, who has been lauded for her efforts in bringing about much needed legal reform on human trafficking, a long standing recommendation from the judiciary, law enforcement agencies, human rights activists, and most importantly, from victims of human trafficking themselves. Despite having signed and ratified the United Nations Convention on Trans-national Organised Crime in 2011, India does not have a comprehensive law on human trafficking in alignment with its commitments and obligations to align its domestic laws, and this bill is the first step towards building systems and laws that protect vulnerable people from being enslaved and exploited.
Much has been written about the merits of the bill, and the most significant improvements from the current legislations over the last few months. Lawyers and prosecutors, police, judges, Panchayat members, politicians, social workers - whoever has gone through the bill, has found that the bill addresses key gaps in existing legislations such as the Immoral Traffic Prevention Act, The Bonded Labour Act, section 370 and other IPC sections. But perhaps, it is still most important to remind ourselves of three most significant reasons why this bill needs to be made into a law:
1. It penalises labour trafficking: It corrects and existing anomaly wherein human trafficking is conflated with prostitution.The Immoral Traffic Prevention Act (1956) recognises trafficking in women and children only for purposes of commercial sexual exploitation. It does not recognise trafficking for various other kinds of forced labour, forced marriage, organ transplant, or fake adoptions. Law enforcers have tried, for over half a century, to use a mix of child labour laws, the Bonded Labour Act, The Juvenile Justice Act, to address labour trafficking - but with not much impact. The Bonded Labour Act, for instance, criminalises the principal employer but does not include necessary indictment, investigation and prosecution of traffickers. The negligence of prosecution of traffickers has made human trafficking into an extremely lucrative business for labour contractors, placement agencies, and a large number of informal network of touts and agents who have found an illegal trade that is as profitable and less risky than drugs trafficking or trafficking in arms. The effective coverage of this law defining and penalising labour trafficking runs into a significant section of Indian people - that is poor, rural, marginal, dependent on informal labour and that needs to migrate to be able to work.
2. The law provides legal rights to survivors of human trafficking, for their rehabilitation: Thousands of victims of human trafficking in India, even when rescued, have complained of inadequate and inefficient rehabilitation services, where they are subject to poverty, stigma and threats by traffickers. They have questioned the State and NGOs’ intent of rescue of victims, if after that they are incarcerated in shelter homes, and then sending them back home assuming that they will get ‘reintegrated’ in their families and communities, where in reality, that is clearly not the case. The approach of services to survivors is one of charity and welfare, and this bill offers them with the right to hold the State and other agencies accountable to provide them with rehabilitation services that is to be measured against outcome - of recovery, safety, protection and security. The bill goes one step forward by making officers of government offices accountable - and penalising those who shall be found to be guilty of wilful negligence and dereliction of duties. None of our current social laws offer this power to its people to hold the state accountable to its people.
3. It mainstreams the issue of human trafficking into governance: The ultimate person made responsible to address human trafficking is the District Magistrate, who will be responsible to take all measures to address push and pull factors of that district, who will be responsible to ensure that survivors of human trafficking find rehabilitation services and that legal, welfare, health and all other services are engaged with the issue. This is a significant departure from the existing anti trafficking portfolio which is held by the Departments and Ministries of Women and Child Development, and implements the mandate through a few schemes. The bill places a much greater responsibility on the Central Government, the Ministry of Home Affairs for its role in ensuring that investigations are trans-border and integrated between source and destination points. It even draws in the role of the Ministry of External Affairs to build necessary bi-lateral instruments necessary to investigate crime networks that are involved in inter-country trafficking in persons, a link that India is increasingly observing with Middle Eastern and South East Asia countries like never before.
There have also been voices of opposition to this bill, which has also been on two primary counts. Firstly, there is a concern whether this bill gives powers to the state that is vulnerable to abuse and will be used against sex workers, migrant workers and other marginalised people. Secondly, there is a concern whether anti trafficking will mean anti migration and all agents and intermediaries that help people migrate will be criminalised as traffickers. The concerns are valid, as valid as concerns over any law that is abused and poorly implemented. These concerns, when voiced earlier, were studied and experts were consulted, who suggested that the process of enforcement and implementation of this law will have to be further defined and clarified during the making of Central Model Rules and the state rules.
The request for referring the bill to the standing committee is a strategy to shunt the bill at this time, and delay any reform for another few years. The motivation is not one of solution seeking, the motivation is of sabotage. That sabotage comes from a section that disbelieves in intent of the state, fears any powers vested to it and believes that state powers are only to be abused, and draws support from certain international agencies which have agenda of narrow political gains. What is unfortunate is that in this battle, struggles of survivors of human trafficking is being pitted against that of sex workers. What is even more unfortunate that certain sex workers’ communities are being misinformed by vested interests that this bill is against their rights, which is nothing further from the truth.
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Roop Sen, Email: [email protected]; Phone +91 33 2486 1091
About Sanjog
Sanjog is a technical resource organization based in Kolkata, India, and registered as a society (2012). We work with governments, civil society organisations and businesses, as well as individuals and collectives to combat violence against children and women.