Dear Miss Ruchira Gupta (Founder of the Indian anti-sex trafficking organisation, Apne Aap),
India’s civil society has played a defining role in the journey towards social justice and transformation. Our colleagues and comrades have laid down their lives to bring us where we are today in our struggle for human rights and their realization.
Your open letter regarding the Anti-Trafficking Bill 2018 does not only disregard those who have pioneered India’s human rights movement but also demonstrates the moral and intellectual bankruptcy of those NGOs who claim to fight for the rights of India’s most vulnerable, while living in a foreign land. In this article, I attempt to respond to the key questions you have raised and hope that my line of reasoning will lead you to develop a more accurate understanding of the Bill and refine your further critique.
Human trafficking is the most heinous form of slavery and violence. Millions of children and women are pushed into forced labour and sexual servitude. What exposes these millions to great peril is not legislative action, but the absence of it. It takes more than noble intentions to end trafficking and this is what the Anti-Trafficking Bill lays out.
1. Your first allegation is that the definition of trafficking leaves out millions of victims of sex trafficking.
On the contrary, the definition of trafficking under Section 370 of IPC as espoused by the Bill covers any act of physical or sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Moreover, the Bill creates a range of offences which further elaborate and interpret this definition in its widest sense possible.
It is basic legal sense that rather than defining each word in every law, a specific word or clause defined in any one law becomes the basis for every subsequent policy and legislation. If one was to take your argument, every law would have 200 pages of definitions alone.
2. Your second allegation is that illiterate victims will be dependent on the words ‘may be’ from the Bill’s statement of objects and reasons –
A basic understanding of law teaches us that police complaints are registered against specific offences and not on the statement of objects.
Next, you alleged that discrimination by local authorities will deny marginalized groups access to justice. This statement is both irresponsible and ill-informed.
It is grossly irresponsible to suggest that all police officials or other law enforcement agencies will misuse or not use the law. As a feminist and human rights advocate, I shudder to think of what would be the consequence of any law aimed to provide protection to women and other vulnerable sections of the society if one would imagine that in every case poor illiterate people will have to understand and use the law on the basis of their understanding.
It is our collective responsibility as a society to ensure that the law remains and is applied uniformly to all, and protect all, especially the poor, illiterate and the most vulnerable.
3. Your next statement on the comprehensiveness of the Bill is self-contradictory.
The reason behind the usage of the existing definition of trafficking is to avoid multiplicity of laws that you alleged it creates. Further, it aims to fulfill the vacuum that currently exists in the laws.
You continue to misread Section 370 of the IPC by stating that it does not punish the sex buyer or the end user. A simple reading of the law will tell you that the said Section includes the receiving of person or persons for the purpose of exploitation, which includes both buying and exploitation. You also claim that the Bill is not a victim friendly and burdens the victims with vagueness of definition, multiplicity of laws, no punishment of the perpetrator and the continued punishment of the victims. These myths surrounding the law have been repeatedly clarified on the floor of the Lok Sabha as well as in the media. You choose to remain misinformed and perpetuate these myths, thus creating a cloud of ignorance around the Bill and its true provisions. It does not bode well for an academic of your position. However, I will attempt to clarify the same again.
- The Bill only criminalizes those who exploit, not the exploited.
- For the first time, voluntary sex workers will be extended an option to step out of the practice and avail economic, social, psychological, and skill development based rehabilitation and reintegration. At no point will a voluntary sex worker be punished. In fact the Bill also provides impunity to offenders, in some situations if they have been victims in the past.
- The Bill increases the punishment for perpetrators to a minimum of 10 years and up to life in aggravated forms of offences.
- The existing laws for bonded labor and prostitution, and other forms of exploitation will continue to be enforced. The Bill only aims to tie together the various provisions of laws on exploitation to the process of trafficking.
4. You point out that the Bill gives draconian powers of surveillance, raid and rescue to a new National Anti-Trafficking Bureau in the name of investigating trafficking cases and coordinating between law enforcement agencies and NGOs.
The said Bureau is a first of its kind investigation agency that facilitates national and international cooperation for the crime of trafficking. Removal from a situation of slavery and exploitation is an essential strategy to provide immediate respite to victims in situations of extreme exploitation and is often the beginning of the process of delivering justice to victims. Such rescue operations cannot be carried out arbitrarily, but only with the registration of an official complaint with the police and the following of the legal tenets. From your allegations, one may only guess about your current exposure and experience of such operations. Similarly, surveillance is conducted only as a means of prevention. The identity of victims is not only protected but its violation is also punishable by the Bill.
5. Your next allegation regarding harassment of youth from Muslim, Dalit and Indigenous communities who enter into inter-caste or inter-religious marriages is unfounded.
The Bill only criminalises trafficking for the purpose of forced marriage and not the act of marriage itself. It appears that you have chosen to use such words or arguments without even going through the law properly.
The Bill was out in the public domain for close to two years. NGOs came and made submissions to the Ministry dozens of times. How many times did you or your group come to the Ministry to improve upon the Bill, Ms Gupta? Or even raised these points and arguments that you are vehemently making now at the time of the regional consultations that Apne Aap representatives had attended. Even when the Bill was finalized, the Cabinet deliberated upon it for months, the GOM was created to further fine-tune it, and this is the result of a process of over 2 years of hard work by dozens of people, including NGOs like Prajjwala, Prayas, and subject matter experts like Dr. P.M. Nair, who have all worked for decades on trafficking.
Earlier, in another newspaper article, you had critiqued that in the year 2016 when the government amended the Child Labour Act, it removed millions of children in family based-enterprises and audio-visual entertainment from the definition of child labour; and the government was able to report that Child Labour had come down in India. This is not only incorrect in interpretation but also incorrect in law. The amended Child Labour Law did not remove any children from any form of labour. In fact, it broadened the scope of the law to include these children. Therefore there can be no cause-effect relationship between the spike of child rape and child labour. Moreover, children were always allowed to work in families (even in the erstwhile Child Labour Act), and audiovisual entertainment was never a part of the Child Labour Act.
By making these arguments that are not only untrue but are within the scope of being called ‘fake news’, and circulating the same, one wonders whose interests are being propagated by such ‘fake news’. It is certainly not of the victims and survivors of trafficking. I was a part of the team that worked on an earlier draft of the law for the Ministry. And I am well aware that you had not made any suggestions at that time to the Ministry apart from the argument that we should not have this Bill, and had said nothing on what do we need if not this Bill.
I challenge you to answer the victims of trafficking for whom rehabilitation today is not a matter of right and who do not get their due wages and payments back, the witnesses and victims who find no protection during rescue and trial, the victims who have no official body to go to, or the children who are trafficked for begging and are found across India, and whose traffickers are not covered within the ambit of any law. I could go on and on, but I do not think there is an answer currently in law that you can give.
In conclusion, I believe that a purely theoretical and superficial understanding of the realities of trafficking has led to random and illogical arguments unfounded in law, thus propagating confusion in the minds of the less informed reader. These are often disguised as principled stances on the issue. I urge you to interact closely with the survivors of trafficking and those who attempt to protect and empower them. I also urge you to read this law closely and others that precede it. This will help your noble intentions translate into tangible critique and solutions.
This is not a perfect law, because there is no such thing as a perfect law. But raising rhetorical and fake arguments will not bring us closer to any such thing as even a good law. It is easy to criticize. It is difficult to create. Let us work hard together, study more, work with victims and survivors more, and use this law as a step forward.