Will a stringent anti-trafficking law really protect women?

Two important bills, both ostensibly for the protection of women, were scheduled to be passed in the recently-concluded Monsoon Session of Parliament — the bill to criminalise triple talaq and the anti-trafficking bill. The government succeeded in one but failed in the other.

Where the triple talaq bill is concerned the government blinked at the 11th hour and diluted some of the draconian provisions of the bill, which was passed in the Lok Sabha in December 2017, without raising serious objections to it. But when it reached the Rajya Sabha, due to vehement opposition it had to be shelved.

The three important areas where the dilution occurred were: (i) It narrowed down the scope of who could file the complaint. Earlier anyone, including a neighbour or a stranger, could file the complaint. As per the amended provision, only the victim herself or her relatives can file the complaint; (ii) The offence was made compoundable. If the wife wished to reconcile, the magistrate had the power to compound the offence; and (iii) Earlier there was no provision of pre-trial bail.

But even with these amendments, the bill could not be passed on the final day as the Opposition took objection to the fact that it was not listed in the day’s business. In addition, the Opposition had staged a walkout on the Rafale arms deal issue where they blamed the government for dealing with it in a clandestine manner.

With the anti-trafficking bill, the government had better luck. Despite opposition to it by various groups working with sex workers, Union minister for women and child development Maneka Gandhi was able to push this bill through in great haste in the Lok Sabha on July 26. In a newspaper article, she explained the reason as follows: “A child in sexual exploitation and a woman in sexual slavery are looking up to us and questioning us on what we are doing as a civilised society and a welfare state”; and that “it was a matter of great urgency since every day thousands of children and women are trafficked and the society had a collective responsibility to respond to their desperate plea”.

The bill is meant to go much further in its scope and reach than the prevailing Immoral Traffic (Prevention) Act 1956, and will address the issue of trafficking from the point of view of prevention, rescue and rehabilitation. It has defined “aggravated” forms of trafficking, which includes trafficking for the purpose of forced labour, begging, trafficking by administering chemical substance or hormones on a person for the purpose of early sexual maturity, trafficking of a woman or child for the purpose of marriage or under the pretext of marriage, etc.

She offered an olive branch to all groups working with sex workers’ collectives who had expressed serious concerns that the bill, if enacted, would violate the basic rights of women who are in the sex work industry of their own volition, and invited them to work together with the government “so that differences could be ironed out and together we can learn and work in collaboration to push the boundaries of justice and empower the most vulnerable persons in our society”.

The minister pledged that the provisions of the bill had been carefully synchronised with all existing and linked provisions of the law and structures created thereunder. It aims to supplement existing criminal law provisions on trafficking under Section 370 IPC and the Immoral Traffic (Prevention) Act 1956. The definition of trafficking is drawn primarily from Section 370 IPC, which includes “any act of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude”. Trafficking under this bill also includes begging, domestic work, farm or factory work.

But activists have pointed various gaps which fail to address the core concerns of trafficking and the lapses which threaten free speech and the right to work under Article 19, and basic human dignity guaranteed under Article 21 of the Constitution. Meena Seshu of the National Network of Sex Workers, a strong and articulate voice in the movement to protect the dignity of sex workers and their right not just to work but to survive, has been opposing this enactment in its current form for the past few years. According to her, the state administration has turned a deaf ear to their anguished pleas.

She explains that framing trafficking as an issue of morality wrongly assumes that no woman would enter sex work of her own volition. The experiences of sex workers picked up during raids and rescue operations have brought out the stark reality that the approach of “raid, rescue and rehabilitation” rarely addresses the issue of trafficking, and instead results in large-scale rights violations of sex workers with the underlying presumption that only trafficked women need to be rescued and rehabilitated. The experiences of sex workers picked up during these operations reveal that this strategy rarely addresses the issue of trafficking. Anecdotal information gathered by sex worker rights activists in India has brought out the harsh reality that many women who are “rescued and rehabilitated” return to sex work. The ITPA, with “immoral” and “traffic” in its very title, suggests that trafficking is an issue of morality rather than a criminal offence. Its interpretation on the ground, therefore, adopts an anti-sex worker approach.

Instead of addressing the core issue of prevention of trafficking, the approach of raid, rescue and rehabilitation increases vulnerabilities of sex workers as they get further trapped into debt bondage and other exploitative practices. Ironically, getting trapped in a cycle of debt bondage is a consequence of a raid and rescue strategy, which is purportedly designed to help these women.

While this is the current situation, the bill, when enacted, will make the situation far worse in the name of protection and prevention. It will lead to greater surveillance and adult victims will be sent to rehabilitation homes or repatriated to their places of origin. Aarthi Pai, another activist involved with Sangram, a sex worker collective, points out: “There is no provision provided if ‘victims’ do not want to go to rehabilitation or accept repatriation, which is against Article 19(1)(g) of the Constitution, which guarantees the fundamental right to work.”

While admitting that trafficking is clearly a criminal offence that requires strict measures to combat unscrupulous persons and criminal networks, activists point out how all measures to deal with trafficking in the bill focus on the victims rather than the perpetrators of crime.