FAQs on the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
1. Was the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (‘TOP Bill’) introduced in the parliament in a hush-hush manner? How transparent and inclusive was the process of making this bill?
The Bill was first drafted by an inter-ministerial committee, and the initial draft of the Bill was released by the Minister of Women and Child Development, Mrs. Maneka Gandhi in May 2016. The Ministry released the draft Bill and solicited comments from all stakeholders, including civil society organisations, and the window for receiving comments was 30 days. There were more than 700 responses and the draft received strong criticisms, following which the Ministry decided to organise more consultations and re-work the draft Bill.
Between July and September 2016, the Ministry of Women and Child Development held 4 consultations in Delhi, Mumbai, Kolkata and Chennai, and invited stakeholders to the meetings, requesting reflections on (a) the architecture of the bill (b) the content, and (c) clarity. These were attended not only by organisations working against sex trafficking, but by a large number of activists working on labour trafficking as well.
In November of the same year, the Ministry called members who were involved in drafting the Bill, the inter-ministerial committee as well as all linked ministries, and proceeded with the Bill, with final comments.The bill then moved through the various linked ministries where there were differences of opinion, and as it moved to the Cabinet, the Government sought advice from a couple of legal firms, for their comments and to hold consultations with various groups. Vidhi Centre for Legal Policy (‘Vidhi’), one of those firms, specifically invited The National Network of Sex Workers and activists who work on human rights of sex workers, for the consultation. Vidhi supported the need for the new Bill and endorsed the bill with certain edits (no substantive changes).
The media has been reporting on the Bill consistently since its very inception, and accusations to the contrary (that the Ministry is being ‘secretive’ about the Bill) are factually incorrect and baseless.It has been introduced the way any Bill is normally introduced in the Parliament. There were continuous updates by PRS Legislative Research as well as the media. If anything, the Bill was introduced much more loudly than, say, the Finance Bill, which has already been passed.
2. Are there provisions in the bill that consider if victims do not want rehabilitation or repatriation?
Yes, Let us take the example of an adult woman who has been trafficked or suspected to be trafficked. If she wishes to be rehabilitated, she (or a person on her behalf) can make an application before the jurisdictional Magistrate to that effect and the Magistrate shall, after consulting the District Anti-Trafficking Committee, pass an order for her care or protection in a Protection Home/Rehabilitation Home as per Section 24 of the Bill. There is no provision in the Bill that specifies that a Protection/Rehabilitation Home is a closed institution.
Further, if an adult victim decides that she does not want rehabilitation, even after she is in a Protection/Rehabilitation Home, she can make an application to the Magistrate for release under the proviso to Section 17(4)of the Bill. The Bill provides that the Magistrate can reject the application for release if it seems like the victim is not making the application consensually (e.g. in a situation where the trafficker/another person forces the victim to apply for release).In the case of a victim who is to be repatriated, the Bill mandates written consent for repatriationas per Section 26(3) of the Bill, and the victim is also eligible to receive counseling by trained psycho-social professionals under the same provision.
Therefore, far from the allegations to the contrary, the Bill specifies measures and persons responsible for institutional rehabilitation and time bound repatriation without curtailing essential freedom of movement of adult persons, except in situations where a reasonable restriction may be required as explained above. There is also a provision for providing aftercare facilities for capital and infrastructure to the victims who are ready to integrate into mainstream society by setting up small businesses orprofessions as per Section 30(3)(v) of the Bill.
3. Is the bill focused on trafficked victims or on traffickers?
The Bill focuses on both victims and traffickers, in terms of protection (Chapter VII), compensation (Chapter IX)and rehabilitation (Chapter VII) for survivors, making provisions for creating structures (Chapter IV) and funds (Chapter XI) necessary for linking them to such services. If one looks at the Bill as a victim of trafficking, there are significant provisions dedicated to the provision of entitlements (such as victim compensation) in Sections 27 and 28, rehabilitation (through Homes in Sections 21 and 22 and individual care plans in Section 13(3)(i)), preventative measures (Chapter VI) as well as post-rescue assistance (Section 17) to such survivors. Additionally, the Bill also recognises the agency of victims, through mandatory provisions relating to consent in rehabilitation (proviso to Section 17(4)) and repatriation (Section 26(3)).
