The article has been written by Subodh Asthana, a student of Hidayatullah National Law University. The author has discussed and examined the provisions of Anti Trafficking Bill(Trafficking of Persons for Prevention, Protection and Rehabilitation) in his article.
Human trafficking is one of the most essential problems which our country is dealing with, it is a perilous threat to our society as it leads to gross violation of fundamental human rights.
Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines Trafficking in Persons as the 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, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
So as to counter this situation there is a dire need of strict regulation and a retributive punishment because our country is a favourite spot for traffickers and according to a report India has the highest number of human trafficking with most of the trafficking not reported.
Thus to counter human trafficking, anti-human trafficking bill was introduced on May, 2016 in Lok Sabha with strict provisions, but mere provisions cannot suffice the purpose of a peaceful society there also need to be strict implementation of the act so as to counter human trafficking from the country and to establish a peaceful and a crime free society.
Human Trafficking Menace
Human trafficking means the selling and buying of the human body for evil purposes which are forbidden by law or are opposed to public policy. It could be within the physical boundaries or it could be trans- international.
The primary motive behind any crime is money which is a capital generator for these goons who are involved in this trade. As per the reports of the International Labour Organization about $150million were generated from the trade in India. It basically involves forced labour, sexual exploitation of body, surrogacy, trading of organs from the human body, trafficking of children so as to exploit them.
Sometimes there are instances that persons are kidnapped but most of the time these traffickers are keeping a hawk eyes on poor persons whom they are targeting and when they get into any financial difficulty they play their evil game.
Need for the Regulation
In Modern era, there needs to be tough regulation on these criminal and illegitimate activities because human trafficking in India has got to a sensitive level from where it needs to stop and the criminals must have an apprehension of stringent punishments and persecutions.
A prominent headline in The Hindu last week declared ” An unsavoury fact: India tops global slavery index.” A U.S. State Department report estimates that up to 65 million people were trafficked into forced labour, both into and from India. More recently, research reveals that India has the highest number of people trapped in modern slavery, with over 18 million people enslaved.
This is multiple times more than some other nation in the world. The Crime India Report 2016 by the National Crime Records Bureau revealed that in the year 2016, 15,379 unfortunate casualties were dealt and 23117 casualties of dealing were safeguarded (this incorporates people dealt in the earlier year) constrained into different types of abuse. It is basic to make reference to that there were instances of dealing with transgenders which unmistakably infers that the offence of dealing isn’t constrained to a specific class or sex. Additionally, 1,11,569 kids were accounted for missing in the year 2016, that is dared to have been dealt with or kidnapped for exploitative purposes.
It is the obligation of government to concoct this intense guideline since Article 23 of Indian Constitution discusses making the offence culpable.
- Prohibition of traffic in human beings and forced labour
- Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
- Nothing in this article shall prevent the State from imposing compulsory service for a public purpose, and in imposing such service, the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
Section 370 of Indian Penal Code, 1860 also talks about the offence, but there needs to be a proper mechanism to regulate and control these grave offences of high gravity. The rationale behind this is that mere criminalisation of these offences is not a real solution there need to be some rehabilitation centres for these victims and more severe punishments for traffickers to cover some of the loopholes and fill the vacuum so that no offender is spared.
India’s minister for women and children announced a draft of the first-ever comprehensive anti-human trafficking law in 2016. The draft “Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016” has been generally well received by practitioners and civil society working for decades on this issue and it was presented in Lok Sabha by the Minister of Women and Child Development, Ms Maneka Gandhi on July 18, 2018.
The Bill accommodates the avoidance, salvage, and restoration of dealt people. A large number of youngsters, ladies, men, and transgender are being sold into servitude of constrained work and prostitution every day. There is a pressing need to set up a system for a survivor-driven legitimate structure which enables unfortunate casualties to be saved and restored.
Overview from Chapter 1 to 4 of Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
The first chapter of the bill or proposed law has been divided into two sections with their subsections, which explains the proposed law. Section one of the bill states the name of the proposed law, its territorial jurisdiction which is valid across all states except that of Jammu and Kashmir and it shall become law by an official gazette notification, i.e. by print notification in a newspaper by Central Government.
Section two of the bill explains the terms and terminology used in the proposed law. Basically, it gives the definitions of the terms that are described in the act. It defines nineteen terms used in the act, i.e. aftercare, appropriate government, child, district anti-trafficking committee, fund, narcotic drugs, notification, placement agency, prescribed, protection home, psychotropic substance, special home, a special court, exclusive agency, investigating officer, state anti-trafficking committee, victim and welfare officer.
