Anti-Trafficking Bill 2018 – Article 23 Vs Article 21

Why in news?

Recently, Lok Sabha has passed the Draft Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018. It is India’s first comprehensive anti-human trafficking bill that covers prevention, protection and rehabilitation aspects with respect to trafficking. The aim is to make India a leader among South Asian countries in combating trafficking through a comprehensive law. It was introduced by the Union Minister of Women and Child Development Maneka Gandhi.

About Human Trafficking

I have already covered everything about Human Trafficking in a separate article on Modern slavery which also includes forced labor and forced marriage. You can read it before proceeding further by clicking the link below or read it later.

Modern Slavery in India – The ugly truth

What is the need for this law?

  • Human trafficking is the worst form of human rights violation and the 3rd largest organized crime in the world after drugs and arms trade. Every day, women and children are traded in the country and exploited for sex work, bonded labor, forced marriage, begging and other severe forms of violence.
  • As per the National Crime Records Bureau, in 2016 alone, around 16,000 persons were trafficked, out of which around 10,000 were women and around 6000 were children. In our country, at every hour, 8 children going missing and one woman being trafficked.
  • Criminal law (Amendment) Act, 2013 made changes in Section 370 of the Indian Penal Code (IPC) to define trafficking and included punishment for the same. But mere criminalization is not enough to deter trafficking because several laws have not been implemented effectively in the absence of a comprehensive and dedicated law against trafficking. There has been an increase in the number of human trafficking cases in spite of the 2013 law. Hence the bill, instead of mere criminalization, it actually aims at combating the organized nature of trafficking.
  • The police have been using several different laws to deal with different forms of human trafficking such as forced labor, sexual slavery etc. Those laws are Immoral Traffic Prevention Act, Protection of Children from Sexual Offences (POCSO), labor laws etc. This bill when passed will be the single legislation to deal with all forms of human trafficking.
  • Even small countries have Anti-trafficking legislation in place. Bangladesh has very strong anti-trafficking legislation which imposed the death penalty for trafficking. India doesn’t have a law yet, which is shameful.

What are the key features of the bill?

  • The bill includes all forms of human trafficking including severe forms such as trafficking for the purpose of begging or bearing a child, for the purpose of marriage or under the pretext of marriage, administering narcotic drugs, hormones, or chemical substances for the purpose of early sexual maturity etc.
  • Prosecution under these offenses will be timely and efficient by special public prosecutors in special courts.
  • It provides for protection to witnesses and also maintains the confidentiality of victims by recording their statement through video conferencing and by in camera proceedings.
  • It provides for timely trials and repatriation of victims.
  • A rehabilitation fund will be established and will be utilized for the physical, psychological and social welfare of victims.
  • It proposes to build the capacity of victims by providing capital, infrastructure, education and skill development to empower them, get access to justice and prevent further trafficking.
  • National Anti-Trafficking Bureau (NATB) will be set up to coordinate with authorities in foreign countries and international organizations and enable inter-state and trans-border transfer of evidence and materials to prosecute the accused.
    • The Bureau will strengthen the intelligence mechanism by improving the collection, collation, and dissemination of operational intelligence.
    • NATB will also coordinate enforcement by various bodies and authorities set up under this bill. They are National Anti-trafficking Relief and Rehabilitation Committee and also State and District Anti-trafficking Committees which will provide effective training and awareness for all personnel involved in anti-trafficking.
    • The Bureau will also create and monitor a database on every crime under this law.
  • Trafficking is an organized crime and to break the organized nexus at both national and international levels, the bill calls for attachment and forfeiture of property and to remit the money made from the crime in the rehabilitation fund. It will also freeze bank accounts of persons whose funds have been used for trafficking.
  • The bill proposes penalties for various offenses under the act. For trafficking, it prescribes rigorous imprisonment of 10 years up to life imprisonment and a minimum fine of Rs. 1 lakh. For publishing any material that encourages trafficking, it prescribes imprisonment between 5 to 10 years and a fine between Rs. 50,000 to Rs. 1 lakh.
What are the arguments against the bill?

  • Against the rights of sex workers
    • It does not recognize the consenting adult sex workers as different from trafficked persons. Thus it violates the right of sex workers to take their own life decisions. Therefore the bill while attempting to uphold Article 23 (Right against exploitation) actually violates Article 21 (Right to life) of consenting adult sex workers.
    • The bill linked HIV to the aggravated trafficking that will create problems for sex workers.
    • The committees proposed under the bill will not have representation from sex workers. Thus it automatically distances the sex workers from the overall outcome of the legislation.
    • Even though covering entire forms of trafficking, the bill still has a high resemblance to the Immoral Trafficking Prevention Act, 1956 which has the primary focus on sex work.
  • Its focus is on addressing trafficking from a perspective of criminal law rather than human rights based and victim-centric approach. It promotes rescue rides by the police and the institutionalization of victims in the name of rehabilitation.
  • It does not meet international human rights standards. It is criticised for not being in accordance with the recommendation of the UN Human Rights Council.
  • The bill is unfavorable towards the transgender community as well, because they are not exclusively covered by the bill.
  • The bill proposes punishment for producing, publishing, broadcasting or distributing any type of material that promotes trafficking or exploitation. This provision would risk criminalizing many unrelated activities because the bill does not define what constitutes “promotion”. For example, any sexual content online could be seen as promoting interests for sexual trafficking. This will also result in censorship or other penalties for any literary or artistic work which involve sensitive topics including trafficking of women.
  • Moreover, the bill does not recognize the right of the victims to be reunited with the family by going back to the hometown. Instead, it sends them to the rehabilitation homes run by the government and other voluntary agencies where they are incarcerated and separated from their family.
  • The bill does not specify how the NATB will coordinate with the state police departments and how its role is different from the existing policing and security agencies.
  • There is also criticism that the Anti-trafficking fund will meet the same fate as Nirbhaya Fund (established in 2013 for women’s safety) that remains largely under-utilized.

What are the arguments in favour of the bill?

  • This bill is a victory for women and children since it covers prevention, rescue and rehabilitation as well as forced labor, begging and marriage into its fold.
  • It supplements existing criminal laws against trafficking and fulfills the purpose of Article 23 of the constitution that protects persons from exploitation such as forced labor and trafficking.
  • It provides safeguards to voluntary sex workers against persecution and prosecution and giving them the option to approach the court for long-term institutional, psychological, social and economic support if she wishes to discontinue.
  • Victims will regain their lost life and dignity.
  • The bill does not say anything about prostitution being illegal. It only talks about exploitation and abuse which in turn are crimes and not sex work.
  • With the establishment of National Anti-Trafficking Bureau, the bill addresses the long pending need to tackle inter-state trafficking.
  • It is a victim-centric legislation as it recognizes damages at every stage and ensures provisions to correct them by involving not just Ministry and Child development, but also the Panchayat Raj, for providing education, livelihood etc.
  • Furthermore, the bill holds the stakeholders accountable viz. Police, NGOs that causes secondary victimization.
  • The bill provides for victim protection and also establishes a rehabilitation fund for the first time which can be utilized to provide an effective remedy for the victims.

How to make the bill perfect?

  • Revise the bill in accordance with international human rights law in consultation with civil society organizations, UN agencies, and other relevant partners.
  • The bill shall be sent to a select committee of the parliament which should engage with lawmakers to arrive at a revised bill that prevents human trafficking without threatening the constitutional rights under Article 21.

Conclusion

The bill may not be perfect yet, but with relevant corrections, it will be a potential deterrent against trafficking and will save millions of women and children who lost their right to life and dignity. However, the time is of the essence here since every minute of a day, a woman or child is being sold. Therefore the bill should be turned into an actual law as soon as possible to prevent trafficking and provide life and justice for the victims.

Also read: National Health Protection Scheme – All that you need to know

Practice questions

  1. “Human trafficking is the worst form of human rights violation and the 3rd largest organized crime in the world”. In this context, do you think that the Trafficking of Persons Bill 2018 will prove to be an effective deterrent against trafficking in India? Give your point of view.
  2. “The Draft Anti-trafficking Bill while trying to uphold Article 23 also violates Article 21 of the constitution”. Critically discuss.