Anti-trafficking Bill draws flak for administrative overreach

The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021 is scheduled to be presented in the ongoing Parliament session, but it has already invited widespread criticism from women and child rights activists, lawyers, media persons and civil society organisations.

The Bill proposes death to offenders of child trafficking, but experts believe it defeats the purpose by the over-broad definitions, draconian investigation and penal provisions. Several organisations and individuals have written to the Ministry of Women and Child Development asking either to amend or to recall the Bill. “The measures outlined in the Trafficking Bill focus on the victims rather than the perpetrators of heinous crime of trafficking. In addition, criminalisation of marginalised populations of workers, who are eking out an arduous living in the harshest of conditions, makes these sections more vulnerable to traffickers,” stated Mumbai-based ‘Free Speech Collective’ in its submission sent to the Ministry.

“The problem with the current Trafficking Bill is that it ends up “criminalising vulnerable individuals in the absence of comprehensive policies, programmes and measures that address the factors that make persons vulnerable to trafficking,” states the draft submission sent to the Ministry by the Coalition for an Inclusive Approach on the Trafficking Bill- a nationwide coalition of lawyers, activists, academicians and journalists.

NIA as the principle investigator

“We are particularly concerned about assigning the counter-terror National Investigation Agency (NIA) the task of prevention, investigation and prosecution of trafficking in persons and other offences. This amounts to over-reach and eroding autonomy of the states in the federal structure of governance,” Geetha Seshu, a Mumbai-based journalist and one of the founder editors of ‘The Free Speech Collective’ said to The Federal. “This is an attack on the federal structure of the nation” says the collective statement issued by the Coalition for Inclusive Approach on the Trafficking Bill- the collective of lawyers and activists. The Bill not only proposes to make NIA the investigating authority, but also makes the NIA Act applicable to the investigation process of the offences under the Act.

“The NIA now will have a legal basis to enter states and even begin investigations for trafficking without the consent of the concerned state. In a federal set up, any expansion of the authority of the NIA beyond what is already scheduled in the NIA Act should be viewed with utmost concern,” says the joint statement issued by the collective.

Criminalising sex work and pornography

The Bill adopts a definition of trafficking which sees victims as those who cannot consent, in effect negates the autonomy of the so-called victims. According to experts, even those who had been trafficked have the right to make decisions about their current and future life. It is alleged that by empowering authorities to place persons who are trafficked in custodial institutions without their consent, the Bill fundamentally erodes the notion of individual autonomy guaranteed under the Indian Constitution.

Inclusion of sex workers within the definition of persons who are trafficked will make the life of the sex workers more miserable. “This is a clear infringement of the right to livelihood of sex workers,” says Nalini Jameela, former coordinator of Kerala Network of Sex Workers. The Bill treats victims of human trafficking on par with adult persons involved in sex work. “Equating sex work by an adult with another consenting adult cannot be brought under the definition of trafficking; this is as good as criminalising sex work,” Nalini Jameela told The Federal.

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Section 25 of the Bill states: ‘Sexual exploitation means the obtaining of financial or other benefits through the involvement of another person in prostitution, sexual servitude or other kinds of sexual services, including pornographic acts or production of any pornographic material.”

The bill not only criminalises sex work but pornography as well. “The provisions criminalising pornography and erotic content on the internet go against the right to freedom of expression and privacy guaranteed by the constitution,” says Geetha Seshu.

Impact on Media

Section 33 of the Bill explains intermediary liability. According to section 33(4) ‘subject to the provisions of any other law for the time being in force, whoever publishes through intermediaries any electronic record which may lead to trafficking in persons in any form or exploitation of victims of such trafficking, shall be punished with rigorous imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine up to fifty lakh rupees’.

Critics of the Bill say it is not feasible, desirable or even practically possible for intermediaries to verify the legality of every bit of data that gets transferred or stored by the intermediary. ‘Criminalising intermediaries is an attempt to control the media, says the Free Speech Collective. This must be considered in conjunction with the recently enacted overbroad Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) which was challenged in court as violative of Article 19 of the constitution guaranteeing freedom of speech and expression’.

Too much focus on sex trafficking 

“The bill is silent on many other aspects of trafficking, but lays so much of focus to sex trafficking,” says Dr Pravin Patkar, Co-Founder of ‘Prerana’, a Mumbai-based NGO working against human trafficking .While talking to The Federal, he said the bill tends to  grossly neglect the other types of trafficking such as labour exploitation, organ harvesting and trade, illegal adoption, shadow  entertainment, illegal surrogacy, illegal clinical trials,  labour trafficking, mail bride trafficking etc. Patkar says the Bill is poorly drafted and lacks the foundation of research. “Though the Bill lays too much focus on sex trafficking, it does not say a word about intergenerational sex trafficking,” says Pravin (women being dragged to sex work by the customs and practices like that of Devadasi system).

Death Penalty

Death penalty is prescribed under Section 26(4) of the Bill which provides: “Where a person is convicted of an offence under this section against a child of less than 12 years of age, or against a woman for the purpose of repeated rape, the person shall be punished with rigorous imprisonment for 20 years, but which may extend to life, or in case of second or subsequent conviction with death, and with fine which may extend up to thirty lakh rupees.” The human right defenders unanimously go against expanding the realm of death penalty as a punishment.  The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) go for abolishing death penalty. India is a signatory to both the international conventions.

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Section 6 of ICCPR stipulates that the countries that have not yet abolished death penalty should limit the same to crimes of very serious nature’ which does not recognises sexual offences as a basis. The Supreme Court also has ruled that death penalty could be attracted only in offences that cause death. In ‘Vikram Singh Vs Union of India’, the Supreme Court ruled as, ‘death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence’.