Debendra Kumar Biswal
The recently proposed Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018 is awaiting cabinet approval. It has two major aims: First, to address human trafficking with comprehensive legislation in line with international law and second, to make India a leader among South Asian countries in combating trafficking. The aim is to establish a national anti-trafficking bureau to control and tackle trafficking, particularly of women and children.
But the Bill has two major weaknesses. Though it defines trafficking as a serious crime and prescribes stringent punishment to traffickers, it is unable to distinguish between the legal concept of “trafficking in persons” versus “missing children/women” and “trafficking” versus “labour migration”. Again, it is unable to ratify the old prosecution model associated with this act. It raises the issue of whom to punish? Second, the Bill is unable to advocate for human rights of victims as is concerned only with the second phase of the trafficking cycle, that is, “practices associated with trafficking”. It has no serious recommendation for the first phase, that is, “trafficking of persons”. Thus, it ignores the root causes of trafficking, particularly in tribal areas of the country.
Missing and trafficked children have not been clearly defined, but the Bill promptly includes another category “aggravated trafficking”, which, in turn, has seriously questioned the authenticity of reporting cases and prosecution of traffickers
First, the proposed Bill adopts the globally accepted working definition of trafficking as given by United Nations Convention against Transnational Organised Crime (Trafficking Protocol) in 2003. It defines “trafficking in persons” as recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception or of any other means to achieve the consent of the person having control over another person. However, there is no reference to “missing children” either in this definition or any of the International law or Act such as UDHR, ILO, CEDAW or Convention on Child Rights as well as domestic laws or Acts such as Immoral Trafficking Prevention Act 1956 (ITPA) and JJ Act. Missing and trafficked children have not been clearly defined, but the Bill promptly includes another category “aggravated trafficking”, which, in turn, has seriously questioned the authenticity of reporting cases and prosecution of traffickers.
In 2018, a Global Report on Trafficking in Persons by the United Nations Office on Drugs and Crime (UNODC) reported sexual exploitation (79 per cent) followed by forced labour (18 per cent) as the most common forms of human trafficking. Worldwide, about 20 per cent of all trafficked victims are children (up to 100 per cent in parts of Africa and Asia). Only in Jharkhand, CID reported a total of 2,489 reported missing between 2013 and 2017.
The statistics included FIRs filed and diary entries. In the absence of a specific definition of missing children, it is difficult for a policeman to really understand the nature and context of missing children. Under what law and statute should the investigation be conducted? For instance, if a person simply complains to the police that his/her child has gone missing, the police does not know how to respond or is not interested registering and investigating such a case. Law enforcement agencies at no level are aware what should be investigation procedure. In the absence of a Standard Operating Procedure the existing legal regime, particularly IPC, is inadequate to curb the number of missing children.
Similarly, in the absence of a clear-cut definition of trafficking, the Immoral Trafficking Prevention Act, 1956 (ITPA), which only deals with prostitution, is the only statute available to take any action.
Definitional incompatibilities exist on issues related to international migration policy and aggravated trafficking as defined in the proposed Bill. Indian law — along with several international laws and conventions, Article 12 of Universal Declaration of Human Rights Law (UDHR), Article 5 of International Convention on the Elimination of All Forms of Discrimination (ICERD) — has strongly advocated for right to migration, anti-migration and anti-trafficking policy. All persons have the right to migrate for fear of persecution, from poverty or owing to inability to survive in the place of origin.
But contrary to this, the proposed Bill defines a new category of offence “aggravated trafficking”, which means encouraging or abetting any person to migrate illegally into India or Indians to another country will draw a minimum punishment of 10 years in prison. This approach of the Bill seriously undermines ‘right to migrate’ as laid out in international law on two aspects. In 1975, the UN member states tried to avoid the word “illegal” in reference to migrants as it creates barrier to cohesion, is discriminatory and misrepresents the reality of migration. It confuses human trafficking with smuggling of migrants as it is a reference to aiding and abetting migration of a person, as ‘trafficking’ overlooks UN’s protocol, which requires an ‘act’, a ‘means’ and a ‘purpose’.
Second, the proposed Bill places great faith in rehabilitation and reintegration initiatives, but it ignores human rights issues associated with trafficking. It speaks only of the second phase of the trafficking cycle — “practices associated with trafficking”, but is silent on root causes such as re-victimisation and re-trafficking, particularly of children in the poverty-stricken tribal areas of India. Domestic and international human rights laws visualise trafficking as a serious human rights violation, but they need to recognise that trafficking often emerges where already many human rights deprivations are prevalent. In 2016, the UN observed that in Jharkhand “from the moment the women conceive, placement agency owners start the process of auctioning the yet-unborn babies to prospective clients”.
A comprehensive legislation on trafficking must understand the issue in its entirety. Amartya Sen’s advocacy of “realization focused justice system”, and Hegelian concept of “concrete universality” are relevant to get the answer to why the Indian state has failed to prevent trafficking, to prosecute traffickers and to protect human rights of trafficked persons.
The writer is an assistant professor, Centre for Contemporary and Tribal Customary Law, Central University of Jharkhand.