The parent act of the bill is Juvenile Justice (Care and Protection of Children) Act, 2015 because it states to take meanings of those terms that are not described in the proposed law.
This chapter is also divided into two sections viz. section 3 and section 4 with its sub-parts or sections.
Section 3 of the act tells that appropriate government must appoint by notification, a district anti-trafficking committee to keep a check and for exercising the powers and performing such functions and duties concerning prevention, rescue, protection, medical care, psychological assistance, skill development, need-based rehabilitation of victims.
Section 3(2) states the composition of the District anti-trafficking committee, the committee must consist of: a District Judge or Collector as Chairperson, social workers, a person nominated by district legal service authority and a district officer of social justice or women development department.
Section 3(3) and 3(4) describes as after what time period the committee has to meet( which is 3 months) and the committee is independent to regulate its procedures and decisions respectively.
Section 4 of the act states about the procedures in the relation of victims of trafficked persons as who has to power to present victim before the members of district trafficking committee.
The Bill also provides for the setting up of Anti-Trafficking Units (ATUs) at the district level. ATUs will deal with the prevention, rescue, and protection of victims and witnesses, and for the investigation and prosecution of trafficking offences.
This chapter states about functions of state human trafficking committee as stated under the section of the act.
It states that requisite Government shall establish State Anti–Trafficking Committee to check the enforcement of the statute and shall supervise the State, Union Territory Government and District Anti-Trafficking Committee in the cases pertaining to prevention, of trafficking, protection and rehabilitation of victims of trafficking in persons.
Under the act, the state government shall appoint a State Nodal Officer who will be responsible and accountable for: (i) to perform the actions and duties which have been enlisted in the Anti-human trafficking bill (ii) to provide relief and rehabilitation services to the victim of the crime. The state government shall also appoint a Police Nodal Officer at the state and district levels.
Section 5(1) states the composition of the State human anti-human trafficking law cell.
It states the description, composition and function of central anti-trafficking law as stated under section 6 of the act. Section 6(1) constitute a Central Anti–Trafficking Advisory Board headed by the Secretary, Ministry of Women and Child Development and representatives from the concerned Ministries, State/UTs and members from civil society organisations.
Section 6(2) states about functions as to protection, rehabilitation and implementation of the decision of the committee.
Essential purposes and functions of the Bureau cover as follows.
(i) Ordering and looking at overseeing along with experienced sends
(ii) Making simple over-seeing, Enforcement and stop before-hand steps at the starting point, going across (from place to place) and place where one is going points,
(iii) Supporting ordering between law enforcement agencies and non-governmental organisations and other interested organisations, and
(iv) Increasing bonds between nations and together with authorities abroad for news having the same, and standard lawful help.
Overview from chapter 5 to 8 of Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Chapter 5 of the bill talks about section 7 as to the establishment of a specialized agency for the investigation of offences. It has been given the power to work independently without any political pressure so as to control these offences and illegal traffickers have to be presented before special courts and victims before the respective committees formed under the proposed law or act.
Chapter 6 of the bill talks about the establishment of various support services given by the government to the victims which have been provided in three sections viz. section 8, 9, 10 of the bill.
Section 8 states about Protection homes which are to be maintained by the government for the protection, rehabilitation of the victims, it also specifies that houses could be managed directly by the government or voluntary by any organisation, but it will be under control of the government. Government by forming protection homes have an obligation to provide food, shelter, protection and all the other things that are necessary for existence which has been provided in section 8(2).
Section 9 states the establishment of distinctive homes in each district, which has to be controlled by the appropriate government for providing long term institutional support for rehabilitation to victims. Rehabilitation of victims will not be dependent on criminal proceedings being initiated against the accused, or the outcome of the proceedings.
Section 10 states that all the special and protection homes have to be registered by the government under the name of this act as the procedure prescribed by the appropriate government.
Section 11 in the proposed law states that appropriate government shall frame necessary schemes, programmes specialised schemes which are necessary to facilitate them and to provide rehabilitation to these victims so as to protect them from re-trafficking.
Section 11(2) states that state government have to provide some schemes to prostitutes or women carrying out sexual activities so as to form part and parcel of mainstream societies and prevent them from the illegal activities.
Section 12 in this chapter talks about placement agencies which means any government or private organisation have to register itself under the provisions of the act within such time and in the manner prescribed by the appropriate government and if any placement agency violates the provisions as per the proposed act the licence and registration of that agency could be revoked, cancelled or suspended as the case may be.
