Human trafficking has plagued society for ages. It is the usage of force and exploitation of individuals for purposes such as slavery, sex work, and other illegal activities translating into an infringement on an individual’s human rights, with women and children being those at the highest risk of being victims of trafficking. Every country that acts as an origin, intermediary, or final place of the process is considered as one that harbors this socio-economic evil. The United Nations Office on Drugs and Crime (UNODC) has stressed the importance of legislation as a means to curb the practice of human trafficking. It has stated the need for member countries to implement domestic laws. It also recommends that these laws be flexible in nature and comprehensive in definition to aid their efficiency.

India has defined trafficking under Section 370 of the Indian Penal Code, 1860. One of the most notable points in the provision is the disregard for the idea of consent in what technically connotes an act of trafficking. Over the years, India went on to implement various laws that addressed multiple issues recognised under the purview of the UNODC’s definition of trafficking. Examples being the Bonded Labour System (Abolition) Act, 1976 that criminalized bonded labour and the Immoral Traffic Act, 1986 that criminalized sexual exploitation for commercial purposes. What India did not have, was an umbrella Act that addressed all of the above issues collectively. This is why the agenda for the Trafficking of Persons Bill, 2018 was set to fill in the gaps that the earlier laws left. It was passed in the Lok Sabha in July 2018 but failed to pass in the Upper House of the Parliament. However, it continues to be an agenda on the ruling Government’s list of issues.

Objective & Features

The most significant objective of the bill was to address the concerns of victim immunity and the protection of sex workers. In addition to this, the Bill sought to provide for rehabilitation by setting aside a budget, administering the use of which is to be determined by specialised committees established for the purpose. Specific authorities for investigation and supervision were added to the system across the various levels of governance, at State and National Levels. The policy was also claimed to have been made in consultation with the United Nations and other relevant stakeholders.

Another major point of attention is the classification of some forms of trafficking as ‘Aggravated Trafficking.’ Offences classified under Aggravated Trafficking carry harsher punishments. The Government also looked to crack down on those aiding and abetting the practice of trafficking. Charging the owners of the premises where trafficking takes place, and those soliciting trafficking through electronic means with punishable offences are examples. The Bill, therefore, had an attitude of zero tolerance and seemed to be entirely in line with the guidelines set by the United Nations.

Too much bureaucracy, not enough deterrence

The Bill reiterates what the already existing Acts do, which increases the possibility of confusion and chaos when it comes to the implementation of the new law. One of the main features of the Bill was also to increase the number of authorities involved in the administration process, which carries the risk of increasing red-tapism and delaying the process of ensuring justice when necessary.

The Government also promised the creation of a Rehabilitation Fund for the purpose of establishing Rehabilitation Centers for the victims of trafficking. A significant concern is that this rehabilitation fund will see the same fate as the Nirbhaya Fund which was introduced in 2013. The latter was established by the Government to aid the rehabilitation of victims of rape and sexual assault, but it remains under-utilized by the Central and State Government to this day. The Centre blames this lapse in utilization on the State governments leaving the received funds unused, which highlights the core problem with the implementation of laws such as the Anti-Trafficking Bill, which lacks a clear distinction between the powers of various levels of government.

The implementation of trafficking laws seems to be the most challenging aspect of the government’s fight against trafficking, where the most significant problems remain the proper identification and conviction of those guilty. This happens because in most instances of trafficking there is a network of traffickers who administer the “demand” and “supply” of victims. Most of the time, this network also changes the mode of functioning depending on the demand for trafficked individuals. For example; Different groups of individuals work in different regions of the country to ensure that women and children are trafficked for the purpose of prostitution, child sex work, short term marriages involving the rape of adolescent girls as well as sex work. Though the network of traffickers keeps getting complex and extensive, anti-trafficking laws, including the 2018 Bill have been unable to come up with foolproof mechanisms to monitor or deter these networks from flourishing across the country.

Although the UNODC recommends that the laws on trafficking remain flexible, the Trafficking of Persons Bill is vague in defining the crime. Experts on Trafficking from the UN have criticized the Bill on its lack of focus on protecting victims of trafficking. This suggests that a distinction between flexibility and vagueness needs to be drawn in terms of definitions within the Bill. But, even before the policymakers can achieve that, they need to make stakeholder consultation a central point of focus for policies concerning the rights and demands of victims of human trafficking.

Penalizing the Victims

Another problem with the provisions of rehabilitation under the Bill is that the will of the victims is yet again disregarded since they do not have a say in where they are going to be sent in the name of rehabilitation and what they consider proper rehabilitation for themselves.

One of the most significant needs of a new law was the protection and preservation of the rights of sex workers and the victims of trafficking. But the Bill adopted the same definition of trafficking, as mentioned in Section 370 of the IPC, 1860. Thus, the definition of consent for those directly affected by trafficking is still irrelevant under the new provisions. This poses challenges for sex workers who may be arrested, disregarding their voluntary involvement or lack thereof. The agenda for a new Bill was set largely as an outcome of the ruling in Prajwala Vs. The Union of India, a Public Interest Litigation that demanded reforms in Indian trafficking laws to do a better job of safeguarding the rights of the victims. The Trafficking of Persons Bill, 2018, failed to achieve this, and in turn, may have worsened the situation. Although the Government claimed to have taken the interests of the stakeholders under consideration, opinions of sex workers suggest otherwise. Income Inequality is a factor that plays an instrumental role in victims falling prey to an activity such as trafficking. For example: If a woman was taken to a city (in exchange of an amount of money and under the pretext of getting a decent work environment) in the name of providing meaningful employment, after which she was earlier compelled to and later resorted to sex work as a means of attaining livelihood, the erstwhile victim of trafficking will also be considered a criminal as consensual sex work in lieu of money is not a recognized or legal form of occupation under the Indian laws.

So, even though the Bill was meant to address the concerns of such victims, it ended up penalizing them because of the flawed interpretation of the legality of their occupation in this case. It is a fact that only those with poor access to resources are compelled into being victims of trafficking and if a policy that claims to address their problems leaves no room for their voices to be heard, it defies the point of rescuing and rehabilitating them. Although the Government claimed that the new Bill bridges the policy gaps created by previous laws, an analysis of the doesn’t stand true to any such claim. Legislators and administrators should cease to look at trafficked sex workers through a socially determined benchmark of morality and should look at the situation objectively and empathetically. The fine-tuning of economic policies and focus on employment schemes, too, can help provide incomes for families, members of which fall prey to trafficking because of their financial instability. Providing support to these sections of society is the need of the hour, rather than punishing them for what they do.

Overall, the effort put in to strengthen the bureaucracy must be re-directed into a more bottom-up approach to empower vulnerable and disadvantaged communities to reduce the room for exploitation. Although the Government has claimed to formulate the policy in consultation with sex worker collectives, their interests do not seem to reflect in the policies. The focus of the new policy on trafficking must re-direct the Government’s and society’s priority towards aiding the victims of trafficking and empowering them with their choice.

By Rahul Kumar, Research Associate, Policy