In the times of proliferation of “liberal” thinkers and writers, some of the civil society organisations have found new ways and dimensions to accommodate such brow-raising scholarship. While the platform should and must be flexible for a wide-ranging debates and discussion, it is more often than not distanced from experiential and evidence-based knowledge which is not often rooted in grassroots reality.
The passing of the Anti-Trafficking Bill, 2018, by the Lok Sabha on July 26, 2018, was largely welcomed by sections of the civil society and the society at large. However, concerns, which are devoid of facts and reasons, raised by some NGOs confusing the general public. While on the surface they appear thought-provoking, in reality they are mere assumptions that lack concrete evidence. For a layman, these statements may create misconception, alienating them from the gravity of the problem and debarring them from the factual understanding.
Critical thinking thus can have a downside and this article is an attempt to unravel such preconceived and rhetoric theories which are embedded in the realm of abstraction. Some of the answers to the frequently asked questions are summarized below:
Q.What is it that the Bill proposes in comparison to the already existing legal framework?
The Bill creates a dedicated three-tier institutional framework at national, state, and district level to ensure the effective implementation of the law at all levels. The existing laws on trafficking only criminalise the act of trafficking and there is no framework for prevention of trafficking, or the protection and rehabilitation of victims. The fact that trafficking is closely linked to the issues of bonded labour and prostitution, but is distinctively independent from them is something that can only be addressed in the proposed new Bill. The Bill recognizes the wider scope of trafficking and associated crimes, including organ-donation, bride-trafficking, trafficking children for transportation of arms, drugs, etc.
Some of the new provisions proposed in the Bill include creating economic deterrence by attachment and forfeiture of property and freezing of bank accounts used for trafficking, directing surveys, awareness generation and community-based rehabilitation. The bill further aims at creating a special action plan for prevention of trafficking, providing for International cooperation to tackle cross-border trafficking, mandating a right to rehabilitation to survivors through:
(i) Special rehabilitation agencies at all levels.
(ii) A dedicated rehabilitation fund for survivors for assistance in the form of psychological, social and economic rehabilitation, which is not contingent upon conviction.
(iii) It provides capital, infrastructure and skill development to survivors to become self-dependent and creating designated courts and special prosecutors for time-bound prosecution of offenders.
Q. How does the Bill comply with global standards and requirements?
This Bill sets international precedent in bringing statutory rehabilitation together with all aspects of prevention, protection, and online forms of trafficking in one comprehensive legislation. This will provide a single point of support to all survivors. It can be rightly argued that the Bill is a giant step by India to not only achieve, but also set the highest international standards of combating trafficking in persons.
Q. How is the Bill survivor-centric?
The Bill aims to “prevent trafficking of persons, especially women and children and to provide care, protection and rehabilitation to the victims of trafficking, to prosecute offenders and to create a legal, economic and social environment for the victims and for matters connected therewith or incidental thereto.”
While the welfare of the survivor is at the core of the Bill, it also caters to the crime and its processes. The survivor-centric provisions include:
(i) Preventive measures at the community and institutional level.
(ii) Immediate protection through rescue from place of exploitation, and protection as victims and witnesses.
(iii) Immediate rehabilitation through protection and rehabilitation homes.
(iv) Long-term psychological, social and economic rehabilitation.
(v) Burden of proof on the offender. It also addresses the crime by including stringent punishment and fines, time-bound trial, attachment and forfeiture of property, freezing of bank accounts, and cancellation of anticipatory bail.
Q.What about the gaps in processes and enforcement of the law that are not given in the Bill?
Any Bill or Act provides the substantive law for addressing a crime or issue. The Rules, which are formulated subsequent to the passing of a Bill, provide the procedural law for implementation. The same process will be followed in this case wherein the rules for the Act will provide for the procedural aspects of the law, which will address any issue pertaining to its implementation.
Q. How is sexual exploitation defined in the Bill?
The Bill uses and extends the existing definition of trafficking as provided for in Section 370 of the Indian Penal Code 1860. The term “exploitation” in this Section includes both physical and sexual exploitation. Section 2(w) of the Bill states that “trafficking of persons” will be defined as per Section 370 of the Indian Penal Code, which defines exploitation as “any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.”
How does the Bill rehabilitate sex workers?