The Bill also focuses on the prosecution of traffickers, through proper investigation (Section 18), quick trial (Section 48), and strict punishments on multiple counts (Chapter XII). Further, the Bill also criminalizes omission of duty by state specified duty-bearers in Section 38. Enacting a special law that outlines strict punishments for offences not covered by other existing laws, such as aggravated forms of trafficking (Section 31)and omission of duty will improve chances of conviction of traffickers and improve prosecution rates.
Therefore, there is a lot that this Bill has to offer, in terms of prevention, investigation, coordination, rehabilitation, repatriation, prosecution and trial. The same impact both victims and traffickers alike. The actual ‘focus’ of the Bill is on the phenomenon of trafficking in its entirety as an organised crime, with socio-economic implications.
4. Can this bill further criminalise and incarcerate those not trafficked, such as bonded labour, juveniles, surrogates and adult sex workers?
For any law to apply in a specific case there has to be a registered case against a person by a victim or their family under specific provisions of the law. For anyone to be under the ambit of the law, the person would have to be a victim of trafficking.
If a bonded labourer, or child in conflict with law, surrogate or adult sex worker has not been trafficked, none of the sections in this Bill will apply. The Bill criminalisestrafficking for the purposes of bonded labour, begging, surrogacy and sexual exploitation. Unless said person(s) is/are involved in trafficking or run a place which is used for trafficking of persons or commit any other offence under the Bill, they cannot be held as criminals or prosecuted under this law. If provisions of the Bill are misinterpreted by law enforcement personnel, that is another matter, which is not a function or result of any provisions of the law itself. In such cases provisions of the law that protects citizens against misuse of any law should apply.
5. Does this bill violate Article 21 wherein adult trafficked victims may choose not to be institutionalized? Is custodial care mandatory under this bill?
Article 21 of the Constitution of India talks about the fundamental right to life and personal liberty that a person can only be deprived of according to procedure established by law.
Let us assume that the State receives a report of a person who is trafficked and held captive by traffickers. In such a case, the State is obligated to rescue the person and take the person in protective custody (Protection Home or suitable institution) as per Section 17(1) of the Bill. Protective custody does not mean that the person has to be put into closed institutions or forced detention indefinitely.
The Bill does not prescribe any minimum/estimated period for protective sheltering of victims, unlike the ITPA. The Bill also provides that adult victims have the option of making an application before the Magistrate for release from any Protection/Rehabilitation Home, if they so wish under the proviso to Section 17(4). The same proviso states that the rejection of an application for release by a Magistrate can take place if the Magistrate has reason to believe that the application was not made voluntarily by the victim – which will ideally have to be elucidated in a reasoned order of rejection. Such a situation, where the victim may have been coerced by a third-party to apply for release (that is rejected by the Magistrate) formsthe only ground elucidated in the Bill where a victim may be required to stay in a Protection/Rehabilitation Home, and forms absolutely reasonable grounds to curtail the liberty of the victim.
Therefore, the law does not violate Article 21 of the Constitution. The current operationalization of shelter homes, many of which are closed institutions, is what curtails the right to liberty of trafficking victims –not the law itself.
Doubts over the culpability of customers
Article 19(1)(g) of the Constitution of India speaks about the fundamental freedom of any citizen to practice any profession, or to carry on any occupation, trade or business. As per Article 19(6) however, reasonable restrictions on the freedom mentioned in Article 19(1)(g) can be imposed by the State through laws relating to the practice of any profession.
