Coalition Critiques Problematic Trafficking Bill 2021

July 15, 2021

A Coalition of lawyers, human rights, women’ rights, child rights and labour rights activists voiced their strong protest over the Trafficking in Persons (Prevention, Care, and Rehabilitation) Bill 2021 slated to be introduced in the upcoming session of the Parliament. While the Bill sets out 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,” over-broad definitions, a draconian investigation process and penal provisions defeat the very purpose of the Bill, say its critics. Like its precursor, the 2018 Trafficking Bill, the problem with the current Trafficking Bill 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,” says the critique by the Coalition for an Inclusive Approach on the Trafficking Bill.

“With its new broad and vague definitions, the Bill makes consent of the individual irrelevant while determining the offence of trafficking, thus striping adult workers of their agency and ability to make choices in a situation of lack of opportunities to earn a livelihood,” said Madhu Bhushan, Gamana Samuha, “The most troubling aspect of the Trafficking Bill is the proposal to make the National Investigation Agency (NIA) not only the investigation agency, but also the applicability of the NIA Act to the investigation of offences under the Bill. This should be a wake-up call for all states in the Indian Union,” said Prof Babu Mathew, National Law School. He also flagged the unnecessary inclusion of the death penalty, stringent bail provisions and denying the accused the right to anticipatory bail as violative of fundamental rights enshrined in the Constitution.

In another attack on the heart of criminal jurisprudence, the Bill removes the presumption of innocence. “Removal of the presumption of innocence directly impacts the crucial fundamental right to life and liberty guaranteed in Article 21 of the Constitution,” said Arvind Narrain, Alternative Law Forum. Another problematic aspect of the Bill is that it makes ‘abetment’ liable for the same punishment as the offence itself. When these terms, including ‘promotion’, ‘procurement” and ‘facilitation’ are vague and ill-defined, it allows tremendous over-reach and misuse by law enforcement agencies. According to Shruthi Raman, evidence analysed by the Centre for Child and the Law, NLSIU shows that mandatory reporting of criminal offences regardless of the consent, can have negative consequences for victims. The proposed Bill does not provide any exception for failure to report. Mandatory reporting will also have a chilling effect on investigative journalism.

“Violations of the right to privacy and restricting the right to carry out research or journalism with criminal provisions strike at the roots of the right to freedom of expression,” said Geeta Seshu of the Free Speech
Collective. “Adult sex workers, already a vulnerable section, will be adversely impacted, since the basic problem with the Bill is that it treats victims of human trafficking on par with adult persons in sex work. Trafficking of persons into forced or coerced labour (including sexual exploitation) should not be equated with sex work undertaken by consenting adults. This conflation could lead to misuse and over-broad application of the provisions in the Bill,” said Ayeesha Rai, National Network of Sex Workers. The Bill takes a few steps backwards for vulnerable populations such as bonded labour, says Kiran Kamal Prasad. “With over-broad definitions of ‘exploitation’, to pulling the rug from more de-centralised agencies dealing with restoration of bonded labour, the overarching NIA presence is likely to cause more harm than good.”
“The Bill ignores the reality of unequal growth, skewed development and inequity, and aspirations to migrate for better livelihood and instead proposes a flawed rescue and rehabilitation mechanism to address the vulnerabilities faced by women and transgender persons,” said Rajesh Srinivas, Sangama, who works with sexual minorities and the transgender community.

By criminalising pornography, many private communications by workers in the adult entertainment industry would be deemed illegal. “Post-pandemic, sex workers use mobile phones and apps as their digital workspaces and the videos and photos they send customers and clients are essential working tools. Deeming these exchanges as sexual exploitation deprives sex workers, who are already struggling to make a living, of their livelihood opportunities,” Aarthi Pai, legal advisor, National Network of Sex Workers.

Trafficking in Persons (Prevention, Care, and Rehabilitation) Bill 2021
Collated Comments by Coalition for an Inclusive Approach on the Trafficking Bill submitted to the Ministry of Women and Child Development, India

Statements from individual sex workers and sex worker collectives and allies from NNSW demanding a consultation with sex workers, and proposing a development approach rather than criminalisation in the draft Anti Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021.

Karnataka Sex Workers Union and Community Based Organisations, Karnataka

Community Based Organisations, Andhra Pradesh

Kerala Network of Sex Workers and partner CBOs

SIAAP and Vadamalar Federation, Tamil Nadu

Saheli Sangh, Pune

Aadhar and Swadhar Sangh, Jalgaon

MJSS, Parbhani

Ganika Mahila Shakti Sanghatan, Nagpur

Muskan Sanstha, Maharashtra

VAMP, Maharashtra

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National Network of Sex Workers India

NNSW is a national network of sex worker-led organisations and allies committed to promoting the rights of sex workers in India.