Ground breaking report of DEVELOPMENT NEWS I By Mrinalini Padhi
Let’s stop playing ostrich! A critique of the Trafficking of Persons -Prevention, Protection and Rehabilitation Bill 2018….stolen people stolen dreams!!!
Hans Keelson, a leading Jurist, had said that all laws are created by human actions, but human actions are facts and they belong to the realm of the “is,” whereas laws are norms and belong to the realm of the “ought.” It is another of Keelson’s unquestioned beliefs that there is an unbridgeable gap between the “is” and the “ought”; that norms cannot derive their existence from facts.
Present Laws against Trafficking of Persons
Right against Exploitation is a Fundamental Right under the Constitution under Article 23.
Article 23- Prohibition of Traffic in Human Beings and Forced Labour- 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.
The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the premier legislation for prevention of trafficking for commercial sexual exploitation.
Criminal Law (amendment) Act 2013 has come into force wherein Section 370 of the Indian Penal Code has been substituted with Section 370 and 370A IPC which provide for comprehensive measures to counter the menace of human trafficking including trafficking of children for exploitation in any form including physical exploitation or any form of sexual exploitation, slavery, servitude, or the forced removal of organs.
Protection of Children from Sexual offences (POCSO) Act, 2012, which has come into effect from 14th November, 2012 is a special law to protect children from sexual abuse and exploitation. It provides precise definitions for different forms of sexual abuse, including penetrative and non-penetrative sexual assault, sexual harassment.
There are other specific legislations enacted relating to trafficking in women and children Prohibition of Child Marriage Act, 2006, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, Transplantation of Human Organs Act, 1994, State Governments have also enacted specific legislations to deal with the issue. (E.g. The Punjab Prevention of Human Smuggling Act, 2012)
The Indian Penal Code was enacted in 1860. Thereafter the same was Amended by Section 8 of ‘The Criminal Law (Amendment) Act, 2013. The relevant Sections dealing with Trafficking is as follows
Section 370. (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by— using threats, using force, any other form of coercion, by abduction, by practicing fraud, or deception, by abuse of power, by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. The consent of the victim is immaterial in determination of the offence of trafficking.
Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
As per Section 370A- Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine.
Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.] Section-371-Habitual dealing in slaves
Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be punished with 152[imprisonment for life], or with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine. According to Section -372- Selling minor for purposes of prostitution, etc
Whoever sells, lets to hire, or otherwise disposes of any 164[person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine. Under Section 373- Buying minor for purposes of prostitution, etc
Whoever buys, hires or otherwise obtains possession of any 164[person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
165 Explanation I says- Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.
As per Explanation II- “Illicit intercourse” has the same meaning as in section 372.]
374- Unlawful compulsory labor, whoever unlawfully compels any person to labor against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
What is New in the Proposed Bill
Creation of a Rehabilitation Fund, Creation of dedicated Institutional Mechanism of Anti-Trafficking Bureaus at the National, State and District levels., Monetary Relief and Compensation, and Designated Courts and Public Prosecutor
Supreme Court Orders in the matter of Buddhadev Karmaskar vrs State of West Bengal since 2011. Ever since 2011 the Hon’ble Supreme Court in the aforesaid matter has been dealing with the issue of Immoral traffic wherein a Criminal Appeal No 135/2011was converted into a PIL sue motto .The matter is still pending. The Court had taken herculean measures to study the ground realities throughout the country. A website www.panelonsexworkers.com was also launched wherein young persons were asked to give their views on the issue. On 23rd March 2012, a Committee was formed consisting of Jt. Secretaries of Department of Social Welfare &Women and Child Development, Chairperson of National Commission for Women, Member Secretary of National Legal Services Authority & National Commission of Child Rights as members. The Central Govt had contributed Rs 10 Lakhs and the State Govt had contributed Rs 5 Lakhs and Union Territories Rs 2 lakhs each for the Committee to conduct the elaborate study and give its report. On the recommendations of Interim Report of the Committee the Hon’ble Supreme Court had recommended (1) provisions of ration Cards,(2)Voter Id and (3) Opening of Bank Accounts for the sex workers. The Court had posted the matter to 22.8.12 for further orders .The Ministry of Women & Child Development has not mentioned anything about this case and the final report thereof. In fact the Panel had recommended certain Amendments to the existing Immoral Traffic (Prevention Act) 1956.
Lack of Political will
India is probably one of the few countries in the world where prostitution is celebrated as it is in Neemuch, Ratlam & Mansaur Districts of Madhya Pradesh. Particularly the Banchhada Community operates family based prostitution for their livelihood, traditionally the fathers and brothers arrange for customers and live of the earnings of their sisters and daughters. It is one of the few areas in the country where the birth of a girl is considered auspicious. It is a socially acceptable profession in the Bedia Community of Rajasthan and Madhya Pradesh.
It is extremely unfortunate that these districts are the constituency of 8 Vidhan Sabha seats and one Lok Sabha seat. None of the MLAs and the MP has ever considered breaking this heinous form of livelihood of the girls, nor have they considered it important to offer better sources of augmenting the family income so as to discontinue this age old tradition.
Parallel Acts will create confusion and duplication
The Proposed Bill does not repeal the earlier Immoral Traffic (Prevention)1956 Act This will create a lot of confusion and duplication in implementation. It will lead to legal anomaly particularly in the overlapping areas of Offences and Penalties.
The provisions of the earlier Act may have been incorporated n the New Bill. Or in the alternative the new ideas may have been incorporated in the Old Act by way of amendments. Either of the efforts would have merged both into one comprehensive Act.
The role of the National Anti Trafficking Bureau is not clearly defined. It would o have jurisdiction only on the request of the State Bureau. Ideally the National Bureau should have coordinating power and also power to issue directions to the State Bureaus.
The constitution of the National and State Anti Trafficking Relief & Rehabilitation Committee should be less in number to be practical and effective .At the most they should be limited to 7 members with Director General BPRD as a Member.
India today has the proud privilege of being one of largest producers of human babies and Statutory Enactments. The Legislative output is phenomenal. What one Statute accepts, the other rejects and one does not know where a young stands vis-à-vis her rights and obligations. Instead of providing a comprehensive net by incorporating the reports of the Committee set up by the Hon’ble Supreme Court and of Anti- Trafficked the other prevalent statutes, the bill has provided a mere angling rod to attract the fish of setting up another three tier for a of Anti-Trafficking Units. The ambit of the proposed Bill is constricted and dwarfed.
In the Press Information Bureau of the Ministry of Women & Child Development of the new Bill ,it has been stated that “ The new Law will make India a leader among South Asian countries to combat trafficking.” It is unfortunate that the lawmakers have decided to impress the South Asian countries instead of implementing their legal tools in the crucible of the lives of the victims of Madhya Pradesh who are trapped in the midst of social customs and insensitive political leaderships. They do not understand the law but are suppressed by the weight of the English language of the Indian laws.
Let us bridge this gap of “is” and “ought to be”
The Government wishes to take credit for being able to bring in a new enactment without bothering much about the ultimate purposes for which the earlier enactment were brought into existence. The crimes and the punishment as envisaged in the Indian Penal Code and the subsequent Acts are good enough to curtail the crimes. What has been seriously lacking is the political will to do so.
Trafficking is the most pervasive yet invisible crimes affecting the most vulnerable persons specially women and children in India. We would do well to start implementing our prevalent laws and reports with full earnest so as to develop a module for the world to sit up and take note of instead of borrowing concepts from International fore which are completely alien to our culture and traditions.
We can ill afford to play Ostrich like hiding its head in legal superstitions, while a deadly storm is blowing over the present civilization in our sub- continent.