-Dr. Prabha Kotiswaran
The political economy of Indian criminal law is fast changing. Even as Section 377 of the IPC on sodomy and Section 497 on adultery have been read down to further the equality of LGBT persons and women, new forms of carcerality that threaten to marginalise the most vulnerable groups of society take shape. The monsoon session of Parliament witnessed the passage in both Houses of Parliament of the Criminal Law Amendment Act, 2018, which increased the punishment for rape including by proposing the death penalty for the rape of minors. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed by the Lok Sabha; unable to be taken up by the Rajya Sabha in the monsoon session, it is now law in the form of a Presidential Ordinance. Another Bill, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (the Bill) was also passed by the Lok Sabha in the monsoon session but has received scant media attention despite its dangerous ramifications for the workers of this country. A top priority of the current government, particularly its Minister for Women and Child Development, the Bill will be tabled before the Rajya Sabha in the Winter Session. What it shares with the rape law and law on talaq is its unquestioning but ultimately futile reliance on the criminal law to achieve social reform.
Through this three-part series, I briefly explain the core elements of the Bill and why it must be referred to a Parliamentary Select Committee for further consideration in the winter session of Parliament. In this first part, I shall briefly introduce features of the Bill, and then deal with two points of critique – the lack of harmony with previous legislations and the adverse impact on sex workers. In the second part, I shall deal with how the Bill departs from established principles of Constitutional and Criminal Law. In the third, and final, part of the series, I discuss the oft-criticised ‘raid, rescue, and rehabilitate’ model, the Bill’s ignorance of the impact on the victims of trafficking, and finally the improper way in which the Bill was passed through the Lok Sabha.
This series attempts to critique the Bill from the lens of criminal and constitutional law, policy, and politics. The aim, and the hope, is that Indian Parliamentarians become cognizant of the potential of adverse impacts of legislating this Bill, and subsequently refer it to a Parliamentary Standing Committee for a review by experts.
What does the 2018 Trafficking Bill do?
The Bill builds on Section 370, Indian Penal Code, 1860 (the IPC), which was amended in 2013 to include the stand-alone offence of trafficking. Section 370A, also introduced into the IPC in 2013 relates to use of a trafficked victim for sexual exploitation.
My analysis of a total of 125 appellate cases between April 2013 and July 2018 showed that Section 370 is often invoked in conjunction with various other legislations. Some of the cases relate to sex work but a few also deal with the exploitation of workers in other sectors, such as brick kilns, leather factories, domestic work, and Indian migrants to other countries (e.g. Malaysia). Courts have often dealt with section 370 in a procedural context with little elaboration of the substantive provisions of the law. Interestingly, Section 370 is used extensively beyond trafficking cases. It often appears as an additional charge in criminal law cases relating to rape and sexual harassment, as well as in completely unrelated cases such as where a wife left her husband and took her child to live with another man. Section 370 is frequently used as a proxy offence for wrongful confinement. ‘Exploitation’ per the provision is thus understood rather broadly. Therefore, the true scope and application of Section 370 is dynamic.
Additionally, there has been little substantive elaboration of Section 370A. The High Court of Andhra Pradesh (S. Naveen Kumar v. The State of Telangana. 2015 (2) ALD(Crl.) 156(AP)) has held that a customer of a sex worker could be charge-sheeted under Section 370A. The High Court of Gujarat has however clarified that this is dependant on whether the relevant facts are proved through investigation (Vinod v. State of Gujarat and Ors, Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 8156 of 2017). Section 370A thus has the potential for being used to target customers of all sex workers whether trafficked or not.
The Bill builds on Section 370 by creating an offence of “aggravated trafficking”, which criminalises trafficking for various purposes in Section 31 of the Bill. Though the Bill seeks to address the issue of trafficking (amongst others), it fails on many counts as shown below.
Bill Lacks Harmony with Previous Laws
Section 59 of the Bill declares that it is in addition to existing laws and that in case of inconsistency it overrides the operation of other laws. In practice this will raise many problems. For example, consider the case of trafficking for sex work. Section 5 of the Immoral Trafficking Prevention Act, 1986 (ITPA) criminalises procuring for purposes of prostitution with or without the consent of the victim. Meanwhile, Section 370 of the IPC lists several means necessary for the conduct of trafficking but also states that the consent of the victim is irrelevant. The ITPA entails imprisonment (between three and seven years) and a fine (up to Rs. 2000). Section 370, IPC entails a punishment of a minimum of seven years. Therefore, where a person has trafficked a sex worker, it is unclear which law the police will in fact use. The Bill does not offer any guidance on the crucial area of trafficking for sex work.
Further, although the Bill seeks to expand the remit of Section 370 to several sectors, including any work involving forced labour and bonded labour, it is silent on its relationship with various laws dealing with bonded labour, contract labour, inter-state migrant work, and sex work. The spirit of the labour law approach found in addressing extreme exploitation in the Bonded Labour System (Abolition) Act, 1976 (BLSAA) is entirely missing. The Bill relies heavily on the police at all levels. Victims are sent to existing shelter homes, which can be designated as protection and rehabilitation homes under the Bill. The BLSAA, on the other hand, emphasises the agency of the bonded labourer and requires the State to promote his or her economic independence through access to credit rather than send him/her to a rehabilitation home. The carceral approach of the Bill is thus a far cry from the administrative and labour law-oriented provisions of laws on bonded labour, contract labour and inter-state migrant work. Importantly, given Section 59 of the Bill, it is unclear which law would apply to a bonded labourer.
Tied to Sex Work Exceptionalism
Although the bill does not explicitly concern itself with sex work, several of its provisions are formed in the carceral mould of the ITPA. These are applied mindlessly to trafficking. Take, for instance, the provisions on allowing a premises to be used for trafficking (Section 34) and closure of premises used for trafficking (section 35). These mirror, word for word, Sections 3 and 18 of the ITPA.
Like in many common law jurisdictions, the sale of sex for money is legal in India under restricted circumstances. Courts have held that a woman practising sex work in a house that she owns, without public solicitation, is engaging in a lawful activity. The goal of the ITPA is to prevent the “exploitation of the prostitution of others”, hence it seeks to criminalise anyone other than the sex worker who benefits from her sex work. Thus sections 3 and 18 of the ITPA target landlords, owners, and lessors of property where sex work is carried out.
The Bill, however, lifts the content of these sections and applies it to trafficking into other sectors where the nature of the work itself is unproblematic (such as sewing garments, construction work, agricultural work). This means that landlords, lessors and lessees of properties where workers are trafficked into these sectors are now sought to be penalised. The absence of a clear-cut definition of exploitation in Section 370 or the Bill and the broad application of Section 370 evident in case law so far means that these stringent provisions, if implemented, are likely to freeze entire areas of the economy. Worse still, these provisions will be meaningless especially when work is conducted in the household (domestic work) or in farms (agricultural labour). How can these premises be shut down? How then can these provisions prevent labour trafficking?
In the next part, I shall deal solely with the departures from principles of criminal law and highlight the lack of constitutional safeguards in the Bill.
Dr. Prabha Kotiswaran is Professor of Law & Social Justice at King’s College London and an alumna of National Law School of India University, Bangalore (Batch of 1993). Her main areas of research include criminal law, transnational criminal law, sociology of law, postcolonial theory, and feminist legal theory. She has authored several books including the Dangerous Sex, Invisible Labor: Sex Work and the Law in India, Towards an Economic Sociology of Law, Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery.