Submissions of the Alternative Law Forum and Sadhana Mahila Sangha

On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

SUBMISSIONS OF THE ALTERNATIVE LAW FORUM AND

SADHANA MAHILA SANGHA ON THE DRAFT TRAFFICKING OF
PERSONS (PREVENTION, PROTECTION AND
REHABILITATION) BILL, 2016

INTRODUCTION

India is a signatory to the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime, otherwise known as the UN TIP Protocol. India ratified the
Protocol in 2011. One of the primary features of this protocol is that it does not distinguish between
labour trafficking and sex trafficking, and it enjoins upon the ratifying state the duty to provide for
the rehabilitation of all victims of trafficking.

India did not even have a comprehensive penal law dealing with all forms of trafficking till 2013.
The Criminal Law Amendment Act of 2013 amended Section 370 to cover all forms of trafficking,
and to bring the definition of trafficking in alignment with the definition in the UN TIP, with the
exception of the term forced labour in the UN TIP, which has been altered to physical
exploitation in Section 370.

At present, while we have penal provisions covering all forms of trafficking, there remain some
lacunae in the legal regime governing trafficking. These are:

1. Absence of a comprehensive law to register placement agencies

2. Absence of comprehensive schemes for the rehabilitation of victims of trafficking, which
delineate the components of rehabilitation (economic, social, etc.) as well as the manner in which
rehabilitation measures will be implemented (delinking rehabilitation and institutionalisaton, respect
for the choice and agency of the victim)

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

3. Legal provisions governing the institutionalization of victims of trafficking in shelter homes.

While the Immoral Traffic Prevention Act of 1956 deals with victims of trafficking for commercial
sexual exploitation, shelter homes accommodate a wide range of women in need of care and
protection, but there is no legal provision that govern the registration and functioning of homes, or
the manner in which victims of trafficking are referred to protective custody.

In addition, the current legal regime focuses excessively on trafficking for the purposes of
commercial sexual exploitation, and does not recognize that a large percentage of trafficking in India
is for the purposes of labour exploitation. On the other, laws on trafficking for commercial sexual
exploitation are often used to harass and target sex workers who have entered the profession on
their own free will.

At the Alternative Law Forum, we have worked with domestic workers unions as well sex workers
collectives on the issues of trafficking and rehabilitation of victims, as well as harassment and
exploitation of sex workers. In the process of collating our submissions to the Draft Trafficking of
Persons (Prevention, Protection and Rehabilitation) Bill, 2016, we held consultations with Sadhana
Mahila Sangha, a collective of street-based sex workers based out of Bangalore, to understand
whether this bill addresses the experiences of many sex workers, some of whom have been
trafficked into sex work, but have subsequently made the decision, however, constrained, to
continue in sex work. The following comments incorporate the comments of Sadhana Mahila
Sangha as well as the observations of Alternative Law Forum.

1. DEFINITIONS
1.1. Aftercare
Section 2(a) defines the term aftercare as making provisions for support, financial or otherwise as
prescribed by the appropriate Government, to a victim, who has left the Special Home and in the
opinion of the District Anti- Trafficking Committee ready to reintegrate to join mainstream society.
This definition makes access to aftercare contingent on detention in a special home. This is in direct
contravention of the directions of the Honble Supreme Court of India in Budhadev Karmaskar v State
of West Bengal, which states as follows (Criminal Appeal No. 135 of 2010),
In this connection, we would like to say that the Central Government scheme has placed a condition that
the rescued sex workers must stay in a corrective home in order to get technical training. In our opinion, no

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

such condition should be imposed as many sex workers are reluctant to stay in these corrective homes which
they consider as virtual prison. (Order dated 24.08.2011)
Aftercare should be available to victims, whether they choose institutionalization or not. The
definition of aftercare in the Draft Bill does not recognize the agency of victims to choose how they
wish to access rehabilitation.

1.2. Victim
Section 2 (q) defines victim as a person or persons on whom trafficking of persons is caused or
attempted by any other person or persons. However, the definitional clause does not define the
term trafficking. It is to be assumed that the definition being relied on is that under Section 370 of
the Indian Penal Code, 1860. However, as mentioned in the introduction, the definition under
Section 370 omits mention of the term forced labour as given in the UN TIP, and replaces it with
physical exploitation. The definition of victim when read with Section 370, leaves it unclear
whether victims of labour exploitation are also covered.
Moreover, the inclusion of the term attempted in the definition is problematic. Given a situation
in which an attempt at trafficking a person fails, should the person still be produced before the
District Anti-Trafficking Committee, and subsequently institutionalized? The absence of clarity
under this provision allows for the detention and institutionalization of a wide range of persons in a
wide range of cases.

