A certain section of the civil society has raised concerns over the hastiness that is being rendered in passing of the Anti-Trafficking Bill, 2018. The said section of the civil society and certain individual members and experts are of the opinion that the Bill must be referred to the Standing Committee that it may be able to plug in the loopholes the bill has been found guilty of.
In this respect it’s imperative to review some facts that place into perspective the haste in which the passing of the Bill is being carried out.
In 2015, the Prajwala Vs. Union of India & Ors. in WP(C) No. 56/2004, the Hon’ble Supreme Court of India directed that the requirements put forth by the petitioner, can only be addressed through bringing about a new comprehensive legislation on trafficking. Consequently, in August 2015 the process of formulation began with a multi stakeholder committee established for its preliminary drafting. In May 2016, the Ministry placed the draft on its website for public suggestions. All subsequent drafts of the Bill were also shared on the website of the Ministry of Women and Child Development, and comments and suggestions were invited by anyone who wished to do so.
Over a period of almost three years, all relevant stakeholders and civil society at large were consulted at all stages of formulation of the Bill, and their suggestions incorporated. The Ministry independently also received 300 suggestions from the public and civil society. We rather bound then that after an over two-year long consultative process, compliance with the directions of the apex Court is met.
Secondly, despite ratifying to the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially women and children, supplementing the United Nations Convention against Transnational Organized Crime in 2011, India doesn’t have any specific law that comprehensively and holistically deals with the organized crime perspective, covering all aspects of trafficking. This Bill is an attempt to comprehensively deal with trafficking taking special care for the social reintegration and rehabilitation of victims, especially minors in line with international requirements.
Lastly, it is imperative to note that the nation-wide issue of trafficking mustn’t and shouldn’t be gilded with political agendas. The issue of trafficking is a non-political issue, and political bias will dilute and thereby eclipse this evil that is glaring at us. Trafficking is a matter not of political discourse and personal agenda. The utmost urgency that the issue calls for must then be reflected in the collective agreement on the passage of the Bill that understands the urgency and the immediate need to effectively intervene through law to combat this crime.
If the Bill were to wait for the winter session, which is predicted to be a wash-out session, the country will be consciously delaying the enforcement of a much needed stringent law that could and shall benefit so many of us, needlessly to say especially the women and children.
The question then must rather be, “Why is the government NOT in haste to pass the Anti-Trafficking Bill, 2018? We must then subtly remind ourselves, time is of the essence!
On 26th June 2018, the Trafficking of Persons (Prevention, Protection, Rehabilitation) Bill, 2018 was presented in the Lok Sabha and was unanimously passed by the House. However, few glaring misconceptions that have clouded the current Bill must duly be considered and addressed.
It has been contested that the sex workers have categorically opposed the Bill, since its very inception. The singling out of the sex work shows a narrow reading of the Bill that aims to not only uphold the agency and choice of the sex worker but also gives rehabilitative benefits to the victim. It is important to clarify, that the bill categorically does not criminalise sex work or sex workers and upholds their constitutional rights.
Does the Bill really target the sex workers?
The Bill views trafficking not just by the type of labour performed but the conditions or processes or manner through which such work is conducted. Trafficking is therefore, not determined by the sexualised nature of the ‘work’ performed, but instead upon the conditions or processes that the worker (he or she) may be subjected to. Specially, if a person willingly engages in any activity where the person has been deceived of the nature of the work (where threat and deception is involved) and is subject to exploitative condition, the inherent nature of sex work stands to be involuntary and ill-defined.
Drawing from the recommendations of the Justice Verma Committee, Section 370 of the Indian Penal Code, 1860 was amended in 2013 to add the explanation of the word exploitation, further that the ‘consent of the victim is immaterial in determination of the offence of trafficking’ emphasizes the nature and gravity of the crime through the means so states ‘coercion, force, abuse of threat etc. has been addressed. However, the Bill takes this a step ahead and reiterates how ‘consent should never be a factor in determining which victims of abuse deserve assistance’ (Foerster: 2009). The applicability of the Bill therefore goes beyond the scope of the IPC provisions and existing provisions of even Immoral Trafficking Prevention Act, 1956 that specifically deals with sex trade or the act of prostitution without explicitly criminalizing it.
What does Agency and Social Morality mean for the Rule of Law?
During the reading of the Bill, Tharoor explicitly questions the agency of the sex workers being undermined through the Bill. Quite contrary, the Bill in fact upholds the agency of the sex worker by giving them the option of accepting or declining long-term rehabilitation. The agency of the victim is kept at its center by realizing the autonomy of a sentient being to make choices that have not been forced and are well founded upon free choice. Such a reading of agency is central to the Bill in its provisions and aspects so provided.
In supposedly stating the position of the sex workers, Tharoor appealed to the Minister to “view the matters of right and laws through the lens of constitutional morality and not the majoritarian social morality”. He constructively fails to understand the inherent linkage between law and morality and questions the ‘internal morality of law’ (Joseph Raz: 2012) and principles of natural justice that builds the backbone of Indian legislature. Constitutional morality has not only been upheld but emphasised and exemplified in the Bill through its adherence to the provisions of Article 21 and Article 23 of the Constitution. Social majoritarian morality is in fact what he is representing by undermining constitutional guarantees in light of personal opinions about individual groups.
As you finish reading this article at least one child would have been trafficked in India. It is important thereby to not delay the coming of a new law that addresses trafficking offences and provides recourse to those victimized. The referral to the Standing Committee is a constitutional provision that must judiciously be used and not exploited as a norm. The Bill is the need of the hour, and all objections so raised are concerns on its implementation and applicability framework and can be sufficiently solved in the formation of the Rules.
Thereby, I reiterate Mr. Satyarthi’s concern, “For children cannot wait. The nation cannot wait.”
