The Trafficking in Persons (Prevention, Care, and Rehabilitation) Bill 2021 scheduled to be tabled in the current session of Parliament has grave implications for workers and marginalised populations. Trafficking is a criminal offense and indisputably requires strict measures to combat unscrupulous persons who exploit the vulnerability of workers. Instead, the current draft ends up criminalising  vulnerable individuals in the absence of comprehensive policies, programmes and measures that address the factors that make persons vulnerable to trafficking. The aspiration to move and access better living conditions, poverty, lack of equal opportunity and skewed development policies force persons to move in an unsafe manner and accept work in a criminalised environment for instance in sex work, undocumented workers abroad or for organ trade.

The Bill ignores the problems associated with unequal growth, skewed development and inequity and aspirations to migrate for a better livelihood. Distress (political, social, economic) and crisis also create conditions for migration, including women migrants. The Bill envisages a rescue and rehabilitation mechanism to address the vulnerabilities faced by women and transgender persons. Further, instead of focusing on creating conditions and laws that make migration safer for women and other marginalised sections, these policies are focused on deterring the right to mobility and movement.

Definition diluted

Section 23 of the present draft Bill brings a significant amendment to the existing definition of trafficking in persons. The Palermo Protocol to which India is a signatory and Section 370 of the Indian Penal Code define the offence of Trafficking as specifically relating to the Acts, Means and Purpose (being exploitation).

The proposed Bill seeks to drastically dilute the definition by removing physical movement or transport from one location to another in the determination of the offence of Trafficking[1].  When read concomitantly with the definition of exploitation included under Section 2 (7); the intention of the proposed Bill seems to be to include within its ambit every and any act of exploitation whether the purpose of such acts was commercial gain.

This renders the Act over-broad and vague. Given the harsh nature of penalties and punishments envisaged under the present draft bill, this vagueness has potential for overuse and misuse. Literally every act of exploitation in every sphere will be invoked as an offence of Trafficking. Multiple definitions are provided for exploitation through the text of the draft Bill which have muddied the waters and led to redundant arguments.

The Bill with its broad definition of “exploitation”, the  creation of expansive offences  and provisions makes even a person who does not exploit or take benefit also liable, unless he/she reports to alleged offence, makes a large number of  employers vulnerable to punishment and other coercive measures.

Section 2(7) of the Bill defines: “exploitation” includes causing of harm to or taking of benefit or gain from a victim without due or appropriate consideration, compensation or return in any form or manner for the benefit or gain of another person who himself may or may not be the perpetrator of such exploitation.

Section 30 of the Bill declares that “Whoever, knowingly or having reason to believe that a person is a victim, exploits such person, or takes benefit out of the exploitation” shall be punished with rigorous imprisonment for five years fine up to Rs 25 lakh. In case the victim is a child the punishment is enhanced to minimum of seven years extendable to life imprisonment.

Explanation I to the section lays down that for the determination of the offence the giving of any consideration in terms of money or benefit or remuneration to the victim who has been exploited is immaterial.

Explanation II to the section includes seeks to bring within the ambit of the offence an employer, who causes engaging of services of a victim as a result of which he is exploited. Such a person is also liable to be punished.

Explanation III declares that – Every person, knowingly or having reason to believe that in any of the supply chains there is bonded or forced labour of, or any other form of exploitation of victims, engage with such supply chains thereby taking benefit out of such bonded or forced labour or exploitation of such victims, directly or indirectly, shall be deemed to have committed an offence under this section.

Explanation IV further imposes the burden of reporting exploitation on individuals who receive services from supply chains. It states A person who has knowledge or reason to believe that an offence under this section is being committed, and without exploiting or taking benefit, reports the same … shall not be deemed to have committed an offence under this Section. 

‘Victim’ in turn is defined in Section 2(wa) IPC as a person who has suffered loss or injury by the act of the accused.

Further, the Bill adopts a definition of trafficking which defines victims as those who cannot consent, in effect negates the autonomy of the so-called victims. Even those who had been trafficked have the right to make decisions about their current and future life. By empowering authorities to place persons who are trafficked in custodial institutions without their consent,[2]  the Bill fundamentally erodes the notion of individual autonomy guaranteed under the Indian Constitution.

