#FromPolicyToPeople: Why Will the Proposed Anti-Trafficking Bill be Ineffective

In this series, Bar & Bench tries to assess the consequences of laws on the people they are intended for. How do laws, framed in Delhi, impact people in the corners of India? Do people understand laws framed for them? What is their impact on the targeted people?

Read the third story at the intersection of law and society by Raksha Kumar here:

Why Will the Proposed Anti-Trafficking Bill be Ineffective

Conflation of sex work and trafficking will not only curb women’s freedoms but make it tough to police trafficking

Chanda Wazne, sex worker, Sangli. Photo: Raksha Kumar

Chanda Wazne is the grandmother of eight. At 12, she was married to a man about a dozen years her senior. She ran away from him, refusing to be “bound” to a man, and took shelter in a brothel when she was 16. In the 30 years since, she earned enough to buy three houses in Sangli town and cultivates the 10 acres of land she owns in the neighbouring village. Her five sons got primary school education and are employed in the construction industry. She has spent all her life in Sangli district of Maharashtra.

Ironically, Wazne and thousands like her are most affected by India’s anti-trafficking law. Even though they have never been trafficked in their lives.

Trafficking is a tough issue to legislate on – at social, political and economic levels. “And the problem is, they cannot frame laws on sex work either. Their morality complicates it,” said Wazne. “Therefore, they club trafficking and sex work. However, they do not realise that the combination further complicates the matter,” she added.

The Immoral Traffic Prevention Act 1986, which conflates trafficking and sex trade, is the only law prevalent to tackle trafficking right now. “I dont know how many traffickers they have caught until now under ITPA,” said Sangeeta Ramu Maoji, member, National Network of Sex Workers (NNSW). “But it is a common law under which sex workers are arrested,” she added. NNSW has more than 50,000 female, transgender and male sex workers from across the country as members.

Other laws under the Indian Penal Code also look at trafficking only from the perspective of sex work. Many cases against clients of sex workers are also booked under Sections 370, 370A of the IPC, which criminalises “buying or disposing of any person as a slave”. These were added as recently as 2013.

This conflation has ensured that trafficking which includes people being tricked into or forced into moving for labour related activities in construction, factories etc are left out of the equation.

According to the US Department of State, 2016 Trafficking in Persons Report, “forced labor constitutes India’s largest trafficking problem; men, women, and children in debt bondage—sometimes inherited from previous generations—are forced to work in brick kilns, rice mills, agriculture, and embroidery factories.”

So, Indian trafficking laws misses the woods for the trees. The proposed new anti-trafficking Bill makes small amends. But, leaves a lot more to be desired.

The New Anti-Trafficking Bill.

After ranking miserably globally, India was forced to finally draft a comprehensive law on  human trafficking. The result was Ministry of Women and Child Development’s proposed Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016.

“So the draft in the public domain is not the draft that is currently being debated by the Cabinet,” said Aarthi Pai, lawyer-activist who was present at the consultations on the September 26 in New Delhi.

This is touted as India’s one stop shop for all things related to policing trafficking. Many groups were invited for consultation. The law was bounced off several stakeholders, experts and activist groups. More than 10 drafts were drawn up, presumably based on responses from different groups.

Currently, the Bill is with the Union Cabinet. And interestingly, the version of the Bill that was distributed to the stakeholders for feedback is not the version that is with the Cabinet. So, when the Bill will be introduced in the Parliament in the Winter Session, the chances are that parts of it will come as a shock to various communities that will be affected by it.

“So the draft in the public domain is not the draft that is currently being debated by the Cabinet,” said Aarthi Pai, lawyer-activist who was present at the consultations on the September 26 in New Delhi.

Sex workers have constantly expressed their opposition to the Bill, claiming that it presupposes that sex work always entails trafficking and can never be voluntary. It would only exacerbate their frustration with the system if the draft Bill they were analysing is not the draft that the Cabinet will place before the parliament.

