Some hits, some misses: Care needed on some clauses of draft anti-trafficking law

Human-trafficking was always a significant concern for India—as per the NCRB’s Crime in India 2019 report, 2,260 cases of human trafficking were registered that year, involving over 6,600 victims. This may well be tip of the ice-berg since many forms of such exploitation have hitherto escaped classification as illegal trafficking. The fact that the police was not able to file a chargesheet in nearly a fifth of the cases in 2019 is perhaps indicative of, among other things, how complicated negotiating the legal provisions against trafficking has been so far.

So, when an anti-trafficking Bill was brought in 2018, and was found to fall short on many counts, it faced severe criticism from political parties as well as legal, government-administration, and other experts. Against this backdrop, some would see the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021 as a more mature attempt. The pandemic, having caused trafficking in humans to rise, makes a legislative measure like the Bill an important pandemic-measure, too.

While the Bill proposes stricter punishment for people found guilty of trafficking-related charges—in some cases, life-imprisonment or even death—it also expands the scope for relief to victims. The definition of exploitation now includes several offences that were missed so far, while nuances underlying specific situations in which an act may not be considered as trafficking have been given due attention.

The provisions on trafficked persons also now cover transgenders, a vulnerable section neglected so far. These are all important provisions that will protect tens of thousands. The Bill proposes that the National Investigative Agency will be the top investigative agency for the offence; while this will help curb cross-border trafficking, the Centre must ensure that NIA investigations aren’t made tools to harass political and non-government outfits for ideological differences.

Also, the provision on punishing failure to report an instance of trafficking may be too complicated to enforce—if individuals fail to report because of their own vulnerability or because they didn’t recognise an instance of trafficking, surely they shouldn’t be held culpable? The provision on false complaints, too, is quite sweeping—indeed, there have been reports in the media on instances of alleged trafficking by powerful organisations; should these organisations manage to sway the course of justice, it would be a perversion to punish the whistleblower.

There is also a need to carefully handle the caveat that an act that doesn’t result in exploitation—done “in the best interest of a child in a bona fide manner, especially that of taking away the child from a situation of abusive, exploitative or oppressive nature”—shall not constitute trafficking. Exploitation may not always be apparent—for instance, indoctrination in the garb of educating a child—and the determination of abusive or oppressive circumstances can’t be left to subjective understanding.

While the Bill apportions responsibilities on checking trafficking in great detail—down to the district level—the need is to strengthen the existing mechanism. A recent report covering 16 states and UTs showed 225 of the district-level Anti-Human-Trafficking Units existed only on paper and just 27% of the remaining were operational. Sensitisation of enforcers is also needed; else, whatever the legislative intent, India will continue to experience concerning levels of trafficking.