Anti-trafficking bill not a
rights-positive legislation, may further marginalise sex
workers, trans people, children
First Post, july 19,
trafficking, anyway?", asked Kanchan*, a sex-worker from
Bhadrakali, the red-light district of Nashik in a strange and
particular way pointing out the problem, and summarising the woe
of public policy experts and lawyers who have worked, for
decades, on anti-trafficking and women's rights.
Kanchan's question is especially pertinent because her daily
struggles, as a consenting sex worker, are not represented
within the extant legal policy framework against trafficking in
A number of social workers, sex workers, lawyers, child rights
and trans rights activists have, recently, spoken out against
the anti-trafficking bill, drafted by the Ministry of Women and
Child Development and approved by the Cabinet in February.
trafficking. Representational image. ReutersRepresentational
The bill is known as the Trafficking of Persons (Prevention,
Protection and Rehabilitation) Bill, and Maneka Gandhi, the
Minister for Women and Child Development, has introduced it in
the monsoon session of the Parliament this year.
Maneka aspires to make India a force to be reckoned with when it
comes to combatting trafficking in South Asia. The tabled bill
claims to have a "victim-centric approach" but if enacted, will
further marginalise vulnerable communities, such as consenting
sex workers, trans people and children.
Recently, Congress MP Shashi Tharoor, along with activists
Meena Seshu from SANGRAM, Aarti Pai from National Network of Sex
Workers and Anjali Gopalan from Naz Foundation met Maneka to
discuss a petition that forms the evidence to express concerns
in relation to the bill, containing comments from 30 civil
society organisations and 247 activists and lawyers, and
endorsed by over 4,000 sex workers across the country.
The objective of the petition was simple: the bill conflates
trafficking with sex work, and therefore, impacts consenting
adult sex workers, marginalising them further. "The fundamental
flaw with the bill is that it treats victims of human
trafficking on par with adult persons in sex work. Trafficking
of persons into forced or coerced labour (including sexual
exploitation) should not be equated with sex work undertaken by
consenting adults. This conflation could lead to misuse and
over-broad application of the provisions in this bill."
The bill conforms to a rescue-rehabilitation approach and
proposes to establish institutional mechanisms at the district,
state and central levels, while also including provisions for
the confidentiality of victims, and with a promise for quick
trials and repatriation of victims.
It attempts to target all forms of human trafficking but is in
no way a rights-positive legislation that works to sustainably
protect the rights of the people that it claims to protect.
The bill's worst victim is the community of consenting adult sex
workers whose rights would be completely negated if it is
The bill also attempts to supplement the already present
criminal provisions to combat trafficking and fulfil the purpose
of Article 23 of the Constitution to protect persons from
forms of exploitation such as forced labour and trafficking. In
this, it proposes to establish a National Anti-Trafficking
Relief and Rehabilitation Committee, as well as State and
District Anti-Trafficking Committees.
However, none of these government Committees boasts of "peer
presence", that is, the representation of sex workers or
community organisations managed and led by sex workers. The
Committee representatives are from civil society organisations,
law enforcement and social workers. This provision within the
proposed bill is problematic because it automatically distances
the community of sex workers from the overall outcome of the
The bill's provisions, in many ways, adopt the definition of
trafficking from Section 370 of the Indian Penal Code that
asserts that "the consent of the victim is immaterial in the
determination of the offence of trafficking". This is draconian
because it affects the autonomy and dignity of the victims.
The bill does not recognise consenting adult sex workers as
different from trafficked persons, and by doing so, it takes
away all autonomy and agency of consenting sex workers. A
collated report from SANGRAM states that the "Draft Bill denies
agency to persons categorised as 'victims' and makes no
provisions for ascertaining the wishes and taking the consent of
persons to be prevented, rescued or rehabilitated under the
proposed law. There is no opportunity for the 'rescued'
individual to exercise their choice as to the options available
and to be exercised."
A framework that is based on rescue and rehabilitation and
proposes to give extraordinary powers to the law enforcement and
judicial authorities to control the implementation of the law
not unlike the Immoral Traffic (Prevention) Act, 1956 (ITPA)
seems like a machination to negate the consent of adult sex
Instead of making laws and policies that drive safer migration
for women, the policies emphasise the deterrence of women's
right to mobility. Moreover, the negation of consent within the
bill seems to be an elaborate stratagem to disguise the
ignorance of the lawmakers of the causes of trafficking
poverty, unequal growth, skewed development, lack of employment.
The draft bill's immense resemblance to the ITPA is precarious.
Many provisions have been lifted word by word from the 1956 Act.
This proves that though the Trafficking of Persons Bill proposes
to encompass all forms of trafficking in India, it will continue
to be concerned with sex work as its primary element.
The conflation of sex work and trafficking is dangerously
deepened in this aspect of the bill, and brings forth several
dichotomies are sex workers victims or perpetrators of
trafficking? Should the law infantilise or incarcerate
consenting sex workers? What is India's official position on sex
work? Unfortunately, the bill answers none of these questions.
It attempts to solve a social problem with a web of criminal
legislations, none of which are in harmony with the others.
For people like Kanchan*, who are consenting sex workers, the
bill, if enacted, will not protect; it will restrict. The
Trafficking of Persons Bill is a mallet it proposes to strike
at the roots of the fundamental freedoms of adult consenting sex
workers, not only because of the lack of representation of the
community in its implementation but also in its lack of
recognition of agency.
The bill, unfortunately, propagates that vulnerability means the
lack of autonomy. It also indicates that the bill creates a
constitutional roadblock while attempting to uphold Article
23, the provisions of the bill violate Article 21 the right to
life of adult consenting sex workers.
After the Supreme Court judgment of Prajwala versus Union of
India in 2015, the Ministry of Women and Child Development had
assured that a comprehensive legislative framework would be
formulated to combat trafficking. Unfortunately, this particular
bill relies on criminal law heavily without ensuring a
substantive rights-positive framework to support it.
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