By: Pritesh Raj & Teesha Deb *|
“The traffic in human beings is not confined only to what was known as slavery in recent times. It happens, and perhaps it happens on a much larger scale.”
Prof. K. T. Shah, (Member, Constituent Assembly)
Human trafficking is the world’s third-largest organized crime after drugs and the arms trade. United Nations has defined it as:
“Any activity leading to recruitment, transportation, harboring or receipt of persons, by means of threat or use of force or a position of vulnerability.”
In the year 2020 Trafficking in Person Report, prepared by US State Department, India was placed in the Tier 2 Country category of which Tier 1 is the worst affected, including countries like Afghanistan, Syria, and North Korea. While India has tried to strengthen the system against the impeding problem of human trafficking by bringing such cases under the purview of the National Investigation Agency and numerous other measures; however the attempt has been futile. This can be ascertained because the number of trafficking cases has risen over the past few years.
Since the implementation of the Indian Penal Code, Section 370 has been the principal provision dealing with trafficking in persons. Subsequently, Article 23 of the Indian Constitution was promulgated, which dealt mainly with the vice of trafficking in persons. Article 23stipulates that,
“Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.”
An essential attribute of this article is that it is one of the few Fundamental Rights that can be enforced against private individuals. Hence any such activity is in contravention of Fundamental Rights. In furtherance of the Government’s Constitutional obligation to ensure that the fundamental rights of an individual under Articles 19, 21, and 23 of the Indian Constitution is upheld, the Government came up with the Suppression of Immoral Traffic in Women and Girls Act, 1956 to inhibit or abolish the trafficking in women and girls around the nation.
Despite Constitutional Provisions and other enacted laws, the evil of trafficking in persons still prevails and has worsened over time. This growth can be attributed to the lack of proper legislation to deal specifically with trafficking in persons.
ANALYSIS OF THE PRESENT BILL
To restrict and subdue further rise in trafficking in persons, the government has come up with the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021. It is an attempt by the Government to curb the prevalent trafficking in persons around the nation. It is a holistic Bill incorporating provisions not just for the protection but also for the rehabilitation of those who were victims of the said crime, ensuring they don’t fall prey to it again.
The definition and categories of people falling within the purview of ‘victim’ have also broadened. While earlier laws required the individual to be transported from one place to another to be brought within the contours of trafficking, the same is no more a prerequisite. The mere act of detaining someone with the intent of trafficking them at a later point in time is enough to attract the provisions of the current bill. Now, the term ‘victim’ under this bill will not just include children and women but also encompass transgender people and children born as a result of such offenses.
An intriguing aspect of the bill is that it will provide for a national, state, and district-level committee to ensure that trafficking in persons can be rooted out effectively. This will result in better coordination in cases related to cross-border trafficking of children. Furthermore, it has provided for severe punishment when the culprit turns out to be a government servant in a position of power.
DRAWBACKS OF THE PRESENT BILL
Despite the Government’s best intentions, an essential question is whether a new legislation was even required to handle the menace of trafficking. Existing provisions like Sections 370 & 370A, which deal specifically in trafficking, were sufficient to regulate it. Scrutinizing these sections of the IPC and Section 23 of the Bill will bring to our attention stark similarities between them, with the difference being only in the wordings. Also, the Bill’s broad definition of “victim” ignores consenting commercial sexual activities. It criminalizes sex work, thereby victimizing the exploited. The bill mandates that such offenses be reported. The sanctions enforced on failure to do so ignore the predicament of those sex workers whose lives are endangered by the perpetrators or those who do not wish to file complaints.
The basic tenet for an act to be considered as trafficking is the transportation of a person from one place to another, irrespective of the distance between, with the intent of trafficking them at some point. Considering the fact that the bill doesn’t make this a prerequisite without much deliberation upon its nuances makes the provision similar to false imprisonment or kidnapping. This will result in the overlapping of cases where the accused can be prosecuted under both laws leading to subjectivity and arbitrariness in charging them under relevant penal provisions.
Section 55 of the Bill provides that its provisions shall prevail over any other law in case of inconsistencies. This overriding effect over other laws is a cause for concern as:
1. It ignores established criminal justice mechanisms and procedures and the interplay between existing laws.
2. It leads to severe implications for children
3. It results in multiple victimizations instead of ease of the process.
For instance, cases that have characteristics identical to those under POCSO Act and the current bill will ultimately be investigated by NIA. However, it is common practice that local respondents become the first responders in all cases, and the victim has to interact with them. It is also a requirement under the POCSO Act.
Furthermore, Section 43 of the Bill states that Special Courts will try trafficking cases under NIA Act, and the said court will try all offenses under which the accused would be charged, including the POCSO Act. This raises a pertinent question regarding the training and sensitivity of Courts to prosecute cases wherein the victims are children. Also, the Special Courts mentioned in the bill will not be the same as the Children’s Courts that are mandated to be set up under the Commission for Protection of Child Rights Act, 2005 to deal with all kinds of offenses against children.
These provisions emanating from the non-obstante clause will result in the child being subjected to multiple agencies and authorities, leading to victimization instead of ease of process. Moreover, the children will be forced to face the NIA officials and Special Courts under the NIA Act, trained to deal with hard-core criminals, potentially leading the children to long-term PTSD effects.
THE WAY FORWARD
On balancing the scale, the current bill has more cavities than the utility. Hence, the Government must not proceed with the bill the way it is. At the very outset, the POCSO Act should be given precedence over the current bill considering its unique characteristics. This will ensure that cases related to crime against children are handled by appropriate investigative agencies and courts which are competent and trained to deal with them. Otherwise, the process will result in more damage than good to the victim of the crime.
The definition of “trafficking” is another concern that demands immediate attention as the present one encompasses a wide array of activities, some of which do not even constitute trafficking in most of its form. The legislative authority has to understand that trafficking comprises several elements, each of which is a crime in itself recognized under different provisions of the IPC and other existing laws. The three critical aspects of trafficking are:
a) ACTION– recruitment, transportation, harboring, or receipt of another person.
b) MEANS – coercion, abduction, fraud, deception, abuse of power, use of force, giving or receiving payments or benefits to achieve a person’s consent.
c) PURPOSE – which is exploitation.
India has laws to regulate the ACTION and punish the MEANS as well as the PURPOSE as envisaged in the bill.
This definition of “trafficking” makes it a complicated phenomenon, and if any one of these elements is missing from the case, it cannot be a case of trafficking. Assuming that all the three elements exist prima facie, the case may not withstand trial if any one element cannot be proved in court, thus resulting in an acquittal from the main charge framed against the perpetrator. For example, Section 25(1)(b) treats grievous hurt resulting from trafficking as an ‘aggravated’ form of trafficking. What if grievous hurt is proved in court, but that of trafficking could not be established? Grievous hurt can otherwise be resolved using the IPC provisions. Unless a separate charge is framed under the relevant IPC provisions for grievous hurt, the victim will get no relief in such a case.
The present step by the Government is indeed a commendable one. However, the conflict created by multiple forums established under different laws, the non-obstante provisions in the proposed bill, and other existing laws that apply obviates the need for new legislation. At the least, the current bill must be amended to conform to other similarly placed laws. The bill requires necessary changes to ensure that it is not detrimental to those for whose protection it has been brought. After necessary amendments, this piece of prospective legislation has the potential not only to curb but also to bring the rise of trafficking in our country to an absolute halt.
*The authors are students at the National University of Study and Research in Law, Ranchi, and National Law University, Odisha respectively.