Unless those rescued are empowered to assert their entitlements and claim accountability from offices at the ground level, the best of laws will remain on paper and have no impact on trafficking
In 2018, when the Ministry of Women and Child Development (WCD) attempted to introduce a new Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, or TOP Bill, in the Lok Sabha, it triggered a strong debate both within the House and outside. While some wanted it to be passed, others were strongly opposed to it. Those for the TOP Bill lauded it because it aimed to have a single legislation to address all forms of human trafficking and rectify the current scenario where each aspect of the crime — from kidnapping, rape, sexual exploitation, forced labour and bonded labour — is separately covered by different sections in the law. This results in fragmented application of laws, flawed investigation and failed prosecution as is evident by the NCRB data on prevalence, prosecution and convictions of traffickers each year. The common law, supporters of the TOP Bill argued, would take away the arbitrary distinctions between sex, labour and other forms of trafficking, which are a product of moral biases against prostitution and non-recognition of the exploitation and torture in labour trafficking. Further, the new Bill, however flawed, was an improvement on the existing legal framework on human trafficking in India, they argued.
Those who were opposed to it countered that the Bill only strengthened the existing flaws in the laws and complicated them further. It pushed for a stronger criminalisation approach, rather than understanding that trafficking was an outcome of socio-economic problems, disparities in growth between regions that pushed for migration but did not provide a support framework. Activists feared that the already prevailing rescue-rehabilitation approach, which gave the police powers of arrests and incarceration of voluntary sex workers in shelter homes, was perpetuated in the new Bill and that it seemed to have learnt nothing from the failures of the past. A third group, also opposed to the Bill, pointed out that creating new laws confounds inefficient law enforcement and overburdens judicial systems even further. So they have no positive bearing on curbing human trafficking, on vulnerable communities, survivors or the implementers of that law and its policies. It cited several social legislations on juvenile justice and domestic, sexual and caste-based violence. Instead of creating new laws, the Government needs to allocate budgets and spend them, strengthen monitoring and implementation of the Indian Penal Code (IPC) Sections that pertain to trafficking, the Immoral Traffic Prevention Act (1986), the Juvenile Justice Act and the Bonded Labour Act.
The WCD Ministry has reiterated its intent to bring in a law on human trafficking and is engaged in revising the TOP Bill. Once the draft Bill is placed in public domain for comments and suggestions, will the stakeholders re-engage with a few fundamental questions that have always led to deadlocks between people of different political and moral ideologies? The central issues in this debate are likely to be around the matter of legalisation of sex work and discernment between sex trafficking and sex work, approaches in rehabilitation of survivors of trafficking, the prevention approach and its impact on migration rights.
Does India need a new law on trafficking? The Immoral Traffic Prevention Act (ITPA), that was formed in 1956 and last amended in 1986, has failed to combat sex trafficking. The ITPA’s approach of combating sex trafficking is on criminalisation of organised prostitution and providing for institutionalisation of survivors and their rehabilitation in shelter homes. The law does not directly criminalise sex workers, except for solicitation in public places. However, nowhere in India has any of the States reported a positive outcome of the law, either by way of reduction of sex trafficking of women and children, conviction of customers who demand children for sex or any consistent conviction of traffickers’ networks to break source-destination flows of victims for sexual exploitation. On the other hand, survivors, who have been through the provisions of the law, have reported grave trauma because of forced institutionalisation in shelter homes. Shelters providing them with non-formal education did not result in better educational qualifications. The in-house vocational training courses on book-binding, sewing, tailoring or jewellery-making did not lead to sustainable employment generation and when they returned home, they were left to fend off stigma, poverty and their health distress on their own. A 2014 research on the health status of survivors of sex trafficking, who had been rescued from Maharashtra, Delhi, Telangana and Karnataka, found that 86 per cent of those tested for psychological health were found to be suffering from dysthymia, a state of chronic depression and anxiety disorder that, the clinicians found, were a result of untreated PTSD (post-traumatic stress disorder). This indicated the inadequacy of the psycho-social counselling services provided in shelters.
India does not have a law on labour trafficking. While Section 370 of the IPC was to have provided us with a comprehensive definition of trafficking, it falls short of mentioning forced labour in its definition of exploitation. Survivors of labour trafficking across India report that there is systemic resistance in recognising them as victims of labour trafficking or of bonded labour. While there is systemic exploitation of inter-state migrant labour being trapped in brick kilns, small factories and sweatshops, construction sites using debt bondage, threats, intimidation and violence, the district administration and police resist in recognising this as trafficking and would rather interpret it as “ill-treatment of labour.”
One of the biggest lacunae in the system is the absence of any definition of “rehabilitation of survivors of trafficking” and what specifically a survivor may claim as entitlements for recovery and rehabilitation. The ITPA offers incarceration in shelter homes for up to three years and in-house service delivery without any ac-countability of the service provider towards recovery, employment or reintegration. The Bonded Labour Act provides for a Central sector scheme for rehabilitation of bonded labour, which focusses on financial benefits, mentioning nothing about recovery, repatriation, reintegration or rights of legal representation of victims of labour trafficking. What this creates is a system that can escape responsibility towards the future of the survivors by claiming that it has provided rehabilitation services but survivors were not able to benefit from them.
The ITPA and the Bonded Labour Act as well as the IPC fail miserably in prosecution of traffickers. The Global Trafficking in Persons Report, 2020, observes, “The Government decreased investigations, prosecutions and case convictions of traffickers. The acquittal rate increased to 83 per cent.”
A whopping 90 per cent of human trafficking in India is inter-state, and from villages and small towns to cities. The Ministry of Home Affairs had recognised the need to create an integrated and comprehensive investigation system in 2008 when it passed a directive to form Anti-Human Trafficking Units (AHTU) at the district-level, which could pursue investigations seamlessly between States. This would take the burden off from the general police stations. However, a recent report, AHTU Watch, found less than 10 per cent of the currently-existing 332 AHTUs to be notified and functional, with officers exclusively in charge of them. Non-notification of AHTUs means that they do not have the powers of investigation, rendering their roles largely notional. As a result, the bulk of the trafficking cases are investigated by officers from general police stations, who confine their probes to the areas in their jurisdiction. For example, the police team that rescues a survivor of trafficking from Pune would confine its investigation and prosecution to the local brothel but would not trace back to the traffickers in the source State where the victim was abducted. As a result, such prosecution based on poor probes can be easily challenged by the defence. AHTUs have yet to be recognised under any legislation and State Governments are under no obligation to implement their advisories.
Those who are worst affected by the inadequacies of the law are survivors of trafficking themselves. There is truth in the contention that unless trafficking survivors are empowered to assert their entitlements and claim accountability from offices at the ground level, the best of policies and laws will remain on paper and have no impact on the ground. NGOs have their own subjectivities, their ideological battles and limitations in challenging duty bearers.
Survivors of human trafficking can be the greatest resource in any anti- trafficking multi-stakeholder system. Their inclusion in national, State and district-level anti-trafficking committees will need to be endorsed by law and policy and not left to the goodwill of individual bureaucrats or leaders. It’s time that survivors of human trafficking were respected as equal members in the anti-trafficking ecosystem and not spoken for by activist NGOs.
(The writer is a researcher and advisor to the Indian Leadership Forum Against Trafficking)