#AntiTraffickingBill2018: UNOHCHR statement reiterates what human rights activists and sex workers have been saying all along

Lawyers, members of the civil society, sex workers, queer rights activist, labour rights activists and child rights activists have criticised the Bill on grounds of increasing abuse of consenting adult sex workers, migrating labourers, targeting of transgender persons and the over-legislation resulting from the Bill’s scope and approach towards consensual sex work.

The Leaflet

| @theleaflet_in | July 24,2018

The Government introduced the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (“the Bill”) in the Lok Sabha on July 18, 2018. The Bill was approved by the Union Cabinet in February. The Bill claims to be the first comprehensive bill which deals with all forms of trafficking. However, lawyers, members of the civil society, sex workers, queer rights activist, labour rights activists and child rights activists have criticised the Bill on grounds of increasing abuse of consenting adult sex workers, migrating labourers, targeting of transgender persons and the over-legislation resulting from the Bill’s scope and approach towards consensual sex work.

The United Nations Human Rights Office of the High Commissioner (UN OHCHR) has come up with a statement saying, “India must bring its new anti-trafficking Bill in line with human rights law.”

“India must bring its new anti-trafficking Bill in line with human rights law”

UN experts urge India to bring ? #HumanTrafficking bill in line with #HumanRights law. “Human trafficking is a gross human rights violation, the bill does not give due consideration to victims’ rights & their effective protection.” https://t.co/HY2deAQf9P pic.twitter.com/GLSX5SNIz5

— UN Special Procedures (@UN_SPExperts) July 23, 2018

Section 370 of the Indian Penal Code which was added after 2013 Criminal amendment on the suggestion of Justice Verma Committee, comprehensively covers trafficking. Further, this Bill instead of derogation is an addition to the already existing provisions on trafficking. Clause 31 of the Bill introduced in Parliament further includes a category of “aggravated forms of Trafficking of persons” which states:

31. Notwithstanding anything contained in any other law for the time being in force,

whoever commits an offence of trafficking of person—

(i) for the purpose of forced labour or bonded labour by using violence,

intimidation, inducement, promise of payment of money, deception or coercion or by

subtle means including, allegations of accumulated debt by the person, retention of

any identity paper, threats of denunciation to authorities; or

(ii) for the purpose of bearing child, either naturally or through assisted

reproductive techniques; or

(iii) by administering any narcotic drug or psychotropic substance or alcohol

on a person for the purpose of trafficking or forcing him to remain in exploitative

condition; or

(iv) by administering any chemical substance or hormones on a person for the

purpose of early sexual maturity; or

(v) for the purpose of marriage or under the pretext of marriage trafficks a

woman or child after marriage; or

(vi) by causing serious injury resulting in grievous hurt or death of any person,

including death as a result of suicide as a consequence of trafficking of person; or

(vii) who is a pregnant woman or the offence results in pregnancy of the person;

(viii) by causing or exposing the person to a life-threatening illness including

acquired immunodeficiency syndrome or human immunodeficiency virus; or

(ix) for the purpose of begging; or

(x) who is a mentally ill person as defined in clause (l) of section 2 of the Mental

Health Act, 1987 or a person with disability as defined in clause (s) of section 2 of the

Rights of Persons with Disabilities Act, 2016, or as a consequence of trafficking, the

person becomes mentally ill or disabled; or

(xi) by encouraging or abetting any person to migrate illegally into India or

Indians in to some other country,

is said to commit an offence of aggravated form of trafficking of the person.

OHCHR raises concern on how the Bill focuses on addressing trafficking from a “criminal law perspective” and is not sufficiently complemented by a “human-rights based and victim-centered approach”.

Activists feel this clause does not differentiate between involuntary trafficking and voluntary migration. In a press conference held on July 19, 2018, lawyers, child right activists, sex workers, trade unionist and queer rights activist slammed the Bill saying it “miserably fails to address the legal and real-time challenges that arise in addressing trafficking in persons and securing the rights and dignity of trafficked victims.”

Sex workers

Rejecting the Minister’s claim that the Bill does not target adult, consenting sex workers, Kusum of the All India Network of Sex workers and Nisha Gulur of the National Network of Sex Workers, said that the provisions directly and indirectly criminalise sex workers. “Clause 39 criminalises “soliciting” through electronic messages and “obscene photographs” – this is “clearly curbing our communication. Proposed offences of trafficking and exposure to HIV and pregnancy are aimed at sex workers. Besides, the Immoral Traffic Prevention Act, 1956 is not being repealed and so, sex workers will continue to face arrest and imprisonment.”

