TRAFFICKING OF PERSONS (PREVENTION, PROTECTION AND REHABILITATION) BILL, 2016 RECOMMENDATIONS BY GLOBAL MARCH AGAINST CHILD LABOUR

Transcription

1 TRAFFICKING OF PERSONS (PREVENTION, PROTECTION AND REHABILITATION) BILL, 2016 RECOMMENDATIONS BY GLOBAL MARCH AGAINST CHILD LABOUR

2 CHAPTER I PRELIMINARY Definitions- In this Act, unless the context otherwise requires: (t) Clear definition of trafficking to be added as per Section 370 of IPC with an addition of phrase prostitution of others to be made in the definition of exploitation which differs from that of UN Protocol that India ratified in While The UN Protocol which India ratified in 2011 defines exploitation: as: Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;... Under Section 370 IPC exploitation is defined as: The expression exploitation shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs. By introducing prostitution as exploitation, sex workers are further endangered instead of protecting them. By using the definition of exploitation as per UN Protocol, the bill will criminalize only those who exploit the prostitution of others, i.e traffickers in persons. (u) Clear definition of migrant/human/people smuggling as per Smuggling of Migrants Protocol, supplementing the United Nations Convention against Transnational Organized Crime. A separate definition of smuggling of migrants/people/humans is required to mark the clear difference between trafficking of persons and migrating illegally out of one s own will. By this definition the state will also lay grounds of protection of smuggled migrants who are vulnerable

3 to life-threatening risks and exploitation and criminalize smuggling offenders for intent of exploitation. Thousands of people have suffocated in containers, perished in deserts or dehydrated/drowned at sea while crossing borders illegally. (v) Clear definition of trafficker to be added as a person who indulges or practices trafficking of persons as stated in Article 370 of IPC, with the updated definition of exploitation. The clear definition of trafficker will eliminate risks of ambiguity in understanding and identification of a person practicing human trafficking. Refer rules for more information. (w) Clear definition of immediate care and protection as provision of what is necessary for the health, welfare, maintenance, and protection of a person from any kind of physical or mental harm or violation of fundamental rights along with defining immediate by giving the stipulated time frame. Clear definition of immediate care and protection will ensure proper care and protection of the trafficked victim, eliminating risks of unfair and inhumane treatment, within the time frame set. Minimum standards can be set in the Rules Section for the same. (x) Clear definition of long-term institutional care/support and short-term institutional care/support Provision of definition of long term and short term definition will demarcate the difference between both types of care and support, by proving the exact time frame for both. Minimum standards for the same can be prescribed in the Rules section. CHAPTER II DISTRICT ANTI-TRAFFICKING COMMITTEE 2. 3.(1) The appropriate Government shall, by To add the terms prohibition, investigation, identification of victim and trafficker to the By adding the given terms, the District Anti- Trafficking Committee will be responsible for not

4 notification, constitute for every district, a District Anti Trafficking Committee, for exercising the powers and performing such functions and duties in relation to prevention, rescue, protection, medical care, psychological assistance, skill development, need based rehabilitation of victims as may be prescribed. 3.(2) The District Anti- Trafficking Committee shall consist of the following members, namely:- 4. Procedure in relation to victims of trafficking of persons. (1)A victim, after rescue shall be produced before the functions and duties of the District Anti- Trafficking Committee. The District Anti-Trafficking Committee to also consist of the following members: (i) One district rank personnel from Border Security Force, Sashastra Sena Bal (Armed Border Force), Rashtriya Rifles, Assam Rifles, Special Frontier Forces and Indo- Tibetan Border Police for states on the borders. (ii) One representative from Anti- Trafficking Desk of District Police. Representative from the District Legal Services Authority nominated by the District Judge- Member; to not only guide the Committee on laws under IPC on trafficking and related crimes, but also provide assistance to the victim and trafficker about their legal rights in the country. Time frame (48 hours) for producing the victim before the Member Secretary of District Anti-Trafficking Committee should be mentioned. Also, this section to mention the following: Children- Indian or foreigner, to be screened only prevention, rescue and protection of the trafficking victim, but will also be responsible for taking steps towards prohibition and investigation for further prevention and protection of people at the risk of being trafficked, at the District level. In times of conflict or ambiguity while identifying a trafficker or a victim, the District Anti-Trafficking Committee will take all necessary steps in proper identification of trafficker and victim and assist the authorized persons responsible for identification, if needed. The District Anti-Trafficking Committee should entail all major units of the country that are responsible for maintaining law and order and preventing trafficking and transnational crime. The representative from District Legal Services Authority will perform dual functions and will ensure the victim and the trafficker are dealt with constitutional and human rights approach. A specific time frame for producing the victim before the District Anti-Trafficking Committee can help in expediting the protection, investigation and rehabilitation process. By mentioning the provision for considering children

