The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 is listed for passage in Rajya Sabha today. Earlier this year, the Bill was introduced and passed in Lok Sabha. It provides for the prevention, rescue, and rehabilitation of trafficked persons. If the Bill is not passed today, it will lapse with the dissolution of the 16th Lok Sabha. In this post, we analyse the Bill in its current form.
What was the need for a new law?
According to the National Crime Records Bureau, 8,132 human trafficking cases were reported in India in 2016 under the Indian Penal Code, 1860.[i] In the same year, 23,117 trafficking victims were rescued. Of these, the highest number of persons were trafficked for forced labour (45.5%), followed by prostitution (21.5%). Table 1 provides details of persons trafficked for various purposes (as of 2016).
Table 1: Victims rescued by type of purpose of trafficking
| Purpose | 2016 | (as a %) |
| Forced labour | 10,509 | 45.5 |
| Prostitution | 4,980 | 21.5 |
| Other forms of sexual exploitation | 2,590 | 11.5 |
| Domestic servitude | 412 | 1.8 |
| Forced marriage | 349 | 1.5 |
| Petty crimes | 212 | 0.9 |
| Child pornography | 162 | 0.7 |
| Begging | 71 | 0.3 |
| Drug peddling | 8 | 0 |
| Removal of organs | 2 | 0 |
| Other reasons | 3,824 | 16.5 |
| Total persons | 23,117 | 100 |
Source: Human Trafficking, Crime in India, 2016, National Crime Records Bureau; PRS
In India, the offence of trafficking is dealt with under different laws. Trafficking is primarily an offence under the Indian Penal Code, 1860. It defines trafficking to include recruiting, transporting, or harboring persons by force or other means, for exploitation. In addition, there are a range of laws presently which deal with bonded labour, exploitation of children, and commercial sexual exploitation. Each of these laws operate independently, have their own enforcement machinery and prescribe penalties for offences related to trafficking.
In 2015, pursuant to a Supreme Court order, the Ministry of Women and Child Development constituted a Committee to identify gaps in the current legislation on trafficking and to examine the feasibility of a comprehensive legislation on trafficking.[ii] Consequently, the Trafficking Bill was introduced in Lok Sabha by the Minister of Women and Child Development, Ms. Maneka Gandhi in July, 2018.
The Bill provides for the investigation of trafficking cases, and rescue and rehabilitation of trafficked victims. It includes trafficking for the purposes of sexual exploitation, slavery, or forced removal of organs. In addition, the law also considers trafficking for certain purposes, such as for begging or for inducing early sexual maturity, to be an aggravated form of trafficking. These forms of trafficking attract a higher punishment.
In order to punish trafficking, the Bill provides for the setting up of investigation and rehabilitation authorities at the district, state and national level. The primary investigation responsibility lies with anti-trafficking police officers and anti-trafficking units constituted at the district level. The authority at the national level can take over investigation of cases referred to it by two or more states.
The Bill also provides for the setting up of Protection Homes and Rehabilitation Homes to provide care and rehabilitation to the victims. The Bill supplements the rehabilitation efforts through a Rehabilitation Fund, which will be used to set up the Protection and Rehabilitation Homes. Special Courts will be designated in every district to complete trial of trafficking cases within a year.
Additionally, the Bill specifies penalties for various offences including for promotion of trafficking and trafficking with the aid of media. All offences are cognizable (i.e. police officer can arrest without a warrant) and non-bailable. If a person is found guilty under the Bill and also under any other law, the punishment which is higher will apply to the offender.
The current Bill does not replace but adds to the existing legal framework. As discussed above, currently a range of laws deal with various aspects of trafficking. For instance, the Immoral Traffic (Prevention) Act, 1986 covers trafficking for commercial sexual exploitation while the Bonded Labour System (Abolition) Act, 1976 deals with punishment for employment of bonded labour. These laws specify their own procedures for enforcement and rehabilitation.
