Thursday, December 7, 2017

Examining the Proposal of Introducing Sexual Offenders’ Registry/Notification System for India

Following years have witnessed the resurfacing of an old demand for a nationwide Sex Offenders Registry.

What should concern us here is the fact that experience and research on the existing systems abroad prove that the SOR has little utility in curbing sexual offences or making the social environment safe for children. On the other hand, as a total package it is a hugely counterproductive, draconian and regressive measure that shall convert the stray sexual offender into a habitual criminal for whom crime is the only career left.

It is imperative that before our Government pays a serious heed to the demand for a Sexual Offenders' Registry, we should also take a look at all the reasons why it is NOT a good idea!

Friday, November 3, 2017

Does India Need an Omnibus (Single) Law that Addresses All the Different Types of Human Trafficking?

The Ministry of Women & Child Development (MWCD), Government of India (GoI) for the past almost two years has been misled into believing that India needs a single Omnibus law that shall address all the different types of human trafficking. Why is it not a good idea?

1)  It is like pinning all the existing specialised laws against the destination crimes of human trafficking under a new cover page name. This will only add to confusion, breakdown and wasteful duplication.
Ironically, all the earlier efforts of the MWCD-GoI (they are on record in public domain) retained almost intact the existing specific laws, each of which addresses one type of human trafficking, more accurately one type of destination crime of human trafficking. Only one version of the proposed omnibus law declared that the existing law against sex trafficking, The Immoral Traffic (Prevention) Act (ITP Act), 1956 shall stand repealed. As soon as the gravity and blunder in doing so was realized the idea of repealing the ITP Act was dropped in subsequent communications and versions.

This helps establish the fact that the new Omnibus law as envisaged by the MWCD-GoI shall not replace the existing specific laws in the domain of trafficking such as the Immoral Traffic (Prevention) Act 1956, The Child Labour (Prohibition & Regulation) Act 2016, The Bonded Labour Systems (Abolition) Act 1976, The Prohibition Of Child Marriages Act 2006, The Bombay Prevention of Begging Act 1965, The Transplantation of Human Organs Act 2010,  the various Devadasi related laws, Important provisions of The Indian Penal Code 1860, The Protection of Children From Sexual Offences Act 2012, etc.

When it comes to children (persons below 18 years of age) the central procedural law, The Juvenile Justice Act, and the Code of criminal Procedures (CrPC) shall prevail. It is important to note here that a substantial section of the victims of sex trafficking, labour trafficking, trafficking for beggary in India are children.

For many offences which are instrumental to human trafficking such as threat, force, assault, causing injury, kidnapping, wrongful confinement, etc. shall remain intact. The victim compensation (criminal injuries compensation) which is a part of the Code of Criminal Procedure Sec 357 shall continue to remain effective through the CrPC.
As against that, the proposal of a new omnibus law and its advocates have completely failed in presenting any significant justification in its favour.
2)  The proposal of a new omnibus (single) law against human trafficking is not based on any rational exercise or felt need whatsoever. Law making, amendment or policy making are rightly based upon one or more of the following bases;
a)    Demand made by a popular social movement

The  Criminal Amendment Bill, 2013, focusing on sexual offences against women, resulted in significant amendments in the main criminal law, the IPC. Many of the amendments had also been demanded by the robust women’s movement in this country for over three decades. Thus, in response to the popular anger expressed by a spontaneous popular movement, there was an amendment in the IPC. No such popular movement in post-independence India has ever put any popular pressure on the GoI demanding an omnibus law for all types of trafficking.

b) Pending recommendations made over the previous years by experienced positive stakeholders

