India’s new trafficking bill fails to protect survivors financially
The Trafficking in Persons Bill forsakes the financial security of informal workers and survivors of trafficking to focus on criminalising perpetrators instead
The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 is set to be tabled before the Indian parliament this month, despite severe criticism from workers, activists and academics. The bill is a cause for concern for many reasons. It is excessively reliant on criminal law, to the point of introducing the death penalty for some offences. Equally problematic is the potential impact of the bill on the economic precarity of workers and survivors, as this threatens to undermine the bill’s central aim: the care and rehabilitation of survivors while respecting their rights. I examine two ways in which the provisions of the bill compound workers and survivors’ economic precarity: by specifically targeting spas and massage parlours; and through its definition of the term ‘proceeds of crime’.
The bill makes a bad situation worse
Spas and massage parlours in India are regularly subject to police harassment under the Immoral Traffic (Prevention) Act, 1956 (‘ITPA’), since it is commonly assumed that these wellness centres are a façade for sex work. Consequently, police officers raid wellness centres by breaking into massage rooms mid-session, detaining masseuses on the grounds that they are ‘victims’ under the ITPA. Although it may be proven that a wellness centre was not in fact trafficking people or facilitating sex work at the time of trial, in the interim such workers lose their freedoms as they are ‘rehabilitated’ in shelter homes.
By jeopardising workers’ right to livelihood, the state actively facilitates the trafficking of workers.
Recently, an Indonesian masseuse was compelled to spend about a month in a women’s shelter after such a raid. This was a gross violation of many freedoms, including – crucially – her fundamental right to practice her livelihood. This is pivotal considering the economic precarity of workers in the informal sector in India, which often perpetrates a cycle of trafficking and re-trafficking. By jeopardising workers’ right to livelihood, the state actively facilitates the trafficking of workers. Compensation for loss of livelihood and disrepute because of such detention is rarely provided or adequate, and the enforcement of such compensation through litigation is often tricky and arduous – as has been the case for the Indonesian masseuse. Months since the raid, her case is still pending before the Supreme Court of India.
The bill worsens the present situation in several ways.
First, under section 23, even legitimate activities might come within the purview of the offence of trafficking, since ‘trafficking’ is defined in sweeping terms. For instance, one may be considered a trafficker if they ‘abuse a position of vulnerability’ to exploit a person. As almost 93% of India’s workforce is employed in the informal sector, it is difficult to determine what counts as an ‘abuse of a position of vulnerability’. Nearly all informal workers are in a financially vulnerable position, and are often exploited on the basis of such a position – where does one draw the line?
The term ‘exploitation’, which is defined as taking benefit or gain from someone without due or appropriate consideration, also covers a multitude of activities. According to this definition, the private employer of an underpaid masseuse could be liable to a mandatory minimum imprisonment of seven years. Criminalising such activities detracts from what the bill seeks to achieve, and renders the definition of trafficking meaningless in the Indian context.
This could have dramatic consequences for those ‘rescued’ in such actions. The bill allows for them to be kept in ‘protection’ and ‘rehabilitation’ homes for an indefinite period of time, and does not guarantee their ability to continue their livelihoods or access their savings while they are in such homes. Finally, by neglecting to consider financial security as one of the central aims of the bill, it exposes workers to greater economic precarity – a condition which further pushes workers to perform underpaid work. Even if defenders of the bill proclaim that the bill will not be interpreted so broadly, the point is that it can be. This potentially leaves small businesses – and migrant women – at the mercy of whimsical police officers with little recourse.
The bill creates a chilling effect over legitimate businesses and obstructs access to work.
Second, although wellness centres are already subject to excessive regulation, the bill lends itself to establishments refusing to employ survivors of trafficking and ‘vulnerable persons’, as they are susceptible to tracking by government bodies under sections 10(2) and 20(h) of the bill. Even after survivors leave rehabilitation homes, government bodies can track them, thus making severe inroads into their right to privacy. Further, the bill fails to define the term ‘vulnerable person’, and in the absence of such a definition the term encourages casteist incarceration, given the casteist disposition of policing in India.
The economic precarity of migrant workers is further aggravated by the District Anti-Human Trafficking Committee’s reliance on a “network of informers” under section 8(7)(d) of the bill. The bill authorises district committees and the police to initiate raids on spas and wellness centres based on hearsay evidence provided by this network of informers, with the potential to disrupt legitimate economic activities. Finally, the bill introduces harsh fines and mandatory minimum sentences which employers at wellness centres may be subject to. Given this context and the potential for the abuse of these unbridled provisions, Dalit/Bahujan/Adivasi migrant women in search of better lives could be subject to rigorous employment checks by employers attempting to err on the side of caution. They may even be prevented by the police and district committees from working at such centres for their own ‘protection’. Therefore, the bill creates a chilling effect over legitimate businesses and further obstructs access to work.