This Bill does not directly criminalize or curb the right for persons to choose sex work, surrogacy or any other work. However, it places the onus on persons practicing such professions to do their due diligence in making sure that their premises are not being used for trafficking under Section 34 and that they are not abetting traffickers under Section 37 and that they are not assisting in any manner in the trafficking of persons. We need to also note, that commercial surrogacy, begging etc. may be criminalized by other laws. Sex work is indirectly criminalized by ITPA. If anything, this Bill holds the stakeholders responsible for ensuring their profession does not have the effect or byproduct of facilitating or enabling trafficking.
7. How about consent? Is this bill that regressive that it takes away all consent from victims of trafficking?
Let us examine the issue of consent of victims of trafficking in key parts:
- a) Consent in being ‘rescued’
- b) Consent in rehabilitation:
- c) Consent in repatriation
Rescue: The Bill does not go into details of protocol for rescue, and therefore does not specify the need for informed consent for rescue. We know from survivors’ accounts that the process of taking informed consent before or during rescue and raid does not really help anything, as they are either under threat and intimidation by traffickers holding them in custody, and/or they are equally afraid of being incarcerated either in jails or shelter homes.
Rehabilitation: The Bill recognises the right of a person who may have been identified as a victim of trafficking to refuse the State’s protective custodyunder the proviso to Section 17(4).Therefore, it cannot be said that consent of victims is ignored when it comes to availing of rehabilitation infrastructure provided. Further, the District Anti-Trafficking Committee is in charge of obtainingneed-based individual care plans for rehabilitation under Section 13(3)(i), and a Rehabilitation Fund has been set up to provide (amongst other things) aftercare facilities for victims under Section 30(3)(v), which presumably shall be tailored in accordance with individual victims’ needs. Everything is contingent upon the consent of victims to avail of the rehabilitation infrastructure.
Repatriation: The Bill specifies provisions of informed consent for repatriation. The State Nodal Officer shall obtain written consent from the victim for repatriation purposes, which is clearly mentioned in Section 26(3) of the Bill. All these provisions, if practiced as intended and envisioned, will ensure participation of survivors in their care plan management, rehabilitation and repatriation. However, for that to happen, the development of specific tools and principles of practice are important. If these provisions are applied without appropriate training and personnel, the practice can take away the victim’s agency and consent. However, the Bill in itself is not silent or lackadaisical in specifying consent of victims for rehabilitation and repatriation.
Survivors of trafficking who have participated in the making of this Bill have strongly recommended that for informed consent, three clauses are necessary:
- a) Information about their rights and entitlements, their freedom and their rights to choose from options in the post-rescue stage;
- b) Independent legal representation, for them to be able to assert their rights in a court of law independent from any third-parties (including NGOs running shelter homes or brothel managers/ madams); and
- c) Spaces where they are free from the control of parties with vested interests and the provision of psychological support, so that they are able to make decisions without threat, coercion, manipulation or fear.
Section 17(5) of the Bill mentions that during the post-rescue process before the Magistrate and during the repatriation process, there is the option of psycho-social counseling by a trained mental health professional/ psychologist made available by this Bill. This can go a long way in ensuring that the post-rescue process involves consent of the victims. For this to happen, Central Model Rules, and continuous monitoring by CSOs are crucial as it is impossible for legal provisions without any operational support to have their desired effect.
8. Does this bill target adult sex workers?
There has been a lot of apprehension that the Bill will unfairly ‘target’ adult sex workers who voluntarily engage in the profession. However, this is unfounded as the Bill does not mention adult sex workers anywhere and only focuses on trafficked victims. If an adult has been trafficked for the purpose of sex work, they will fall within the purview of the Bill, but adult sex workers engaging autonomously with their line of work are not criminalised by this Bill.
The intent of the Bill is to rescue victims, adult or children, who have been trafficked into exploitation, and to make rehabilitative and compensational measures available to them, and to prosecute all such people involved in the chain of trafficking and exploitation. In doing so, if there are adult sex workers who have knowingly, or by neglecting to do due diligence have participated in trafficking of a person, they may also be criminalized.