Ever since the anti-trafficking movement in India got renewed, since 1980 till date no experienced positive stake holder is on record to have suggested a common omnibus law to address all forms of human trafficking (more accurately all types of destination crimes of human trafficking).
Not a single Committee, Commission, Judicial Inquiry set up to look into a mishap or an episode of any kind of human trafficking or on its destination crimes has even once attributed a situation, or complete failure of the current system to not having a single omnibus law against all types of trafficking. Not one of them has ever suggested passing of a single omnibus law as a solution to the issue of human trafficking.
c) Evaluation of the existing Policies or Laws
It is a routine practice in good governance to revise public policies based upon the recommendations of the evaluation studies.  Evaluative research plays an important role in this. No such exercise has ever been undertaken by the Central or the State governments to evaluate the existing laws, policies or structures on trafficking. No such evaluative research whatsoever has asked for a single omnibus law addressing all types of human trafficking. (If there hasn’t been such an evaluation, then there would definitely be no suggestions.)
d) Empirical Scientific Research on Human Trafficking
Not one single reasonable research study in India since 1929 has identified ‘not having a single omnibus law against trafficking’ as the reason for the problem. Not a single research study has ever recommended the need for such omnibus law. No sensible survey (of course there are a few research reports in circulation which are apologies in the name of scientific research) or case studies of victims of trafficking have shown the absence of a common omnibus law addressing all types of human trafficking as the reason for the problem or recommended that as the solution for the problem.
e)  Outcome of several nationwide rounds of open consultations 
For quite some time rulers in independent India have maintained a broad consultative process while making or changing laws and policies. It is a welcome feature of good governance. Whether it was the 1986 amendments in the ITP Act 1956, the subsequent revisions in the Juvenile Justice Act (JJ Act) or forming of Protection of Children from Sexual Offences Act (POCSOA). The GoI has received substantial input from such broad-based consultation rounds. Not one broad based consultative round in India since independence has ever demanded a single omnibus law to address all types of human trafficking.

f)  Outcome of Conferences, Workshops, Consultative Meets

Not one international, national, regional or state level Conference, Workshop, Consultative Meet has ever demanded or recommended a single omnibus law to solve the problem of human trafficking.

g)   Best practices set by the Courts

In the Indian scenario, the courts (the High courts and the Supreme court) have played a significant role in pushing pro-people reforms where the governments have been in the defendant’s box. This is particularly so in the anti-trafficking domain. Wherever they have been assisted by experienced, rational and genuine petitioners, the courts have issued landmark rulings and orders. The demand for a single omnibus law to address all types of human trafficking has never been indicated as the reason for the huge problem of human trafficking nor has it been ever recommended as a solution.

h)   Experiences and insights of the field practitioners

Genuine field practitioners are a reliable source of political and social intelligence. Progressive administrators’ and judicial bodies do take their help in making and changing laws and policies.  Except for the frivolous social elements who mobilize judicial bodies for unsound and unreasonable public interest litigation (about whom the courts too have adopted a cautious stance), and ‘professional consultants’ who gate-crash as ‘field based civil society organizations’, no field practitioner has ever recommended a single omnibus law to address all types of human trafficking.

i)  International Obligation generated by ratifying any UN or SAARC Convention/Protocol

Often as member countries of the United Nations, India follows the UN Conventions, Protocols and other instruments. Making laws or mending the existing laws in the light of and under the obligations of the UN instruments becomes binding on the member country after ratifying the instruments. No UN Convention or Protocol has ever indicated the absence of having a single omnibus law addressing all types of human trafficking offences as the reason for the grave situation, nor has it ever recommended that as a solution or best practice.

j) Best practice in the world

Every society learns from the successes and failures; either one’s own or that of the other societies. India has picked up many good practices from other progressive countries. In the field of human trafficking we are looking at the Supply Chain related law of Brazil and California state of the USA. The prostitution related law of Sweden is being presented as the best practice for India. There has not been any literature projecting the replacement of specialized laws by one single omnibus law as the best practice. There is no such best practice to emulate from.

k) Demands by Victims’ Collective

In all social fields and especially in the field of human trafficking, the voice and view of the victims of crime and misogynist evil social practices must be accommodated. None of the existing traffic victims’ collectives (especially sex trafficking victims in India) has demanded a single omnibus law to address all types of human trafficking. Nor has anyone suggested the replacement of the existing specialized laws by a single omnibus law. However, many of the above quoted legitimate sources of policy making have commented on the specialized laws and suggested and demanded moderate changes therein to make them more effective and more relevant with time. The literature on this is abundantly available in the public domain.

