Harsha Tripathi, Editor at Law Daily pursuing LL.B. from
Faculty of Law, University of Delhi.
Human trafficking has witnessed a steep increase over the last decade, it is among the most lucrative criminal activities, second only to guns and narcotics smuggling, carried out by highly organised criminals. Sex trafficking, labour trafficking, and organ trafficking are all examples of human trafficking. According to Article 3 of the UN Protocol, trafficking in persons is defined as “the recruitment, transportation, transfer, harboring or receipt of persons, using the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for exploitation”. According to reports, India receives an estimated 150,000 women and girls from South Asia who are smuggled into the country to feed the commercial sex industry. In addition, India is said to be a source and transit country for women and children being trafficked from and to the Middle East. In India's red-light districts, however, more than two million women and children are enslaved in commercial sex exploitation. India requires an anti-trafficking law that deals with the issues involved. The Bill on Trafficking in Persons (Prevention, Care, and Rehabilitation), 2021 proposes a common law that would include all aspects of human trafficking, including sexual oppression, enslaved labour, slavery, sexual servitude, and organ smuggling. The present Bill's provisions are concerning, particularly for sex labourers in India, because it broadens the scope and geographical jurisdiction of violations.
Key Provisions of the Bill
The legislation will extend to every Indian resident, both inside and outside the territory. It would apply to Persons on any ship or aircraft registered in India wherever it may be or carrying Indian citizens wherever they may be or a foreign national or a stateless person who has his or her home in India at the time of conduct of an offense under this Act. It would apply to any offense of trafficking in persons having cross-border implications.
The Bill broadens the term “Victim” to include transgenders as well as any person who may be a victim of trafficking. It mentions that it is not a requirement that the victim needs to be transported from one place to another. The Bill also expands the list of those who can be arrested under the legislation, including governmental employees, defense officials, and anybody in a place of responsibility.
The legislation will enact the National Investigation Agency as the national investigating and coordinating agency to prevent and combat human trafficking and other crimes under this Act, as well as investigating, prosecuting, and coordinating cases of human trafficking by the provisions of the National Investigation Agency Act, 2008, including cases that are interstate or international.
Once the law is passed, the Centre will constitute “National Anti-Trafficking Committees” as well as state and district levels Anti-Trafficking Committees, for ensuring overall effective implementation of the provisions of this Act, for coordination as needed for prevention and countering of the offenses under this Act, and for matters relating to the emergence, rescue, protection, medical care, psychological assistance, recovery, relief, rehabilitation, repatriation and reintegration of victims.
Major Issues
Even though well-intentioned, the proposed Trafficking in Persons (Prevention, Care, and Rehabilitation) Bill, 2021 appears to be lacking in nuance. The major issues with the bill are such as :
First, Human trafficking and sex labor are intertwined in the proposed Bill. The term exploitation now includes prostitution of others or other forms of sexual exploitation including pornography. It concludes that the victim's consent is irrelevant and immaterial in determining the crime of human trafficking. It is important to understand that the criminalization of prostitution is unconstitutional. A sex worker should have the freedom to choose for her profession. In a recent judgment, the supreme court recognized sex work as a profession. The court directed that sex worker are entitled to dignity and equal protection under the law.
Second, the bill overburdens the National Intelligence Agency (NIA) authority by authorizing it to deal with such offenses, including the cases of juveniles as victims. In this sense, the proposed Bill violates the Juvenile Justice Act of 2015, which lays a strong emphasis on child-friendly approaches through the provision for Child Welfare Committees, Special Juvenile Police Units, and Child Welfare Police Officers.
Also, the "Rescue Guidelines," which are critical in cases of human trafficking, are not included in the Draft Bill. In the absence of it, the risk of the forcible rescue of adult people who have been exploited but do not want to be rescued is always present. During the pandemic, the Ministry of Home Affairs directed the states and Union Territories to establish Anti-Human trafficking Units (AHTUs) with special police and other officers to tackle the problem of Human trafficking. The bill authorizes the investigating agencies to intervene in cases if they have reasons to believe there is a case of human trafficking, making the Anti-Human Trafficking Units (AHTU) current involvement in rescuing and post-rescuing efforts uncertain.
Third, it has increased the scale of punishment for traffickers to include death sentences and life imprisonment as punishment. In most cases of child trafficking, a minimum sentence of seven years, with a maximum sentence of ten years and a fine of Rs five lakh is imposed. If more than one child is trafficked, the penalty is now life imprisonment. However, this is a well-settled argument that the death penalty has no unique deterrent effect on crime. Setting high punishments in cases of human trafficking will not act as a deterrent.
Fourth, the bill proposes that the appropriate Government shall set up or designate and maintain protection homes and rehabilitation homes for the immediate care and protection of the victims. But, there is a lack of community-based rehabilitation, the absence of a definition of reintegration, and the funds allocated to survivors' rehabilitation under the law.
Way Forward
The bill requires certain modifications and a sensitive approach toward the issue of trafficking. To reduce duplication or confusion for enforcement authorities, the Bill should be more closely matched with current provisions of the Juvenile Justice Act and other applicable Acts. Rehabilitation and rescue operations must move beyond the institutionalization of victims to include community-based rehabilitation and victim-friendly rescue operations. Furthermore, specialized agencies must be provided with the requisite tools, resources, and funding to conduct interstate and cross-border investigations.
 Draft Bill 2021: A Need For Modification And A Sensitive Approach ){kind=link}
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