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Burning Issues

[Burning Issue] Draft Anti-Trafficking Bill, 2021

The Union Ministry of Women and Child Development (WCD) has invited suggestions for the draft Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021.

  • The bill once finalized will need the Cabinet approval and assent from both the houses of Parliament to become a Law.
  • The new Bill comes after a long process of revisions after the Trafficking of Persons Bill 2018 that was passed by the Lok Sabha’s nod amid a heated debate, never made it to Rajya Sabha.

What is the objective of the new bill?

To prevent and counter-trafficking in persons, especially women and children, to provide for care, protection, and rehabilitation to the victims, while respecting their rights, and creating a supportive legal, economic and social environment for them.

Human Trafficking in India

According to statistics of India’s National Crime Records Bureau (NCRB), trafficking has manifold objectives.

  • These include forced labor, prostitution, and other forms of sexual exploitation. According to the NCRB, three out of five people trafficked in 2016 were children below the age of 18 years. Of these, 4,911 were girls and 4,123 were boys.
  • Sexual exploitation for prostitution was the second major purpose for human trafficking in India, after forced labor.
  • Victims of trafficking in India disproportionately represent people from traditionally disadvantaged gender, caste, and religious groups.
  • People from these groups have been systemically kept at a disadvantage in education, access to productive resources and spaces and legal remedies enhancing their vulnerability.
  • Across regions, studies have found that majority of victims are women and children belonging to the Scheduled Castes (SCs), the Other Backward Classes (OBCs), the Scheduled Tribes (STs) and minority religions.
  • Children are trafficked first and then placed in labor either forced or for earning a sub minimal wage or in case of the more unfortunate ones, i.e. particularly girls and young boys, are forced into sexual exploitation.
  • Usurious money-lending and debt bondage will also become a force-multiplier for sourcing child labor from the country-side, from desperate families for bondage and trafficking.

Why the old bill was criticized so much?

  • According to the United Nations’ human rights experts; it was not in accordance with the international human rights laws.
  • The Bill seemed to combine sex work and migration with trafficking.
  • The Bill was criticized for addressing trafficking through a criminal law perspective instead of complementing it with a human-rights based and victim-centred approach.
  • It was also criticized for promoting “rescue raids” by the police as well as the institutionalization of victims in the name of rehabilitation.
  • It was pointed out that certain vague provisions would lead to blanket criminalization of activities that do not necessarily relate to trafficking.

What are the provisions in the new bill?

(1) Coverage

  • Persons on any ship or aircraft registered in India wherever it may be or carrying Indian citizens wherever they may be,
  • A foreign national or a stateless person who has his or her residence in India at the time of commission of offence under this Act, and
  • The law will apply to every offence of trafficking in persons with cross-border implications.

(2) Wider definition of trafficking

  • It extends beyond the protection of women and children as victims to now include transgender as well as any person who may be a victim of trafficking.
  • It also does away with the provision that a victim necessarily needs to be transported from one place to another to be defined as a victim.
  • “Trafficking in Persons” is defined to include –

a) any person who recruits, transports, transfers, harbors or receives another person;

b) by means of 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 authority or of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person;

(c) for the purpose of exploitation of that person;

(3) Defines ‘Exploitation’

  • Exploitation will include the “prostitution of others” or other forms of sexual exploitation including pornography, any act of physical exploitation, forced labor or services, slavery or practices similar to slavery, servitude or forced removal of organs, illegal clinical drug trials or illegal bio-medical research or the like.
  • Examples of aggravated offences listed in the Bill include offences that result in the death of the victim or his dependent or any other person, including death as a result of suicide.
  • This also includes cases where the offence has been caused by administering any chemical substance or hormones on a person for the purpose of early sexual maturity.

(4) Government Officers as Offenders

Offenders will also include defense personnel and government servants, doctors and paramedical staff or anyone in a position of authority.

(5) Stringent penalty

  • It is proposed that whoever commits the offence shall be punishable with a term for ten years but which may extend to imprisonment for life and shall also be liable to fine which may extend to Rs 10 lakh.
  • Offence against a child of less than twelve years of age, or against a woman for the purpose of repeated rape, the person shall be punished with rigorous imprisonment for twenty years, but which may extend to life.
  • In case of second or subsequent conviction, the accused may be punished with death sentence. The fine may extend up to Rs 30 lakh.
  • When a public servant, or a police officer, or a person in charge of or a staff of a women’s or children’s home or institution is involved, he shall be punishable on conviction for the remainder of natural life.
  • A person advertising, publishing, printing, broadcasting or distributing any material that promotes trafficking of a person or exploitation of a trafficked person will invite punishment.

(6) Similarity to Money laundering Act

  • Property bought via such income as well as used for trafficking can now be forfeited with provisions set in place, similar to that of the money laundering Act.

(7) Investigation agency

The National Investigation Agency (NIA) shall act as the national investigating and coordinating agency responsible for the prevention and combating of trafficking in persons.