In conclusion of the foregoing, it is clear that there is no rational sensible basis in support of the proposal or demand for a single omnibus law against all types of human trafficking (or all types of destination crimes of human trafficking).

The demand is thus unsubstantiated, uncalled for, unnecessary and fancied. 

3) The demand for an omnibus (single) law against all types of trafficking is regressive.
Structural differentiation and functional specificity are two important qualities of modernization. The Indian legal system and social policy have proudly evolved, although their implementation is appallingly poor. Today, we have a special procedural law, the JJ Act and a special law addressing sexual offences against children (POCSOA). We have Special courts like Labour courts, Family courts, CBI court, Trafficking courts, Consumer courts, Children’s courts, POCSOA courts and so on, that have helped faster and sensitive disposal of cases.

We have specialized laws against trafficking, sex offences, bonded labour, sexual harassment at workplace, domestic violence, beggary, adoption, etc. The procedures for different victims are also different. Similarly, we have specialized lawyers in each of these domains. That is not all, even the magistrates and judges are specialized in each of these.

In the field of victim assistance, the civil society organizations (which are voluntary in nature) care takers, service providers, duty bearers and services are specialized as well.

While on one hand such specialization represents special knowledge and insight about a particular type of trafficking, it also indicates the lack of expertise and insight about the other types.

In terms of the government structures - ministries, departments, sections and services-meant for the victims are all different and specialized. India operates in a global environment which also follows a similar system of specialization.

In such a situation the proposal of one single omnibus anti trafficking law is clearly regressive and will take the society back on its governance and civilization counts. It will only lead to breakdowns and confusion.

As against that, the proposers of the omnibus law have not been able to present a single rational and convincing argument in favour of the proposal. To state the least what they have articulated is uncalled for, unsubstantiated, and leading to confusion and breakdown if not entirely absurd. I shall come to that part in my next communication.

We repeat what we have stated in the beginning of this communication “The proposal of a single omnibus law against all types of trafficking is only possible by pinning all the existing specialised laws against the destination crimes of human trafficking under a new cover page name. This will only add to confusion, breakdown and wasteful duplication.”

Written by Dr. Pravin Patkar The author is the Co-Founder & Director of Prerana (India’s leading and pioneering anti-trafficking civil society organization, Retired Faculty TISS, Ex. Professor-Amrita University, ex Vice Chairperson ECPAT International, and Fulbright Scholar (Fulbright Nehru Academic and Professional Excellence Fellow 2015-2016, in residence at University of Rhode Island, USA).
Assisted by Kashina Kareem, Project Manager, Anti-Trafficking Centre, Prerana

Saturday, February 25, 2017

What happened to the 15th Draft of the proposed law the Anti Human Trafficking Bill?

The Ministry of Women & Child Development Govt of India took up an initiative in 2015 to come up with an omnibus law against human trafficking and constituted a Committee in September 2015 in which it also included a handful representatives of a few civil society organizations and a couple of ‘experts’. The Committee operated for app. 7 months and in May 2016 it came up with a Draft of the Bill which was shockingly poor in content and quality. It also exhibited utter ignorance about the situation of trafficking, the priority areas needing legal provisions, the national, regional and international ‘best practices and success stories, the legal environment and the established practices in the country. Obviously, the 1st Draft met with ridicule and some serious and studied criticism although it did not deserve the latter.

Following that, in face of the studied criticism the Ministry went through a long tour of discarding the old Drafts and coming up with newer drafts. There was a lot of flip-flop in the content and objectives. e.g. in the name of coming up with an omnibus anti trafficking law the 3rd Draft actually provided for repealing the ITP Act entirely and thereby making the sex trade open and get the traffickers and sex traders decriminalized.

