Plagued by systemic flaws and mistakes of the past, the Bill aims to address the symptoms of trafficking, rather than the disease itself
India is deeply embroiled in the trafficking industry as a source, transit, and destination country. Children, women, and men are trafficked in large numbers from, through, and to India, primarily for bonded labour in brick kilns, agricultural fields, and factories, but also for various forms of sexual exploitation. To address this rampant trafficking, the Government of India introduced the Trafficking of Persons (Protection, Prevention and Rehabilitation) Bill, 2018 (hereinafter the ‘Bill’) in July this year. The Bill has received mixed reactions, being hailed as “a resounding victory” by some, while being slammed for being patronizing and short-sighted by others.
Problems with the Bill
While it might be premature to make a decisive comment on the legislation at this point, it would certainly be prudent to take note of the issues that are likely to arise in its implementation, based on our experiences with similar provisions in other legislations.
First, the Bill attempts to address the failure of previous legislations by introducing features such as time-bound prosecution (Clause 48(1)), creation of specialized investigation services (Clauses 3-10) and specialized courts (Clause 46), aggravated offences with harsher punishments (Clauses 31 & 32), and a presumption clause (Clause 19). All of these features were also included in the Protection of Children from Sexual Offences Act, 2012 (hereinafter POCSO), but as the studies conducted by the Centre for Child and the Law (CCL), NLSIU Bangalore have shown repeatedly, none of these provisions are actually implemented on the ground. Existing district and sessions courts have largely been designated as ‘Special Courts’, aggravated charges are rarely applied, and trials take far longer than the prescribed time period due to heavy case load and the very nature of court procedure. Presumptions are applied, if at all, only as corroborative evidence once the offence has already been proved. If six years of the operation of the POCSO are any indication, it is likely that the Bill, once enacted, could run into the same implementational hurdles due to lack of infrastructure, manpower, and a general lack of will.
Secondly, the Bill continues to rely on the ‘raid-rescue-rehabilitate’ model of the Immoral Traffic (Prevention) Act, 1956, giving almost blanket power to the police in order to rescue a person who, they have reason to believe, may be facing imminent danger to his life or person (Clause 16(1)). It is commendable that the duty to rehabilitate the victim has been detached from the outcome of the criminal prosecution in her case. However, the scope of rehabilitation is so limited as to be redundant. Once “rescued”, the victims are to be produced before the magistrate or the Child Welfare Committee [CWC] (depending on their age), and thereafter sent to Protection Homes or Rehabilitation Homes. If the victim cannot be repatriated, the rehabilitation process provided for in the Bill comes to an end at this point. However, unless there is targeted economic empowerment and skill building of rescued victims, and a space is created for them to express how they would want to be rehabilitated, this provision remains paternalistic and carceral in its approach.
On the other hand, while the Bill provides for the award of final compensation by designated courts (Clause 49(2)), there is no mention of divorcing it from the outcome of the prosecution. This is relevant in light of the findings of the CCL studies, indicating that the Courts tended to link the payment of compensation to the outcome of the case. Further, though POCSO also provided for interim compensation, it was found almost never to have been awarded, probably because the victims were unaware of the provision, and therefore never applied under it. It is likely, then, that the provision for interim relief in the Bill will also become nugatory because it specifically requires the victim to apply for interim relief (Clause 27(1)), rather than empowering the District Anti-Trafficking Committee (DATC) or the CWC to grant interim relief suo motu.
Thirdly, some of the provisions are loosely worded, thereby creating very broad offences, and placing unreasonable standards of due diligence on property owners as well as owners of factories and other establishments (Clause 34(2) read with explanation). Further, certain offences are highly likely to be misused to enforce caste norms or enforce gendered restrictions on women’s autonomy. For instance, ‘trafficking’ a person for the purpose of marriage, or, under the pretext of marriage trafficking a woman or child after marriage is an aggravated, non-bailable offence punishable by a minimum sentence of 10 years (Clause 31(v)). This, read with the presumption under S. 19 (if applied), would mean that consensual adult elopements, not supported by the family due to reasons of caste or notions of ‘honour’, could be reported under this provision, leaving the male partner to be presumed guilty of trafficking.
Positive features of the Bill
That being said, it is not as though the Bill is entirely flawed. In line with the privacy and dignity of the individual, it seeks to protect the identity of the victim (Clause 49(1)), and maintain her confidentiality and safety by providing for audio-visual recording of statements (Clause 48(2)). It also imposes punishment for knowing omission to perform a duty of care imposed towards a victim of trafficking by the Bill or any other law (Clause 38). But most importantly it would appear that, at long last, there is some focus on prevention. The Bill creates a Rehabilitation Fund, which, among other things, may be used for prevention of trafficking (Clause 30(3)(vii)). It also charges the DATC with the responsibility to map vulnerable populations and identify trafficking hotspots (Clause 13(3)(v)), and to create programmes for awareness generation, community mobilization and empowerment of social groups against trafficking (Clause 13(3)(vi)). It is perhaps too early to comment on how effective these steps, provided they are actually taken, will be. And while the express provision of these measures is refreshing, it is also clear that they will not be sufficient.
Prevention of trafficking is high on the list of Recommended Principles on Human Rights and Human Trafficking released by the Office of the High Commissioner of Human Rights of the United Nations in 2002. Article 9 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000) [The Palmero Protocol] provides an exhaustive list of preventive measures, focusing on reducing the demand for trafficking, large-scale information and mass media campaigns, and most importantly, social and economic measures to address the factors driving trafficking. None of these appear to have been adopted by the Bill, and herein lies its biggest failing. The approach of the Bill, as with most liberal-positivist legislation, is to address the symptoms rather than the disease. Without creating financially backed policy for the social upliftment of the castes and communities vulnerable to trafficking, without generating economic opportunities to address large-scale poverty that drives the supply for trafficking, and without a comprehensive approach to the connected issues of pornography, prostitution, bonded labour and trafficking, this “law to prevent the trafficking of persons” can be little more than a band-aid on a septic wound.
 The five state studies may be accessed at the following links:
Andhra Pradesh: https://www.nls.ac.in/ccl/POSCOAP2017study.pdf
After graduating from NLSIU, Bangalore in 2017, Shraddha has been working as a Legal Researcher for the Centre for Child and The Law at NLSIU. She will now be pursuing her LL.M at the University of Cambridge.
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