Glaring loopholes in draft anti-trafficking bill, say experts

Despite the good intentions of the minister of women and child development (WCD) Maneka Gandhi to bring in tough legislation to book traffickers, there are a few glaring loopholes in the draft bill, say experts.

Say, for instance, the lack terminologies and definitions of key terms like prevention, protection and rehabilitation. "There are no clear guidelines on what acts have to be completed to ensure rehabilitation, or, what are the rescue protocols. Without defined terminologies, different issues may be interpreted differently by various agents, like lawyers, bureaucrats, rescuers, etc. This leaves behind various loopholes in the law," says Kaushik Gupta, a criminal lawyer with the Supreme Court with years of work on trafficking cases. 

While he lauds the government for bringing both sexual and labour trafficking under the same umbrella, he says that the mention of a central agency to combat the crime is not accompanied by clear guidelines. "When will the agency be formed, what will be it powers, and it's nature are not clearly defined," says Gupta. 

Gupta also says that such an agency needs to ensure the usual confusion in inter-state cases is creased out. "If a girl is trafficked in West Bengal and taken to Haryana, the police of either state are usually reluctant to probe beyond a certain point," he says. "Rescue needs to be defined to the last detail." 

Sunitha Krishnan of Prajwal, agrees. It was Krishnan whose petition led to a Supreme Court directive to the government to have a comprehensive law to tackle trafficking. "Sometimes when the girl is rescued and taken back home, the police ask her to not pursue the case further," she says. 

Roop Sen of Sanjog, an anti-trafficking NGO, says that without a well-defined rehabilitation protocol, the legislation has very few benefits. "As of now, rehabilitated girls are put under a home for women under the WCD's Ujjwala scheme. The new law does not rethink rehabilitation by assimilating the victims in normal life," says Sen. 

Both Sen and Gupta, however, appreciated the government's rights-based approach in the draft legislation, a flight from the existing approach of charity. 

Another key aspect the government has missed out on is the mental well-being of the rescued. "A study conducted by Sanjog, diagnosing over 100 survivors, found that 83.7% suffered from dysthymia, a condition that usually occurs when post traumatic stress disorder (PSTD) is left untreated," says Sen. He argues that rescue measures should centre on the mental and psychological trauma met by the survivors, and trained professionals must be bought in. 

Health practitioner Uma Chatterjee, who also works with Sanjog, agrees. "Health is a huge aspect the government has glaringly left out. There are no psychiatric or psychoanalytical help provided to them. It is not even mandatory to diagnose them currently. The Bill needs to focus on the continuum from rescue to rehabilitation," she says. 

Chatterjee says that most survivors end up with a damaged liver, a malfunctioning kidney, respiratory complications like tuberculosis, and severe reproductive problems. "There needs to be a linkage with the health ministry. This is a scenario where there are violations of multiple rights, and so, there are multiple needs that must be addressed by multiple government agencies," she says. 

Krishnan says that an organised crime like trafficking can only be tackled by a  comprehensive legislation. "In this Bill, the spirit seemed to have been lost. The primary stakeholder should ideally be the police, however, the Bill includes the District Collector, two NGO workers, a district legal services officer, and a social justice ministry, or WCD official," she says. 

"The Bill has also left out permanent players like autowalas, local police, etc who are usually involved in syndicates," says Sunitha. In inter-country trafficking, too, India has an understanding with only the SAARC nations. "India has said that it will not bear the cost of repatriation in the case of non-SAARC countries. In such cases, a better framework is needed."