By Dr Swati Jindal Garg
“Human and sex trafficking are crimes that dehumanises the victim and violates the victim’s right to life, freedom and personal security. Vulnerable sections of society, especially women and children, are disproportionately affected in such crimes,” observed the Supreme Court bench of Justices JB Pardiwala and Pankaj Mithal, recently. The bench said that the victims of such crimes are often mistreated by their traffickers and have to endure a multitude of physical and mental forms of violence that are inflicted upon them. “They stand at a greater risk of sustaining several life-threatening injuries and contracting infections and illnesses, including sexually transmitted diseases. Additionally, the mental health consequences can range from anxiety disorders, post-traumatic stress disorders, depression and substance abuse as well,” the bench observed.
The bench added that such victims may be in need of continuous access to doctors and other mental health professionals who can tend to their specific needs. “Alienation and ostracism by the larger society is also inherently associated with such crimes. Individuals who are trafficked are often abruptly alienated from their immediate family and other social groups due to the attribution of sentiments like guilt and shame on the victims,” it said.
Noting that ostracism “has the unfortunate consequence of them being further isolated, secluded and withdrawn from society and that the crime is also of such nature that it seriously hampers the pursuit of further education and learning,” the bench took note of the fact that sex/human trafficking is something that shreds the soul of its victim.
All these observations and more were made by the bench while hearing NGO Prajwala’s petition highlighting the need for a legal mechanism to cater to the social, economic and security needs of such victims to ensure they do not get re-trafficked.
The petition was earlier disposed of by the top court in December 2015 on the Union government’s assurance that it would bring out a comprehensive law and set up the Organised Crime Investigative Agency (OCIA) as a specialised agency for sex-trafficking cases, as well as strengthen the victim protocol for those affected.
The Court had asked the centre to consider enacting a comprehensive framework for the rehabilitation of such workers/victims. The centre had told the Court that a policy decision had been taken by the Ministry of Women and Child Development to constitute a committee under the chairmanship of the Secretary, Ministry of Women and Child Development, Government of India, for preparing a comprehensive legislation to deal with sex trafficking.
However, after the verdict, the centre informed the Court that instead of the formation of the OCIA, amendments have been made to the National Investigation Agency Act, 2008, to deal with the issue. Later, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, was also introduced, but there has been no legislative progress in the matter.
“Prima facie, it could be said that as on date, no compliance or effect worth the name has been given to the order passed by this Court, dated December 9, 2015, and the issues raised by the petitioner still remain to be considered,” the top court said in its latest order. Terming the issues involved as “highly sensitive and important”, the bench said: “It is the need of the hour to adopt a human rights and rehabilitative approach to such crimes.”
It is in the light of this background that the top court granted more time to the centre to file its stance highlighting the steps that it intends to take. The Court also asked the centre to look into the aspect of the cyber-enabled sex trafficking and suggest what steps can be taken with regard to its phenomenal increase. The latest stance taken by Court can be said to be a big leap in the arena of progressive and reformative justice where the root, and not the tip, of the problem has been addressed.
The world over, anti-trafficking laws and policies have placed sex workers on the cusp of violence inflicted by both—the law enforcers and anti-trafficking groups. Information gathered by sex worker rights’ activists in India has revealed that many women who are rescued and rehabilitated return to sex work as their own families refuse to admit them back into their homes, saying they are no longer “worthy”. A study conducted between late 2015 and 2017, that aimed to document and analyse through community narratives, showed how raid and rescue initiatives impact upon the lives of sex workers. The study also found that violations against sex workers occurred during raids as well as during ordinary times since the law enforcement agencies can exercise arbitrary powers, validated by the Immoral Traffic (Prevention) Act, 1986 (ITPA). The study further revealed the adverse effects of ITPA on the human rights of adult coupled with the consenting sex workers.
There are many crucial questions confronting sex worker rights’ activists:
- If women entered sex work by force, why would they want to return to sex work voluntarily?
- If they entered sex work due to lack of skills for doing other jobs, why did they return after they were taught skills that could have helped them earn in other jobs?
- If they entered sex work due to compelling circumstances, why would they return when those circumstances had changed for the better?
- If they entered because of deception, lured by unscrupulous people, why would they return to sex work when they were given a chance to create a new life?
- If they entered because of a lack of life choices, why would they choose to return to sex work?
Various researches conducted over a period of years and across countries have given more or less the same answer—the bedrock of the problem is the law and its implementation on the ground. Trafficking is an issue of morality rather than a criminal offence. Its interpretation at the ground level, adopts an anti-sex worker approach since it wrongly assumes that no woman would enter sex work of her own volition. Most anti-trafficking laws end up infantilising adult women.
As per the law, a woman who is rescued as a consequence of raid and rescue operations can be handed over to the safe custody of her husband or parents or guardian, and this includes adult women who have consented to being in sex work. But these same laws end up being debilitating for women who are in sex work as adults, living independent of parents or family.
Many such women are heads of their households and primary providers for their families who have entered sex trade willingly. In many cases, adult women do not inform their families that they are sex workers, and hence, when directed by the magistrate to produce a husband, parents and guardians in court, they are forced to contact family members in humiliating circumstances. In many cases, such custody is accompanied by an affidavit of the woman undertaking that she will not do sex work in future—this affidavit again is against her fundamental right to choose her own profession.
Raid and rescue, which is the most commonly used strategy to address trafficking in women and girls, is not as successful a tool, as most perceive. The experiences of sex workers picked up during these operations reveal that this strategy rarely addresses the issue of trafficking, instead it results in large-scale human rights violations which further increases vulnerabilities such as falling into debt bondage and other exploitative practices. Fees to lawyers, surety for bail, bribes to officials and mounting daily expenses in the absence of income due to incarceration force women released from correction homes to incur huge debts, trapping them in a debt bondage. In such raids, women who want to remain in sex work are picked up and detained causing them further hardship, and this explains the high rate of returnees to sex work.
The latest observations made by the Supreme Court takes note of the fact that human trafficking is a crime of such nature that it seriously hampers the pursuit of further education and learning, and once the victims stop going to schools or colleges, it becomes all the more difficult to reintroduce them into the formal education system. While there is no doubt that prevention is better than cure, it also cannot be ignored that once trafficking has occurred, along with prosecution and punishment for the offenders, it is equally important that the legislative mechanism also focuses on providing due care, protection and rehabilitation to the victims of trafficking. The same can only be done by creating a more progressive legal, economic and social environment that not only secures the well-being of trafficking victims, but also ensures that they do not fall into the trap again.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi