Trafficking is undoubtedly a criminal offence that requires strict measures to combat unscrupulous persons and criminal networks. But all measures dealing with trafficking seem to focus on victims rather than the perpetrators.
Given the lack of respect displayed by the Minister and fellow MPs towards sex workers and transgender persons, during the discussion over the Bill, there seems little possibility of a victim-centric approach to trafficking. The Bill defines trafficking to include ‘any act’ of physical exploitation, sexual exploitation, slavery or practices similar to slavery and servitude and also includes those trafficked for begging, domestic work, farm or factory work.
The Bill has also defined “aggravated” forms of trafficking, including: trafficking for the purpose of forced labour; begging; administering chemical substance or hormones to induce sexual maturity or for purposes of marriage. But by seeking to reduce trafficking to merely an issue of law and order instead of one rooted in changing socio-economic realities, the Bill will end up further criminalising and incarcerating persons who are not trafficked: the poor, the beggar, the sex worker, the transgender individual, the bonded labourer, the juvenile, the surrogate mother.
Significantly, the Supreme Court of India has recognised ‘decisional autonomy’ as per the ‘right to privacy.’ This is particularly relevant for sex workers, who engage in such work in exercise of their decisional autonomy. By empowering authorities to place persons who are trafficked in custodial institutions without their consent, the Bill fundamentally hits out at the notion that individuals – even if trafficked – are entitled to autonomy of decision making under the Constitution of India.
The Bill violates the rights of many of those identified as “victims” to consent at different levels - adult sex workers who enter into consensual sex work as a livelihood option, transgender persons who might be undergoing hormonal therapy for sexual reorientation, young people who are trying to get married against dominant norms of caste and class, workers who may not give consent to go into a rehabilitation centre etc
A recent study `RAIDED’ conducted by the Maharashtra-based NGO SANGRAM and sex workers’ collective VAMP, revealed that out of a sample of 243 women picked up in raids in Maharashtra, 193 were adult consenting sex workers, who were incarcerated in rehabilitation homes against their wishes. Under the proposed law, this process will become more brutal for sex workers.
Through such forced incarcerations, the Bill will in fact end up in criminalising the livelihoods of the poor instead of affording them greater socio-economic protection and empowerment.
Instead of streamlining enforcement, the Trafficking Bill attempts to create a powerful and parallel bureaucracy at the district, state and national level, with district level bodies given powers of repatriation (both within state and across borders). None of the proposed bodies have any representation from affected communities.
The potential of the Bill to violate citizens’ right to privacy is manifold. For example, the National Anti-Trafficking Bureau is tasked with creating a database of crimes related to trafficking, without concomitant obligations for such intelligence gathering and database creation to be necessary or proportionate. Further, Section 36 of the Bill that seeks to proscribe any material that may promote trafficking or exploitation of a trafficked person, has tremendous potential to regulate and impose restrictions on free speech.
In brief, the Bill fails to understand the links of trafficking with structural issues like poverty, due to which the aspiration to move and access better living conditions forces persons to move and accept work in criminalised environments.
It is not too late for the Bill to be referred to a Parliamentary Standing Committee for a more thorough debate. We hope wisdom will prevail in the Rajya Sabha.
(Meena Saraswathi Seshu is General Secretary, SANGRAM, which initiated the sex workers’ collective, Veshya Anyay Mukti Parishad (VAMP). Aarthi Pai is legal adviser, VAMP and National Network of Sex Workers)
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