5 Member Secretary of the District Anti- Trafficking Committee by:- as potential/possible human trafficking victims and to be transferred to the custody of District Anti-Human Trafficking Committee within 48 hours for assistance, whether or not identity/eligibility determinations are made on their status at that time. (who need special care and attention), as potential/ possible victims of trafficking, the state will ensure immediate protection and rehabilitation of the child and uphold, his or her right to be protected. CHAPTER III STATE ANTI-TRAFFICKING COMMITTEE 3. 5.(1) The appropriate Government shall establish State Anti Trafficking Committee to oversee the implementation of this Act and advise the State/UT Government and District Anti- Trafficking Committee on matters relating to prevention of trafficking, protection and rehabilitation of victims of trafficking in persons and to perform such other functions and duties as maybe prescribed. The provision to add the following terms describing an added role of the State of Trafficking Committee(in red): The appropriate Government shall establish State Anti Trafficking Committee to oversee the implementation of this Act and advise the State/UT Government and District Anti- Trafficking Committee on matters relating to prevention of trafficking, prohibition, investigation, identification of victim and trafficker, protection and rehabilitation of victims of trafficking in persons and report trafficking and related exploitation crimes to National Crime Records Bureau annually and to perform such other functions and duties as maybe prescribed. By adding the given terms, the State Anti-Trafficking Committee will be responsible for not only prevention, rescue and protection of the trafficking victim, but will also be responsible for taking steps towards prohibition and investigation for further prevention and protection of people at the risk of being trafficked, at the overall State Level and provide assistance to District Anti-Trafficking Committee on matters of importance and if required. The Committee shall also report each and every case dealt in an year to the National Crimes Record Bureau (NCRB) for further collection and analysis of crime data and seek assistance in identification of a trafficker/victim in complex matters. (2) State Anti Trafficking Committee constituted for a State/UT, shall consist of the following members, namely:- The State Anti-Trafficking Committee to also consist of the following members: (iii) One state rank personnel from Border Security Force, Sashastra Sena Bal (Armed Border Force), The State Anti-Trafficking Committee should entail all major units of the country that are responsible for maintaining law and order and preventing trafficking and transnational crime.

6 (iv) Rashtriya Rifles, Assam Rifles, Special Frontier Forces and Indo- Tibetan Border Police for states on the borders. One representative from Anti- Trafficking Desk of State Police. Representative from the State Legal Services Authority; to not only guide the Committee on laws under IPC on trafficking and related crimes, but also provide assistance to the victim and trafficker about their legal rights in the country. CHAPTER IV CENTRAL ANTI-TRAFFICKING ADVISORY BOARD (1) The Central Government shall constitute a Central Anti Trafficking Advisory Board headed by the Secretary, Ministry of Women and Child Development and representatives from the concerned Ministries, State/UTs and members from civil society organisations as may be prescribed; The Central Government shall constitute representatives from the following as well: Central Reserve Police Force (CRPF), National Legal Services Authority and Ministry of Home Affairs and Ministry of Labour and Employment. The representatives from CRPF, Ministry of Home Affairs and National Legal Services Authority will represent the major institutions of justice and law and order in the country. CHAPTER V SPECIAL AGENCY The Central Government shall constitute a Special The Special Agency will not only perform investigation of offences but will also have The Special Agency on Trafficking due to its multifunctional role will become the expert agency

