India Today - - INSIDE - By Prabha Ko­tiswaran Prabha Ko­tiswaran is Reader, Law and So­cial Jus­tice at King’s Col­lege, Lon­don

Last week, the coun­try awoke to alarm­ing new rev­e­la­tions in the sor­did scan­dal of the rou­tine sex­ual abuse of 34 girls be­tween the ages of 7 and 14 in an NGO-run, state-funded Ba­lika Grih in Muzaffarpu­r, Bi­har. One girl is ru­moured to have been mur­dered while oth­ers were se­dated at night in the guise of med­i­cal treat­ment only to wake up to ab­dom­i­nal pains from rape. This sex­ual abuse may have in­volved ex­change of money pock­eted by the cul­prits. Eleven women went miss­ing from an­other home run by the same NGO. Re­ports of such hor­rific con­di­tions in gov­ern­ment- and NGO-run homes for ju­ve­niles, sex work­ers and beg­gars have be­come rou­tine, lead­ing us to in­ter­ro­gate the mean­ing and cen­tral­ity of the right to re­ha­bil­i­ta­tion en­shrined in the Traf­fick­ing of Per­sons (Pre­ven­tion, Pro­tec­tion and Re­ha­bil­i­ta­tion) Bill, 2018, passed by the Lok Sabha.

Wel­fare through re­ha­bil­i­ta­tion is the hall­mark of the Im­moral Traf­fic Pre­ven­tion Act (ITPA), 1986. Adult women, whether in sex work vol­un­tar­ily or not, are res­cued from broth­els and put up in pro­tec­tive homes, with or with­out their con­sent. In ‘Raided’, a re­cent study con­ducted by Maharashtr­a-based SANGRAM (Sam­pada Gramin Mahila Sanstha) and VAMP (Veshya Anyay Mukti Par­ishad), 193 of the 243 women in­ter­viewed were adult, con­sent­ing sex work­ers. These homes ig­nore in­mates’ needs and are of­ten abu­sive, lead­ing women to com­mit sui­cide, to riot or to es­cape. With­out le­gal re­sources to ne­go­ti­ate their free­dom, they lan­guish in homes for months, or even years. Upon re­lease, they are un­wel­come at home and re­turn to a life of penury. As per ‘Raided’, 77 per cent of women re­turn to sex work. Kimberly Wal­ters and Vib­huti Ra­machan­dran, both ethno­g­ra­phers of ITPA homes, re­port that women per­ceive such ‘shel­ter-based de­ten­tion’ as an ‘ex­tended mode of traf­fick­ing’, like the ini­tial en­try into sex work. Both au­thors note that the con­sti­tu­tion­al­ity of these ITPA pro­vi­sions is sus­pect.

The 2018 Traf­fick­ing Bill is un­for­tu­nately baked in the cru­cible of the ITPA. Its pa­ter­nal­ist pro­vi­sions on raids, res­cue and re­ha­bil­i­ta­tion al­low for a po­lice of­fi­cer, based solely on his be­lief, to raid and ‘res­cue’ a traf­ficked per­son and con­duct a med­i­cal ex­am­i­na­tion ir­re­spec­tive of the vic­tim’s wishes. The vic­tim is placed in a pro­tec­tion home for short-term re­lief and later in a re­ha­bil­i­ta­tion home for an un­spec­i­fied, but ‘rea­son­able’ pe­riod based on the or­der of a mag­is­trate or child wel­fare com­mit­tee. Where an adult sur­vivor ap­plies to the mag­is­trate for re­lease, the mag­is­trate may re­ject it if she be­lieves that the re­quest has not been made vol­un­tar­ily; there is no pro­vi­sion for ap­peal. Sur­vivors are to be repa­tri­ated, but the sta­tus of an un­will­ing sur­vivor is un­clear. The gov­ern­ment may des­ig­nate ex­ist­ing shel­ter homes, in­clud­ing those set up un­der the ITPA, for re­ha­bil­i­ta­tion. There is thus sub­stan­tial in­sti­tu­tional and pro­ce­dural over­lap be­tween the ITPA and the bill.

The traf­fick­ing bill aims to be vi­sion­ary with com­pen­sa­tion and com­pre­hen­sive ser­vices, but it ig­nores com­mu­nity-based ap­proaches to re­ha­bil­i­ta­tion and fails to com­ply with the Supreme Court’s de­ci­sion in the Kar­maskar case that re­ha­bil­i­ta­tion must be vol­un­tary. It ig­nores the Of­fice of the United Na­tions High Com­mis­sioner for Hu­man Rights (OHCHR) guide­lines on traf­fick­ing and hu­man rights, which re­quire that res­cue op­er­a­tions not harm the rights and dig­nity of sur­vivors, that they are not sub­jected to manda­tory HIV test or be held in cus­tody, and that they be al­lowed to par­tic­i­pate in de­vel­op­ing anti-traf­fick­ing in­ter­ven­tions. Given the carceral na­ture of re­ha­bil­i­ta­tion, how can sur­vivors pos­si­bly re­joice at the bill’s pro­claimed right to re­ha­bil­i­ta­tion? In the ab­sence of re­sources, the train­ing of per­son­nel and strict over­sight over the un­holy al­liance of the state and the NGO ‘res­cue in­dus­try’, the utopian vi­sion of the bill for re­ha­bil­i­ta­tion is likely to be­come a dystopian re­al­ity in which the failed ITPA model of re­ha­bil­i­ta­tion is ex­tended to 8 mil­lion ‘mod­ern slaves’, in­clud­ing traf­ficked sex work­ers, bonded and child labour­ers, mi­grant work­ers, beg­gars, sur­ro­gates, wives from forced marriages, trans­gen­der per­sons and do­mes­tic work­ers.

The Traf­fick­ing Bill ig­nores com­mu­ni­ty­based ap­proaches to re­ha­bil­i­ta­tion and fails to com­ply with the SC de­ci­sion that re­ha­bil­i­ta­tion must be vol­un­tary

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