– Dr. Prabha Kotiswaran
In this third, and final, part to the series on the Anti-Trafficking Bill, 2018, I address three concerns. The first, a critique of the ‘raid, rescue and rehabilitate’ model used by the Bill. The second, I discuss the ignorance of the Bill towards the rights of and impact on the victims of trafficking. Finally, I discuss the improper way in which the Bill was passed in the Lok Sabha.
Raid, Rescue and Rehabilitate: Old Wine in a New Bottle
The Bill embraces a law and order approach to trafficking (Section 20 (1) (vi)) and envisages an elaborate institutional set up for dealing with prevention, prosecution, investigation, protection, rescue and rehabilitation. It creates broadly two different kinds of agencies which deal with investigation and rehabilitation. The investigative machinery includes the National Anti-Trafficking Bureau, various Nodal Officers and Anti-Trafficking Units. Further, police officers can, on mere suspicion that someone is being trafficked, conduct a raid and rescue operation. Victims are to be brought before the magistrate or the child welfare committee (where the victim is a minor) to be referred to protection homes and rehabilitation homes. The rehabilitative machinery envisages the creation of relief and rehabilitation Committees at the National, State and District level. Existing shelter homes may be designated as protection and rehabilitation homes under the Bill.
Central to the enforcement of the Bill is the District Anti-Trafficking Committee (DATC) which has broad powers and has a role in preventing trafficking, and in conducting raids, rescues and rehabilitation. In relation to prevention, one of its tasks is to keep a check on children who drop out of schools or stop accessing any benefits (under schemes) they are entitled to (Section 13(3)(iii)). It is also required to engage in “vulnerability mapping” and to “produce action plans” for the prevention of trafficking (Section 13(3)(v)). Under the garb of “prevention”, the state has given itself sweeping surveillance powers through these provisions. The whole model, through the DATC, only seeks to perform the often criticised ‘raid, rescue, and rehabilitate’ model. Apart from the sheer paternalism which takes away the autonomy of the victims, certain practical difficulties such as ensuring the prevention of the rampant abuse in shelter homes also arise.
1. Rollback on Protections:
In previous drafts of the Bill, victims’ rights were robustly protected. For example, the rehabilitation fund was entitled to a budgetary allocation from the central government; the government was to bring out rules to ensure the accountability of the agencies in generating, disseminating and utilising funds from the rehabilitation fund; the DATC was required to visit protection and rehabilitation homes at least once a month; the victim could be reimbursed for travel to a trial; the victim was required to be given timely notice of trials and had the ability to summon production of materials from parties and be heard on matters relating to conviction, sentencing, and parole; protection for the victim was to be reviewed periodically by the government and the government was required to take immediate action in respect of any complaint relating to harassment of the victim, witness or informant and pass appropriate orders on the very same day. Unfortunately, none of these provisions have been retained in the current Bill.
2. Restrictive Non-Criminalisation Clause that is Contrary to the Defence of Duress:
Under earlier drafts of the Bill, the victim was protected by a non-criminalisation clause under both criminal law and administrative law. The victim could not be arrested or charged criminally or administratively for offences mentioned under the Foreigners Act, 1946, the Immigration Act, 1990 and the Passport Act, 1967.
In the current Bill, through Section 45, however, non-criminalisation extends conditionally only to serious offences (punishable with death or imprisonment of ten years/life). The condition being that he/she committed or attempted the act under coercion/compulsion/intimidation/threat/undue influence and where the victim has reasonable apprehension of death or grievous hurt/injury to himself/herself or a person he may be interested in. This directly contradicts the general defence of duress available under Section 94, IPC. The IPC defence is available for all offences except for murder and those punishable with death. Thus, a victim of trafficking who is guilty of committing murder under circumstances of coercion would have a defence under the Bill but not under Section 94.
Further, the defence in the Bill is narrower than the one in the IPC. Where, the Bill offers a defence only for serious offences, the IPCs general defence of duress only excludes murder and offences against the state punishable with death. That being said, it is broader than the IPC in the sense that it includes the apprehension of “hurt and injury” not only to the victim but also “someone he is interested in”.
The similarity between both the Bill and IPC is that the duress has to result from some form of coercion, which causes reasonable apprehension of death/injury. The Bill seemingly fails to appreciate the fact that this is an objective test. It is not necessarily how the victim himself perceives the threat but whether the threat can objectively be thought of as producing a reasonable apprehension.
