Anti-trafficking draft bill: Why the proposed bill is a feast for traffickers, sex traders

The third draft of the proposed central law against human trafficking released by the Union Ministry of Women and Child Development raises serious questions on whether the changes suggested have been fully thought through, given their far reaching implications not only for victims of trafficking but for society as a whole.

Since the ministry has asked for public comments and feedback one finds it necessary to red-flag the problematic issues in the draft. The Ministry in November 2015 constituted a committee composed of several bureaucrats, Ravi Kant of Shakti Vahini (New Delhi), Sunita Krishnan of Prajwala (Andhra Pradesh), Ajit Singh of Gudia (Varanasi-UP), and Roop Sen of Sanjog (Kolkata). The panel included two experts: Chair-Professor, TISS, Mumbai Dr PM Nair and a representative from National Legal Services Authority (NALSA).

The panel was expected to:
·  study the various acts/legislations under the purview of different ministries/departments relating to various aspects of trafficking;  
· consider the gaps in the existing legislation, from the point of view of prevention, pre-rescue, rescue, post-rescue and rehabilitation aspects;  
· strengthen victim protection protocol so as to ensure that victims are treated as victims, not offenders;  
· draft a comprehensive legislative framework covering all aspects of trafficking, as maybe considered necessary;  
· provide for adequate shelter homes for the rescued victims &
· prepare a comprehensive policy for law enforcing agencies, including for lady police officers handling victims of trafficking (Ref. Cabinet Secretariat’s I.D. No.293/1/3/2015-CAV dated 12th November, 2015)
 
Six months after its formation, when the ministry came out with the panel's appalling first draft, widespread criticism saw it being instantly dropped. Subsequently, the second draft was released for limited circulation. Yet, it faced a similar fate and was also dropped. So, on July, 22, 2016, when a third draft was released, hopes were really high.

One welcomes the ministry's gesture to facilitate broad-based consultations on the third draft by calling for public comments. Accordingly, one has tried to briefly address the problematic issues in the draft in the following points:
 
1. The Draft Bill claims to be a comprehensive law against human trafficking which is not true since it only shifts the definition of human trafficking from its current location from Sec 370 of Indian Penal Code (IPC). That too, after removing prostitution and sexual exploitation as the end purpose of trafficking. The entire new law just doesn’t mention the term commercial sexual exploitation even once and mentions ‘forced prostitution’ as a type of sexual exploitation in explanation and not as a part of statement of offence.
 
2. Removing the definition from IPC is a serious mistake as:

  i) once removed from the IPC trafficking complaints will receive little attention at the police station;
  ii) since all the other laws addressing the other destination crimes of trafficking such as Child Labour Law, Bonded Labour Act, Transplantation of Human Organs Act, Prohibition of Beggary Act, etc remain intact the enforcement personnel will have to go to a special law for definition another law for procedures and yet another for substantial prosecution and rehabilitation etc. So instead of simplifying the procedure, it ends up more complicated and
  iii) the other destination crimes currently unaddressed by any law such as surrogacy, bride trafficking, trafficking for human sacrifice, supply chain offences etc continue to remain untouched by the proposed law. 

3. The current Indian law on sex trafficking, The Immoral Traffic (Prevention) Act or ITPA, interestingly combines sex trafficking and prostitution. Despite its poor implementation, it is one of the most progressive, pro-women, pro-victim, rights-based laws in the world. It defines prostitution [Sec 2(f) ] as commercial sexual exploitation of another person. It does not penalise a woman (or person) selling her bodily sex without annoying the public. For e.g. it punishes those carrying out prostitution near schools, places of worship and hospitals etc. or soliciting in public places. Even when arrested for violating these provisions, ITPA Sec 10 tells the magistrate not to punish the women, but offer to them a chance to acquire a new livelihood. As against that, knowing Indian grassroots realities in which unscrupulous anti-social elements exploit vulnerable women and children, it opposes all the elements of organised sex trade namely brothel keeping [Sec 3], pimping [Sec 4], trafficking/procuration [Sec 5], detaining someone in a brothel [Sec 6], seducing someone under one’s custody for prostitution [Sec 9], soliciting by pimps in public [Sec 8(b)], etc.
 
