By: Saher Husain* |
Introduction
Recently, the Indian Ministry of Women and Child Development released the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 (‘the draft Bill’). It aims to prevent and counter-trafficking in person, especially of women and children, and to provide care, protection, and rehabilitation to the victims. It is expected to be taken up during the Sixth Session of Seventeenth Lok Sabha, 2021 for its ‘introduction, consideration and passing’. The previous 2018 Draft Bill was introduced in the Lok Sabha but was not introduced in the Rajya Sabha, hence there currently exists no uniform law to prevent human trafficking in India.
The Trafficking in Persons Report June 2021 mentions that the COVID-19 pandemic has led to an increase in the number of people who are vulnerable to human trafficking. This has increased the need for an effective legislation that will help efficiently tackle such an issue. Even though the draft Bill seems to be a positive step ahead considering that it has addressed several concerns raised previously in the 2018 Draft Bill, the author in this piece wishes to highlight the existing grey areas within the draft Bill which should be considered by both the houses of the Parliament.
Positive Modifications in the Bill
Certain positive changes or additions have been made within the draft Bill which increases its scope, ensuring that other vulnerable communities are also taken into consideration which will help in further combating trafficking. These modifications are that; under Section 1, the law is applicable not only to citizens within India, but also those outside and those foreign nationals/stateless persons who have a residence in India. It also now applies to offences with cross-border implications as per Section 27(1), and introduces transgenders within the definition of a ‘victim’ under Section 25(m). Additionally, under Section 55, it mentions that its provisions are an addition to the provisions of any other law and that if there are any inconsistencies, this legislation will have an overriding effect on the provisions of any law to the extent of the inconsistency. This aspect helps in clearing out the confusion with regards to the other laws currently in place which might state a different penalty for the same offence. It also specifically mentions when the Immoral Traffic Prevention Act (ITPA), 1956 would apply which was not mentioned within the 2018 Draft Bill, thereby eliminating further overlap or confusion. However, although these modifications are a step in the right direction, existing issues or drawbacks within the draft Bill cannot be ignored.
Concerns
While there is an explicit mention of the Juvenile Justice (Care and Protection of Children) Act, 2015 within the draft Bill, important laws such as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 and the Protection of Children from Sexual Offences (POCSO) Act, 2012, which primarily deal with matters related to child welfare, are not mentioned. The draft Bill emphasizes upon prevention of trafficking among children, and since these legislations were specifically laid down to ensure better protection and welfare of children, it is crucial that they are also integrated within the draft Bill. This would help in strengthening the overall framework for dealing with the trafficking of children and also help in properly assisting and safeguarding their interests. Similarly, it is pertinent that the Bonded Labour System (Abolition) Act, 1976, which suggests effective methods to properly deal with prohibition of the practice of bonded labour, be incorporated into the draft Bill. Without the addition of such important legislations, the draft Bill may fail to provide adequate relief and help to the people concerned.
Furthermore, under Section 46, the draft Bill allows for the presumption of guilt of an offence unless proven otherwise. This is unlike the principle of presumption of innocence, which has originated from the Latin expression ‘ei incumbit probatio qui dicit, non qui negat’ meaning that ‘the burden of proof lies upon the person who affirms but not who denies’, and which is also considered as the fundamental postulate of criminal jurisprudence in India, as was mentioned by the Supreme Court in Dataram Singh v. The State of Uttar Pradesh. Considering the gravity of the offences involved, such a provision might help in holding the accused accountable. However, there is no requirement of having to prove any basic foundational facts under the draft Bill before any presumption is made by the court. If a person is presumed to be guilty before the court based on the prosecution alone and the trial proceeds on this presumption, such trial would fail to be fair in nature. Not following the established principle also increases the chances of a wrongful conviction because of how the assumption can influence the mindset, which could, without any proper safeguards, in turn, make the trial unreasonable and arbitrary in nature. Thus, such a prosecution would be violative of Article 21 of the Constitution of India. Therefore, there exists a need for proper safeguards to ensure such prosecution does not result in any bias or arbitrariness.
Additionally, the draft Bill could also end up doing more harm than good for certain communities. The Sex workers’ organizations have expressed apprehensions as the draft Bill seeks to criminalize prostitution without any rehabilitation, irrespective of whether a person chooses to be in the profession of their own volition. The problem arises with the fact that it essentially mixes the issue of human trafficking with that of sex work, thereby criminalizing it in general because of its disregard for the consent of the person involved. With inadequate time provided in order to discuss or offer any opinions and/or solutions, it is believed that the draft Bill would cause gross injustice and will have a deep impact on the community. Therefore, it is important that the consequence of the draft Bill on such communities is also taken into consideration.
At present, the draft Bill focuses more on the policing and criminalization aspect rather than the rehabilitation and protection of the victims which is also a source of concern. This was also criticized by the United Nations experts with regards to the 2018 Draft Bill, which is yet to be corrected in the current draft Bill as well. Many activists are of the view that that draft Bill does not focus on the consent of the people involved while taking rehabilitative or any welfare measures, this could in turn also lead to victimization of the vulnerable population. If the draft Bill has also emphasized upon protection and rehabilitation of the victims of human trafficking as one of its main objectives, then it's important that it also equally builds its focus around the welfare measures being provided along with the criminalizing aspect.
Conclusion
The Trafficking in Persons Report June 2021 mentions how the Indian Government has shown an increase in efforts of its anti-trafficking initiatives, however, looking at the reality, its response still remains inadequate compared to the scale of the problem that exists in India. There is no doubt that the draft Bill is a welcome initiative and there is also a dire need for its implementation within the Indian legal system considering the current circumstances. However, there still remain crucial issues, some of which have been mentioned above, that need to be considered if the draft Bill seeks to adequately tackle the problems being faced.
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* The author is a student at Jindal Global Law School, O.P Jindal Global University, Sonipat.