7 Agency for investigation of offences under the provisions of the Act. multi-functions and constituents as follows: The special agency will have gendersensitive and child friendly representatives from intelligence services, CBI and its Research division, to carry out effective investigations on matters of national and transnational trafficking and conduct research on source countries and states in India to prevent re-trafficking, and devise better ways of tackling trafficking situations. The Special Agency to constitute a subdivision for training and awareness raising comprising of experts, CSOs, and others, for trainings on prevention, protection and prohibition of trafficking. Trainings maybe given to law enforcement agencies, anti-trafficking committees, antitrafficking desks in police, embassy and immigration personnels, protection homes, special homes and potential villages and districts where trafficking is rampant etc. The special agency in collaboration with Indian embassies, consulate and Ministry of External Affairs, to provide information about human trafficking, workers rights and access to available assistance to all applicants for work and education visas. on trafficking and help in reducing the cases of trafficking through multi-coordination, research for prevention and prohibition and performing effective investigations to help in providing justice to the victim. The special agency to work in collaboration with National Crime Records Bureau and provide them information and statistics on trafficking and related exploitation crimes and

8 vice versa. CHAPTER VI SUPPORT SERVICES 6. 8.(2)Protection Homes shall provide for shelter food, clothing, counseling, medical care and that is necessary for the rescued victims and such other services in the manner, as may be prescribed. The Protection Homes shall perform additional functions as mentioned in red. Protection Homes shall provide for shelter or safe and secure accommodation, food, clothing, counseling and information on legal rights, translation and interpretation service, medical care and access to education or vocational training that is necessary for the rescued victims and such other services in the manner, as may be prescribed Other additions to Support Services is as follows: Consular Assistance Identified trafficked foreign nationals and identified traffickers, will have an opportunity to seek assistance from their concerned embassies/governments and in collaboration with Ministry of External Affairs Protection of privacy and identity of victim Self-regulatory role of media and press and safeguarding measures for victims maybe described such as Witness Protection Programmes and Sex Offenders Registry. Appointment of a guardian or advocate for a child victim by District or State Anti- Trafficking Committees The shelter must be safe and secure and cater to the needs of victims from all regions and countries, and help in complete rehabilitation by providing basic amenities such as food, clothing and medical care. Apart from this, necessary counseling and access to information and legal services along with education and vocational training for absolute protection and physical and mental welfare of the victim. Rationale as explained in the content of the added provisions.

9 A child victim maybe helped with allocation of a guardian with whom the child can make a trustworthy relationship to help further in judicial proceedings and overall rehabilitation. National Anti-Trafficking Helpline number National Anti-Trafficking 24/7 helpline number maybe promoted amongst red light areas, airports, railway stations, state bus stations, post authorities and otherwise. CHAPTER VII REHABILITATION AND SOCIAL INTEGRATION The following provisions may be added under the rehabilitation and social integration provision number 11: Rationale as explained in the suggested provisions. 11. (3) Government shall provide reflection period stay or renewable residence permits to foreign victims of trafficking, especially women and children. Risk assessments can be made by Special Agency (as mentioned in Chapter 5) before deportation is introduced with the help of NGOS, such as International Organisation of Migration (IOM) or any other agency deemed fit, to prevent re-trafficking, and to establish if deportation is in the best interest of the victim especially children and women, if they claim to have threat to life on going back to their country. 11. (4) Appropriate compensation must be facilitated by the relevant authorities that can be calculated as per cost of medical treatment

10 and suffering experienced by the victim. For situations where the trafficker is unable to pay the compensation, it will be recovered through arrears of land and property revenue pro and a special Compensation Fund for Trafficking Victims maybe constituted and put to use. CHAPTER VIII REGISTRATION OF PLACEMENT AGENCIES (2) The period of registration and the conditions for registration shall be in the manner as may be prescribed, by the appropriate Government The following to be replaced with the given provision. Registration of Placement Agency will be valid for 1 year only. Renewals maybe done on yearly inspection. Standards and Certification for Placement Agency to be prescribed in Rules. To avoid the potential risk of trafficking and further exploitation, the Placement Agency to only be licensed for 1 year. If the agency maintains a clean track record, the license may be renewed as per the guideline given in Rules. CHAPTER IX OFFENCES AND PENALTIES Offences under Section 370 f IPC to be integrated with provision number 14 under this chapter Punishment for disclosure of identity The following provisions to be added to provision number (3) Measures maybe described to protect identity of victims in court proceedings through judicial trainings and witness protection programmes. 15. (4) Complaints for breaching the code for Protection of victims of trafficking is paramount to the State and any breach of the rules and laws relating to their identity will invite penalty as prescribed in relevant Sections of IPC.