(8) Timeframe for granting compensation

  • The district legal services authority (DLSA) shall provide immediate relief to the victim and dependent, including aid and assistance for medical and rehabilitation needs, within seven days.
  • The DLSA shall award interim relief to a victim or any dependant within a period of thirty days of an application submitted and after due assessment.
  • The bill also says the investigation needs to be completed within 90 days from the date of the arrest of the accused.

(9) National Anti-Human Trafficking Committee:

  • Once the law is enacted, the Centre will notify and establish a National Anti-Human Trafficking Committee, for ensuring overall effective implementation of the provisions of this law.
    • This committee will have representation from various ministries with the home secretary as the chairperson and secretary of the women and child development ministry as co-chair.
    • State and district level anti-human trafficking committees will also be constituted.

Why this bill is significant?

  • The transgender community, and any other person, has been included which will automatically bring under its scope activity such as organ harvesting.
  • Also, cases such as forced labour, in which people lured with jobs end up in other countries where their passports and documentation are taken away and they are made to work, will also be covered by this new law.

What are the legislations in India that prohibits human trafficking?

  • Article 23 (1) in the constitution of India prohibits trafficking in human beings and forced labour.
  • Immoral Traffic (Prevention) Act, 1956 (ITPA) penalizes trafficking for commercial sexual exploitation.
  • India also prohibits bonded and forced labour through the Bonded Labour System (Abolition) Act 1976, Child Labour (Prohibition and Abolition) Act 1986, and Juvenile Justice Act.
  • Sections 366(A) and 372 of the Indian Penal Code, prohibits kidnapping and selling minors into prostitution respectively.
  • The Factories Act, 1948 guaranteed the protection of the rights of workers.

International Conventions, Protocols and Campaigns

  • Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children in 2000 as a part of the UN Convention Against Transnational Organized Crime.
  • This protocol was adopted by the United Nations General Assembly in 2000.
  • The United Nations Office on Drugs and Crime (UNODC) is responsible for implementing the protocol.
  • It offers practical help to states with drafting laws, creating comprehensive national anti-trafficking strategies, and assisting with resources to implement them.
  • Protocol against the Smuggling of Migrants by Land, Sea and Air. It entered into force on 28 January 2004.
  • This also supplements the UN Convention Against Transnational Organised Crime. The Protocol is aimed at the protection of rights of migrants and the reduction of the power and influence of organized criminal groups that abuse migrants.
  • Universal Declaration of Human Rights (1948) is a non-binding declaration that establishes the right of every human to live with dignity and prohibits slavery.
  • Blue Heart Campaign: The Blue Heart Campaign is an international anti-trafficking program started by the United Nations Office on Drugs and Crime (UNODC).
  • Sustainable Development Goals: Various SDGs aim to end trafficking by targeting its roots and means viz.
  • Goal 5 (Achieve gender equality and empower all women and girls),
  • Goal 8 (Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all) and
  • Goal 16 (Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels).

Concerns over the new bill

  • The bill is not clear about how the NIA will gather information and intelligence from different parts of the country through Anti-Human Trafficking Units (AHTUs) at district level and State level.
  • The bill is largely silent on rescue protocols except the “reason to believe” by a police officer not below the rank of a sub-inspector. This makes the role of the AHTUs unclear in the rescue and post-rescue processes.
  • There are also concerns about absence of community-based rehabilitation, missing definition of reintegration and also about the funds related to rehabilitation of survivors in the bill.
  • In absence of rescue protocol there is always the fear of forced rescue of adult persons who may have been trafficked but do not wish to get rescued.
  • The proposed Bill criminalizes sex work and the choice of sex work as profession. The Draft Trafficking Bill has mixed up the issue of trafficking and sex work.

Way Forward

  • Foresight and preparedness: in the midst of the current lockdown can save the lives of crores of women, men and children and avoid an impending humanitarian crisis
  • Collaboration is key: A lot of work needs to be done in a collaborative manner, between key stakeholders such as the government and civil society organizations, for any substantial change to be seen.
  • Assessment and review of legal framework: The central government must assess the existing criminal law on trafficking and its ability to counter the crime and meet the needs of the victim.
  • Increase in budgetary allocation for law enforcement and victim rehabilitation: There is a gross deficit in the budgetary allocation to combat human trafficking.
  • Curbing the rise of online Child Sexual Abuse material: The upsurge of child sexual abuse material and its easy access can only be controlled by placing greater accountability on Internet Service Providers and digital platforms that host this content.
  • Safety net in source areas of trafficking: Schools, communities, religious authorities and the local administration need to recognize and control trafficking and bonded labour in villages.
  • Intensive campaignings: must educate communities about the threat and modus operandi of trafficking agents, especially in the source areas such as Jharkhand, Bihar, West Bengal, and Assam.
  • Monitoring: The railway and other transport facilities have to be intensely monitored.
  • Public Awareness and Sensitization: Awareness around existing government social welfare schemes and the means to access them should be generated and the government must immediately initiate registration of unorganized workers.
  • Financial protection: Special financial protection should be extended for the next year in order to keep the wolf away from the door.
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