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India’s new trafficking bill fails to protect survivors financially
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Second, although wellness centres are already subject to excessive regulation, the bill lends itself to establishments refusing to employ survivors of trafficking and ‘vulnerable persons’, as they are susceptible to tracking by government bodies under sections 10(2) and 20(h) of the bill. Even after survivors leave rehabilitation homes, government bodies can track them, thus making severe inroads into their right to privacy. Further, the bill fails to define the term ‘vulnerable person’, and in the absence of such a definition the term encourages casteist incarceration, given the casteist disposition of policing in India.

The economic precarity of migrant workers is further aggravated by the District Anti-Human Trafficking Committee’s reliance on a “network of informers” under section 8(7)(d) of the bill. The bill authorises district committees and the police to initiate raids on spas and wellness centres based on hearsay evidence provided by this network of informers, with the potential to disrupt legitimate economic activities. Finally, the bill introduces harsh fines and mandatory minimum sentences which employers at wellness centres may be subject to. Given this context and the potential for the abuse of these unbridled provisions, Dalit/Bahujan/Adivasi migrant women in search of better lives could be subject to rigorous employment checks by employers attempting to err on the side of caution. They may even be prevented by the police and district committees from working at such centres for their own ‘protection’. Therefore, the bill creates a chilling effect over legitimate businesses and further obstructs access to work.

Proceeds of crime

Another risk introduced by the bill regards survivors’ assets. As human trafficking remains one of the most profitable crimes in the world, the relationship between money laundering and trafficking must necessarily be acknowledged. In the bill, in an attempt to harmonise the two, the term ‘proceeds of crime’ is defined in accordance with the Prevention of Money Laundering Act, 2002 (PMLA), i.e. ‘any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property’. However, this definition in the context of trafficking leads to unintended consequences.

First, the bill fails to properly safeguard survivors’ assets that were purchased using money they earned while they were trafficked. In other words, the bill treats not only the money earned by traffickers as ‘proceeds of crime’ but allows the money earned by those trafficked as well to be treated as such. While this might sound odd, it is completely possible that a worker earns money while trafficked (however meagre the amount) and is able to purchase property with it. Section 39(1) of the bill makes this property liable to be seized and forfeited by courts. Such property could include a wide range of assets such as bank accounts, jewellery, and all tangible/intangible property.

This robs not only survivors of trafficking, but also those deemed to be trafficked (such as sex workers), of the little economic security they may possess. It also puts immense pressure on survivors’ families, who would constantly live in fear of being impoverished – over and above incarceration – by law enforcement. Further, section 37 of the bill is wrongly worded and provides that a survivor is not to be held criminally liable for offences unless they committed such offences as a direct consequence of being trafficked or under coercion with reasonable apprehension of harm to themselves or their relatives. This, combined with the failure to specifically protect survivors’ assets, allows for mischief. Furthermore, the compensation to survivors is conditional on the filing of a ‘first information report’, which may be delayed and/or be insufficient, and in any event does not justify the usurpation of survivors’ earnings.

Most trafficking survivors work in the informal sector where proof of employment or payment often does not exist. To support themselves financially, workers may flit between agricultural labour, construction work, sex work and/or domestic work. However, under the bill, even property purchased by sex workers and survivors of trafficking through other means could possibly be regarded as ‘proceeds of crime’. If read with section 24 of the PMLA, there is a presumption that the accused’s property is a ‘proceed of crime’ and the burden of proof lies on the accused to show otherwise. In the context of the bill, this burden would fall on the survivor. For example, how would money earned from sex work be differentiated from money earned through construction work? In failing to safeguard survivors’ assets, the bill assumes that a trafficked person works only one job and either earns nothing from it or should not earn anything from it because any such earnings are proceeds of a crime (albeit a crime against them). The bill fails to provide survivors of trafficking – whether in rehabilitation/protection homes or otherwise – with access to their assets (however nominal) at all times. The bill is thus designed to be a moral tool for exercising control, rather than a policy instrument geared towards addressing the concerns of survivors.

[1] Url: https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/indias-new-trafficking-bill-fails-to-protect-survivors-financially/
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