India’s government has tabled a new anti-trafficking bill – an effort over two years in the making to establish a better national strategy to fight this crime. But the rushed public consultation process and approach to sex work is facing intense criticism.
At the end of June, the government introduced its Draft Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, giving a time period of two weeks for public comments. This was despite, as organizations and activists pointed out, the legal requirement for draft legislation to be in the public domain for comments for 30 days.
Sex workers have long-voiced criticism of the bill and noted that the draft legislation was only available in English, which – due to the fact that the language is unknown to many – immediately excluded a lot of victims from commenting on the document. As Protim Ray, a Kolkata-based doctor associated with the Durbar Mahila Samannaya Committee (DMSC) explained, “The Draft Bill is only available in English. To discuss the provisions of the draft Bill with sex workers and know their assessment of the provisions, we need to translate it into regional languages and distribute it among them.”
Beyond constraints on the consultation process, the bill to prevent trafficking has also been heavily criticized for its conflation of sex work and trafficking.
The Swaddle commenting on the legislation:
The primary argument against the new bill is that it criminalizes sex work — and does not provide any exit or rehabilitation options for people already in the profession voluntarily. This will leave them more vulnerable to law enforcement measures, activists argue.
Further, not recognizing sex work as a form of work not only eliminates the trade itself but also leaves more room for exploitation due to there being no safety nets or labor protections. Sex workers under the new legislation can become more vulnerable to extortion and violence since, as criminalized subjects under the law, they cannot seek its protection when in danger.
Sex workers are protesting the fact that the bill conflates sex work with trafficking. Lawyers point to a clause in the bill that states “the consent of the victim shall be irrelevant and immaterial in the determination of the offense of trafficking in persons,” as one which could end up putting voluntary sex workers in prison.
“Sex work is different from trafficking and it is a form of self-employment that is stigmatized… We are often arrested even without a client present,” Nalini Jameela, a former sex worker and noted activist.
The United Nations pointed to flaws in an earlier 2018 version of the bill, noting that it relies too heavily on criminal law and did not take a victim-centered or human rights approach to combat trafficking.
Rather, the bill — both in 2018 and in its current form — continues to press ahead with “rescue” raids and institutionalization of sex workers under the guise of “protection.”
As many experts have argued, the legislation doesn’t help the very people it claims to help — human trafficking victims and survivors. By relying on a “punishment-as-deterrence” approach, the bill does not address any of the root causes of the trafficking crime.
As Bandana Pattanaik and Leah Sullivan from The Global Alliance Against Traffic in Women (GAATW) write, “Implementing a rights-based approach that facilitates, and does not criminalize, migration and one that promotes decent work is the most constructive approach to preventing human trafficking.”
The country, its people and families deserve a better law, one that would also protect children who are often victims of sexual exploitation and trafficking as well. Unfortunately, according to multiple sources, India is leading in this type of crimes against children, and child abuse prevention is lacking.
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