To illustrate, if I am a sex worker who is freely practicing my profession, I will not be liable to prosecution as per this Bill. I do not need to be ‘rescued’, but if I am, I can always refuse to stay in a Protection/Rehabilitation Home and I can refuse to be rehabilitated under the Bill. However, if I am a sex worker who knowingly allows my work space to be used by someone for trafficking, I can be prosecuted as per Section 34 the Bill, not for being a sex worker, but for allowing premises that I occupy to be used as a place for the trafficking of persons. This is the scope of my liability under the Bill – which is restricted to only the offences mentioned in Chapter XII(that are all related to trafficking in general, with no mentioning of sex work).
9. Will this bill strengthen existing practices of raid, rescue and institutionalization?
The Bill does not set out any new procedures for raids and rescues. However, there is new infrastructure for intelligence-gathering and inter-state coordination in terms of cross-border trafficking of persons under Section 4 of the Bill, which will directly impact protocol and practices during raids and rescues of trafficking victims. There aredistrict-level, state and national-level authorities set up to streamline, coordinate and strengthen law enforcement processes around the investigation of trafficking (AHTUs, State Nodal authorities and the National Anti-Trafficking Bureau) under Chapter II and Chapter III of the Bill.
Additionally, current practices of rehabilitation do equate themselves with institutionalization of victims to a certain extent but given that consent plays a role in individual care plans, stay in Homes (as per proviso to Section 17(4)and that the District Anti-Trafficking Committee plays an important role in rehabilitating survivors (as seen from its functions in Section 13(3) and its powers in Section 14), there has been some progress in expanding the scope of rehabilitation. There has also been some state-level and national-level infrastructure that has been set up for the monitoring and supervision of rehabilitation as per Section 11 and Section 12of the Bill. Therefore, a structure of accountability has been created by the Bill in the processes of raid, rescue and institutionalizationthat can strengthen and improve existing practices.
10. Does this bill make rehabilitation conditional to institutionalization?
The Bill does not speak about rehabilitation outside the Protection/Rehabilitation Homes, which would lead us to believe that rehabilitation is conditional to institutionalization.
However, the Bill has provided that the District Anti-Trafficking Committee has the responsibility of recommending strategies and plans to stop trafficking using the Rehabilitation Fund (Section 30(3)(viii) read with Section 20(2)), which indicates an intention to improve and strengthen community-based rehabilitation initiatives. This can be achieved only if advocacy is done during formation of Central Model rules and State rules to ensure that rehabilitation initiatives are practiced on a community level, overseen by key district and state-level personnel/authorities, rather than just confined to Protection/Rehabilitation Homes.
11. Why does the District Anti-Trafficking Committee not have sex workers in the committee?
The District Anti-Trafficking Committeedoes not have sex workers specifically in the Committee membership, as the Bill covers victims who may have faced many different kinds of exploitation, including labour trafficking, organ trafficking and many more. However, as per Section 13(2)(v), the District Anti-Trafficking Committee has the provision to include Civil Society Organisations as members in the Committee, which could include sex workers’ collectives,without any bar. Further, Section 13(2)(vi) of the Bill says that composition of the Committee can be altered in State Rules, which can also be framed to include sex workers.
On another note, given that the Bill covers victims who may have faced different kinds of exploitation, it will need to cater to trafficking victims who have been trafficked for the various types of exploitation.Therefore, the CSOs (and other members) of these committees will need to focus on issues beyond those of sex workers and victims of sex trafficking.
12. Does Section 36(1)(ii) of the Bill curb free speech when it criminalises ‘promoting or facilitating trafficking of persons’ when a person ‘advertises, publishes, prints, broadcasts or distributes, or causes the advertisement, publication, printing, or broadcast or distribution by any means, including the use of information technology or any brochure, flyer or any propaganda material that promotes trafficking of person or exploitation of a trafficked person in any manner’?