The secrecy is not the only reason why the Bill might prove to be inefficient in tackling trafficking.

Keeping with the previous anti-trafficking legislation in the country, this Bill too is disproportionately focused on sex trafficking. Not only because tackling labour trafficking has major economic implications and requires an overhaul of the existing trade practices, but also because sex work profoundly disturbs some people moralistically.

Only if the new law can revise the problems with ITPA, will it prove to be effective. Here are a few problems with ITPA.

Spaces of sex work

Five small streets in one corner of Sangli are called “that place” or “wo jagah” by auto rickshaw drivers. They are narrow, garbage dumps on one side and a temple on another. The streets are lined with small rooms, sometimes single floor, most times two floors. All the rooms have a stone bench in front of them, overlooking the street.

This is the Gokulnagar group of brothels, what would otherwise be known as a “red light area”. In the mornings the place looks like any other slum cluster – women in their nighties rushing to forcefully bathe their kids under public taps, smoke from wood-fired stoves filling up the air and children running helter-skelter in their uniforms.

By afternoon, the scene changes. Many women change into shiny salwar suits or fancy sarees, they dawn make-up and sit leisurely on the stone benches in front of their homes.

By late evening, there is a flurry of activity. On most days, men arrive in swarms, hastily parking their bikes to the side of the temple.

“They lurk around beside our homes and first see who they want to be with,” said Maoji of NNSW.

According to ITPA, brothels are illegal and could be punishable with rigorous imprisonment for not less than 2 years. However, what the law defines as brothles are homes of some of the sex workers. When a brothel is dismantled, two things happen: sex workers are rendered homeless and they are forced to work without the protection of a collective.

One street in Gokulnagar in Sangli. Photo: Raksha Kumar

At night, in Gokulnagar, Maoji and others sit on the street corners vigilantly to ensure no one comes to exploit the sex workers. “We take turns,” she said.

But, if a sex worker is left to fend for herself, she would need to ensure her own safety, negotiate her terms with the clients and agents. “That is the problem with street based sex work,” added Maoji.

How is this related to tackling trafficking? Sex workers collectives are vigilant about who come into their spaces. “We know if an under-aged girl is walking into our spaces, we know if someone unwilling is coming into our spaces,” said Maoji. But, if you render our spaces illegal, then vigilance becomes difficult, she explained. How do you keep track of who is forced into sex trade in some street corner or a farm house? she asked.

But neither the ITPA nor the proposed law take this into account.

Families of sex workers

Section 4 of the ITPA criminalises any adult who “lives on the earnings of prostitution”. This clause is curious as its relation to trafficking is not clear.

For sex workers, the traditional notion of a family breaks down. There are many sexual partners, while some can be long-term partners, they will never be conventional marriages. “When I began working with sex workers a couple of decades ago, I came across a pregnant sex worker,” said Meena Seshu, founder of a sex workers’ collectives, Sangram-VAMP. “I asked her whose child it was and she looked offended. It is my baby she answered with pride,” recalled Seshu.

Whose fault is it that we cannot have traditional family structures, asked a sex worker from Goa, who did not want to be named as her parents did not know what she does for a living. “We are the victims in this, victims of societal ideas of morality. Then why should we be prosecuted against?” asked the 23-year-old. Sitting outside her home with her agent in Gokulnagar, she said it was the male who framed laws that were necessarily anti-women’s freedoms.

Sex work pays higher than other kinds of petty labour. “I have three houses in Sangli. Some land in my village. I spend a minimum of Rs 40,000 every diwali for gifts etc for my eight grandchildren,” said Wazne. “It is my hard earned money. If my children don’t enjoy it what should I do with it?” she asked mockingly, “give it to the government?”

Rehabilitation and rescue

The fact that sex work pays better than many other forms of labour makes the legal “rescue and rehabilitation” schemes complicated.