Overview from chapter 9 to 12 of Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Chapter 09 of the proposed law deals with the punishments of some offences which has been specified or helps in the facilitation of these offences that are carried by traffickers. Basically, this section expands the scope of the crime and disaggregate the offence of trafficking with increased punishment and fine.
Section 13 of the bill deals with punishment of any person in charge of special homes or protection homes and it describes the imprisonment which may extend to one year or a fine, not less than 1 lakh rupees.
Section 14 of the act deals with punishments as regards to the placement agencies if they contravene or disobey any provision laid down in law shall be punishable with imprisonment which may extend 3 years or with fine not less than 50 thousand rupees.
Section 15 of the act deals with punishment of any disclosure of a victim’s identity in the form of any communication media like news, report, e-media etc. If the owner of this media contravenes this clause he/she shall be persecuted with imprisonment which may extend to 6 months or fine of one lakh rupees.
Section 16 and 17 of the act states the punishment if it is used or there is the application of threat of narcotic drugs, psychotropic substances, chemicals for the purpose of trafficking or exploitation of human body has been strictly punishable under the act. It also covers sexual exploitation by usages of these substances of which the punishment may extend to 10 years and not less than 7 years and a fine not less than 10 lakh rupees.
These offences have been also covered under section 19 of the bill which states them as non- bailable and cognizable offences which no person covered under offences of section 16,17 be released unless a special public prosecutor is appointed and he is able to reject the grounds of offence and the court is convinced on the reasonable grounds that the accused is not guilty of an offence and he is likely not to commit any offence while he is given bail.
Chapter 10 of the act deals with Confiscation, Forfeiture and Attachment of the property. Section 20,21 and 22 of the act deals with it.
Section 20 of the act states that if the property in possession or ownership of that property is used for committing offences as under section 16 and 27 or such form of trafficking the property may be forfeited or confiscated by the government as per the order by special courts that have to established by the proposed act. The special court has the power to confiscate or transfer the immovable or movable properties attached to land if the trial results in the conviction of the accused.
Section 21 states that the burden of proof for confiscation or forfeiture of property shall be on accused, the person who has been accused of the trafficking offence under the provisions of this proposed act.
Section 22 gives the power to state or the central government to take the cognizance if the trial has not yet begun by the court and it gives the power to appropriate government to forfeit the property of the alleged person by writing an application to district judge under whose jurisdiction the forfeiture or confiscation of property is involved and if by any reason the property is not able to be forfeited then the money in that value would be forfeited and the alleged person has to give an affidavit about the scheduled money or property where it has been discovered that offence has taken place.
Section 23 deals with the establishment of Special Courts in each and every district so as to provide a speedy trial for the offences that have been covered under section 370-373 of the IPC and in consultation with the chief justice of the respective high courts make session courts as special courts.
Section 24 states that courts shall presume that offence has been committed by an alleged person under provisions of section 370-373 of IPC until the contrary has been proven.
Section 25 states that all sections of criminal procedure codes have to be followed.
Section 26 states that every special court has to appoint a Special Public prosecutor for purpose of the matters falling under the act and he/she shall be qualified public prosecutor satisfying all the eligibility and practice of not less than 10 years and a decent track record of work.
Section 27 states about procedures about recovery of fines like there will be instances that victim’s money in return of the work has been not paid or there are unpaid back wages or any other losses unpaid by the accused, the special courts have been power under this act to take action and recover fines, penalties from accused property and restore the same to the victim even if the punishment has been given to the accused in the form of imprisonment. The court is also free to take action on any other form of trafficking if it is found.
It contains some miscellaneous provisions of the bill or the proposed act.
Section 28 talks about the appointment of investigation officer by respective state governments.
Section 29 talks about the creation of anti-trafficking fund so that expenses of the creation of rehabilitation centres and different homes could be met with.
Section 30 talks about mandatory reporting of the victim by a police officer or any public servant to the nearby police station or district special homes or magistrate or a person-in-charge.
Section 31 and 32 deals with repatriation of a victim to another state or country respectively for increased protection or rehabilitation centre of home state or country as the case may be.
Section 33 talks about an appeal as to after special court the matter could be appealed in the high court and it is stated that since the offence is of grave nature it must be tried to disposed of within three months and if bail is refused by the special court it could be appealed in the high court.
Section 34-39 deals with the power of central and state government to make laws.
