Anti-Trafficking Bill: A travesty of legal principles

The Bill criminalises the lives and livelihoods of those it purports to save

The Union government is likely to introduce the Anti-Trafficking Bill, 2021, in the ongoing session of Parliament. This follows the lapse of the 2018 version, which was passed only in the Lok Sabha. The 2021 Bill, however, criminalises the lives and livelihoods of those it purportedly seeks to save. Detailed comments on the proposed law have been submitted by various children’s, transgender and women’s rights organisations to the Ministry of Women and Child Development. Some critical aspects bear reiteration here.

Trafficking is a specific form of exploitation comprising three main ingredients: (i) transporting or harbouring; (ii) using deception or coercion; (iii) for purposes of exploitation, including forced labour or removal of organs. By dispensing with the need for “movement” as a pre-requisite for the offence of trafficking to be constituted, the Bill not only changes the nature of the offence but also defines it within a vast, vague and overbroad framework of ‘exploitation’. A cardinal principle of criminal law is that the niche of an offence must be narrow. The Bill, however, creates overexpansive definitions of what could qualify as offences within its ambit, thereby lending itself to arbitrary application.

By adopting the oft-criticised ‘raid-rescue-rehabilitation’ model as a solution, it implicitly criminalises vulnerable populations that seek to break the shackles of poverty and inequality in the hope of a better life. Consider the sex workers’ community. They have been fighting the conflation of trafficking with sex work in law and practice for decades now. Sadly, the substantive content of the Bill perpetuates such conflation by ascribing the ‘victim’ status to all sex workers. Therefore, though the objectives of the Bill emphasise on ‘respecting the rights’ of the victims, the provisions infantilise them by forcing a rehabilitation and repatriation process on them. Section 11, for example, which allows any police officer to ‘remove’ a sex worker from a ‘premises’ if there is ‘imminent threat of danger’, does not require the consent of the concerned adult for such ‘removal’.

Once ‘rescued’ and placed in a protectional custody, the victim may seek to be moved out of rehabilitation under Section 16. But the magistrate can reject an application by an adult victim to be removed out of a rehabilitation home if s/he is convinced that the application has not been made voluntarily. This bestows a wide discretionary power to the magistrate which overrides an individual’s right of choice and autonomy and ensures that a person is forced to stay in the custody of the State.

Deploying a similar logic, the Bill seeks to clamp down on ‘forced begging’ (Section 25) wherein the victim will be moved to a protectional home after ‘rescue’. This amounts to arbitrary and unjust curtailment of individual liberty. The Delhi HC, while deliberating on the question of begging, observed that people beg on the streets out of need. It reasoned that the presence of beggars is indicative of the State’s failure to provide for its citizens. The court noted that, “If the State wishes to criminalise specific types of forced beggary, it has to first think out a clear factual basis and impact thereof to pass a well-thought legislation after due application of mind and being mindful of the constitutional rights provided under the Constitution of India.”

Worryingly, the Bill departs from the welfare approach in alternative legislations like the Bonded Labour System Abolition Act, 1976. Under the Act, rescued bonded labourers are neither placed under ‘protective custody’ nor evicted from their homesteads. This is an acknowledgement of the State’s duty to render conditions of work non-exploitative as opposed to depriving individuals of their means of sustenance. Under the instant Bill, the law makes provision for eviction (Section 42), which in the context of sex workers will mean the complete shutting down of their workplaces, thereby depriving them of their sole means of subsistence.

That the Bill, while allowing for the applicability of the NIA Act, 2008, makes an anti-terror agency such as the National Investigation Agency the chief investigative body to investigate trafficking and all other offences is disturbing. This will permit NIA to enter any state without the permission of the state government, investigate and arrest anybody, whereas other agencies like the CBI compulsorily require the permission of the concerned state. The Government of Chhattisgarh, in challenging such primacy accorded to NIA, questioned its constitutionality and argued that the NIA Act in its current form “confers unbridled, uncontrolled and uncanalised power on the central government to act arbitrarily and whimsically against the spirit of federal structure and sovereignty of state.” The Union government arrogating to itself power that ordinarily vests in state governments should concern all who value India’s federal structure.

Stringent bail provisions in the Bill are also concerning as bail can be granted only if the court has “reasonable grounds for believing that the accused is not guilty of such offence”. This creates a presumption of guilt, thereby toppling the basic tenets of criminal law jurisprudence that is premised on the presumption of innocence. This would translate to endless incarceration of the accused, contrary to the essence of the right to personal liberty, dignity and life contemplated by the Constitution. Experience has shown that sex workers are often falsely identified as ‘pimps’ and named as accused persons. Rigid investigation by NIA coupled with draconian provisions under the Bill would then lead to re-victimisation of the community.

The 2021 Bill provides harsh penalties and punishments and even prescribes the death penalty for certain offences against children. Over 100 countries in the world have abolished the death penalty after recognising that it is dehumanising and unconstitutional. The United States has announced a federal moratorium on its use whereas Malawi and Sierra Leone are the latest countries to abolish them. In India too, feminist organisations have staunchly discouraged the use of the death penalty. Research from various parts of the country has highlighted that it disproportionately affects the poor and the marginalised. In this backdrop, it is disquieting to note that Parliament, yielding to public frenzy, is actively legislating to preserve it as a form of punishment.

A robust anti-trafficking law should essentially recognise the many factors that exacerbate vulnerability to trafficking, such as poverty, violence and discrimination, and work to remedy it. The current Bill does none of this. Given the alarming consequences this Bill is likely to have on the working class, it is imperative that the Union government extends the time limit for all stakeholders to furnish their comments on its provisions and that the tabling of the Bill be deferred until such time. Further, the provisions empowering NIA as the chief investigative and prosecutorial agency must be immediately scrapped. The provision of death penalty must also be done away with.

(The writer is a Bengaluru-based advocate associated with the ‘Coalition for an Inclusive Approach on the Trafficking Bill’)