L. Ravichander | Trafficking bill gender-neutral, but does not penalise clients

The Indian collective acknowledges that Lady Warren’s profession is one of the oldest, and still very rampant. Building on the Immoral Traffic (Prevention) Act (ITPA), 1986, and its prior 1956 version, the latest Bill is a clear step ahead in terms of rehabilitation of victims. India ratified the International Convention for the Suppression of Immoral Traffic, which recognised prostitution as “a crime against women and girls”.

It is a paradox that prostitution thrives in India, particularly in temple towns. Regular reports of raids and saving of victims provides clear anecdotal, and continual, evidence.

The now-introduced Trafficking in Persons (Prevention, Care, Rehabilitation) Bill, 2021, voices a clear legislative intent to overhaul the existing law that, though aimed in the right direction, is, unfortunately, inadequate.

A noteworthy feature in the Bill is that it considers that the exploitation need not be just of sexual nature.

In contradistinction to the existing law, the Bill takes cognisance of the gender spectrum and has not restricted the sweep of proscriptions and punitive action to involve only binary genders. It has rightly included transgenders.

Section 48 ensures that proceedings are held at a place convenient to the victim, to be decided by a designated court, and in camera, while avoiding mentioning the name of the victim and other identity markers. Any evidence that the victim might give shall be kept out of view of the accused.

While this may seem contrary to the fundamentals of Anglo-Saxon jurisprudence, the ground realities reflect that this seems to be the only way to ensure a victim speaks out. Such subtle departures from the first principles of jurisprudence have, encouragingly, received a judicial nod.

A proposed district anti-human-trafficking committee shall ensure that due precaution and care is taken for a ghar waapsi or returning of the victim to the mainstream, otherwise not contingent upon criminal proceedings. Failure to do so was arguably a big reason why earlier enactments failed where often the outcome was impacted by the willingness, or ability, of the victim to participate in the prosecutorial process.

The new scheme also envisages that all rehabilitation homes provide basic assistance to victims, including necessary medical treatment and free, optional and confidential testing for sexually transmitted diseases. It keeps in view the importance of the psychological impact of trafficking and promotes psychological counselling and psychosocial assistance, including trauma counselling, on a confidential basis.

The need to sensitise the executive and certain levels of the judicial wing to nuances for the correct implementation of the statutory intent of the law was also recognised in the Bill.

Juvenile offenders and minor victims are a serious concern. Everything needs to be done to bring them back into the mainstream and the Bill travels beyond just punitive therapeutics. It ensures rehabilitation and reintegration with counselling, guidance, support, education, training and financial inclusion, besides free legal aid.

The Bill clearly upholds the primacy of victim rehabilitation. The intent is not just policing the exploiter but ensuring prostitution is not resorted to as an economic necessity.

The Bill also juxtaposes roles of statutory bodies with non-governmental organisations and volunteers, with the establishment of the anti-trafficking committees to ensure accountability is created. However, any law is only as good as its implementation.

The District Legal Service Authority has been empowered to award prompt interim relief to victims and ensure that the implementation is supervised by a senior judge of the high court.

The punitive measures range from a minimum of seven years to life imprisonment or death for the commission of this crime. It also penalises cyber trafficking, The Bill penalises the intermediaries or providers of the service in cyber space as well, besides creating an onus on the provider to make sure the content is ethical and consensual.

As some experts point out, there is no methodology for identifying sex workers. While some cities like Mumbai, Delhi and Kolkata have specified red-light areas, in most modern metros, the spread cannot be identified. This could lead to benefits not going to all those in need and may lead to false claims.

Another risk is of the district committee, which is at the core of implementation, failing. While the Bill is supposed to be gender-neutral there is no mention for male support services, even if transgenders are specifically mentioned.
While trafficking was not defined either in the SITA (Suppression of Immoral Traffic in Women and Girls Act of 1956) or the ITPA, in the proposed amendment, it has been defined in very ambiguous terms. The customer is not punished under the said Bill either.

In the hitherto regime, various high courts, including Gujarat, Kerala, Karnataka, Andhra Pradesh and Telangana, have all found that the law leaves out the customer. Unfortunately, the Bill does not address the problem.

Overall, the draft Bill has ensured that most boxes are ticked. The intent is clear, the roadmap is defined and the test now lies in the journey. Well begun is only half done.

Most interestingly, the Parliament is legislating on a matter that does not cater to any populist constituency.

The writer is a senior counsel of the Telangana high court.