India’s First Comprehensive Trafficking Bill and the Naysayers
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018, was introduced in the Parliament on Wednesday 18 July. The Bill was introduced by Maneka Gandhi, Women and Child Development Minister, and is being touted as India’s first comprehensive anti-trafficking bill.
However, it continues to face criticism from various quarters – activists, sex workers, child rights workers and labour unions – on the ground that the bill violates their rights. It has also faced flak for not being inclusive of the transgender community and for not protecting consenting adult sex workers.
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Why Sex Workers are Opposing the Bill
Nisha Gulur, head of the National Network of Sex Workers, who identifies as a transwoman sex worker spoke to reporters at the Indian Women’s Press Corps:
This Bill does not differentiate between trafficking and consensual sex work and forces rescue and rehabilitation on us. I can tell you, as a sex worker, that the two are separate. I came to this work through my own desire; I’m not asking to be rescued. I can fundamentally stay anywhere in India – but according to this Bill, a magistrate will decide where to send me for rehabilitation. This violates my rights.
Gulur also expressed ire at the fact that the Bill had been tabled “without consulting us”.
The government didn’t ask us – ‘what do you want?’ The work I do is dignified work for me. How can you decide if it’s immoral for me, sitting and drafting bills in your AC rooms?
Kusum, a sex worker and President of All India Network of Sex Workers, said:
Humein pata nahi tha iss Bill ke zariye humein hata diya jayega (We didn’t know our work would be curbed through this Bill). Sometimes I feel that if I were walking down a street with my daughter, and if cops knew I was a sex worker, they may arrest me, thinking I’m trafficking my own daughter.
Experts insist that the Bill currently doesn’t serve to fill any lacuna or gap that isn’t already being fulfilled by other laws. Enakshi Ganguly, Co-founder of HAQ: Centre for Child Rights, said:
Why are we being flooded with new laws? Do we need them? There are enough reforms in the Indian Penal Code (IPC) that address these concerns. The bill will just feed into prevalent public hysteria and the lynchings over supposed child lifters. If it’s about protecting children, then sorry, this isn’t the answer.
What are the Ambiguities in this Bill?
Currently, Section 36 of the Bill criminalises “material that promotes trafficking or exploitation” while Section 39(2) criminalises soliciting or publishing electronically that may lead to trafficking. The Bill’s provisions adopt the definition of trafficking from the current Section 370 of the IPC, according to which the “consent of the victim is immaterial in the determination of trafficking”.
It does not distinguish between consenting sex workers and victims of trafficking.
It also includes a provision called “aggravated offences” under which various offences are punished in varying degrees. These “aggravated offences” include transmission or even exposure to HIV during trafficking, and the use of chemicals or hormone therapy during trafficking.
“Why Include HIV?”
The latter are problematic to both Gulur and Dr Smarajit Jana, who was member of the Supreme Court-appointed panel to offer recommendations for rehabilitation of sex workers.
According to Jana:
Adding HIV to the list will create problems for sex workers. It will go against the basic tenets of public health policies. Why are they linking HIV to aggravated trafficking? No criminalisation should be brought into treating any epidemics.
“Why Criminalise My Hormone Therapy?”
Asks Nisha Gulur.
I was born a man, I want to become a woman. Therefore, I am taking hormone therapy. Now that will also be criminalised? How can someone decide what I want to do with my life?
The proposed Bill, however, does seek to bring myriad statutory laws and provisions that currently exist, under one head. It also proposes creating anti-trafficking committees at the district, state and central levels, as also a special agency to investigate crimes of trafficking across the board.
This could lead to better inter-state intervention that currently exists.
Yet, There Could be Problems...
As Asia Foundation’s report points out:
While the bill calls on the Central government to set up a special agency to investigate trafficking offences, the draft does not lay out how this agency will coordinate with the state police departments, and how its role differs from existing policing and security agencies. Practitioners have also expressed concern that the Anti-Trafficking Fund to ensure the welfare and rehabilitation of victims may see the same fate as the Nirbhaya Fund, launched in 2013 to improve women’s safety, that remains largely under-utilised.
Civil society groups, sex workers and transgender persons who had opposed the Bill’s introduction in Parliament had asked for, at least, the Bill to be sent to a Standing Committee.
They should at least refer it to a Standing Committee. Also, the govt has not tried to repeal existing anti-sex work laws. That doesn’t give me a positive idea of their intent.Kusum, President of All India Network of Sex Workers