One of the most vulnerable sections that will be adversely impacted by the Bill are adult sex workers. The fundamental flaw with the Bill is that it treats victims of human trafficking on par with adult persons in sex work. Trafficking of persons into forced or coerced labour (including sexual exploitation) should not be equated with sex work undertaken by consenting adults. This conflation could lead to misuse and over-broad application of the provisions in this bill.

Arbitrary application

The wide definition under Section 2(7) of the Bill categorizing as taking benefit from a victim ‘without due or appropriate consideration” as “exploitation” without specifying any methodology or mechanism to determine “due” or “appropriate” consideration leaves space for arbitrary exercise of power by the Executive.

The expression “knowingly” in Section 30 implies ‘conscious’ knowing. The addition of the phrase “have reason to believe” broadens the ambit of the offence, leaving room for arbitrary exercise and punish a larger pool of people. An individual may not know, but the determination that he/she had ‘reason to believe’ that the person is a victim, makes the individual punishable with fine and imprisonment.

Explanation I compounds the problem by stating that the “giving of any consideration in terms of money or benefit or remuneration to the victim who has been exploited is immaterial”.

The room offered by the definition under Section 2(7) of the payment of “due” or “appropriate” consideration taking the act out of the category of “exploitation” seems to have been firmly shut by the explanation affixing criminal liability, despite the payment of due and appropriate consideration to the victim.

Explanation IV tightens the noose more and a person who does not benefit or take any benefit can be held liable, if the individual has knowledge or reason to believe that an offence has been committed under the provision, unless he reports to the concerned authorities.

Presumption of offence

In cases of offences committed under the Bill, where the victim-survivor is a child or woman or person with physical or mental disability, Section 46 enjoins the court to presume that a person has committed or abetted or attempted to commit the offence, unless the contrary is proved.

In a Bill piloted for the prevention, care and rehabilitation of trafficking in persons, perhaps, unnoticed by industry, the provision seems to have large scale implications for industry, impacting both employers and employees. Section 2(7) of the Bill links exploitation with not getting due or appropriate consideration. In contrast Section 30 makes giving money or remuneration to the victim immaterial in determination of the offence.

The definition of the offence in Section 30 by making a person who exploits or takes benefit of exploitation and declaring the giving of money or remuneration to the victim immaterial, makes a sizable category of employers liable to the invocation of the penal provision and punishable to years of imprisonment. Explanation III in addition to taking advantage of bonded or forced labour, by the inclusion of the phrase “exploitation of victims” including any engagement with supply chains, in the category of offenders, further broadens the category of employers punishable in the context of the applicable definitions of exploitation and victim.

Section 30 Explanation IV imposes a stringent duty on an individual to report any industry, supply chain where there is a possibility of exploitation. The stand that the person did not take the services or goods of such an industry will not be a valid defence

Similarly, the broad definition of exploitation and victim in the Bill, by the stroke of a pen seems to have turned workers from the paradigm of rights and collective bargaining into “victims”. The Bill clearly enumerates the raid, rescue and possible detention approach towards victims – a category to which the worker is to get reduced in the legal regimen introduced by the proposed law.

Interestingly when Section 30 is read with Section 46 it is clear that the prosecution is not required to prove guilt of the individual. The burden of proving innocence in all of the instances above will lie with individual. Also since the punishment under Section 30 is seven years, anticipatory bail is not available to the individual.

The presumption of innocence of the accused and placing the burden of proof on the prosecution to establish the ingredients of the offence alleged to be committed constitutes the heart of criminal jurisprudence. Removal of this presumption directly impacts the crucial fundamental right to life and liberty guaranteed in Article 21 of the Constitution. The section clubs women with child and a person with disability and under the guise of being sympathetic to these sections seeks to bring a fundamental change in criminal law. From the maxim of “Innocent till proven guilty” it introduces “Guilty till proven innocent”.  This would directly translate into incarceration on being charged of the offence in violation of the right of life and liberty.

