The Draft Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2016, released by the Ministry of Women and Child Development, for which it invited comments from the public, has generated considerable interest and debate. The Centre for Law and Policy Research submitted its recommendations on the Bill in pursuance of this invitation.
Though described as a comprehensive enactment to address trafficking in India, the Bill has been criticized for its vague and under-developed provisions. One such glaring omission is the lack of any definition of ‘trafficking’. The Bill has also received flak for having failed to shift the focus of the law from the ambit of sexual exploitation.
Many have criticized the Bill for not incorporating a holistic perspective on trafficking. In its current format, the Bill ignores the existence of other laws which could have parallel application in the context of trafficking, such as legislation on forced labor, forced marriage as well as organ transplantation.
The enforcement mechanism under the Bill has also come into question in as much as it duplicates the existing framework rather than strengthening it.
While endorsing these criticisms of the draft bill, CLPR has in its comments to the Ministry, highlighted some additional points of concern and has suggested measures which could possibly strengthen the law. For instance, with regard to the enforcement mechanism, CLPR has suggested that it is imperative that there be an identification of nodal authorities such as the National Commission for Women, the Juvenile justice authorities as well as the Labour Department, which are crucial to the smooth and coordinated enforcement of the provisions of the bill. These nodal authorities can receive complaints and take the assistance of support services provided by stakeholders and non-governmental organizations, such as Childline.
The draft Bill is also sketchy on its attempt to regulate Placement Agencies. CLPR has therefore recommended that the Bill make provisions for Placement Agencies to accord with the mandate of the detailed guidelines laid down in the Delhi High Court judgment of Bachpan Bachao Andolan. The idea is to enable the creation of a central database under the Shops and Establishments Acts of each state, as suggested by the Delhi High Court. This will allow for the speedy registration and regulation of Placement Agencies, in terms of the mandate and intention of the Bill.
As the Bill does not elaborate on pre-rehabilitation procedures and after-care provisions, specific suggestions in this regard have been made. The wrapping up of criminal proceedings and the recording of evidence prior to the process of rehabilitation has been suggested so as to allow for uninterrupted recovery of the victim.
With regard to after-care provisions, as the usual tendency has been to remand the victim to a special home in absolute disregard of the victim’s agency or choice in this matter, it has been suggested that these procedures inquire into the scope of the victim’s recovery and their antecedents, to enable their return to a sustainable livelihood.
Finally, it is suggested that the punishment for revealing the identity of a victim or the witness to a crime of trafficking be increased to a period of three years and/or fine up to ten lakh rupees. This is to deter an offending individual or the owner of a media venture from causing harm to a victim, which is over and above that which is already inflicted by the crime of trafficking.
A point of departure between the critics of the bill and CLPR has been with regard to the role and powers of the District Anti-Trafficking Committees. (DATC) and the need for Special Courts.
The DATC has been the subject of much criticism due to the broad and overarching powers they have been conferred, albeit under ambiguously worded provisions. However, broad, overarching powers is not the main issue with the DATC since there is a need for a centralized authority to deal comprehensively with the various aspects of trafficking. Instead of critiquing the DATC on its powers, it would perhaps be a better idea to insist on ensuring that the Bill incorporates certain standards of accountability for such institutions instead.
With regard to the setting up of Special Courts under the bill, CLPR has recommended that the provision is done away with entirely. The conduct of speedy trials has come to be synonymous with the deprivation of a fair trial. Many such courts do not have any special procedures or even sufficient resources to dispose of a large number of cases.
Thus it is evident that the Bill in its current format is untenable as several of its provisions require a conceptual overhaul.