4. The proposed law drops the definition of prostitution completely. It drops provisions against pimping, brothel keeping, brothel managing, procuration, detention, soliciting by pimps in public, seducing, carrying out prostitution near schools, hospitals and place of worship.
 
5. While the progressive, pro-women, pro-victim world is changing laws to de-criminalise the victim woman and penalize the customer (Sweden, Norway, Greenland, France, Canada, Latvia, Lithuania) in order to cut the demand, the proposed Indian law decriminalizes traffickers and sex traders and attempts to make the sex trade open.
 
6. None of these changes are founded on any of the following legitimate factors:

   i) popular movement or demand;
   ii) pending recommendations made over the previous years by experienced positive stakeholders;
   iii) series of research findings or evaluative or policy research;
   iv) outcome of several nationwide rounds of open consultations;
   v) expert opinions;
   vi) best practices set by the courts;
   vii) orders of any High Court or Supreme Court;
   viii) experiences and insights of field practitioners;
   ix) international obligations generated by ratifying any UN or SAARC convention/protocol or x) any best practice in the world

 7. The Bill is very kind to the sex traders and traffickers. By deleting all the other apt, specific and elaborate provisions of the ITPA as mentions above it in [Sec 8 ]of the Bill introduces only four lines mentioning the offences against a victim. It states:

Whoever, knowingly or having reason to believe that a person is a victim of trafficking in person, subjects such a victim to exploitation in any manner shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees.
 
8. This means exploitation must be knowingly done, the exploiter must have a reason to believe that the person s/he is exploiting is a victim of trafficking. Otherwise it is not a crime. Further, the responsibility to prove the knowledge and belief on the part of the offender is on the victim/prosecution. The guilt is not presumed! The burden of proof is on the victim/prosecution or the complainant. Even in the Section on rape [Sec 375, 376 of IPC], if a woman says that she has not given consent to sexual intercourse then the law presumes consent was absent. But in the phenomenon of sex trafficking, which in many ways is nothing but repeated multiple rapes, the proposed law wants the victim to prove the offender has done it with intention and knowledge. Most importantly, the prosecution will have to first prove that the victim is trafficked. One can only sum this is up as a feast to traffickers and/or sex traders at the cost of the victim, tax payers, civilisation and justice.

9. It is not surprising that pro-sex trade platforms have not criticised the draft which is entirely in their favour.

10. The Bill is full of several other errors e.g it provides to imprison the service provider NGO harshly if they happen to disclose the identity of the victim unintentionally or by sheer negligence or even if it is their first offence.

11. It messes up with an important issue that enslaves millions of vulnerable women and children and brings ill-repute to India. It is completely silent on other important issues like commercial surrogacy, bride trafficking, human organ trade, supply chain related crimes.

12. Strangely, the Bill spends a number of pages seeking to create more national level high power bodies like a National Bureau on Trafficking, which is completely unnecessary. This despite the fact that in the last 50 years such a demand has never been articulated in any manner anywhere.

13. As if the mere creation of a National Bureau on Trafficking wasn't enough of a burden on tax payers, the Bill further wants the status of Minister of State for the administrative head of the Bureau.

14) The Bill also asks that such a Bureau head be given a five-year tenure making her/him the head of everything from investigation to repatriation. Worryingly, it gives her/him control of the victim compensation and rehabilitation fund without any judicial supervision. This entire provision is problematic at various levels. Seems like the panel is more concerned with the magnanimous rehabilitation of retired government officers at the tax payers’ cost than the victims of trafficking.

Dr. Pravin Patkar is Co-Founder & Director of PRERANA an NGO working has been working with sex workers communities since 1986 to end intergenerational prostitution. He is also a Fulbright Nehru Academic and Professional Excellence Fellow 2015-16