Trafficking in human beings is the third largest organized crime violating basic human rights. There is no specific law so far to deal with this crime. Accordingly, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was prepared. The Bill addresses one of the most pervasive yet invisible crimes affecting the most vulnerable persons especially women and children. The new law will make India a leader among South Asian countries to combat trafficking. The bill eventually lapsed, however it provides an occasion for evaluating the sex work debate in India.

Body:

Sex work debate in India:

• The resilient pathways of global governmentality anchoring the sexual politics of anti-trafficking discourse internationally are mirrored in India.
• Feminist abolitionist NGOs (for example, Apne Aap) follow radical feminists to see all “prostitution” as sexual violence while non-feminist abolitionist NGOs (Shakti Vahini, Bachpan Bachao Andolan [BBA]) as socially conservative cultural nationalists want to protect the “dignity” of Indian women and children.
• They are heavily invested in raids, rescue, and rehabilitation.
• Since the 1990s, they have resorted to public interest litigation (PIL), assisted the executive in setting up specialist state agencies and drafted operating protocols.
• The governmentalised postcolonial state became an open site for these NGOs who were in turn appointed to key expert committees.
• They used the 2012 Delhi rape case to successfully lobby the Verma Committee for a stand-alone trafficking offence and to criminalise those engaging trafficked persons or minors for sexual exploitation.
• Indian sex workers’ groups draw on materialist feminist thought and have long countered anti-sex work laws.
• Sex workers litigated against the Suppression of Immoral Traffic in Women and Girls Act, 1956 for violating their constitutionally protected right to occupation. In the 1990s, they used HIV prevention funding to mobilise sex workers

Significance of the bill:

• The Bill addresses one of the most pervasive yet invisible crimes affecting the most vulnerable persons especially women and children. The new law will make India a leader among South Asian countries to combat trafficking.
• The bill addresses the issue of trafficking from the point of view of prevention, rescue and rehabilitation (first to address the issue of victim rehabilitation).
• Setting up of one or more special homes in each district for the purpose of providing long-term institutional support for the rehabilitation of victims is another feature of the Bill.
• Unlike the Immoral Traffic (Prevention) Act (ITPA), 1956, Bonded Labour System (Abolition) Act, 1976, and Section 370 of the Indian Penal Code, the new Bill takes a holistic view and aims to prevent trafficking for forced labour, beggary and organ transplant, among many others.
• The Bill also provides for designated courts in each district for time-bound trial and repatriation of victims within a period of one year from taking into cognizance. This is welcome move.
• The Bill also provides for seizing of property located in foreign lands which is a good effort to deal with such crimes.
• It is gender-neutral and covers transgender persons.
• It doesn’t criminalise the victims, but instead provides them with shelter, compensation, and counselling.
• The Bill also relies on Article 21 of the Constitution, guaranteeing that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
• The Bill takes note of the fact that India has ratified the United Nations Convention on Transnational Organised Crime and its three Optional Protocols, including the Protocol to Prevent, Suppress and Punish Trafficking in persons, especially women and children.

Limitations of the bill:

• The 2018 bill was a draconian legislation reliant on a classic raid-rescue-rehabilitation model for victims. It exemplified abolitionist thinking; every influential Indian abolitionist had the minister’s ear. The bill presumed the victim’s lack of agency.
• Importantly, it did not repeal the Immoral Trafficking Prevention Act but channelled its letter and spirit by extending the ITPA model to all forms of labour exploitation. Thus, it was redundant given existing laws on trafficking.
• A close read of the bill’s passage however also reveals pragmatic concessions to sex workers in the interests of diffusing their objections to the bill.
• The bill offered the right to rehabilitation which sex workers have repeatedly denounced as useless at best and abusive at worst.
• National investigation agency is an understaffed organisation, that is already tackling the gigantic footprint of terrorism across the subcontinent and there are doubts whether it might be in a position to take on and investigate cases of human trafficking.
• Will be a setback for already marginalised groups, including bonded labourers, child labourers, migrant workers, sex workers etc.
• Sex trafficking is one such issue. Even as the number of victims of sex trafficking was as high as 16 million, the Bill does not mention the word ‘sexual exploitation’ or ‘prostitution’ anywhere.
• Bill neither has any punishment for customers or clients nor does it have a provision to prevent the trafficking of marginalised girls and women.
• The Bill also speaks of repatriation but fails to mention the psycho-socio and economic rehabilitation of the victim.
• National investigation agency is an understaffed organisation, that is already tackling the gigantic footprint of terrorism across the subcontinent and there are doubts whether it might be in a position to take on and investigate cases of human trafficking.
• According to experts most of the trafficking is taking place in small towns so focus should be on policing and not NIA.
• Assertion that the bill covers ‘new’ forms of trafficking that are not addressed under existing laws is not completely true.
• The Anti-Trafficking Bill has not been preceded by any substantial research or analysis.

Amendments needed:

• Improving Section 370 of the Indian Penal Code’s definition of trafficking of persons. The definition should be based on the UN Protocol that addresses the issue of vulnerability.
• Prohibiting the purchase of sex and servitude. If the buyers of sex are not punished then the supply will never stop. This industry is a highly demand-driven industry; thus, to solve the problem, even buyers of sex workers should be punished.
• Section 8 of the Immoral Traffic Prevention Act, 1956 criminalises women who are made to stand in public spaces by the traffickers. These women should be treated as victims and not offenders
• The government must refer the Bill to a standing committee for comprehensive consultations with Indian trade unions and workers groups.

Conclusion:

Trafficking bill was a step ahead in the measures which were bold and holistic response to a socioeconomic problem of labour exploitation. This can help India realise SDG 8.7.