India Today – August 13, 2018

12 INDIA TODAY AUGUST 13, 2018

L

ast 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. n

Prabha Kotiswaran is Reader, Law and Social

Justice at King’s College, London

The Trauma of Rehabilitation

POINT OF VIEW

By Prabha Kotiswaran

The Trafficking
Bill ignores
community-
based
approaches to
rehabilitation
and fails to
comply with the
SC decision that
rehabilitation
must be
voluntary

Illustration by TANMOY CHAKRABORTY

UPFRONT