Proceeds of crime
Another risk introduced by the bill regards survivors’ assets. As human trafficking remains one of the most profitable crimes in the world, the relationship between money laundering and trafficking must necessarily be acknowledged. In the bill, in an attempt to harmonise the two, the term ‘proceeds of crime’ is defined in accordance with the Prevention of Money Laundering Act, 2002 (PMLA), i.e. ‘any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property’. However, this definition in the context of trafficking leads to unintended consequences.
First, the bill fails to properly safeguard survivors’ assets that were purchased using money they earned while they were trafficked. In other words, the bill treats not only the money earned by traffickers as ‘proceeds of crime’ but allows the money earned by those trafficked as well to be treated as such. While this might sound odd, it is completely possible that a worker earns money while trafficked (however meagre the amount) and is able to purchase property with it. Section 39(1) of the bill makes this property liable to be seized and forfeited by courts. Such property could include a wide range of assets such as bank accounts, jewellery, and all tangible/intangible property.
This robs not only survivors of trafficking, but also those deemed to be trafficked (such as sex workers), of the little economic security they may possess. It also puts immense pressure on survivors’ families, who would constantly live in fear of being impoverished – over and above incarceration – by law enforcement. Further, section 37 of the bill is wrongly worded and provides that a survivor is not to be held criminally liable for offences unless they committed such offences as a direct consequence of being trafficked or under coercion with reasonable apprehension of harm to themselves or their relatives. This, combined with the failure to specifically protect survivors’ assets, allows for mischief. Furthermore, the compensation to survivors is conditional on the filing of a ‘first information report’, which may be delayed and/or be insufficient, and in any event does not justify the usurpation of survivors’ earnings.
Most trafficking survivors work in the informal sector where proof of employment or payment often does not exist. To support themselves financially, workers may flit between agricultural labour, construction work, sex work and/or domestic work. However, under the bill, even property purchased by sex workers and survivors of trafficking through other means could possibly be regarded as ‘proceeds of crime’. If read with section 24 of the PMLA, there is a presumption that the accused’s property is a ‘proceed of crime’ and the burden of proof lies on the accused to show otherwise. In the context of the bill, this burden would fall on the survivor. For example, how would money earned from sex work be differentiated from money earned through construction work? In failing to safeguard survivors’ assets, the bill assumes that a trafficked person works only one job and either earns nothing from it or should not earn anything from it because any such earnings are proceeds of a crime (albeit a crime against them). The bill fails to provide survivors of trafficking – whether in rehabilitation/protection homes or otherwise – with access to their assets (however nominal) at all times. The bill is thus designed to be a moral tool for exercising control, rather than a policy instrument geared towards addressing the concerns of survivors.
From the BTS Editors
Pursuant to its ratification of the Palermo Protocol on trafficking, India has long sought to draft and pass an anti-trafficking bill. The first such attempt was made in 2013, when the offence of trafficking was introduced into the Indian Penal Code, 1860 after the rape and murder of a young woman in Delhi in 2012. In 2016 the Ministry of Women and Child Development built out these specific provisions of the IPC and invited a consultation on the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016.
Despite critique from several quarters on the 2016 bill, particularly of its criminal law approach, the government introduced an even more carceral version of the 2016 bill when it proposed the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 which was passed by the lower house of the Indian Parliament in July 2018. It lapsed before being introduced in the Upper House of Parliament.
In July 2021, with merely two weeks’ notice, the Ministry for Women and Child Development invited a consultation on the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021. The bill is slated to be listed for introduction and passage in the monsoon session of Parliament. The 2021 Bill is even more draconian than the 2016 and 2018 versions of the bill, as exemplified for instance by its introduction of the death penalty for certain forms of aggravated trafficking. It has been severely criticised not only by sex workers’ groups (who are typically at the forefront of countering anti-trafficking laws that conflate trafficking with voluntary sex work) but a range of state, civil society and international actors who have highlighted how significantly the bill (if passed) will violate the human rights of marginalised groups in India.
Given the potential consequences of the 2021 bill, Beyond Trafficking and Slavery invited a small group of exerts to unpack the bill’s provisions from different perspectives. Together they throw light of the bill’s likely impact on workers in the formal and informal economy, on bonded labourers, on sex workers, on transgender persons, on migrants from neighbouring countries in South Asia, and on NGOs working with marginalised communities. This article forms part of this special collection.
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