Section 40 states that any person who is below 18 years of age is not guilty of the offence and provisions that have been described in the act.
Section 41 describes that the proposed law should be in contravention to any other law which has already been in force in India.
Criticisms of the bill
According to some of the lawyers and eminent jurists, there are various flaws or criticisms in the bill or the act which have been put forth by them in front of Women Child Development or the body concerned with the drafting of the bill which are as follows.
Neither clear nor comprehensive
Significantly, in arranging off a request regarding the matter of dealing, for example Prajwala v Union of India W.P(C) No. 56 of 2004, the Supreme Court, in its request dated December 9, 2015, recorded the MWCD’s accommodation that it had set up a board of trustees to think about existing laws, recognize holes and draft a thorough administrative system covering all parts of dealing. By and by, exercises that establish “dealing of people” are tended to by a scope of laws, which make complexities and consequently a similar issue has not been managed in the bill,
No examination or reasonable justification behind the Bill
Before, recommendations to change against dealing laws have been educated by research and evaluation of holes in the reaction to dealing. In 2002-2003, the National Human Rights Commission (NHRC) directed a countrywide investigation of the issue and delivered two voluminous reports on “Dealing in Women and Children in India“.
Discoveries of the NHRC report provoked the MWCD to move the Immoral Traffic (Prevention) (Amendment) Bill, 2006. Also, the Criminal Law Amendment Act, 2013 which prompted the order of sections 370 and 370A of the IPC against dealing and abuse of a dealt individual separately, depended on the proposals of the Justice Verma Committee Report, 2013, in connection to laws on sexual offences.
The Anti-Trafficking Bill has not been gone before by any considerable research or examination. Given that the NHRC consider is over 15 years old and in the middle of, new arrangements have been established in the IPC against human dealing, the MWCD should have dispatched an audit before leaving on this authoritative exercise.
Quite a bit of what is proposed as of now exists
The Anti-Trafficking Bill does not rethink dealing but rather consolidates the current definition under section 370, IPC. It, be that as it may, makes another class of “exasperated types of dealing”, which convey a base sentence of 10 years, which may reach out to life detainment.
A portion of the exasperated types of dealing presented in the Bill is “dealing for the motivations behind constrained work, asking, marriage and kid bearing”, which, as noted above, areas of now condemned under section 370 of IPC. Quite a bit of arrangement in the bill is one and the same thing.
No fair treatment
Criminal equity shields and fair treatment ensures have been watered down significantly, with no support. No astuteness in applying criminal law to an improvement issue. The issue of dealing can’t be disassociated from destitution, vocation, removal and security.
Individuals have and will dependably move for work, regardless of whether out of misery or for better chances.
Chilling impact on wellbeing and social security programs
The Anti-Trafficking Bill will chillingly affect wellbeing and government managed savings programs for helpless networks, including sex labourers, who will in general fall under the corrective system of against dealing laws. There is no mechanism to determine the forced and consensual sort of work.
Human Trafficking is thus a very heinous offence as it violates all the basic human rights of a person , it includes all the offences like trading of human body, organs and forced labour even many more offences which are not under the ambit of the scope of the law, human trafficking as a crime is a threat to a society as it decimates or destroys by causing harm to mankind.
Thus to handle the situation and for not making present situation worse, there needs to be law for protecting the basic rights of victims and also person who are victimised by these unfair and unethical offences which are in violation of basic human rights there needs to be a regulation and a tough law so as to curb these offences because our country has a very poor rankings in Slavery Index and is a victim of human trafficking, a large number of crimes have been reported in the recent years relating to human trafficking.
To tackle the present situation “The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 was presented in the parliament in May 2016. The bill contains various provisions relating to provisions of establishing homes for victims of human trafficking, punishments, fines and also some provisions of speedy disposal of the trials so as to make no scope for the offender to take advantage of late trials and enjoying his life outside and threaten the victims, moreover the bill also covers the provision of giving food, shelter and some basic necessities to the victims so that they could recover physically and mentally.
But, there are some drawbacks too, like bill or act is not at all comprehensive it fails to cover the actual definition of human trafficking because all the laws create complexities about the definition as to what is human trafficking, also some provisions of supreme court were also ignored, the bill is also drafted in a vague and ambiguous manner creating a very small scope.
Therefore, in order to curb these effects government must try to address all the loopholes and should try to widen the scope of the act so that these heinous offences are not at all repeated again and again which would automatically lead to a peaceful and joyful society.