2. ANTI-TRAFFICKING COMMITTEES
2.1. District Anti-Trafficking Committee
2.1.1. There is no representation of sex workers or of victims of trafficking in the District
Committee. There is no clarity about the functions of the District Committee. Moreover, the Draft
Bill seems to be pushing for a multiplicity of institutions without a clear demarcation of powers. For
example, minor victims of trafficking are produced before the Child Welfare Committee, which is
empowered under the Juvenile Justice (Care and Protection) Act of 2015 to pass orders for their
rehabilitation. Moreover, given the wide range of functions that it is supposed to perform, the
Committee should be mandated to meet more frequently.
2.1.2. The Draft Bill states that a rescued victim must be produced before the member secretary of
the District Committee. However, the Draft Bill does not specify the time period within which a
person must be produced. Moreover, given that each district has a single Committee, production of

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

all victims of trafficking before a single Member Secretary can potentially create backlogs and delay
in production, leading to unnecessary and prolonged detention of victims.
2.1.3. Under Section 16 of the Immoral Traffic Prevention Act, a rescued person must be
produced before the Magistrate. Under Section 17 the Magistrate is empowered to pass orders for
the safe custody of a victim, after conducting an inquiry during which the rescued person must be
given the opportunity to be heard. There is no clarity on why a victim needs to produced before
multiple authorities, and which authority is empowered to pass orders with respect to the safe
custody of a rescued victim.
2.1.4. Unlike Section 17 of the ITPA, Section 4 of the Draft Bill does not mandate that the rescued
victim must be heard at the time of production. Moreover, the Draft Bill does not articulate the right
of a rescued victim to legal representation and counsel. By denying the rescued victim the right to
representation and to be heard, the Draft Bill is depriving victims of trafficking the agency to
participate in and determine the nature of their rescue and rehabilitation.
2.1.5. On the one hand the Draft Bill allows anyone to produce a victim of trafficking before the
District Committee, and on the other hand, it does not provide for any inquiry into the bonafides of
rescue operations, thereby leaving victims vulnerable to exploitation and abuse during the process of
such rescue operations.
2.2. State Anti-Trafficking Committee and Central Trafficking Committee
2.2.1. Similarly, neither the State nor the Central Anti-Trafficking Committee see any participation
from either Sex workers groups or from support groups for victims of labour trafficking, including
Domestic Workers Unions.
2.2.2. Moreover, the State Anti-Trafficking Committee is not granted any powers of oversight over
the District Anti-Trafficking Committee, and it is unclear what is the system of accountability that
exists between the three committees.

3. RESCUE OF VICTIMS
3.1. Procedure for Rescue of Victims
The Draft Bill does not lay down the procedures for rescue of victims of trafficking. Rescue
operations can often be intensely violative of the rights of victims, and can cause them additional
trauma. The Ministry of Labour and Employment, Government of India in 2008 released a Protocol
on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and migrant Child Labour,
which details the manner of rescue of children who are victims of labour trafficking. Similar

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

protocols should be developed for the rescue of women who have been trafficked for the purposes
of commercial sexual exploitation. Additionally, the opportunity for legal representation must be
granted as a primary and immediate right to every victim as a part of the rescue protocol.
3.2. Production of rescued victim before the District Anti-Trafficking Committee
Section 4 of the Draft Bill states that a victim, after rescue, can be produced before the District
Anti-Trafficking Committee by, among others, any social worker or public spirited citizen. This
allows any busybody or interloper without any context or training to rescue and produce
individuals before the Committee. This can even be invoked towards moral policing of consensual
relationships.
3.3. No procedure for enquiry into rescue operations
Rescue operations themselves often are traumatizing and violative of victims rights. The Draft Bill
does not allow for any representation from the victim on any abuse or trauma that she may have
suffered in the course of the rescue itself. There is no provision for inquiries to be conducted into
the rescue operations themselves.

