Letter to the Indian government concerning the draft Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
Ms. Maneka Sanjay Gandhi
Ministry of Women and Child Development, Government of India
Shastri Bhavan
New Delhi -110001
Chetan B. Sanghi, IAS
Joint Secretary
Ministry of Women and Child Development
Government of India
13 July 2018
Dear Madam,
Greetings from the Global Alliance Against Traffic in Women (GAATW)!
GAATW is a 24-year-old membership-based international network of civil society organisations working on womens’ rights in the context of labour migration and human trafficking. Over the years we have engaged in evidence-based policy advocacy on human trafficking at international, regional and national levels. We are writing to voice our concerns over the draft anti-trafficking bill of India that is scheduled to be introduced in the upcoming session of Parliament.
At the outset, we welcome the move by the Government of India to address the problem of human trafficking with a comprehensive legislation that aspires to be in line with current international law. However, our years of evidence-building through grassroots, community work with women migrants and trafficked persons across the globe leads us to be quite concerned that this Bill in its current stage will work in ways that undermine, rather than protect human rights, and could heighten risk of abuse and exploitation for many workers in the informal sector. Further, the draft bill does not support a clear distinction between the distinct legal concepts of trafficking in persons, and the smuggling of migrants.
We believe that more time for discussion, and that broader stakeholder participation is required to achieve a stronger, rights-protective law. We respectfully urge you to refer the Bill to a Parliamentary Standing Committee and allow time for stakeholder consultations.
Since the signing of the UN Trafficking Protocol (2000), there now exists a wealth of knowledge about what works and what does not work in anti-trafficking efforts. Thus India has a key advantage to create progressive, rights-affirming and victim-centered legislation, including in the areas of rehabilitation and reintegration initiatives, in which the Bill places much faith. Indeed, we had noted with appreciation the way the Government of India had countered the sensationalistic and unbalanced report of Walk Free Foundation[1] last year.
It is now clear that looking at trafficking merely as a crime and therefore trying to address it with severe punishment, overlooks its social aspect and falls short of addressing the complex issue. With only 9000 prosecutions made in 2016 against a problem of a scale that is estimated to be in the tens of millions, it is clear that increased prosecution is not the answer - increased penalties and prosecutions take the focus away from victims and survivors, and can aggravate victim traumatization. Meaningfully addressing the problem requires an approach that understands trafficking as an outcome of a wide range inequalities and discriminations, including labour market inequalities and unfair migration regimes. Therefore, workers’ rights protection should be at the core of any new anti-trafficking legislation and those workers should include migrant workers. Workers from India work in many parts of the world at various levels. The current government’s proactive stand to protect the rights of Indian workers abroad is laudable. India must also ensure the same rights protection to migrant workers in its territory that it expects from other countries for its own workers. The current Bill can be easily abused to criminalise migrants and anyone who extends support to them can be seen as a trafficker.
In this regard, we would like to draw your attention to the Bill’s new category of offence called aggravated trafficking[2] with a minimum punishment of ten years. This approach undermines the right to migrate to and from any country, including one’s own, and risks conflating trafficking and smuggling. This definition of ‘trafficking’ overlooks the necessary components of the most recent and internationally recognized definition of trafficking in persons – in the UN Protocol on Trafficking in Persons, which requires an ‘act’, a ‘means’ and a ‘purpose’. Conflating smuggling and human trafficking can lead to the mischaracterization of the relationship between the smuggler and migrant, the criminalisation or stigmatisation of migrants and people who assist with the migration process, and the denial of migrants’ rights. We note that the Global Compact for Migration calls on States to distinguish the two in law and practice.
That the new legislation aspires to set a high standard in assisting trafficked persons is laudable. However, it is important to be aware of lacunae in current practices in assisting and take steps to address those. The most durable and rights-affirming approaches put the person at the centre, and support community-led approaches, rather than the protectionist, and institutionalized care approach proposed in the Bill, which limit women’s rights and freedoms, and violate their privacy. Given reports of many abuses and suicides in the shelter homes, in India and elsewhere, it is important that the new legislation looks at community based alternatives to assistance rather than trying to strengthen government or NGO run shelters.
In summary, any new anti-trafficking legislation must confer with trade unions, women’s rights, labour and migrant rights groups as well as the concerned ministries. Consultations should also be held with trafficked persons who are currently in shelters. It is important to listen to their experiences to come up with a good plan for psycho-social care and eventual social integration. We appeal to you to allow more time so that India can come up with a piece of legislation that would truly be an example for other countries. With this in mind we urge you to consider referring the Bill to a Parliamentary Standing Committee.
Many thanks for your attention. We renew to the Ministry the assurances of our highest consideration.
Bandana Pattanaik,
International Coordinator, GAATW
[1] The 2016 Global Slavery Index, which found India to have the highest absolute number of people living in slavery is said to have used questionable survey methodologies, which anti-trafficking expert Anne Gallagher described as ‘extremely crude’. https://downloads.globalslaveryindex.org/GSI-2016-Country-Study-India-1531465618.pdf
[2] “by encouraging or abetting any person to migrate illegally into India or Indians to some other country”