ABSENT DEFINITIONS RENDER NEW TRAFFICKING LAW TOOTHLESS
Written by Kaushik Gupta
The new draft law, Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2016 claims to draw inspiration from Article 23 of the Constitution of India which prohibits trafficking of human beings and begar and other similar forms of forced labour. It also speaks of right to life or personal liberty guaranteed under Article 21 as well as of different UN Conventions which has been signed and ratified by the Government of India. It recognises that trafficking of persons needs to be prohibited and victims need care, protection and rehabilitation. However, a plain reading of the proposed legislation gives rise to many questions which, unless answered, will make the proposed new law otiose.
While the title of the draft incorporates lofty objectives, but none of them viz. “Protection, Prevention and Rehabilitation” has been defined in the draft. The lack of a clear definition leaves it open to subjective interpretation by each individual and hence creates ambiguity and confusion. If the Bill does not define the terminology, the same might actually end up being anti poor. History shows that the social perspective of prevention of violence on women has been to restrict the mobility as well as individual agency of women. It has held the woman responsible and accountable for prevention of violence. She has been questioned by the police, politicians as well as the keepers of social morality regarding her choice of clothing, time and intent of being out of house or her role in being complicate in drawing the aggression upon herself. Similarly, an individual from a financially backward environment who is interested in moving to a different state for the purpose of a better livelihood might be restricted from migrating by local village panchayats in the name of ‘prevention and protection’. Due to the lack of definite understanding of the terminology, it will be impossible to hold the State accountable regarding the steps they propose to take to prevent trafficking. Without such clarity on accountability, the new law will merely be dead letters.
The term rehabilitation finds reference in “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” wherein, in Sec. 2(w) it has been defined as “a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels”. However, such definition of rehabilitation is required to be modified in the line of the definition by WHO (World Health Organization) which speaks of rehabilitation as “a set of measures that assists individuals who experience or are likely to experience disability to achieve and maintain optimal functioning in interaction with their environment [WHO 2011]”. While WHO advances such definition in the context of persons with disability, physical or mental, we need to look at expanding the scope and ambit of the term disability to include both social and economic disabilities. In the event, the social and economic disabilities which prevent an individual from achieving and obtaining their optimal functioning in interaction with their environments are not addressed, they will continue to fall victim to trafficking in any form. To break this vicious cycle one needs to address the problem at its very root. Research on effectiveness and impact of rehabilitation of victims of trafficking in India has repeatedly revealed that rescue, institutional care and returning victims back to their home has left them in situation of poverty, stigma and concurrent vulnerability to being re-trafficked. In 2010, a research with 1100 survivors of trafficking in Andhra Pradesh and West Bengal (Where Have all the Flowers Gone, 2010, Sanjog) reveals that the girls and young women rescued from forced prostitution, subsequently put in shelter homes and returned back home to their families failed in rendering them with employable skill, ensuring access to poverty alleviation services or protecting them from stigma and violence within their own families or communities. In 2014, yet another research with 100 survivors who had been returned to their families in West Bengal after due process of rescue, institutionalisation and returning them back to their families reveals that 87.3% of the survivors were diagnosed with chronic depression and anxiety disorders, wherein psychiatrist infer that lack of identification or treatment of Post-Traumatic Stress Disorder (PTSD) in the course of the rehabilitation resulted in their trauma resulting to chronic health conditions. In the current draft Bill, ‘rehabilitation’ has been mentioned in Sections 8 and 9 through the provisions of Protection Homes and Special Homes to provide short term and long term rehabilitation care followed by Section 11 where the Bill mentions that the Government shall frame schemes and programmes, in such a manner as may be prescribed, for the purpose of providing rehabilitation, support and after care services necessary for the social integration into main stream society of the victims and to prevent re-trafficking. The District Anti Trafficking Committee has also been made responsible for performing functions and duties in relation to ………………… need based rehabilitation of victims “as may be proscribed”. As a legal practitioner and Human Rights Lawyer I have been providing services to survivors of trafficking by helping them to claim their rights of rehabilitation across India. To me, the loopholes inherent in this document looms large. This instrument doesn’t define the end goal and parameters of rehabilitation, it does not define how and when a person will be considered to be rehabilitated and will lead to further ambiguity in the criminal justice system as there is a definite lack of clarity in the mind of the survivors what the services and entitlements are to be. Keeping in mind that the victim of human trafficking is the key and the most important witness in the criminal justice system behind prosecution of traffickers, the weakness of rehabilitation system invariably adversely impacts the robustness of investigation as well as prosecution. Through acts or omission, the State is inadvertently colluding with traffickers by granting them near impunity from ever being convicted.