11 matters of disclosure of identity publicly, can also be lodged with Press Council of India Offence to be cognizable and non- bailable The following provisions to be added to provision number (3) Employers employing illegal or underage workers/child to be punished with fine or a jail term as per CLPRA Act of (4) For ensuring prohibition and prevention of illegal employment of trafficked victims including children, Anti-Trafficking Units and Police to keep checks on hidden forms of work. 19. (5) Stricter punishment for Government employees indulging into trafficking of persons for work leading to exploitation. Trafficking law to make linkages with the immigration policy, right to freedom, right to decent work and fair/minimum wages and reflect human rights approach. CHAPTER XI SPECIAL COURTS AND POWERS OF SPECIAL COURTS Special Court- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 for the purposes of providing a speedy trial of offences involving and punishable under sections 370 to 373 of the Indian Penal Code, 1860 and the offences under this Act, the State Government shall in consultation with the Chief The additions in red to made to the given provision. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 for the purposes of providing a speedy trial of offences involving and punishable under sections 370 to 373 of the Indian Penal Code, 1860 and the offences under this Act, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, specify for The court must treat the victims of trafficking in fair and just manner, upholding their human rights, especially in matters of women and children.

12 Justice of the High Court, by notification in the Official Gazette, specify for each district, a Court of Session to be a Special Court. each district, a Court of Session to be a Special Court, that will operate in a gender-sensitive and child friendly manner Presumption of certain offences The following provisions to be added to the provision number (1) The law will create a new crime of fraud in foreign labour contracting, criminalising the recruitment of foreign workers under false pretenses, making linkages with relevant laws on labour and employment. 24(2) The law will expand the crime of sex trafficking by removing the knowledge-ofage requirement in certain instances involving minors and lowers the standard of proof to reckless disregard of the use of force, fraud, or coercion to cause a person to engage in commercial sex. 24(3) The law will bring in trafficking for adoption in it ambit. The trafficking law will make linkages with labour laws and sex-trafficking laws for maximum protection of victims. CHAPTER XII MISCELLANEOUS Repatriation to another The following to be added to provision The repatriation process should be made easy for

13 country number (1) As per Article 7(1) appropriate measures to be made that permit victims of trafficking to remain in the territory, temporarily or permanently. victim of trafficking and all kinds of assistance must be provided and help in rehabilitation process to prevent re-trafficking and reintegration in society. 32 (2) Source and destination countries to facilitate voluntary and safe-returns in the process of repatriation. In case of a child victim, state should not repatriate if it is not in the best interest of the child. 32(3) State must establish repatriation programmes including reintegration, by working with relevant NGOs and institutions in the home country of the victim, by providing relevant information and history of the victim and facilitating other reintegration and rehabilitation interventions 15. Other Recommendations (1)Policies addressing trafficking in work to be placed in the employer and employee handbook of all government and PSUs. (2) MOUs to be signed with neighbouring countries for prevention, prohibition, repatriation and rehabilitation of victims of trafficking.

14 Rules: Placement Agency: Rules on placement agencies can be constituted by experts setting minimum standards for registration, inspection, operation. Protection Homes: Rules on protection homes can be constituted by experts setting minimum standards for operation. Special Home: Rules on special homes can be constituted by experts setting minimum standards for operation. Victim: Rules for effective identification of victims, describing their rights, can be constituted including victims who are refugees and asylum seekers. The rules to also mention the authorities responsible for identification of victims such as social workers, police officers, immigration officers, embassy officials etc. The rules should mention how identified victims should not be treated as criminals or immigration offenders. Trafficker: Rules for effective identification of trafficker, describing their rights, can be constituted including traffickers who are foreigners, refugees or asylum seekers.