Clause 39 criminalises “soliciting” through electronic messages and “obscene photographs” – this is “clearly curbing our communication. Proposed offences of trafficking and exposure to HIV and pregnancy are aimed at sex workers. Besides, the Immoral Traffic Prevention Act, 1956 is not being repealed and so, sex workers will continue to face arrest and imprisonment

OHCHR also flags that “the Bill may conflate sex work with trafficking for the purpose of sexual exploitation, which is not in line with the Palermo Protocol definition”.

OHCHR also flags that “the Bill may conflate sex work with trafficking for the purpose of sexual exploitation, which is not in line with the Palermo Protocol definition”

Dr Smarajit Jana, bringing forth the recommendations of a Supreme Court-appointed panel on prevention of trafficking and rehabilitation of sex workers who wish to leave sex work stated that one of the key recommendations of the panel was to adopt community-based rehabilitation, i.e. alternatives that are not contingent on trafficked women staying in state-run “homes”. Another suggestion was to revise laws like the ITPA so as to distinguish between those coerced into sex work and those who engage in it voluntarily, so that interventions are tailored to those who need them.

Another suggestion was to revise laws like the ITPA so as to distinguish between those coerced into sex work and those who engage in it voluntarily, so that interventions are tailored to those who need them

“None of these ideas have been considered, let alone adopted in the Bill, Jana, who is a physician and principal of the Sonagachi Research and Training Institute, an adviser to the Durbar collective of sex workers in Calcutta and a member of the Supreme Court panel, said.

Labour rights

The Bill is being justified as a means to address labour exploitation. Questioning the MWCD’s mandate on labour legislation, Kiran Kamal Prasad, who works with bonded labourers, stated: “Unless the three keys of labour rights—recruitment, wages and working conditions are regulated, forced labour and trafficking cannot be stopped. The Bill is absolutely silent on this aspect.”

“Unless the three keys of labour rights—recruitment, wages and working conditions are regulated, forced labour and trafficking cannot be stopped. The Bill is absolutely silent on this aspect”

Gautam Mody, Secretary of the New Trade Union Initiative, said: “The approach of the Bill in focusing on rehabilitation is significantly different from laws like the Contract Labour Act and the Inter State Migrant Workers Act, which mandate registration of workers and require them to have benefits. The phrasing of the Bill limits responsibility to individuals, taking away from corporate criminal liability for trafficking caused due to their production lines or supply chains.”

The Bill must be seen in light of how it would affect workers, particularly those who are more likely to face difficult working conditions: women, dalits, adivasis – those who are desperate to find better livelihoods and migrate for this reason.

The persistent agrarian crisis and lack of sufficient decent jobs – whether in cities or in rural areas has been lost sight of. “Instead of focusing on economic and social security, the Government is criminalizing the poor and the vulnerable and their safety net” remarked Konnonika of the National Federation of Indian Women.

OHCHR in its statement reiterated the fears expressed by the activists. It stated, “the Bill seems to conflate trafficking and smuggling of migrants by adding the aggravated circumstance of “encouraging or abetting any person to migrate illegally into India, or Indians to some other country”. This may lead to the criminalisation of all irregular migrants, including victims or potential victims of trafficking, who, because of a lack of safe, orderly and regular migration channels, are forced into the hands of smugglers or traffickers”.

This may lead to the criminalisation of all irregular migrants, including victims or potential victims of trafficking, who, because of a lack of safe, orderly and regular migration channels, are forced into the hands of smugglers or traffickers”

Further, Enakshi Ganguli of the HAQ Centre for Child Rights, added, “What we need is accountability of State actors under existing laws and not new or more laws on trafficking.”

Anand Grover, Senior Advocate, Lawyers Collective, criticised the vague and overbroad provisions of the Bill, which kick in even when no trafficking has taken place. The Bill criminalises a host of activities including electronic communication through websites, social media and what’s app which “may lead to” or are “likely to lead to”, trafficking. This is dangerous for civil liberties and the freedom of expression. “The Supreme Court has struck down similarly vague provisions of the Information Technology Act, 2000. If this Bill is passed, it will meet with the same fate,” said Grover.

Dr Prabha Kotiswaran said that the Bill has been drafted in a vacuum, devoid of social realities.

OHCHR urges “the Indian Parliament to revise the Bill in accordance with human rights law, including the OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking, in consultation with civil society organisations, UN agencies and other relevant partners.”