An open letter to Maneka Gandhi

Dear Manekaji,

Your Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 is possibly noble in its intention but, in reality, will expose millions of vulnerable and trafficked women, children, men and transgender youth to great peril.

You leave out millions of victims of sex-trafficking from the Bill’s very definition, ignore universal principles of Human Rights and violate India’s international legal obligations.

Thousands of victims, many of them illiterate, will have to depend on the mercy of the thana (station) officer, to interpret the words ‘may be’ from the Bill’s Statement of Objects and register a police complaint against their traffickers.

Your so-called comprehensive Bill is not comprehensive at all. You have referred to an older law, Section 370 I.P.C for a definition of trafficking. As you are aware, multiplicity of laws will confuse both those at risk and the existing victims. It will add one more layer of legalese and increase dependence on lawyers, police officers and the judiciary.

In any case, Section 370 I.P.C does not have a complete definition of trafficking. It does not punish the sex-buyer or end user. Most countries have realised that sex-trafficking can only be addressed by criminalising the purchase of sex while decriminalising the victims. Sweden, Norway, France, both the Irelands, and Iceland have all passed laws to this effect.

Yet your Bill does not do anything to shift the blame from the victim to the perpetrator.

Your claim that the Bill is victim-friendly, rings hollow. In reality the Bill burdens the victim with vagueness of definition, multiplicity of laws, no punishment of the perpetrator and continued punishment of the victim.

Maria Grazia Giammarinaro, the United Nations Special Rapporteur on Trafficking in persons, and Urmila Boola, the UN Special Rapporteur on contemporary forms of slavery, have urged the Indian Parliament “to revise the Bill in accordance with human rights law.”

A major concern is that the Bill gives draconian powers of surveillance, raid and rescue to a new National Anti-Trafficking Bureau in the name of investigating trafficking cases and coordinating between law enforcement agencies and NGOs.

In the absence of a definition, police and other authorities may invent any definition they like of trafficking for sexual exploitation.

They may use the trafficking law to harass youth from Muslim, Dalit and Indigenous communities who enter into inter-caste or inter-religious marriages. They may also use it to stop female migrants from travelling in the name of protecting them from trafficking.

Gloria Steinem, the global feminist icon, says “As it stands, India’s trafficking bill is dangerous. It fails to protect people who have been trafficked for sexual exploitation, and even allows for their institutionalisation, while not properly punishing those who profit from selling the bodies of others.”

In 2011, India ratified the Palermo Protocol (the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children) and therefore, has an obligation to domesticate it. The definition clearly says that human beings are trafficked for different types of exploitation, which “at a minimum includes the exploitation of the prostitution of others, sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” Your omission of the words exploitation of the prostitution of others and sexual exploitation is in clear breach of India’s commitment to the UN.

Nothing new or extraordinary has been proposed in the Bill. The provisions for the special police officer, special court, special prosecutors are already proposed in the Immoral Traffic Prevention Act, 1956 but in most of the states, it is not being implemented.

You say that any gaps in the Bill will be rectified in the rules. As an experienced member of parliament, I am sure you are aware that the legislature formulates laws and the executive creates the rules within the boundaries of the Act. Surely, you understand that it is the prerogative of the legislature to define trafficking and not the executive!

If your intention is to really address the problem of trafficking, the answer lies in simply amending the two old laws, to fix the gaps and put more pressure on the police to implement the laws. Your wisest course of action would be to send this Bill to a select committee for further consultation.Otherwise, your desperation to hurry through the Bill, bypassing the suggestions of several members of Parliament, UN experts, civil society leaders and trafficking survivors, is extremely suspicious.

In 2016, your government removed millions of children in family based-enterprises and audio-visual entertainment from the definition of child labour, by amending the Child Labour Act. The government was able to report that Child Labour had come down in India.

The National Crime Records Bureau revealed that rapes of children spiked by 82 % in the following year. These invisible children pushed out of schools and into the workforce went missing in data, but continued to exist for the perpetrators.

The same will be true for victims of sex-trafficking. They will continue to be raped for profit and their numbers will increase, but data will show that child labour and sex-trafficking have come down.

Yours earnestly,

Ruchira Gupta

(The founder of the Indian anti-sex trafficking organisation, Apne Aap, the writer teaches a course on human trafficking at New York University)