Limiting victimisation of human trafficking only to the period of traffic or transit of the victim would narrow the true essence of anti-trafficking laws. A sex worker, who was abducted/kidnapped, then trafficked and finally forced into the flesh trade, continues to be a victim of human trafficking and prosecuting him/her under prostitution laws would be penalising a victim of human trafficking.
A criminal record for charges such as prostitution, disorderly conduct etc., under general criminal laws as well as specific statutes such as Immoral Traffic Prevention Act 1956, Narcotic Drugs and Psychotropic Substances Act 1985 significantly hinders the rehabilitation and reintegration of trafficking victims into the society. Rehabilitated victims are highly likely to face discrimination in employment, housing, education opportunities in lieu of a criminal record of even minor charges. Penalising victims of a crime for other offences committed through the sole reason of the original crime itself would make a mockery of the basic tenets of criminal jurisprudence.
The Anti-trafficking Bill 2018 fails in this regard as the only protection against prosecution to trafficking victims is provided only for serious crimes punishable with imprisonment for 10 years or more, if the crime is committed by the trafficking victim under coercion, compulsion or intimidation or threat or undue influence and subjected to reasonable apprehension of death or grievous hurt. While this provision does provide immunity from prosecution to trafficking victims, limiting the protection to serious offences only defeats the very objective of protection. Most criminal charges against trafficking victims are minor offences of misdemeanour such as soliciting under prostitution laws, working without required documentation under labour employment laws, disorderly conduct under general criminal laws etc.
It can be argued that this gap can be filled by procedural rules to ensure that the courts taking cognizance of charges against trafficking victim under other penal statutes, can use judicial discretion to prevent prosecution of victims for collateral crimes. However, expressly limiting immunity to trafficking victims to serious crimes in the Bill will be interpreted strictly and courts may refrain from exercising their judicial discretion in discharging trafficking victims for lesser offences. In light of one of the key objectives of the Bill, rehabilitation of trafficking victims, the expressly limited scope of Section 45 is an error on the part of law.
A Rehabilitation fund is to be set up under Section 30 of the Act which expressly provides for its mechanism, source of fund and non-exhaustive list of purposes.
Also, monetary relief and compensation to trafficking victims is provided in Section 27 and 28 of the Act. Section 27 obligates the District Anti-Trafficking Committee to be established under Section 12 of the Act or Child Welfare Committee to provide interim monetary relief to trafficking victim, on application by the victim. Section 28 envisages final monetary compensation to be provided to the victim after filing of the charge-sheet against the trafficker. The onus of providing funds to the Committee for compensation under these provisions is on the State government.
Additionally, section 49 of the Act empowers the court to award compensation to the victim under Section 357A of Code of Criminal Procedure.
Multiple provisions dealing with compensation to trafficking victims framed in a flexible language with discretion to the concerned court or committee to determine whether compensation ought to be provided, can result in unnecessary confusion and ultimately no monetary relief at all to the victim.
Further, compensation under Section 357A of Code of Criminal Procedure provided through various Victim Compensation Schemes of State governments is already burdened with compensation to victims of violent crimes under penal statutes. The compensation is to be awarded by the District Legal Services Authority on recommendation of the court or application of the victim. Most State Victim Compensation Schemes empower the District Legal Services Authority to verify the claims and make due enquiry before deciding to award compensation to victims. It is not clear whether the District Legal Services Authority can exercise these powers even after recommendation from court. Subjecting trafficking victims to repeated enquiries in court, then in District Legal Services Authority after undergoing grave human rights violation adds to the injustice.
