Undoubtedly, trafficking is a pernicious offence, one that societies and governments must have zero tolerance for, and yet, handling the offence of trafficking needs precision, not a sledgehammer. In its current form, the draft Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 seems to be lacking in nuance, even if well intentioned to stamp out exploitative trafficking. The Bill, which will shortly be introduced in Parliament, aims at preventing and countering trafficking in persons, particularly women and children, to provide for care, protection and rehabilitation to the victims, while respecting their rights, and creating a supportive legal, economic and social environment for them. This is the Bill’s second iteration, the first being passed in the Lok Sabha, in 2018, but then meandered into nothingness as it was never introduced in the Upper House. Notably, the Bill has expanded the area under coverage to include offences taking place, not only within India but also outside of the country. It envisages the setting up of anti-trafficking committees at the State and national levels to implement the provisions, when passed. In the days the Bill was up in the public domain for comments, civil society activists and legal experts have criticised various provisions, and submitting that an overzealous approach would blur the nuances and an understanding of the contributing factors, including vicious poverty, debt, lack of opportunity, and development schemes missing their mark.
Vociferous opposition has arisen over the key aspect of handing over investigation in trafficking crimes to the NIA both by those who believe that it would burden the already stretched unit further, and those arguing that this move would be an attack on federalism, by removing local enforcement agencies out of the picture. Another key criticism of the Bill has been its broad definitions of victims, smacking of refusal to consider consensual sexual activity for commerce. This would only land up criminalising sex work and victimisation of the exploited. Bringing pornography into the definition of sexual exploitation would not allow even for any adult consumption of non-exploitative, consensual material. Reporting of offences has been made mandatory with penalties for non-reporting, but those with an understanding of the tortuous processes, point to the fact that victims often do not want a complaint to be recorded. The mention of the death penalty for various forms of aggravated trafficking offences needs to be flagged too. The Government would do well to scan and incorporate the responses to its Bill in order to ensure that the fence does eat the crop. While sexual exploitation and trafficking can be ghastly crimes invoking public horror, for the state to not employ a wholesome approach, cognisant of the causative factors, one that would be sensitive and precise, would be equally horrific.