“We say give us small sugar factories, ration shops, petrol pumps etc if you want to ‘rehabilitate’ us,” said Maoji. “But, the government hands us a sewing machine or some papad dough,” she laughed.

It has become a running joke among sex workers that they are forcefully ‘rehabilitated’ by the government by handing them buffaloes. “Now we have to do sex work to feed those blasted animals,” said Kasturi Kamble, a former sex worker.

They demand that the law make room for proportional compensation. If someone was earning Rs 10 per day, what good will it do to rehabilitate them for Rs 2 a day, they asked.

‘Rescuing’ a sex worker comes from an abolitionist perspective, where sex workers are considered hapless and need an external hand to pull them out of their predicament.

Section 10 of the ITPA deals with “detention in a corrective institution”. These institutions are rehabilitation centres where even adult women are held forcefully.

In one such rehabilitation home in the centre of Bangalore, there are police guards stationed in the front of the main gate. There were three women in the Centre in September. “I hate being caged like this,” said one of them. Of the three of them, two were a victims of trafficking. The other refused to speak. “She is being forcefully held here,” said the younger one, pointing at the third woman.

Kasturi Kamli, 60, former sex worker. Photo: Raksha Kumar

“Which law sanctions holding an adult woman captive?” questions Pai. “ITPA does. Against their wishes.”

The new Bill not only furthers the concept of rehabilitation, but makes more finances available to “creating protection homes to provide shelter, food, clothing, counselling and medical care to rescued victims, and special homes to provide long-term institutional support.”

There is reason to believe that these centres focus on sex trafficking. Labour trafficking is dealt with under certain labour laws that cover bonded labour, contract labour and migrant labour. But, these focus on imposing obligations on the employer for better working conditions and not necessarily a check on forcing someone into exploitative labour.

Another important feature of the proposed Bill is to set up an ‘anti-trafficking fund’. However, the government has no obligation to contribute to it. Given the financial dominance of abolitionist organisations a the international and national level, this fund aides their purposes, according to Prabha Kotiswaran, Reader in Law and Social Justice, King’s College London.

“Which NGOs have money today? Those that claim to ‘reform’ a sex worker. Have you heard of an NGO wanting to rehabilitate bonded labourer overflowing with money?” asked Kambli. “If you say you want to spend money rehabilitating sex workers, there is a ton of money out there,” she said.

Repeated attempts to reach out to representatives of the Home Ministry and the Ministry of Women and Child Welfare failed. “We cannot talk about a Bill once the Cabinet is considering it,” said a high ranking official from Home Ministry who asked not to be named.

If trafficking is the menace the government wants to tackle, then trafficking people for exploitative labour is a larger contributor to the menace. “The government must revisit the predicament of lakhs of Indian migrant labourers who have for decades faced precarious working conditions in the Gulf. It must consider the plight of lakhs of workers toiling within the global supply chains of Western corporations that manufacture in India through elaborate sub-contracting arrangements,” writes Kotiswaran.

“Above all, the government needs to pause and dig deep into its own long and complex legal history, as well as its unique vision of dealing with extreme exploitation that is understood today under the conceptual umbrella of ‘trafficking’. It then needs to work out the precise relationship between the varied streams of anti-trafficking law and consolidate these, conceptually (in terms of the relationship between forced labour, bonded labour, the legal status of the debt, trafficking and procurement), definitionally and in regulatory terms, while prioritising improved labour conditions and the redistribution of wealth and resources,” she adds.

Wazne has a ready smile, loud voice and a confident demeanour. “I have travelled a long distance before becoming a confident woman,” she proclaimed. “And my sex work has helped me a great deal. It gave the ‘satta’ (power) in my hands,” she said. “And no man cannot handle that.”

Raksha Kumar is a multimedia journalist focusing on human rights, politics and social injustices. She tweets on @Raksha_Kumar. Read the first story – FRA: A law by the People and of the People, But is it for the People? – here.