In July 2018, the Ministry of Women & Child Development, Government of India (MWCD) introduced the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 in the Lok Sabha. The objective of the Bill was to provide for a comprehensive legislation that covered varied forms of human trafficking, allow for the prosecution of the accused, and provide a framework for rescue and rehabilitation of the survivors of trafficking.

The Bill was met with severe backlash, particularly from sex workers’ coalitions and feminist collectives. They argued that the Bill, while introduced with the objective of addressing trafficking, would end up harming sex workers and their livelihoods; nor would it meaningfully address trafficking or assist its survivors.

Inset: Coalition for an Inclusive Approach on the Trafficking Bill: “The problem with the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 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. The aspiration to move and access better living conditions, poverty, lack of equal opportunity and skewed development policies force persons to move in an unsafe manner and accept work in a criminalised environment, for instance, in sex work, undocumented workers abroad, or for organ trade.”

The 2018 Bill was eventually withdrawn and the MWCD invited public comments on an updated version – the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021. While the 2021 Bill has made certain changes to the 2018 version, it continues to suffer from certain concerns. While interventions against trafficking are critical, it is equally important for them to be rational and effective, instead of disproportionately persecuting those vulnerable to State policing.

In light of the recent Supreme Court of India order in Budhadev Karmaskar Vs. The State of West Bengal and Others (henceforth Budhadev Karmaskar), wherein the court directed that sex workers be involved in the design of laws and policies that affect them, it is critical that the 2021 Bill be revisited.

Latest Bill adds little to existing legal framework against trafficking

India does not have a comprehensive legislation dealing with human trafficking. Instead, various laws such as the Indian Penal Code, 1860 (IPC); Immoral Traffic (Prevention) Act, 1956 (ITPA); Bonded Labour System (Abolition) Act, 1976 (BLSA); Child Labour (Prohibition and Regulation) Act, 1986; Transplantation of Human Organs and Tissues Act, 1994 (THOTA); and various state-level legislations on vagrancy provide for a patchwork approach to trafficking of different kinds. Each of these legislations has its own enforcement machinery and is tailored to address the specific nature of trafficking that they seek to combat.

The ITPA is the primary central legislation that deals with trafficking for the purpose of commercial sexual exploitation. While it does not criminalise sex work per se, by criminalising acts such as maintaining a brothel, living off the earnings of a sex worker, soliciting in public places, and engaging in sex work in notified areas, the ITPA ends up criminalising various aspects of the livelihood of sex workers. Sex workers collectives such as the All India Network of Sex Workers, in their charter of demands, has asked for the removal of clauses in the ITPA which criminalise their livelihood.

The ITPA also houses provisions for raid, rescue and rehabilitation. This process of raid-rescue-rehabilitation often disregards consent, that is, it does not provide an opportunity to distinguish between those who are trafficked and those who say they are in sex work on their own volition. Consequently, it ends up denying agency to people who are voluntarily engaged in the trade by detaining them in protection and rehabilitation homes against their will.

Another relevant provision worth noting is Section 370 of the IPC. Section 370 is a standalone provision that prohibits all forms of human trafficking. This is made clear by the first explanation to the provision, which defines exploitation broadly as including “any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.” This provision also covers various acts associated with trafficking, including recruiting, transporting, harbouring, and receiving of trafficked persons.

Section 23 of the 2021 Bill, which defines the offence of trafficking, largely reproduces Section 370 of the IPC. Further, Section 24 of the Bill, which criminalises trafficking, provides for the same penalty as Section 370. Additionally, laws such as the BLSA, THOTA and various state anti-vagrancy legislations bring within their folds labour trafficking, trafficking of organs, and forced beggary, respectively, thus covering a wide range of offences related to trafficking.

The only ‘new’ offence that the 2021 Bill introduces is ‘aggravated forms of trafficking’ such as trafficking resulting in death, grievous hurt, and exposure to HIV amongst others. This offence calls for more stringent penalties. However, a lot of the offences that fall within the scope of ‘aggravated forms of trafficking’ can be effectively prosecuted under existing criminal laws, including the IPC. Further, in certain cases, such as commission of the aggravated forms of trafficking where the survivor is a child, it introduces the death penalty. As history shows, providing for more stringent penalties, including the death penalty, rarely acts as an effective deterrent, and ends up disproportionately affecting persons from marginalised communities.

The 2021 Bill does not repeal or modify any of the other laws discussed and operates in conjunction with them – it mentions that in case any other law penalises the same offence, the higher quantum of punishment will be applicable. If anything, the 2021 Bill ends up creating a cumbersome bureaucratic framework, harms sex workers, and usurps the fundamental principles of criminal laws.

Inset: We spoke to Puja Roy, Paralegal Volunteer at a District Legal Services Authority in West Bengal, regarding her opinion on the 2021 Bill in light of her experiences growing up as a child of a sex worker, and in her current work. She strongly believes that trafficking is a grave wrong that must be addressed, and survivors must be given redress and rehabilitation. But her experience over the years reveals inherent flaws in the existing system: “There’s stigma in sex work as a profession, but if a sex worker or their child wants to pursue a different line of work, there is denial of resources and dignity. Though sex work isn’t prohibited per se, the ITPA makes soliciting clients a punishable offence. How can sex workers sustain their livelihood if they can’t solicit clients? It randomly forces children of sex workers into government homes and denies them the opportunity to meet their mothers or receive monetary support from them. The unrelenting social stigma and lack of resources ends up pushing many of them into sex work, only to again be ‘rescued’ by the State. The maze of laws that don’t centre the community’s experiences keeps sex workers and their families in a never-ending cycle of abuse at the hands of the government, the police, as well their clients.”