The definitions which have been incorporated are not beyond criticism either. Section 2(a), while defining “after care”, restricts the same to a victim who has been institutionalized in a special home as defined under Sec. 2(l). Thus the victim who runs away, escapes or rescues herself by her own agency from a brothel is left out of the ambit of receiving such “after care”. It also does not extend its benefit in a retrospective manner to a victim who has earlier been rescued but has not stayed in a “Special Home”. The definition of “aftercare” also leaves it to the subjective opinion of the District Anti Trafficking Committee regarding the time as to when the victim is ready to be reintegrated and to join the mainstream society. Such unbridled power without specifying a maximum time period might lead to prolonged and forced institutionalization which is never beneficial for the victim. The Bill is conspicuously silent regarding the offence of importation of persons from foreign country. At the preamble, the Bill mentions that the Government of India has ratified the United Nations Convention on Trans-National Organized Crime but the entire Bill neither defines “organized crime” nor lays down the steps of addressing the same. The Bill also fails to lay down the procedure and protocol for rescue and leaves ample opportunity for witch hunting and moral policing which has been amply exercised over decades by way of mass raids, forced rescue and incarceration of sex workers for their purported reformation.
The only existing law which deals with trafficking is Immoral Traffic (Prevention) Act, 1956. The said law (in its earlier form as Suppression of Immoral Traffic in Women and Girls Act) was enacted after the Government of India ratified the Convention for the Suppression of the Traffic in Persons and of the exploitation of the prostitution of others in 1950. The said convention was approved by the General Assembly on 2nd December, 1949 and came into effect on 25th July, 1951. It is interesting to observe how, in the process of drafting the national legislation in 1956, the word “Immoral” crept in which was absent in the International Convention. Till date we pause to ponder whether there is a ‘moral trafficking’ about which the Government as well as the law is silent about!
From the early 1950s till date, the reasons for trafficking has increased many fold. However, the law has continued to look at trafficking from a restrictive point of view thereby only looking at trafficking for the purpose of sexual exploitation and conveniently overlooked other forms of trafficking viz. for forced labour and slavery, for organ transplant, for forced marriage, illegal adoption, etc. The new proposed law had the opportunity of bringing within its ambit all the aforesaid malice and give us a composite law regarding all forms of human trafficking. However it has failed to do so.
The proposed law on trafficking do not even define what constitutes the offence of “trafficking”. The Justice Verma Committee on “Amendments to Criminal Law” proposed amendment to Section 370 of the Indian Penal Code by incorporating the definition of trafficking of a person. The section 1 of the said definition including explanation proposed by Justice Verma Committee was as follows:
(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers or (e) receives, a person or persons, by
Firstly, using threats, or
Secondly, using force, or any other form of coercion, or
Thirdly, by abduction, or
Fourthly, by practising fraud, or deception, or
Fifthly, by abuse of power, or
Sixthly, by inducement, including the giving or receiving of payments or benefits, in
order to achieve the consent of any person having control over the person recruited,
transported, harboured, transferred or received, commits the offence of trafficking.
Explanation I: The expression ‘exploitation’ shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Explanation II: The consent of the victim is immaterial in a determination of the offence of trafficking.
The expression “exploitation” was to include “…prostitution or other forms of sexual exploitation”, “forced labour or services”, “slavery or practices similar to slavery”, “servitude” or the “forced removal of organs”. It is interesting to note that amendment to Section 370 of the Indian Penal Code left out the term “forced labour or services”.
It is surprising that this Draft Bill has been the handiwork of the Inter-Ministerial Committee comprising of the Law Ministry, the Ministry of Home Affairs, the Ministry of Women and Child Development, The Ministry of Labour, the Ministry of Overseas Employment and Anti-Trafficking Activists including some of my friends and colleagues and rigorous thinking through over a period of 7 months since the NALSA Committee under Justice Sikri came out with its report and recommendations. The dilution of robust ideas and recommendations that must have been presented in those discussions disappoints me and leads me to suspect the very intent and the sincerity of the State to achieve the end of slavery in India.
By Mamta Bhagia