Anti-trafficking bill not a rights-positive legislation, may further marginalise sex workers, trans people, children

First Post, july 19, 2018

“What is trafficking, anyway?”, asked Kanchan*, a sex-worker from Bhadrakali, the red-light district of Nashik – in a strange and particular way pointing out the problem, and summarising the woe of public policy experts and lawyers who have worked, for decades, on anti-trafficking and women’s rights.

Kanchan’s question is especially pertinent because her daily struggles, as a consenting sex worker, are not represented within the extant legal policy framework against trafficking in India.

A number of social workers, sex workers, lawyers, child rights and trans rights activists have, recently, spoken out against the anti-trafficking bill, drafted by the Ministry of Women and Child Development and approved by the Cabinet in February.

trafficking. Representational image. ReutersRepresentational image. Reuters
The bill is known as the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, and Maneka Gandhi, the Minister for Women and Child Development, has introduced it in the monsoon session of the Parliament this year.

Maneka aspires to make India a force to be reckoned with when it comes to combatting trafficking in South Asia. The tabled bill claims to have a “victim-centric approach” but if enacted, will further marginalise vulnerable communities, such as consenting sex workers, trans people and children.

Recently, Congress MP Shashi Tharoor, along with activists – Meena Seshu from SANGRAM, Aarti Pai from National Network of Sex Workers and Anjali Gopalan from Naz Foundation – met Maneka to discuss a petition that forms the evidence to express concerns in relation to the bill, containing comments from 30 civil society organisations and 247 activists and lawyers, and endorsed by over 4,000 sex workers across the country.

The objective of the petition was simple: the bill conflates trafficking with sex work, and therefore, impacts consenting adult sex workers, marginalising them further. “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.”

The bill conforms to a rescue-rehabilitation approach and proposes to establish institutional mechanisms at the district, state and central levels, while also including provisions for the confidentiality of victims, and with a promise for quick trials and repatriation of victims.

It attempts to target all forms of human trafficking but is in no way a rights-positive legislation that works to sustainably protect the rights of the people that it claims to protect.

The bill’s worst victim is the community of consenting adult sex workers whose rights would be completely negated if it is enacted.

The bill also attempts to supplement the already present criminal provisions to combat trafficking and fulfil the purpose of Article 23 of the Constitution – to protect persons from forms of exploitation such as forced labour and trafficking. In this, it proposes to establish a National Anti-Trafficking Relief and Rehabilitation Committee, as well as State and District Anti-Trafficking Committees.

However, none of these government Committees boasts of “peer presence”, that is, the representation of sex workers or community organisations managed and led by sex workers. The Committee representatives are from civil society organisations, law enforcement and social workers. This provision within the proposed bill is problematic because it automatically distances the community of sex workers from the overall outcome of the legislation.

The bill’s provisions, in many ways, adopt the definition of trafficking from Section 370 of the Indian Penal Code that asserts that “the consent of the victim is immaterial in the determination of the offence of trafficking”. This is draconian because it affects the autonomy and dignity of the victims.

The bill does not recognise consenting adult sex workers as different from trafficked persons, and by doing so, it takes away all autonomy and agency of consenting sex workers. A collated report from SANGRAM states that the “Draft Bill denies agency to persons categorised as ‘victims’ and makes no provisions for ascertaining the wishes and taking the consent of persons to be prevented, rescued or rehabilitated under the proposed law. There is no opportunity for the ‘rescued’ individual to exercise their choice as to the options available and to be exercised.”

A framework that is based on rescue and rehabilitation and proposes to give extraordinary powers to the law enforcement and judicial authorities to control the implementation of the law – not unlike the Immoral Traffic (Prevention) Act, 1956 (ITPA) – seems like a machination to negate the consent of adult sex workers.

Instead of making laws and policies that drive safer migration for women, the policies emphasise the deterrence of women’s right to mobility. Moreover, the negation of consent within the bill seems to be an elaborate stratagem to disguise the ignorance of the lawmakers of the causes of trafficking – poverty, unequal growth, skewed development, lack of employment.

The draft bill’s immense resemblance to the ITPA is precarious. Many provisions have been lifted word by word from the 1956 Act. This proves that though the Trafficking of Persons Bill proposes to encompass all forms of trafficking in India, it will continue to be concerned with sex work as its primary element.

The conflation of sex work and trafficking is dangerously deepened in this aspect of the bill, and brings forth several dichotomies – are sex workers victims or perpetrators of trafficking? Should the law infantilise or incarcerate consenting sex workers? What is India’s official position on sex work? Unfortunately, the bill answers none of these questions. It attempts to solve a social problem with a web of criminal legislations, none of which are in harmony with the others.

For people like Kanchan*, who are consenting sex workers, the bill, if enacted, will not protect; it will restrict. The Trafficking of Persons Bill is a mallet – it proposes to strike at the roots of the fundamental freedoms of adult consenting sex workers, not only because of the lack of representation of the community in its implementation but also in its lack of recognition of agency.

The bill, unfortunately, propagates that vulnerability means the lack of autonomy. It also indicates that the bill creates a constitutional roadblock – while attempting to uphold Article 23, the provisions of the bill violate Article 21 – the right to life – of adult consenting sex workers.

After the Supreme Court judgment of Prajwala versus Union of India in 2015, the Ministry of Women and Child Development had assured that a comprehensive legislative framework would be formulated to combat trafficking. Unfortunately, this particular bill relies on criminal law heavily without ensuring a substantive rights-positive framework to support it.

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