Tackling the problem of human trafficking has always been a matter of concern for the world at large.
Developing countries are more vulnerable and at a high risk of this insidious offense. Indian scenario is no different, as evident by the NCRB’s Crime in India, 2019 report, according to which 2,260 cases of human trafficking were reported and over 6,616 victims were trafficked in the year 2019.
In order to effectively deal with the issue of trafficking, the Ministry of Women and Child Development has released the Draft Trafficking in Persons (Prevention, Care, and Rehabilitation) Bill, 2021. The proposed draft is a second attempt by the ministry to address the problem of trafficking comprehensively. The first draft bill was passed in the year 2018 in the Lok Sabha, but it rambled into oblivion, as it was never introduced in the Rajya Sabha owing to severe criticism of its shortcomings. The present bill is perceived as an evolved attempt as it addresses most of the inadequacies of the previous bill.
The Draft Bill aims to prevent and counter trafficking in persons, especially women and children, to provide care, protection, and rehabilitation to the victims, while respecting their rights, and creating a supportive legal, economic, and social environment, while also ensuring the prosecution of the offenders.
The Bill has enhanced the territorial jurisdiction of offenses in order to address the cross-border implications of trafficking. Further, it also seeks to provide widespread protection against all forms of human trafficking such as trafficking for the purpose of sexual exploitation, forced or bonded labor, slavery, servitude, organ trade, biomedical research or trials, etc.
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Ina remarkable feat, it has expanded the scope of protection by including transgender persons within the definition of victims and by widening the range of offenders to include within its ambit defense personnel, government servants, doctors, lawyers, or anyone in a position of authority. It has also done away with the provision that requires a victim to be transported from one place to another in order to constitute trafficking in person, thereby tackling the problem of online trafficking.
Acknowledging the extraterritorial nature of trafficking, the Bill has vested the investigative powers on the National Investigation Agency (NIA), and also provides for the application of the NIA Act, 2008, for investigation, prosecution, and coordination in cases of trafficking in persons.
In order to ensure effective implementation of the provisions, the draft legislation provides for the establishment of Anti-Human Trafficking Committees at the National, State, and District level. The bill taking into consideration the plight of the victims also provides for their immediate relief by way of rehabilitation and compensation, which shall not be contingent upon initiation of any criminal proceedings against the offender.
In addition to this, the Draft Bill has introduced a new category of offences called aggravated forms of trafficking and makes them punishable with rigorous imprisonment for a term of 10 years, which may extend to imprisonment for life and shall also be liable to fine of more than 10lakh rupees. It further provides for the imposition of the death penalty, the draft categorically states that,
Where a person is convicted of an offence under this section against a child of less than twelve years of age, or against a woman for the purpose of repeated rape, the person shall be punished with rigorous imprisonment for twenty years, but which may extend to life, or in case of second or subsequent conviction with death, and with fine which may extend up to thirty lakh rupees.
The rationale behind imposing such stricter punishments is to deter the offenders and provide enhanced protection to the victims.
The proposed legislation also takes into account the economics of the organized nature of this crime. It empowers investigating officers to freeze and forfeit bank accounts and property of the accused, if they have reason to believe that the same has been obtained by committing the offence of trafficking and the proceeds accrued thereto would provide for the treatment, relief, and rehabilitation of the victims. The Bill thus goes beyond jail terms to render the business of trafficking obsolete and unviable.
However, the Bill, not being infallible has been subjected to numerous criticisms some of which have been highlighted here. Sex workers organizations have criticized the draft bill on the ground that it conflates sex work with trafficking for sex. This conflation could end up criminalizing sex work, which may push the industry underground and render sex workers more vulnerable to exploitation. This will further add to the stigma associated with sex work and deprive sex workers of their livelihood opportunities.
The Bill is also opposed for its raid-rescue-rehabilitation approach, which renders the consent of the victim in rescue, rehabilitation, or repatriation as immaterial. Although the legislation does provide a rescued victim an option to move out of the rehabilitation home, it has created such an arduous process for exercising this option that it inevitably results in compulsory institutionalization of the victim. The draft legislation has created a problematic stance by adopting an institution-based rehabilitation model, as opposed to community-based rehabilitation. Based on previous incidents, it is argued that these institutions often become the hubs of abuse, violence, and exploitation of the victims.
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Blatant criticism has further been raised over the key aspect of allowing the application of the NIA Act, 2008, which makes NIA the chief investigative body on the ground that this will provide NIA the legitimate ground to barge into any state and initiate an investigation without obtaining prior permission of the concerned state government. Such unbridled power conferred on the NIA is viewed as an attack on the federal structure and sovereignty of the states. Another line of criticism argues that passing over the investigation of trafficking cases to the NIA would result in overburdening of an already stressed organization.
Another objection to the Bill stems from the fact that it provides for the death penalty, which is not considered to be an effective deterrent for any crime, as it necessitates substantiating a stricter degree of proof to secure a conviction for offenses punishable with death. Moreover, it goes against India’s obligation, which arises out of being a signatory to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) both of which advocate for abolishing the death penalty.
Lastly, the Bill offers no clarification with respect to the application of existing laws on sexual exploitation and forced labor such as Bonded Labour System (Abolition) Act, 1976 and Immoral Traffic (Prevention) Act 1956 (ITPA). It merely states that in case of any inconsistency, the provisions of the Bill shall have an overriding effect. The fallout of this irregularity is that the chances of overlapping and confusion in the implementation are more likely to take place.
Heinous crime like trafficking is a blot on mankind, which must be eradicated at all costs, the proposed draft Bill though faltering on many grounds is definitely a step toward achieving that goal. Moreover, the enactment of the Bill will undoubtedly result in the fulfillment of the aspirations of8lakh people who participated in the “Bharat Yatra” under the leadership of Noble Peace Laureate Kailash Satyarthi, to fight against child sexual abuse and trafficking in India.
