Mili Gupta, LLM candidate at the Institute of Law, Nirma University, Ahmedabad, India discusses the legislative repercussions of India's Trafficking in Persons [Prevention, Care & Rehabilitation] Bill, (2021)...
The Trafficking in Persons (Prevention, Care & Rehabilitation) Bill, (2021), is expected to be tabled during the monsoon parliamentary session. The initial Bill was approved by the Lower House of the Parliament in 2018; however, it was never presented in the Upper House. The 2018 proposal deals with human trafficking, as well as rescue safety and reintegration of the survivor, whereas the 2021 draft broadens the purview to cover crimes committed beyond India.
The present Bill posits a common law that will cover all facets of human traffickings, such as sexual oppression, enslaved labor, slavery, sexual servitude, and organ smuggling. Considering the fact that the current Bill broadens the purview and geographical jurisdiction of offenses, its provisions are concerning, particularly for sex laborers in India.
The Immoral Traffic (Prevention) Act, (1956) (ITPA) combines human trafficking and prostitution, taking away the interests and concerns of consensual adults sex laborers. The ITPA was used to combat apparent prostitution by imprisoning the accused female, limiting her liberty, and taking away her discretion. It makes no clauses for rehabilitation, reimbursement, or recourse to medical services for recovered females. In a September 2020 verdict, the Bombay HC reaffirmed that “prostitution is not a crime and so an adult female has the freedom to decide her profession.” It further stated that there is still no component in the legislation that deems prostitution a penal crime in and of itself. In the previous couple of years, there have been numerous requests for the abolition of the ITPA based on its constitutional legitimacy, and it’s high time to repeal this antiquated law.
The purpose of the current draft is to prohibit and combat human trafficking while also providing assistance and safety to sufferers by broadening the geographical jurisdiction of crimes involving cross-border effects. As per the proposed Bill, the legislation will extend to every Indian resident, both inside and outside the territory, as well as anyone aboard any vessel or airplane licensed in India and conveying Indian nationals wherever they might be, and also any overseas resident or stateless people residing in India.
The term ‘victim’ has been expanded to encompass transsexual people as well as females and juveniles. The Bill 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 Bill specifically describes human trafficking as a global offense with worldwide ramifications, attempting to separate trafficking from sex labor while preserving the rights of the victim to rehabilitation & reimbursement outside of judicial procedures. It divides crimes into two categories: “Trafficking & Exacerbated types of Trafficking,” with the first having a maximum sentence of ten years in prison and a charge of 1 Lakhs, and the latter carrying a capital punishment and a fee of up to 30 Lakhs.
The Bill provides for the formation of “National Anti-Trafficking Committees” as well as bodies at the state and district levels. It further includes rehabilitative provisions that are not included in Section 370 of the Indian Penal Code, (1860). Referencing the Prevention of Money Laundering Act, (2002), it also enforces monetary penalties, and property acquired through such earnings and utilized for trafficking can also be seized.
In addition, the proposed bill stipulates that the investigation must be concluded within 90 days of the offender’s arrest.
Firstly, the draft Bill conflates the issues of human trafficking and sex labor. Prostitution and pornography have been included in the definitions of exploitation and sexual abuse, and are now recognized forms of human trafficking. The assent of the sufferer is no longer significant.
Secondly, the Bill fails to define the implementation of existing legislation against coerced labor and sexual exploitation resulting in ambiguity and overlapping. The proposed Bill doesn’t include the “Rescue Guidelines” which are essential instances of human trafficking. In the lack of a rescue guideline, there is constantly the risk of the forcible rescue of adult people who have been exploited but would not want to be rescued. However, the investigating agents is given discretionary rights to intervene in a matter if he/she has grounds to suspect there is an incident of human trafficking, rendering the existing involvement of the Anti- Human Trafficking Units (AHTU) in rescuing and post-rescuing activities ambiguous.
Thirdly, the Bill had given the National Intelligence Agency (NIA) authority to combat cross-border human trafficking in an attempt to bring closure to it. The NIA, on the other hand, is burdened by such modifications. Further, incorporating NIA authorities in the investigation of human trafficking offenses concerning juveniles as sufferers goes against the concept of the ideal interest of the juvenile. In this regard, the proposed Bill contradicts the Juvenile Justice Statue, (2015), which places a significant focus on child-friendly methods by creating Child Welfare Boards, Specialized Juvenile Police Forces, and Child Development Police Agents. In circumstances of rescue activities, the Bill is quiet on the precise functions of the NIA in comparison to jurisdictional police officials. The flaws in the Bill are indicative of the absence of general populace engagement. Civil community associations claim that the public comment period is too short (two weeks), considering that the draft Bill is exclusively provided in English; the Bill must be translated before it can be debated with all participants.
Lastly, issues have also been raised concerning the lack of society-based restoration, the lack of a description of reconciliation, and the resources allotted to the rehabilitation of survivors in the proposed Bill.
There is a requirement for sensitization and structural transformation. The ability to operate effectively in the criminal justice process is critical in combating the threat of human trafficking. Increased conviction percentages require filling positions, designating specialized units, and appointing an attorney. The proportion of females in the Police Department of India is a pitiful 10 percent; more females need to be employed.
Most critically, the police department must be trained to cope with incidents of human trafficking. The Act must acknowledge and alleviate the problems of the marginalized, including sex laborers of the nation.
Mili Gupta is an LLM candidate at the Institute of Law, Nirma University, Ahmedabad, India.
Suggested citation: Mili Gupta, India’s New Anti-Trafficking Bill: An Analysis, JURIST – Student Commentary, August 11, 2021, https://www.jurist.org/commentary/2021/08/mili-gupta-india-trafficking/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at email@example.com
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.