As far as child victims of trafficking are concerned, the Bill protects and rehabilitates them. However, it leaves it to the choice and agency of an adult sex worker to accept or decline the option of rehabilitation by making an application, along with an affidavit, to the magistrate declining rehabilitative services. It does not resort to mandatory institutionalisation, but only provides the option of a safe place to stay to survivors. Apart from national, state, and district-level agencies and a dedicated fund, the statutory rehabilitation model in the Bill also includes capital, infrastructure, and skill development to survivors to become self-dependent.
Q.Does the Bill criminalise voluntary sex work?
The list of offences under Chapter XII of the Bill only criminalises a person who buys and sells other persons for the purpose of exploitation. The Bill does not criminalise voluntary sex work. It aims at criminalisation of trafficking in line with the already existing definition of trafficking under Section 370 of the Indian Penal Code 1860.
Q. How does the Bill protect the privacy of survivors?
By introducing Section 42 of the Bill which states that “no report or newspaper or magazine or news-sheet or audio-visual media or any other form of communication regarding any inquiry or investigation or judicial proceedings at any stage shall disclose the name, address, or any other particulars, which may lead to the identification of a victim or witness of trafficking of person under this Act shall be published”, the Bill protects the identity and confidentiality of survivors at all stages and criminalises its violation.
Q. How does the Bill include forfeiture of property?
Section 29 (1) provides for the attachment of property only in cases where “the property is concealed, transferred or dealt with, in any manner which may result in frustrating any proceedings under this Act”. Property is only attached till the time of conviction, and will only be forfeited thereafter. The process has all necessary checks and balances so it is used only in cases where trafficking has been proved.
Q. How does the Bill get operationalized and doesn’t it perpetuate bureaucracy expansion by setting up additional agencies?
It must be noted that the Bill sets up one new agency and institutionalises those already existing in a single line of institutions from the national to the district level to implement the law. It also only assigns additional profiles to existing bureaucrats and does not employ new ones.
Q. Why does the Bill not address the issues of transgender individuals?
The Bill is essentially gender-neutral and aims to protect all genders under its ambit. Perhaps this is the reason why special vulnerabilities of transgender individuals are addressed in the Bill, in its entirety.
Q. Why does the Bill create a gradation of offences by adding aggravated forms of trafficking?
The Bill recognises the levels of severity of the crime of trafficking caused by increased levels of vulnerability of the victim, span of the crime and its long-term implications. Enhanced punishment of a minimum of 10 years is assigned in cases where the victim’s heightened vulnerability is exploited, or the victim is trafficked, held in bondage and consistently exploited.
Q. Is the Bill of any use in the absence of adequate resources?
The Financial Memorandum attached with the Bill clearly states: “The financial implication arising from the establishment of National Anti-Trafficking Bureau is estimated as recurring expenditure of Rs 10 crore in the first year and Rs 20 crore each in the next two years and for Rehabilitation Fund it is estimated as an initial allocation of Rs 10 crore and to be augmented subsequently on need basis”. Therefore, no cap has been placed on these amounts so that they may be subsequently increased as much the need may be.
Q. Should the Bill be passed in haste despite of being critiqued by the UN agencies?
The article titled “India must bring its new anti-trafficking Bill in line with human rights law, urge UN experts” on the official OHCHR is the opinion of individual special procedure experts of the UN, and does not represent the stand of the UN. The said article clearly states-“…Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.”
Q. Which stakeholders were consulted during the process of drafting the Bill?
Over a period of almost three years, all relevant stakeholders and civil society at large were consulted at all stages of formulation of the Bill, and their suggestions incorporated. The process of formulation of the law began in August 2015, when a multi-stakeholder committee was established for its drafting. In May 2016, the Ministry of Women and Child Development placed the draft on its website for public suggestions. All subsequent drafts were also shared on the website, and public comments and suggestions were invited. The ministry received over 300 suggestions from public and civil society. Regional consultations were held in all main cities, in which over 60 NGOs, government departments and police participated in. All stakeholders including sex workers and labour unions were consulted. Extensive discussions with the Members of Parliament were also conducted.
The answers to the above mentioned questions make an attempt to deconstruct some of the existing myths and confusion surrounding the Bill. In the absence of this Bill, the trafficker or the person responsible for promoting the crime of trafficking would laugh with impunity in the lack of any legal accountability and effective implementation of the laws relating to trafficking. Hence, keeping in mind the pressing challenges, it is imperative at this point of time that the Bill is passed by Rajya Sabha on priority without any hindrance or further delay, while ensuring its effective implementation.