4. SUPPORT SERVICES
4.1. Chapter VI of the Draft Bill speaks about support services for victims of trafficking. From
the scheme of the Draft Bill it seems that Protection homes are for immediate support to victims,
and Special Homes are for long term institutional support of victims. However, the Draft Bill does
not include any other services within the ambit of support services. Detention cannot be the only
manner in which victims of trafficking are provided support services. Our experience with shelter
homes in Bangalore informs us that women do not wish to access support services which are
contingent on institutionalization. As stated earlier, this is in direct contravention of the decision of
the Honble Supreme Court of India in Budhadev Karmaskar v Union of India.
4.2. The Draft Bill is unclear about the basis on which it is decided that a victim requires short-
term or long-term institutionalisation. Moreover, in our experience with the Immoral Traffic
Prevention Act, victims of trafficking are often remanded to shelter homes for indefinite periods of
time.
4.3. The Draft Bill does not contain any stipulations for comprehensive care and quality
provided by a state home. The conditions in protective institutions are often not conducive for the
mental and physical well-being of residents. For example, the State Home for Women in Bangalore
shelters women with mental health challenges along with women victims of trafficking. Any law

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

regulating homes of protective custody must also mandate basic standards of living conditions that
such institutions should adhere to.
4.4. The Draft Bill does not contain any provisions which mandate that the consent of victims is
necessary or even important to the process of protective detention. This is especially important
because protective custody often separates victims from their families, including minor children, for
extended periods of time, causing both victims and families immense grief and trauma. If a rescued
person wishes to leave protective custody, she should be free to do so on her own cognizance.
Aftercare schemes for rescued persons should be entirely voluntary, and not contingent on
institutionalization. Moreover, prolonged institutionalization should not be employed to compel
victims them to co-operate with prosecution of offenders under this Draft Bill or any other relevant
act.
4.5. Protective homes are often sites of extreme abuse and trauma for women, however the
Draft Bill does not create any standards that homes must adhere to. Moreover, there is no process
of evaluation of the quality of living in homes, neither are there penalties for harassment and abuse
in shelter homes.

5. PROVISIONS ON REHABILITATION

5.1. Understanding Rehabilitation

The UN TIP requires the ratifying state to adopt comprehensive provisions for the rehabilitation of
victims of trafficking. The Protocol details the various components of rehabilitation, namely
a. Appropriate housing
b. Counseling and information, in particular as regards their legal rights, in a language that the
victims of trafficking in persons can understand;
c. Medical, psychological and material assistance
d. Employment, educational and training opportunities.
e. Closer home, the Prohibition of Employment as Manual Scavengers and Their
Rehabilitation Act, 2013 mandates a comprehensive system of rehabilitation that is sensitive to the
structural inequities that contribute to manual scavenging. The Act details the following scheme for
rehabilitation:
a. Initial, one-time cash assistance
b. Provision of scholarship to children of manual scavengers

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

c. Allotment of residential plot and financial assistance for house construction, or a ready-built
house, with financial assistance
d. Training in livelihood skill, subject to the willingness of the individual to participate in such
training. This training may be given to a family member as well, and the individual is entitled to a
monthly stipend of Rs. 3,000 for the period of the training.
e. Subsidy or concessional loan for taking up an alternative occupation on a sustainable basis
f. Any other legal or programmatic assistance, as may be notified

The above scheme of rehabilitation recognizes that exploitative practices can still be a source of
livelihood for individuals, and rehabilitation measures must account for the structural factors that
contribute to practices such as manual scavenging. Moreover, it is necessary to recognize the need
for social as well as economic rehabilitation, as victims of trafficking often find that social stigma is a
barrier to integration.

However, Section 11 of the Draft Bill merely speaks about rehabilitation, support and aftercare
without detailing the components of the same. In fact, the experience that sex workers have had of
rehabilitative measures is that they are often restricted to vocational skill training, which involves
training in skills such as making incense sticks and candles, or tailoring and beautician services.
However, none of these skills can guarantee victims of trafficking a steady and sustained income.
Many women who chose to continue in sex work do so after going through several cycles of
rehabilitation at shelter homes, and are disillusioned with the patronizing and impractical schemes of
rehabilitation promoted by the State.

5.2. Rehabilitation and Institutionalisaton

Section 2(a) of the Draft Bill defines aftercare as making provisions for support, financial or
otherwise as prescribed by the appropriate Government, to a victim, who has left the Special Home
and in the opinion of the District Anti- Trafficking Committee ready to reintegrate to join
mainstream society.
The Draft Bill, by definition, makes aftercare contingent on the victim being interred in the shelter
home. Moreover, Section 3(1) speaks of the need-based rehabilitation of victims, but does not
specify whether this determination of the needs of the victim will also include consultation of the
victim herself. This is in direct contravention of the directions of the Honble Supreme Court of
India in Budhadev Karmaskar v State of West Bengal.

