Ambiguous Definitions Steal the Sting from Anti-Trafficking Bill
Ambiguities in the proposed anti-trafficking Bill make rehabilitation an arduous task, writes lawyer Kaushik Gupta
The new draft law, Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2016 claims to draw inspiration from Article 23 of the Constitution of India, which prohibits trafficking of human beings and begar (bonded labour), and other similar forms of forced labour.
It also speaks of right to life or personal liberty guaranteed under Article 21 as well as of different UN Conventions which has been signed and ratified by the Government of India. However, a plain reading of the proposed legislation gives rise to many questions which, unless answered, will make the proposed new law otiose.
While the title of the draft incorporates lofty objectives, none of them viz. “Protection, Prevention and Rehabilitation”, has been defined in the draft. The lack of a clear definition leaves it open to subjective interpretation by each individual and hence creates ambiguity and confusion.
Due to the lack of definite understanding of the terminology, it will be impossible to hold the State accountable regarding the steps they propose to take to prevent trafficking. Without such clarity on accountability, the new law will merely be in letters.
In 2010, a
research with 1,100 survivors of trafficking in Andhra Pradesh and West Bengal (Where Have all the Flowers Gone, 2010,
Sanjog) reveals that
the girls and young women rescued
from forced prostitution, subsequently put in shelter homes and returned home to their families did not posess employable skill, thus failing to ensure
access to poverty alleviation services or protect them from stigma and
violence within their own families or communities.
In 2014, yet another research with 100 survivors who had been returned to their families in West Bengal after due process of rescue and institutionalisation reveals that 87.3 percent of the survivors were diagnosed with chronic depression and anxiety disorders, wherein psychiatrists infer that lack of identification or treatment of Post-Traumatic Stress Disorder (PTSD) in the course of the rehabilitation resulted in their trauma causing chronic health conditions.
In the current draft Bill, ‘rehabilitation’ has been mentioned in Sections 8 and 9 through the provisions of Protection Homes and Special Homes to provide short-term and long-term rehabilitation care. This is followed by Section 11 where the Bill mentions that the Government “shall frame schemes and programmes, in such a manner as may be prescribed, for the purpose of providing rehabilitation, support and after-care services necessary for the social integration into mainstream society of the victims and to prevent re-trafficking.”
As a legal practitioner and Human Rights Lawyer, I have been providing services to survivors of trafficking by helping them claim their rights of rehabilitation across India. To me, the loopholes inherent in this document looms large.
This instrument doesn’t define the end goal and parameters of rehabilitation, it does not define how and when a person will be considered to be rehabilitated and will lead to further ambiguity in the criminal justice system as there is a definite lack of clarity in the mind of the survivors what the services and entitlements are to be. Through acts of omission, the State is inadvertently colluding with traffickers by granting them near impunity from ever being convicted.
Definitions Included Are Faulty
The definitions which have been incorporated are not beyond criticism either. Section 2(a), while defining “aftercare”, restricts the same to a victim who has been institutionalised in a special home as defined under Sec. 2(l). Thus, the victim who runs away, escapes or rescues herself by her own agency from a brothel is left out of the ambit of receiving such “aftercare”. It also does not extend its benefit in a retrospective manner to a victim who has earlier been rescued but has not stayed in a “Special Home”.
The definition of “aftercare” also leaves it to the subjective opinion of the
District Anti- Trafficking Committee regarding the time as to when the victim is
ready to be reintegrated and join the mainstream society. Such unbridled power without specifying a maximum time period
might lead to prolonged and forced
institutionalisation which is never beneficial for the victim.
The proposed law on trafficking does not even define what constitutes the offence of “trafficking”. The Justice Verma Committee on “Amendments to Criminal Law” proposed amendment to Section 370 of the Indian Penal Code by incorporating the definition of trafficking of a person.
Dilution of Suggestions
It is surprising that this Draft Bill has been the handiwork of the Inter-Ministerial Committee comprising the Law Ministry, the Ministry of Home Affairs, the Ministry of Women and Child Development, the Ministry of Labour, the Ministry of Overseas Employment and Anti-Trafficking Activists, including some of my friends and colleagues. Rigorous thinking stretched over a period of seven months after the NALSA Committee under Justice Sikri came out with its report and recommendations.
The dilution of robust ideas and recommendations that must have been presented in those discussions disappoints me and leads me to suspect the very intent and the sincerity of the State to achieve the end of slavery in India.
(The writer is a practicing lawyer at the Kolkata High Court and has been working on issues relating to protection of human rights including addressing the menace of human trafficking. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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