One of the challenges with the Bill is that these laws will continue to be in force after the Bill. Since each of these laws have different procedures, it is unclear as to which procedure will apply in certain cases of trafficking. This may result in overlap in implementation of these laws. For instance, under the ITPA, 1986, Protective Homes provide for rehabilitation of victims of sexual exploitation. The Bill also provides for setting up of Protection Homes. When a victim of sexual exploitation is rescued, it is not clear as to which of these Homes she will be sent to. Further, each of these laws designate special courts to hear offences. The question arises as to which of these courts will hear the case.
Are the offences in the Bill reasonably tailored?
As discussed earlier, the Bill imposes penalties for various offences connected with trafficking. One of the offences states that if trafficking is committed on a premise, it will be presumed that the owner of the premise had knowledge of the offence. The implication of this would be that if an owner lives in a different city, say Delhi, and lets out his house in Mumbai to another person, and this person is discovered to be detaining girls for sexual exploitation on the premise, it will be presumed that the owner knew about the commission of the offence. In such circumstances, he will have to prove that he did not know about the offence being committed on his premise. This provision is a departure from the standard principle in criminal law where the guilt of the accused has to be proved and not presumed.
There are other laws where the owner of a property is presumed guilty. However, the prosecution is required to prove certain facts before presuming his guilt. For instance, under the Narcotics and Psychotropic Substances Act, 1985 it is presumed that the owner has knowledge of an offence committed on his property. However, the Bill clarifies that the presumption will only apply if the prosecution can prove that the accused was connected with the circumstances of the case. For instance, an owner of a truck is not presumed to be guilty only because his truck was used for transporting drugs.[iii] However, he may be considered guilty if he was also driving the truck in which drugs were transported.[iv] The Bill does not contain such safeguards and this provision may therefore violate Article 21 of the Constitution which requires that laws which deprive a person of his life or personal liberty should be fair and reasonable.[v]
Does the Bill provide any protection to trafficking victims compelled to commit crimes?
The Bill provides immunity to a victim who commits an offence punishable with death, life imprisonment or imprisonment for 10 years. Immunity to victims is desirable to ensure that they are not prosecuted for committing crimes which are a direct consequence of them being trafficked.[vi] However, the Bill provides immunity only for serious crimes. For instance, a trafficked victim who commits murder under coercion of his traffickers may be able to claim immunity from being tried for murder. However, if a trafficked victim commits petty theft (e.g. pickpocketing) under coercion of his traffickers, he will not be able to claim immunity.
Further, the immunity is only available when the victim can show that the offence was committed under coercion, threat, intimidation or undue influence, and there was a reasonable apprehension of death or injury. Therefore, it may be argued that the threshold to claim immunity from prosecution may be too high and may defeat the purpose for providing such immunity.
[i]. ‘Crime in India’ 2016, National Crime Records Bureau.
[ii]. Prajwala vs. Union of India 2016 (1) SCALE 298.
[iii]. Bhola Singh vs. State of Punjab (2011) 11 SCC 653.
[iv]. Sushant Gupta vs. Union of India 2014 (308) ELT 661 (All.).
[v] Maneka Gandhi vs. Union of India 1978 AIR 597.
[vi]. Guideline 7, ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking’, OHCHR, https://www.ohchr.org/Documents/Publications/Traffickingen.pdf.
In April 2020, the International Labour Organisation (ILO) estimated that nearly 2.5 crore jobs could be lost worldwide due to the COVID-19 pandemic in 2020. Further, it observed that more than 40 crore informal workers in India may get pushed into deeper poverty due to the pandemic. In this blog post, we discuss the effect of COVID-19 on unemployment in urban areas as per the quarterly Periodic Labour Force Survey (PLFS) report released last week, and highlight some of the measures taken by the central government with regard to unemployment.