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

Rehabilitation that is premised on the continued institutionalization of women deprives them of

their agency to determine what their rehabilitation will look like, and acquires a coercive character
that renders the process unsustainable. Therefore, it is important that any process of rehabilitation
be de-linked from institutionalization, be cognizant of structural factors which create the flows of
trafficking, allow the victim the agency to determine her own rehabilitation, and extend the benefits
of rehabilitation to the families and dependents of victims.
5.3. Emphasis on trafficking for commercial sexual exploitation
Section 11(2) of the Draft Bill states that the State Government shall create specialized schemes for
victims, especially those who are victims of commercial sexual exploitation. This differentiation
between victims of sex trafficking and victims of labour trafficking is not mandated by the UN TIP,
and in fact undermines Indias obligation to treat all forms of trafficking similarly under the same.

6. OFFENCES UNDER THE ACT

Sections 16 and 20 under the Draft Bill can be misused against sex workers. Section 16 might be
misused against consenting adult sex workers who are found in an intoxicated state with other
consenting adult sex workers. Section 20 can be misused against sex workers, their partners and
third parties who assist their work.

7. REGISTRATION OF PLACEMENT AGENCIES

7.1. Rights of individuals exploited by placement agencies
Chapter VIII of the Draft Bill provides for registration of placement agencies. However, the Draft
Bill does not specify the recourse available for individuals who have been trafficked and/or
exploited by placement agencies.
7.2. Manner of registration
The Bill is also silent on the nature of registration and under which department this information will
be accessible. Registration should mandate the provision of the following information:
a. Details of the agencies;
b. Number of persons, who are employed through the agencies, their
names, ages and their addresses;
c. Details of salaries fixed for each person;
d. Addresses of the employers;
e. Period of employment;

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

f. Nature of work;
g. Details of the Commissions received from the employers.
The Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
deals with contractors employing inter-state migrant workers. Authorities under this Act should also
register all placement agencies, and all workers should be provided the requisite benefits under the
same.
7.3. Absence of specific standards for placement agencies
The Chapter does not provide specific standards for placement agencies. The Chhattisgarh Private
Placement Agencies (Regulation) Act, 2013, for example, lists the duties of private placement
agencies, which can be a possible template for a central act.

8. PROSECUTION OF OFFENCES
8.1. Agency of victims during prosecution
Chapter XI of the Draft Bill provides for establishment of special courts for trial of offences under
Sections 370-373 of the Indian Penal Code, and for offences under this Act. Victims of trafficking,
especially if they are from a different state or country, are often compelled into institutionalization in
order to ensure their co-operation with prosecution. Moreover, the agency of victims to co-operate
with the prosecution is entirely disregarded, resulting in prolonged and traumatizing
institutionalization for victims. The law should be suitably amended to ensure that no victim of
trafficking is institutionalized for the sole purpose of co-operation with prosecution, and that no
victim should be institutionalized, detained or punished.
8.2. Confiscation and Attachment of Property
Chapter X of the Draft Bill deals with confiscation and attachment of property. However,
confiscation and attachment of property can often be used as a tactic to deny accused access to legal
aid, by denying access to financial resources. This is against principles of the right to life and liberty,
as well as the right to access legal aid. Moreover, Section 21 states that the burden of proving that
the property attached or confiscated was not acquired or used in the commission of an offence is on
the accused. This grants authorities widespread and arbitrary powers of harassment and misuse.

8.3. Shifting of burden of proof

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 Submissions of the Alternative Law Forum and Sadhana Mahila Sangha
On The Draft Trafficking of Persons (Prevention, Protection and Rehabilitation Bill), 2016

Section 24 of the Draft Bill shifts the burden of proof to the accused. This section presents immense
potential for misuse and harassment, and should be deleted.

9. REPATRIATION
9.1. Consent of victim made immaterial
Section 31 and 32 of the Draft Bill deal with repatriation of victims of trafficking to their home state
or to their home country. However, the Draft Bill does not make repatriation contingent on the
consent of the victim. Section 31 states that the victim may be transferred to their home state or
any state for increased protection. This allows for arbitrary transfers of victims to be made
without taking into account their consent or wishes.
9.2. Violation of Article 19(e) of the Constitution of India
The right to reside and move freely throughout the territory of India is a fundamental right available
to all citizens under Article 19 (e) of the Constitution of India. Any order allowing for arbitrary
transfers of victims from one state to another without their choice and consent, is unconstitutional
and impermissible.

10. PROTECTION OF ACTION TAKEN IN GOOD FAITH

Section 34 protects actions taken in good faith by, among others, law enforcement officials.
However, this can be used to protect police officers who harass sex workers and victims of
trafficking.

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