Why the Anti-trafficking Bill, 2018 should not be passed

Bharti Ali, Co-Founder, Director

The Anti-trafficking Bill of 2018 is once again an effort to bring in a new law because we failed to implement what existed. I do not support a new law being brought in place without enforcing existing laws and making existing mechanisms functional. I have been looking for value addition that this bill brings, but have failed to find much.

Anyways, what I want to point out here is that there is a bit of misinformation that is being circulated by those promoting the Bill. I just read a piece which said that "The bill has some improved provisions on many other counts – including de-conflating trafficking from prostitution by bringing in all forms of trafficking as a central focus of the legislation – therefore bringing in the elements of deception, fraud, trickery, abuse of power, etc – for purposes of exploitation – to be judged by debt bondage, confinement, forced labour, etc". Well, let me clarify that none of this is coming from the Bill. All this had happened when Section 370 was inserted in the IPC.

In fact, the bill relies on the definition of trafficking as contained in Section 370 of the IPC.  So it does not really define trafficking. It does however, provide for some aggravated forms of trafficking, but still relying on Section 370 of the IPC, which talks about “exploitation” to include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Aggravated trafficking, as provided for in the bill, includes trafficking for the purposes of forced labour, begging, child bearing or by causing grievous hurt, by administering hormonal injections or drugs. Forced labour, forced begging, causing hurt, giving drugs – are all crimes in themselves. So by making specific provisions on what would constitute an aggravated form of trafficking, the bill actually restricts the canvass under which a case involving trafficking as well as other crimes can be booked and/or tried. If any one element cannot be proved, the whole case will fail. Which in turn means failing the victim. In other words, these provisions will only end up benefitting the accused. 

Another criticism of the bill has been that the punishment for some of the aggravated offences may not be proportionate when compared to the punishment for the offences of simple trafficking. While simple trafficking attracts an imprisonment between seven and ten years, aggravated trafficking attracts a minimum imprisonment of ten years up to life imprisonment. For example, trafficking for the purposes of begging attracts a higher term of imprisonment than forced removal of organs or sexual exploitation. 

Yet another criticism, that has not occurred to many is that even Section 370 falls short on compliance with the Palermo Protocol in as much as the offence requires the use of force, coercion, threats etc. in children’s cases. According to the Palermo Protocol, any recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation is considered “trafficking” even if no coercion, fraud, deception, etc. is involved. And now, by introducing more means of trafficking into the different forms of aggravated trafficking that this bill provides for, it is only further digressing from the child trafficking provisions in the Palermo Protocol.

The bill primarily focuses on institutionalisation of rescued victims and leaves out important alternatives such as  community based rehabilitation. Some people suggest that it can be brought in through State rules or the National Model rules. I have a different view on that, going by the history of law making in recent times. We are constantly overstepping the main Act by adding things into Rules that are completely new and not provided for in the principal legislation. For a moment, imagine yourself as an outsider reviewing India's trafficking laws. Will you ever be able to say that the law provides for community based rehabilitation if the main Act does not mention it anywhere?

Then there is a concern I hear from renowned lawyers when the right to bail is taken away completely. If the reason is tampering with evidence by the accused on being released on bail, then the courts are anyways supposed to look into it before granting bail. But if the reason is witness protection, then the Bill is definitely weak on that aspect. Leaving such critical aspects to Rules will be a great disservice to the victims. There is a witness protection scheme that NALSA has drafted and the Supreme Court is now asking states to adopt. Couldn't elements of the scheme have been brought into the bill to ensure the bare minimum is not compromised when the states make their rules? You cannot have Central Model Rules asking states to conform to those while framing their own. This, in principle, is against the federal structure of Indian democracy.

As regards finding legal assistance and representation for victims is concerned, whatever you may put in the law, the courts will have the power to allow or disallow a victim's representative as long as reference to Section 301 of CrPC remains and the Supreme Court does not give a clear directive stating that if a law specifically allows for victim's representation by a lawyer of her/his choice, then the intent of law must be respected.

Another comment, or rather question, is whether this bill is meant to be gender neutral? If it is about trafficking in persons, are our protective homes or any other rehab measures gender neutral? How does the law ensure that they will also be gender neutral?

My final question for now is why does the Bill refer to a Magistrate when offences against children are triable by a Children's Court, which is a Court of Sessions? Wonder why we don't think about these things. We are still struggling under the POCSO Act to help victims get documents pertaining to the case from the Special Court trying the case because Section 25 talks about a Magistrate, while these cases are to be dealt with by the Special Courts from day one.

I hope people will think about all this instead of pushing for the bill to be passed, hoping that it can be amended later. I also hope the Bill is sent to a Parliamentary Select Committee for discussion and the sanctity of Parliamentary democracy is maintained.