Vague offences and over-criminalisation

It is critical that criminal laws are drafted in a clear and precise manner, without any scope for ambiguity, and are strictly interpreted. This is because criminal procedure and convictions result in the deprivation of liberty as they carry the penalty of imprisonment and in certain cases, of life, where the death penalty is attracted.

The 2021 Bill seems like a far cry from this principle and suffers from vague and clumsily drafted offences which cast the net of criminality far and wide. For instance, the Bill criminalises the publishing of electronic records “which may lead to trafficking in persons”, thus triggering prosecution even when an offence has not been committed.

It provides for imprisonment of persons who own, possess, or acquire property, out of the proceeds of commission of an offence, irrespective of whether they have knowledge of such proceeds arising from trafficking or not. Similarly, persons convicted for offences where they are “unable to satisfactorily account” for property in their possession can be sentenced to imprisonment which may extend upto three years.

Vague and overarching provisions of such nature, which operate primarily on the principle of suspicion as opposed to commission of an offence, can be easily misused by law enforcement, including against sex workers.

Further, the Bill does very little to protect survivors of trafficking and in effect ends up harming sex workers. First, it continues to follow ITPA’s ‘raid-rescue-rehabilitation’ model, which has been criticised by survivors of trafficking. Their demand for a community-based rehabilitation model that provides health services, legal aid, access to welfare schemes and income opportunities crucial for ensuring “all-round reintegration of victims’’ back into their community and family has been consistently ignored.

What is particularly troubling is that consent is not a defence when it comes to raids and rescues, thus enabling law enforcement to mirror trends under the ITPA where persons who are voluntarily in the sex trade are picked up and forcibly placed in protection and rehabilitation homes against their will. Noting this trend of involuntary detention, the Supreme Court in Budhadev Karmaskar has directed the state governments to survey the ITPA protective homes and ensure that the cases of women who are detained against their will are reviewed and processed for release in a timely manner.

Second, the provision extending immunity to the survivors of trafficking from prosecution in case of commission of certain offences is clumsily drafted, and in effect waives such immunity in most cases, thus defeating its very objective.

The Bill also focuses excessively on criminalisation to combat trafficking, an approach which is not likely to yield much success given our overburdened and deeply broken criminal justice system. While it provides for the constitution and designation of Special Courts for speedy trials, it is most likely that the existing Sessions Courts will be designated as Special Courts, as opposed to new courts being constituted.

Our lower judiciary, including the Sessions Courts, are already clogged, suffering from huge backlogs and delays as they are carrying the bulk of pending cases. Thus, it is unlikely that speedy trials, as envisaged by the Bill, will see the light of day.

Inset: Puja Roy, Paralegal Volunteer at a District Legal Services Authority in West Bengal: “For years, I’ve seen women, who’ve voluntarily joined sex work, be forcibly picked up from their workplace and sent to rescue homes. Women and children in rescue homes are vulnerable to physical, mental and sexual abuse because these homes are completely unregulated. What’s the point of so-called rescue and rehabilitation operations if they disregard sex workers’ choices, deny them their livelihood, and push them into more harmful circumstances? Further, in order to identify cases of trafficking accurately, the anti-human trafficking committees envisaged in the 2021 Bill must include representatives from sex workers’ groups or ally communities, especially those involved in the local NGOs in the concerned areas.” It should be noted that though the current Bill does envisage inclusion of members of NGOs in the anti-human trafficking committees, the organisations must be working in the area of prevention of trafficking and related matters. This, again, does not centre sex workers’ inputs in the process.

A troubling trend

A deeply troubling trend that is being witnessed in criminal legislations these days is their utter disregard for the fundamental principles of criminal laws, including the core tenet of presumption of innocence (an accused person is presumed to be innocent unless proven guilty).

Provisions which reverse the burden of proof (the burden being on the accused to prove they did not commit the offence they are accused of), extremely high threshold for grant of bail, and the denial of anticipatory bail seem to be becoming the norm as opposed to the exception. The 2021 Bill follows this pattern. For instance, it provides for presumption of guilt where a person is prosecuted for committing, abetting, or attempting to commit an offence wherein the victim is a child, woman or a person with a mental or physical disability. The Bill also provides for a bar on anticipatory bail and considerably raises the threshold for securing bail, making it next to impossible for the accused to access bail.

Further, it allows for extended police custody of the accused, thus rendering them vulnerable to custodial violence. Given the anti-poor and casteist nature of the criminal justice system, one can foresee the draconian impact of such provisions. The startling fact that the national anti-terror body, the National Investigation Agency, has been designated as the investigating and coordinating agency under the 2021 Bill, raises questions about the direction being taken by criminal laws in this country.

Supreme Court’s order

The Supreme Court in its order in Budhadev Karmaskar issued numerous binding directions to the central and state governments. Prominent amongst them was ensuring that sex workers are included as active participants in every process that affects them.

The 2021 Bill, which has been subject to vehement criticism by sex workers, must be re-examined in light of the Supreme Court’s order. The MWCD must go back to the drawing board and reconsider this Bill and ensure that sex workers and their representatives are involved as primary stakeholders in this process.

Read also No Pride without Sex Workers by Namrata in the May 2022 issue of Varta – Editor.