The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018

Context

The Lok Sabha passed the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 recently

What is human trafficking

• Trafficking means transaction which involves prohibited goods such as narcotics or firearms or if it involves people.
• The United Nations defines human trafficking as:

“The recruitment, transportation, transfer, harboring or receipt of persons, by means of 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 of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”

Types of human trafficking

Human Trafficking can be classified in the following main type based on the purpose forwhich the victim is trafficked

1. Trafficking for Sexual Exploitation
2. Trafficking for Forced Labor
3. Trafficking in Organs
4. Domestic Servitude: Domestic servitude involves the victim being forced to work in private households.
5. Trafficking for the purpose of entertainment: This includes the trafficking of young women and children for circus, dance troupe, beer bar, camel jockey
6. Trafficking for marriage
7. Trafficking for adoption

International Law related to Human Trafficking

• Article 4 of the Universal Declaration of Human Rights
• Article 8(1) and (2) of the International Covenant on Civil and Political Rights
• Convention on the Elimination of all forms of Discrimination against Women (CEDAW)
• Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices of Slavery, 1956 (Slavery Convention)
• Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.
• ILO Convention Concerning Forced Labour No. 29

Human trafficking law in India

Constitutional provisions

India has addressed trafficking both directly and indirectly in its Constitution.

• Article 23: Prohibiting trafficking in human beings and forms offorced labour
• Article 39(e): Directed at ensuring that health andstrength of individuals are not abused and that no one is forced by economicnecessity to do work unsuited to their age or strength
• Article 39(f):It states that childhood and youth should beprotected against exploitation.

Other National law

• Section 370 of the Indian Penal Code defines trafficking and penalizes offenders
• Immoral Traffic Prevention Act (ITPA), 1956 deals with cases of sex trafficking
• Bonded Labour System (Abolition) Act, 1976deals with offences of forced labor
• Immoral Traffic Prevention Act (SITA) (1986)
• The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989: Many victims of trafficking belong to marginalized groups. It specifically covers certain forms of trafficking such as forced or bonded labour and sexual exploitation of women.

Human trafficking Bill, 2018

• The anti-trafficking Bill aims to solve an institutionalized socio-economic problem with a ‘crime and punishment’ model, relying on police stations, courts and jails

Need of the Bill

• India officially ratified the United Nations Convention against Transnational Organized Crime (UNTOC) on May, 2011.
• This require the anti-trafficking provisions of the Indian Constitution, Penal Code, and other domestic legislation should be align with the UN Trafficking Protocol and other international treaties to which India is a party.
• It will address the loopholes in the current anti-trafficking laws. The current laws do not address the issue of running of illegal brothels across main cities in India.

Key Features of the Bill

1. The Bill ties together the approaches of prevention, rescue and rehabilitation to create a robust policy framework against trafficking.
2. The Bill uses and extends the existing definition of trafficking as provided for in Section 370 of the Indian Penal Code 1860. The term “exploitation” in this Section includes both physical and sexual exploitation.
3. There are aggravated forms of trafficking which have been introduced, such as trafficking for the purpose of begging, or bearing a child, or for the purpose of marriage or under the pretext of marriage by administering narcotic drugs, hormones, or chemical substances for the purposes of early sexual maturity, and so on.
4. It comprehensively addresses transnational nature of the crime. It entrusts National Anti-Trafficking Bureau (NATB) to perform functions of international coordination with authorities in foreign countries and international organizations.

• The Bureau will also develop and monitor a database on every crime under this Act. Such systematic surveillance of offenders will not only prevent trafficking but pre-empt it.

5. It creates dedicated institutional mechanisms at District, State and Central level. They will be responsible for prevention, protection, investigation and rehabilitation work related to trafficking. The tasks of Anti-Trafficking Bureau at the national level will be performed by National Investigation Agency (NIA).
6. Relief and Rehabilitation

• Anti-Trafficking Relief and Rehabilitation Committee is established at thenational, state, and district levels. TheseCommittees will be responsible for
  • providing compensation to victims
  • repatriation of victims, and
  • re-integrationof victims in society
• The Bill requires the central or state government to set up Protection Homes
• Rehabilitation of victims will not be dependent on criminal proceedings being initiated against the accused, or the outcome of the proceedings
• It creates Rehabilitation Fund for the first time

7. Time-bound trial: Setting up designated courts in each district, which will seek to complete trial within a year
8. The Bill specifies the penalties for various offences. Aggravated trafficking will be punishable with rigorous imprisonment of up to 10 years along with a fine
9. Exclude consenting adults from its purview.
10. The Bill maintains a clear distinction between trafficking and the smuggling of migrants. The Bill does not criminalize migration per se.
11. In order to break the organized nexus, both at the national and international level, the Bill provides for the attachment & forfeiture of property

Criticism

• Firstly, there is an apprehension that the Bill will criminalize voluntary sex work
• Secondly, there are concerns that the Bill will raise a conflict with an existing set of legislation further confusing and complicating the delivery of justice
• Thirdly, The Anti-Trafficking Bill does not redefine trafficking but incorporates the existing definition under section 370, IPC.
• Fourthly, The Bill criminalizes a host of activities, which lack culpability and criminal intent
• Fifthly, instead of streamlining enforcement, the Anti-Trafficking Bill swells up institutional bureaucracy, by creating 10 different agencies
• Sixthly, the bill doesn’t address the problem of development. The problem of trafficking cannot be disassociated from poverty, livelihood, displacement and security
• Seventhly, bill only issue a circular notifying the existing sessions courts as designated courts is not clear. No new courts or judges are mentioned.
• Eighthly, fate of women in Saudi Arabia, Dubai, Qatar and other West Asian countries are not addressed properly

Way Ahead

• There is extensive need in all over the world to bring all the agencies working in the field of fight against trafficking to come together and give helping hands to each other in the fight.
• There should be a judicious use of Rehabilitation fund
• The National Human Right Commission should contribute towards the implementation of the trafficking of law
• Everybody must incorporate human trafficking information into their professional association, conferences, trainings, manuals, and other materials as relevant.
• Government should increase scholarship about human trafficking by publishing an article, teaching a class, or hosting a symposium