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Why We Need To Have The Anti-Trafficking Bill, 2018

The Bill aims to target the organised nature of human trafficking by creating an equally organized and holistic response to prevent trafficking

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There has been a range of concerns raised on the passing of the Anti-Trafficking Bill, 2018 in haste, in its present form. The foundational argument of the critique is on depriving adults of their personal liberty. This article attempts to respond to these concerns by deconstructing the existing myths around the Anti-Trafficking Bill, 2018, to establish why the Bill is the need of the hour to address the complex nature of trafficking and eliminate it from its roots.

Trafficking is one of the fastest growing organised crimes in India. The current legislative framework provides solely for the criminalisation of trafficking under Section 370 of the Indian Penal Code, 1860 and fails to address the complex nature of trafficking or the challenges faced by its victims. The current response mechanisms while focusing on the prosecution of some forms of trafficking, fail to provide for a comprehensive framework of law that not only protects victims by prohibiting all forms of trafficking but also provides for an institutional framework for prevention, protection and rehabilitation.

The Bill aims to target the organised nature of human trafficking by creating an equally organized and holistic response to prevent trafficking, protection of victim and witnesses, rehabilitation and repatriation of victims. The passing of the Bill along with ensuring its implementation is thus integral to tackle the multi-dimensional nature of the crime.

There is an allegation that it violates the core protections embodied in Article 21 of the Indian Constitution which state that— “No person shall be deprived of life or personal liberty except by procedure established by law”. It states that Bill attempts to target the profession of sex workers by denuding them of their right to practise the profession of their choice, hitting at the right to life itself.

What is completely ignored is that the purpose of the Anti-Trafficking Bill is the prevention of trafficking, protection and rehabilitation of victim and prosecution of offenders and to create a legal, economic and social environment for the victims. It caters to the needs of victims of various forms of trafficking besides sexual exploitation. It does not single out or make exceptions for any particular group.

By limiting the definition of trafficking to Section 370, the Bill makes it clear that it does not expand the scope of the existing Section 370 and therefore in no way infringes upon the rights of adult sex workers in the same way that Section 370 of IPC does not. It is useful to note, however, that after the rescue and during rehabilitation, adults are given an opportunity to put forward their claim whether they need rehabilitation or not, and therefore it does not contradict Article 21.

It is also argued that the Bill is criminalizing in nature and does not focus on the “welfare” aspect. This brings us to the question that can socio-political issues and situations be addressed prior to addressing the crime itself? Can we leave a crime unattended and instead aim at only creating a well-rounded developed society first? In the same way, that rape has to be dealt with as a heinous crime alongside trying to fix the patriarchal mindset of the society; trafficking as a crime has to be strongly dealt with by the jurisprudence along with taking on welfarist/developmentalist functions. The development functions by the state should co-exist side-by-side and aid in reducing/eliminating the crime of trafficking. Parallel processes are not mutually exclusive to one another.

It is unfortunate that the “much educated” and the “privileged” class often stands in the way of any effort being undertaken to protect the rights of the most vulnerable and the marginalized in our country. The concerns related to right to privacy and self-determination are all addressed by the Bill, in its entirety, which only attempts to safeguard the interests and rights of the marginalized.

It is herein, imperative to invoke Article 23 of the Constitution of India which states “Prohibition of traffic in human beings and forced labour: (1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.”

Trafficking and bonded labour are the only offences, besides untouchability, criminalised in the Constitution of India itself. This was the gravity accorded to the crime of trafficking by our forefathers. It is indeed unfortunate that ‘trafficking’ continues to be a menace in the country and at this point of time, the nation needs to stand united to protect the rights of millions of vulnerable women and children and press the government to pass the Bill as promptly as possible.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

Piyali Chatterjee

The author is a Policy Researcher and Child Rights Activists

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