India Today


- 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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