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Methodology for estimating unemployment in PLFS reports The National Statistics Office (NSO) released its latest quarterly PLFS report for the October-December 2020 quarter. The PLFS reports give estimates of labour force indicators including Labour Force Participation Rate (LFPR), Unemployment Rate, and distribution of workers across industries. The reports are released on a quarterly as well as annual basis. The quarterly reports cover only urban areas whereas the annual report covers both urban and rural areas. The latest annual report is available for the July 2019-June 2020 period. The quarterly PLFS reports provide estimates based on the Current Weekly Activity Status (CWS). The CWS of a person is the activity status obtained during a reference period of seven days preceding the date of the survey. As per CWS status, a person is considered as unemployed in a week if he did not work even for at least one hour on any day during the reference week but sought or was available for work. In contrast, the headline numbers on employment-unemployment in the annual PLFS reports are reported based on the usual activity status. Usual activity status relates to the activity status of a person during the reference period of the last 365 days preceding the date of the survey. |
To contain the spread of COVID-19, a nationwide lockdown was imposed from late March till May 2020. During the lockdown, severe restrictions were placed on the movement of individuals and economic activities were significantly halted barring the activities related to essential goods and services. Unemployment rate in urban areas rose to 20.9% during the April-June quarter of 2020, more than double the unemployment rate in the same quarter the previous year (8.9%). Unemployment rate refers to the percentage of unemployed persons in the labour force. Labour force includes persons who are either employed or unemployed but seeking work. The lockdown restrictions were gradually relaxed during the subsequent months. Unemployment rate also saw a decrease as compared to the levels seen in the April-June quarter of 2020. During the October-December quarter of 2020 (latest data available), unemployment rate had reduced to 10.3%. However, it was notably higher than the unemployment rate in the same quarter last year (7.9%).
Figure 1: Unemployment rate in urban areas across all age groups as per current weekly activity status (Figures in %)
Note: PLFS includes data for transgenders among males.
Sources: Quarterly Periodic Labour Force Survey Reports, Ministry of Statistics and Program Implementation; PRS.
Recovery post-national lockdown uneven in case of females
Pre-COVID-19 trends suggest that the female unemployment rate has generally been higher than the male unemployment rate in the country (7.3% vs 9.8% during the October-December quarter of 2019, respectively). Since the onset of the COVID-19 pandemic, this gap seems to have widened. During the October-December quarter of 2020, the unemployment rate for females was 13.1%, as compared to 9.5% for males.
The Standing Committee on Labour (April 2021) also noted that the pandemic led to large-scale unemployment for female workers, in both organised and unorganised sectors. It recommended: (i) increasing government procurement from women-led enterprises, (ii) training women in new technologies, (iii) providing women with access to capital, and (iv) investing in childcare and linked infrastructure.
Labour force participation
Persons dropping in and out of the labour force may also influence the unemployment rate. At a given point of time, there may be persons who are below the legal working age or may drop out of the labour force due to various socio-economic reasons, for instance, to pursue education. At the same time, there may also be discouraged workers who, while willing and able to be employed, have ceased to seek work. Labour Force Participation Rate (LFPR) is the indicator that denotes the percentage of the population which is part of the labour force. The LFPR saw only marginal changes throughout 2019 and 2020. During the April-June quarter (where COVID-19 restrictions were the most stringent), the LFPR was 35.9%, which was lower than same in the corresponding quarter in 2019 (36.2%). Note that female LFPR in India is significantly lower than male LFPR (16.6% and 56.7%, respectively, in the October-December quarter of 2019).
Figure 2: LFPR in urban areas across all groups as per current weekly activity status (Figures in %)
Note: PLFS includes data for transgenders among males.
Sources: Quarterly Periodic Labour Force Survey Reports, Ministry of Statistics and Program Implementation; PRS.
Measures taken by the government for workers
The Standing Committee on Labour in its report released in August 2021 noted that 90% of workers in India are from the informal sector. These workers include: (i) migrant workers, (ii) contract labourers, (iii) construction workers, and (iv) street vendors. The Committee observed that these workers were worst impacted by the pandemic due to seasonality of employment and lack of employer-employee relationship in unorganised sectors. The Committee recommended central and state governments to: (i) encourage entrepreneurial opportunities, (ii) attract investment in traditional manufacturing sectors and developing industrial clusters, (iii) strengthen social security measures, (iv) maintain a database of workers in the informal sector, and (v) promote vocational training. It took note of the various steps taken by the central government to support workers and address the challenges and threats posed by the COVID-19 pandemic (applicable to urban areas):
The central and state governments have also taken various other measures, such as increasing spending on infrastructure creation and enabling access to cheaper lending for businesses, to sustain economic activity and boost employment generation.
