-Dr. Prabha Kotiswaran
In this second part of the series on the Anti-Trafficking Bill, 2018, I shall deal exclusively with how the Bill departs from the core principles of Criminal Law and falls short of providing safeguards. The Bill introduces numerous other offences (Sections 33 to 45) and relies heavily on criminal law. However, it does so without many of the substantive and procedural safeguards that are integral to criminal law systems around the world, particularly in a country with a written constitution and robust constitutional safeguards protecting the life and liberty of citizens.
Departure from Core Principles of Criminalisation and Lack of Constitutional Safeguards
The offence under section 41(2) (offences related to Media) has nothing to do with trafficking and amounts to censorship, especially when the terms “sexual exploitation” and “sexual abuse” have not been defined in the Bill or under Indian law more generally.
Vagueness and Disproportionality:
The offence under section 39(2) speaks of soliciting or publicising electronically the distribution of obscene photographs or providing materials or soliciting tourists which “may” lead to trafficking. While the exact nature of the activity sought to be targeted is unclear, the punishment of 5 years’ imprisonment is disproportionate for an act that “may” lead to trafficking.
Absolute Liability and Reversed Burden of Proof:
Unless proved otherwise, Section 19 of the Bill presumes that a person prosecuted for committing or abetting or attempting to commit any offence against one suffering from physical or mental disability is guilty of the offence.
A presumption as to a culpable state of mind was first introduced in Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985, ostensibly to assist prosecutorial efforts and secure improved rates of conviction. However, Section 19 goes well beyond presuming a culpable state of mind to effectively presume the commission of the offence unless otherwise proved; in other words, the defendant is presumed guilty unless proven innocent! The prosecution does not have to prove either the actus reus or the mens rea for affixing criminal liability, thus introducing an absolute liability offence as the prosecution merely needs to frame charges. Similar provisions are to be found in the Protection of Children from Sexual Offences Act, 2012 and in the Criminal Law Amendment Act, 2013 in relation to aggravated rape but are constitutionally suspect.
Further, in Sections 34 and 35 of the Bill, relating to the punishment of those managing premises or the closure of premises where trafficking occurs, there is a dramatic reversal of burden of proof. Whereas in the original sections of the ITPA (Sections 3 and 18) the defendant is required to act knowingly and therefore possess a culpable mental state, in the Bill, defendants have to prove that they exercised due diligence in order to avoid being prosecuted. This places an enormous burden on property owners and managers to exercise due diligence and ascertain whether trafficking is occurring on their properties, which is impossible given that core elements of the offence of trafficking are left undefined both in the IPC and the Bill.
Presumption of Guilt in Bail Provisions:
Section 52(b) of the Bill requires that bail not be given unless the special public prosecutor is given an opportunity to oppose the application and that the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit the offence. The requirement to pre-judge the case at the bail stage itself with the high objective standard of reasonableness (“reasonable grounds”) reiterates the presumption of guilt rather than of innocence. Provisions relating to anticipatory bail are also not applicable to those offending under the bill.
Onerous Punishment and Unclear Sentencing Policy:
Offences under the bill are cognisable, non-bailable and punishable with high, often minimum, mandatory sentences including life imprisonment for the remainder of one’s natural life. The gradation of sentencing under the Bill, when read with Section 370, IPC is not logical. Under Section 370(3), IPC, trafficking more than one person attracts a punishment of 10 years to life imprisonment. Section 370(5), IPC, punishes trafficking of more than one minor with 14 years to life imprisonment. Section 33 of the Bill, meanwhile, punishes trafficking on more than one occasion with life imprisonment for the remainder of one’s natural life. Thus the sentencing levels have gone up considerably even between 2013 (when Section 370 was passed) and 2018.
Weak Punishment for Employers:
Section 40 of the Bill punishes whoever hires or possesses (even indirectly) a person for purposes of trafficking with imprisonment between three to five years and a fine of more than Rs. 100,000. While this seeks to hold employers accountable, it is unclear why the punishment for the employer is substantially less than that awarded to a trafficker. This is also inconsistent with the punishment awarded (minimum seven years) to those who might harbour (this could include an employer) a trafficked person for purposes of exploitation by using the means listed out in Section 370, IPC.
Violation of Right to Property:
Property owners under Sections 34 and 35 of the Bill are required to obtain the permission of the magistrate before they can let out their properties again. In the ITPA, such requirements for permission are time bound to a year (three years where a child is found at the premises); there is no such time limit in the Bill. This is constitutionally suspect as an infringement on a citizen’s right to enjoyment of his or her property.
Therefore, the Bill fails on many counts when viewed from the lens of criminal and constitutional law. In my next, and final part of series, article, I shall discuss the ‘raid, rescue and rehabilitate’ model used by the Bill, the ignorance of the Bill towards the rights of and impact on the victims of trafficking, and the lack of transparency in passing of the Bill in the Lok Sabha.
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.