Why the New Trafficking in Persons Bill, 2021 Problematic?
The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 aims “to prevent and counter trafficking in persons, especially women and
children, to provide for care, protection, and rehabilitation to the victims, while respecting their rights, and creating a supportive legal, economic and social environment for them, and also to ensure prosecution of offenders, and for matters connected therewith or incidental thereto”
The Draft Bill, however, has adequate locomotive that may be counter-productive. The Bill was first introduced in Lok Sabha in 2018 which was critiqued then for the use of ambiguous and unclear definitions which would be easily misused. The New Draft Bill, however, has similar provisions and challenges. The 2018 Bill was criticized for the unnecessary criminalization of acts that do not constitute trafficking.
- The definition of offences has an underlined conflation of ‘exploitation’ with ‘forced labor’ and ‘sex-trafficking with ‘prostitution’. Anyone who is subjected to forced labor should be entitled to recourse in law, however, there are already existing provisions for the same. The recruitment and movement of such labor, which is often induced with fake promises and deceit, would be termed as an offence under the proposed Bill.
- The Bill creates an apprehension to criminalize prostitution without providing for a roadmap of rehabilitation and to leave those who by their own will are in the profession, by encompassing them within the definition of exploitation and sexual exploitation as under Section 2(7) and 2(25) of the proposed bill.
- Furthermore, the criminalization of prostitution is unconstitutional. The Hon’ble Bombay High Court in the case of Kajal Mukesh Singh & Ors v State of Maharashtra, 2020 held that,
“prostitution is not an offence and an adult woman has the right to choose her vocation and added there is no provision under the law that makes prostitution per se a criminal offence or punishes a person because she indulges in prostitution”.
Lack of Consent
- The definition of trafficking adopted by the Bill negates the consent of the trafficked victim for the offence. Every victim has the right to make decisions for their future. The Bill violates the autonomy guaranteed by the Constitution of India as under Art. 19. By rendering the consent as immaterial of the victim, it would lead to the forced rescue of adult women, rehabilitation, and separation from her family, who otherwise would be in the profession of sex work by her will. The definition thereby strips the adult workers of their profession and ability to make free choices.
- The “trafficked victims” are to be rescued and rehabilitated, by an authority not below the rank of the sub-inspector for “reasons to believe” which in itself remains vague and also does not provide a say to the victim in case they do not wish to be rescued.
- Implying all migrant workers who may be deemed as “forced labor” working in the unorganized sector shall have to be rescued. The forceful recuse and institutionalization of the trafficked victim would deprive them of their livelihoods.
Punishment for non-reporting of offence
- The reporting of offences in the Bill has been made mandatory with penalties for non-reporting, the same would have an adverse impact as it often happens that victims of such tortuous incidents would not want to lodge a complaint. The provision would do more harm than benefit to criminal justice as it would now add an extra burden on the investigating agency to look for offenders under the offence.
- Mandatory reporting can be counterproductive and should be optional and not mandatory in nature. Further, it may also hinder the victims from taking professional help from medical practitioners.
- The SC in the case of Justice K.S. Puttuswamy & Anr. v. Union of India 2018, has upheld the right to privacy as a fundamental right under Article 21 of the Indian Constitution and observed, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone.
- National Investigation Agency (NIA) has been authorized as the investigating agency for any offence and makes The National Investigation Agency Act, 2008 applicable under the Draft Bill. This would lead to a breach of the federal system.
“The NIA now will have a legal basis to enter states and even begin investigations for trafficking without the consent of the concerned state. In a federal set up, any expansion of the authority of the NIA beyond what is already scheduled in the NIA Act should be viewed with utmost concern.”
says the joint statement issued by ‘The Free Speech Collective’
Amendments in Criminal Law
- The Draft Bill rather than amending proposes to delete S. 370 of IPC that provides for the definition of trafficking to include consent which would lead to unnecessary misuse and chaos.
- The Bill also makes S. 360 of Cr. P.C is not applicable to anyone found guilty of any offense under the proposed Bill. S. 360 Cr. P.C deals with the release of an arrested on probation of good conduct. This violates the basic human rights of the concerned person.
The Bill misses out on the key provisions to help the victim, instead focuses on criminalization and penalization of offenses of trafficking with its new and vague definitions. The focus should be on reintegration and rehabilitation of the victim back into the society however, the Bill implies “forced rescue” by making the consent of the victim immaterial throughout the Bill. While there is the appreciation for including transgender as also victims of trafficking and to bring out the legislation without any trigger incident.
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