In criminal law the offences are to be precisely defined and thereafter the ingredients which constitute the offence are to be established in court. Section 46 turns this on its head and states that the court may presume the commission of the offence, “unless the contrary is proved”. The investigative agencies which under the present Bill is the National Investigative Agency have the powers to question and examine witnesses, powers of search, seizure and collection of evidence as to the commission of an offence. Material and evidence as to the doing of acts which constitute an offence can be found but to collect evidence to establish the not doing of a thing is extremely difficult task. An individual does not have any power to question any witnesses, or to search a place or seize material and collect evidence, thus making the task of “proving to the contrary” as laid down in the provision impossible.

Once a window is opened of discarding the fundamental “presumption of innocence” and introducing the “presumption of offence”, as an apparent measure sympathetic to vulnerable sections, it would open the doors of and legitimize bringing in the principle for a host of offences, leading to years of detention and curtailment of life and liberty.

The overturning of the burden of proof and harsh bail provisions, along with the identification of the counter-terror National Investigation Agency (NIA) as the coordinating agency responsible for prevention, investigation and prosecution of trafficking in persons and other offences, engenders deep disquiet. The proposal of NIA not only being the investigation agency, but also the applicability of the NIA Act to the investigation of offences under the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021  should also serve as a wake-up call for all states in the Indian Union already struggling to protect the tenets of federalism.

Curbing availability by restricting demand

The approach of curbing demand for goods and services is not new in policy terms, getting applied commonly to goods deemed harmful to humans, or to environmentally damaging goods and services. But in all such cases, the users are not subject to penal legislation, and instead the approach is one of reasonable restrictions on usage.

The current Bill seeks to demand by introducing penal provisions to sanction those who engage with supply chains where there is reason to believe that there is bonded or forced labour.

However, as rightly pointed out in the Backgrounder on Good Practices and Tools in reducing the demand for exploitative services[3], there is no agreed definition of the term ‘demand’ in the context of trafficking in persons. Citing from the text:

Consumer demand is generated directly by people who actively or passively buy the products or services of trafficked labour, for example the husband who buys flowers picked by a trafficked adolescent or the tourist who buys a cheap T-shirt made by a trafficked youth in a sweatshop. Research suggests that most of this kind of demand is non-determinant because generally it does not directly influence the trafficking – for example, the husband buying flowers does not specially ask traffickers to exploit children to pick them, and the tourist buying a cheap T-shirt does not specially ask traffickers to exploit children either.

Rather than being understood in the context of restricting trafficking, the clause has potential for misuse as a qualitative barrier to trade. For instance, if a certain set of commodities – say cut flowers, agricultural commodities or garments – from a particular Supplier A were to be restricted on the grounds that they are being produced under exploitative conditions by Supplier B, it is unclear where the burden of proof lies. Are the suppliers meant to provide for a certification to this effect? What would be the validation of such certification? Presently there are attempts to orient customers/clients towards ethical buying by increasing awareness and labelling about sustainable use of materials and non-use of child labour. However, penalizing customers for purchasing the products could be counter-productive.

There is an urgent need to adopt a developmental and rights-based approach to combat trafficking in order to uphold the rights of the affected persons. Such an approach is likely to be more effective in the long term than a criminalized, carceral approach. Wide ranging and inclusive consultations must be with the diverse range of stakeholders that will be affected by the proposed law. Simultaneously, a more inclusive process of review of existing laws on trafficking, sexual assault, bonded labour, data privacy, media regulation and labour rights, overlaps and contradictions therein must be launched in order to draft a cohesive, effective and rights-based approach to end trafficking.

[1] Explanation 4, Section 23

[2]See Section 17 of the Bill

[3] Working group on Trafficking in Persons, 9 December 2009Aarthi Pai is a lawyer and currently serves as the Executive Director of Sangram Sanstha. She is the legal advisor of the National Network of Sex Workers and the Regional Coordinator of Sex Workers and Alllies South Asia.
Rakesh Shukla is Advocate, Supreme Court

courtesy Kafila