Freedom of speech is mentioned as a fundamental freedom in Article 19(1)(a) of the Constitution, which is subject to reasonable restrictions by laws relating to (among other things) incitement to an offence. Therefore, the State is well within its right to enact a law imposing such restriction, if the effect of such law is the criminalization of promotion or facilitation of trafficking of persons.
Trafficking and exploitation of persons make use of advertising, the internet and information technology, especially in the modern context. Therefore, the Bill seeks to criminalize this aspect of the organized crime under Section 36(1)(ii), since it is not currently covered by any comprehensive law, except for certain provisions of the Information Technology Act, 2000 that only criminalise child pornography-related content online. The majority of digital and online trafficking and exploitation is not criminalised. Also, the legal provision in the Bill makes it clear thatif any material is intentionally being used for trafficking of persons or exploitation of a trafficked person, then it does need to be criminalized. This does not amount to violation of freedom of speech.
13. Are there any overlaps between the Bonded Labour Act (BLA) and this Bill?
Section 59 of the Bill states that the provisions of the law shall be in addition to, and not in derogation of any other law, and if there is any inconsistency between laws, the current law would prevail. It must be remembered that the Bill is related to the trafficking of personsand can be used when it comes to cases of trafficking of persons for exploitation through forced or bonded labour. The definition of bonded labour, however, will come from the BLA that is the overarching law for the abolition of the bonded labour system.
While provisions contained in Chapter XII of the Bill criminalize and punish the element of trafficking, and traffickers who lure, sell and buy persons for bonded labour, the BLA can provide for compensation for persons engaged in bonded labour, if the BLA is applied in the case. The relief that can be provided under the BLA will be in addition to compensation and relief that is available to rescued bonded labourers who have been trafficked as clarified in Section 28(2) of the Bill. For smoother coordination between the two laws, the central model rules and state rules will need to look at where the relevant bodies and provisions overlap and be clarified.
14. Does this bill address structural issues?
The Bill specifies solutions to several structural problems in the existing laws.
- a) It provides a definition of rehabilitation (Section 2(q)) and makes it independent of prosecution (Section 25).
- b) It provides a mechanism and body for inter-state coordination and investigation (Chapter II), which maintains a system of accountability.
- c) It provides a system for inter-state transfer of judicial evidence (Section 4(xvii)), and deposition via video conferencing (Section 48(2)) in the interest of speedy trials.
- d) It provides a mechanism and body for ensuring rehabilitation (Chapter VII), and for interim relief and compensation (Section 27) to be made a part of the process. Section 27(1) even specifies that the Interim compensation has to be granted within 30 days from rescue.
- e) Chapter XI creates a fund for making rehabilitation possible, including providing necessary financial and infrastructural assistance for livelihood under Sections 30(3)(iv) – (v) after being released from the shelter home.
- f) The Bill essentially attempts to piece together several disjointed pieces of policy around rehabilitation and investigation.
15. Does this Bill have a criminalization approach or a human rights approach?
The Bill has been criticized for having a ‘criminalization approach’ rather than a ‘human rights approach’ towards trafficking as a phenomenon. This seems to be based on anxieties regarding misuse of provisions to impede freedom of speech, freedom of movement of victims and the rights of sex workers, as well as Chapter XII on offences and penalties that prescribe serious imprisonment and fines. However, in spite of these penal provisions, it can be argued that the Bill does operate on a human rights approach, since it provides the following to victims:
- a) Powers of consent to victims – this has been seen in Section 26(3) in the context of repatriation and in proviso to Section 17(4) in terms oftheoptionof victims to reject institutionalization;
- b) Entitlements of victims – victim compensation under Chapter IX is one such entitlement and rehabilitation that is not contingent upon criminal proceedings that may be ongoing, under Section 25is another such entitlement;
- c) Creation of accountability to victims at the district level – by naming the District Magistrate as the Chairperson of the District Anti-Trafficking Committee in Section 13(2)(i) and by placing the DATC in a unique position to deliberate on the rehabilitation needs of victims under Section 14, there is individual accountability placed on a key administrative official at the district level.