In past days you would have seen that people are protesting the Anti-Trafficking Bill alongside the Trans Rights Bill. The two Bills are flawed on their own. But they are also connected in some ways.
You may have read our guide to the Trans Rights Bill. Here’s an explainer on the Anti-Trafficking Bill.
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill was passed by the Lok Sabha in July 2018, and like the Trans Rights Bill, it will have to be passed by the Rajya Sabha in order to become law. Many sex workers, trans people, other activists and lawyers, including a coalition called the National Network of Sex Workers, are demanding that the problems with this Bill be fixed first.
Here are the main concerns that they are raising with the Bill:
It focuses heavily on sex work
While trafficking is not limited to sex work – it includes humans trafficked for domestic work or labour – the Bill focuses too much on it and is steeped in typical morality about sex work, rather than on rights.
The Bill does not explicitly distinguish between voluntary and forced sex work, and relies on the outdated idea that sex workers must be rescued and rehabilitated by the State, whether they want to be “rescued” or not. In contrast, the Bill hardly mentions bonded labour. But even for this, it provides the same flawed solution of rescuing victims in a raid and detaining them in a State-run shelter, instead of releasing them from bondage.
Its ranking of offences and punishments is ulta-pulta
The Bill defines trafficking as the recruitment, transportation, harbouring, transfer or receipt of a person for physical or sexual exploitation, slavery, or forced removal of organs using threat, force, abduction, fraud, deception, abuse of power or through inducement. But it does not treat these equally.
It sees some forms of trafficking as “aggravated trafficking”, and assigns higher punishments for them. Aggravated trafficking includes trafficking for the purpose of begging, forced labour, bearing children, or “inducing early sexual maturity by administering chemical substances or hormones,” and carries a punishment of between 10 years and a life sentence in prison plus a fine of at least Rs 1 lakh. Repeat offenders get a life term and a fine of at least Rs 2 lakh. Matlab, the Bill sees begging and providing gender-affirming therapy as far worse than sexual exploitation, slavery or forcibly removing someone’s organs.
It is trigger-happy
It focuses heavily on surveillance and policing, and violates the defendant’s right to anticipatory bail and a fair trial, among other things. Some have compared it to draconian anti-terror laws.
A few of its provisions are too broad, and leave several people who may not actually be involved in trafficking vulnerable to arrest and imprisonment. The Bill says that providing a location for trafficking (like a house, or a transport vehicle) even if it happens without your knowledge, and distributing or publishing material like obscene photographs or videos which “may lead to trafficking”, is illegal. Having such vague provisions means that innocent people might inadvertently be caught too.
The Bill assumes that an accused must be guilty if the victim is a woman, child, or a person with a mental or physical disability (it does not assume similar guilt if the victim is an adult man or trans). Rather than placing the burden on the State to prove that a crime has taken place, it places the burden of proving innocence on the accused, which is unusual.
The Bill also penalises victims of trafficking. Although victims of trafficking might have been forced to do something that is illegal, they are only granted immunity if their crime is a serious one, for which the punishment is not less than 10 years, and if they can show that the crime was committed under coercion or threat as well as under the fear of death or injury. This makes it hard to claim immunity, particularly for victims accused of lesser or petty crimes.
It overlaps with existing laws
There are other laws that deal with trafficking, like the Bonded Labour Act, Immoral Traffic (Prevention) Act, Juvenile Justice Act and several sections of the Indian Penal Code. The Anti-Trafficking Bill was meant to be comprehensive, which would mean integrating these existing laws. But it doesn’t do this, and it is not always consistent with these other laws, leading to some confusion on how it will be implemented in reality.
What’s the connection between the Anti-Trafficking Bill and the Trans Rights Bill?
The Anti-Trafficking Bill targets trans people for activities that might be necessary for their livelihood and well-being and violates their rights in a few ways.
The Trans Rights Bill criminalises begging. The Anti-Trafficking Bill takes it a step further, considering trafficking for the purpose of begging an “aggravated” crime and imposing severe punishment. As several trans people are forced to beg or engage in order to earn a livelihood because social prejudices often prevent them from accessing education and jobs, this provision is a very harsh one.
Several trans people are also engaged in sex work. So from the morality-tinted gaze to the forced rescue and rehabilitation, the provisions that apply to cisgender sex workers apply to trans sex workers too.
Because the Bill does not separate “inducing early sexual maturity by administering chemical substances or hormones” that is forced, from drugs administered with consent for gender-affirming therapy provided to trans people, it criminalises a process that some may see as key to their identity and well-being.
That is why many trans people and activists are protesting the Trans Rights Bill and the Trafficking Bill simultaneously – both do not recognise their bodily autonomy or the social realities that hinder their access to employment.
How can we have a better Bill?
For a start, we should push legislators to consult sex workers and trans people about their needs. Although the Anti-Trafficking Bill is being touted for its supposedly victim-centric approach, the input of these vulnerable groups has not been taken into account. A study from 2005 to 2017 that followed the lives of 243 women “rescued” in raids and placed in shelters found that nearly 80% of them stated during the raid that they were engaged in sex work voluntarily, and had not wanted to be rescued.
We should also urge legislators to take into account existing research and recommendations. The Supreme Court in 2011 set up a panel to consider issues of trafficking and rehabilitation of sex workers. Among the panel’s recommendations (based on research and consultations conducted over the years) were adopting community-based rehabilitation rather than institutionalising sex workers, and revising existing laws like the Immoral Traffic (Prevention) Act to clarify the difference between voluntary and forced sex work. These recommendations were not taken on board when drafting the Bill, but are worth considering.
Would you like to register your voice against the Bill?
Here’s what you can do:
1. The Bill now has to be passed by the Rajya Sabha before it can become an Act. So it is still possible to prevent it’s passage. You can write a letter to MPs explaining why the Bill needs re-examining through this link.
2. You can attend protests in your area and support campaigns asking for a better law.
Educate yourself more
– For more on how anti-trafficking strategies don’t necessarily safeguard sex workers, head here.