The Ministry’s repeated acts of throwing away the successive Drafts in the face of the scholarly criticism indicated that the Ministry’s intentions were good and it was genuinely in search of a good legislation. However its equally repeated act of coming up with a newer but thoroughly defective Drafts indicated that the Ministry was being taken for a ride by someone.

Only the 1st, the 3rd, and the 4th Drafts were available for the public including the civil society organizations. The 2nd Draft was circulated to a small group which got leaked and people commented on it. Subsequently, some insiders leaked the 10th Draft which too was utterly defective and confused.

The flip flop in the series of Drafts was evident. The content that remained stable through all the drafts was a provision to create and empower a number of uncalled for bureaucratic structures and Committees and the exclusion of and the punitive stance towards the civil society organizations which in fact have done whatever anti human trafficking work in the country that is worth the mention.

The Website of the Ministry continues to display the Immoral Traffic Prevention Act Amendment Bill 2005 (or 2006) which misleads the visitors. Is it a valid Bill to be presented? To the best of our understanding it is an irrelevant and dated item still hanging on the Ministry’s website. The website has no mention whatsoever of the abovementioned various Drafts of the proposed new law. We have not come across anyone who has seen the Drafts after the so called 10th Draft.

The proposed Draft (Draft no. 15?) was to be presented in the winter session of the Parliament in 2016 which did not happen. A little before the winter session concluded the Minister announced that the Bill would not be presented in the winter session but instead would get tabled in the Budget Session of the Parliament. The Budget session is on and the list of Bills to be considered in it is appended below which does not show that the Anti Trafficking Bill is being tabled now.

The problem of human trafficking is now witnessed even by a common man. It is no more the concern of the professionals engaged in the anti human trafficking work. There are many success stories and best practices which need to be incorporated in our law. Some advanced countries have come up with progressive and effective legislation that have met with a good degree of success (e.g. Sweden, USA). There is so much to learn from them. Making a few minor amendments in the existing laws against the different destination crimes of human trafficking is an urgent need of the hour. If the 2016 season dominated by a series of defective Drafts is over then it is time we focus at least on the urgently required minor amendments and provide the much needed protection to the vulnerable sections of our society against trafficking.

Dr. Pravin Patkar

[17 Jan 2017] Prerana ATC Release - Technology-based Solutions to Tackle Online Child Sex Offences

Add caption

We had earlier shared this news of the first week of December 2016 that indicated a major breakthrough and advantage over the existing technology based solutions to tackle online child sex offences. It was later learnt that not many organizations received this news hence I am resending the news items.

I have in the past, on several platforms shared my observation that empirical research on pornography is physically, mentally as well as legally hazardous. Actions against online sexual offences against children cannot be tackled merely with software based solutions although they can facilitate them. The existing software based solutions have severe limitations arising from legal multiplicities and diversities, the unevenness in the political will across the States of the world to combat the crime and the hugely unreliable data bases. Many of the existing solutions also can not address the peer to peer transfer of images which is very rampant.

Against that background the new solution mentioned in the news below appears like a significant breakthrough and a big leap. The trials of this solution have also shown significant accuracy. It is quite surprising that the news has not received the attention it deserved.

Our governments, international organizations, UN agencies and the media would do better if they facilitate the adoption of this solution or work to evolve our own versions (given our computer and IT capacity) and integrate the enforcement agencies in the process which will facilitate their sense of ownership.

Dr. Pravin Patkar

Tuesday, January 10, 2017

No Grounds for Confusion over Positions of IPC and POCSO over Sex with Wife below 18 and 15 years

Some people have a misapprehension that there is an unresolved conflict between the Indian penal Code (IPC) and the Protection of Children From Sexual Offences Act- 2012( POCSO) w.r.t sex with one’s wife who is between the age of 15 and 18 years.. The news item reproduced below informs us that Kailash Satyarthi’s Bachpan Bachao Andolan has moved the apex court seeking clarity on this conflict. My comments on the alleged lack of clarity.

- Dr. Pravin Patkar