This Bill’s provisions are unfortunate because the anti-criminalisation clause is a hallmark of all progressive anti-trafficking laws around the world. The dilution of pro-victim provisions demonstrates the lip-service that the government is paying to victims of trafficking.
Lack of Transparency in Passage of Bill
Apart from substantive problems with the Bill, the manner in which the Bill has been sought to be passed is also problematic. Smt Gandhi, the Minister, in an op-ed following the Bill’s passage in the Lok Sabha claimed that “the Bill has been drafted after in-depth study and extensive consultation with a range of stakeholders over a period of three years.” Unfortunately, this may be true for only one early version of the Bill (mid-2016) publicly available on the MWCD website. All subsequent versions have been shared with only a small group of stakeholders namely, Mr. Kailash Satyarthi, Sunita Krishnan, P.M. Nair, all organisations that believe in the extensive use of criminal law to raid, rescue, rehabilitate and repatriate survivors of trafficking. Trade unions, bonded labour groups, migrant workers’ groups, contract workers’ groups, child labour groups, sex workers’ groups, transgender groups and indeed even major feminist groups were not consulted on newer versions of the Trafficking Bill (introducing changes such as aggravated offences and the institution of the National Anti-Trafficking Bureau with its broad surveillance and coordination functions) which were not publicly available.
Consequently, all these groups expressed their serious reservations with various provisions of the Bill when it was introduced in the Lok Sabha. In fact, MPs from the Congress, BJD, TDP, CPI-M, AAP and the Revolutionary Socialist Party all requested that the Bill be referred to a Standing Committee. The tyranny of the voice vote, however, prevailed and the Bill was passed by the Lok Sabha.
Even over the past few months since the Bill was passed, international efforts to address trafficking, forced labour and modern slavery in order to realise SDG 8.7 have gathered momentum. The Global Slavery Index 2018 for instance identifies India as having the largest absolute number of modern slaves in the world even if the figure has fallen from 18 million slaves in 2016 to 8 million in 2018 (explained as the ‘flow’ figure versus the ‘stock’ figure). The Report also maps the trade flows between the G20 countries and how developed countries are increasingly taking steps either through import sanctions, public procurement policies or supply chain transparency laws to prevent the import of products of forced labour into their economies. They further call on G20 countries (of which India is a part) to enact similar laws. The Bill however has missed a crucial opportunity to enact a supply chain accountability clause (unlike countries combatting forced labour such as the USA (California), the UK, Australia (New South Wales), and France).
The Bill Sends mixed messages to international community on realizing SDG8.7 (Niti Aayog is critical of modern slavery estimates from the International Labour Organization and Walk Free Foundation whereas the MWCD follows the criminal law approach of the Walk Free Foundation). The Bill is also against international opinion as the UN Special Rapporteurs on Contemporary Forms of Slavery and on Trafficking have called on the Government to align the Bill with human rights law. Although the MWCD claims that the Bill is in compliance with the 2002 OHCHR Recommended Principles and Guidelines on Human Trafficking and Human Rights, there are still deviations from the guidelines in terms of the non-criminalisation of trafficked persons for immigration offences, proportionate sentencing for trafficking and related offences, ensuring freedom of movement, mechanisms to monitor human rights impact of anti-trafficking legislation, procedures for identification of trafficked persons, avoiding custodial detention of trafficked persons, the contribution of survivors to developing anti-trafficking interventions, precise definitions of crimes, providing for civil liability for trafficked persons, punishment of public sector involvement in trafficking, ensuring that rescue operations do not harm the rights and dignity of trafficked persons, not subjecting victims to mandatory HIV testing, provision of consular support to trafficked persons, reviewing policies that cause people to migrate through irregular means, ensuring the best interests of trafficked child and giving due weight to the views of the child, and adopting labour migration agreements, including provision for minimum work standards and model contracts.
As efforts to realise SDG 8.7 gather momentum around the world and the government of India itself aims to ensure its citizens decent work, an out-dated carceral model to address extreme exploitation does the Government of India few favours. To truly lead in the anti-trafficking field, Indian Parliamentarians must apply their mind to the Bill through a careful analysis within a Select Committee with expert evidence from academics, activists and workers alike rather than hastily resort to a politics of the voice vote—yet again.
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.