The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021, by the Ministry of Women and Child Development, Government of India, slated to be introduced in the upcoming session of the Parliament, is fraught with over-broad definitions, a draconian investigation process and penal provisions that defeat the very purpose of the Bill.

A press release from a Coalition of lawyers, human rights, women’ rights, child rights and labour rights activists voiced their strong protest to the bill and submitted detailed comments on it. The Bill sets out to “prevent and counter trafficking in persons, especially women and children, to provide for care, protection, and rehabilitation to the victims, while respecting their rights, and creating a supportive legal, economic and social environment for them.”

However, like its precursor, the 2018 Trafficking Bill, the problem with the current Trafficking Bill is that it ends up
“criminalising vulnerable individuals in the absence of comprehensive policies, programmes and
measures that address the factors that make persons vulnerable to trafficking,” says the critique by the
Coalition for an Inclusive Approach on the Trafficking Bill.

Free Speech Collective comments on freedom of expression

The Free Speech Collective is deeply concerned about provisions in the Bill that impinge on free speech and expression and has submitted its comments on the bill.

Comments submitted by Free Speech Collective on The Trafficking in Persons (prevention, Care and Rehabilitation) Bill 2021

July 14, 2021

The measures outlined in the Trafficking Bill focus on the victims rather than the perpetrators of the heinous crime of trafficking. In addition, criminalisation of marginalised populations of workers who are eking out an arduous living in the harshest of conditions, makes these sections more vulnerable to traffickers.

The broad definitions in the Bill make short shrift of the pivotal issue of consent and deny agency to adult workers in various sectors of the economy.

We are particularly concerned about assigning the counter-terror National Investigation Agency (NIA) the task of prevention, investigation and prosecution of trafficking in persons and other offences. This amounts to over-reach and eroding autonomy of the states in the federal structure of governance.

Violations of the right to privacy and restricting the right to carry out research or journalism are other serious concerns. Some provisions of the bill criminalising pornography and erotic expression on the internet also deal a blow to freedom of expression and privacy.

Specific concerns:

Intermediary liability

Sec 33 (4) Subject to the provisions of any other law for the time being in force, whoever publishes through intermediaries any electronic record which may lead to trafficking in persons in any form or exploitation of victims of such trafficking, shall be punished with rigorous imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine up to fifty lakh rupees.

(5) Subject to the provisions of any other law for the time being in force, whoever, being an intermediary providing any service related to electronic communication and records, having been seeing the content uploaded on his platform or service, fails or deliberately neglects to report an offence under this Section which has been caused on his platform or through the service which he provides, in such manner as may be prescribed, shall be punished with a fine upto ten lakh rupees.

The infrastructure of the electronic / digital world requires third party intermediaries to handle information during most forms of electronic activities, whether transmission, storage or display. Users who upload and initiate transfer of information online, are not the same parties who do the actual transmission of the information.

It is not feasible, desirable or even practically possible for intermediaries to verify the legality of every bit of data that gets transferred or stored by the intermediary. Hence, ‘safe harbours’ are provided by law for intermediaries, protecting them from liability of the information being transmitted through them. These ensure that entities that act as architectural requirements and intermediary platforms are able to operate smoothly and without fear. If intermediaries are not granted this protection, it puts them in the impossible position of having to monitor un-monitorable amounts of data and face legal action for anything that slips through inadvertently. Importantly, there are several levels of free speech and privacy issues associated with having multiple gatekeepers on the expression of speech online.

Distribution, selling or storing of information online would require the transmission of information over intermediaries, as well as the temporary storage of such information on intermediary platforms.

In India, intermediaries engaging with transmission or temporary storage of information are provided safe harbour by Section 79 of the Information Technology Act, 2000 (‘IT Act’), with certain conditions and due diligence.

Thus, it can be seen that the IT Act already provides an in-depth regime for intermediary liability, and given its non-obstante clause which states that Section 79 of the IT Act would apply “Notwithstanding anything contained in any law for the time being in force”, it is generally considered the appropriate legal framework for this issue. However, the IT Act has not been referenced in the Bill.

The criminalising of intermediaries under the current draft must be considered in conjunction with the recently enacted overbroad Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”). The IT Rules have been challenged in court as violative of Article 19 of the constitution guaranteeing freedom of speech and expression. The Rules do not meet the definition of “reasonable” restrictions placed on this fundamental right.

The attempt to regulate the vibrant digital media has been criticised for overbroad requirements for traceability, automated content removal and content takedown requirements for intermediaries. Increasing government control the absence of any regime for data protection is a dangerous trend legitimised by the IT Rules and sought to be strengthened by the proposed Bill.

Mandatory police reporting

Section 35. (1) Every person who knows or has reason to believe that a person has been trafficked or that an offence under this Act has been committed shall report forthwith to the nearest police station.

Non-reporting of the commission of the offence can attract imprisonment and/or a fine. This requirement puts journalists pursuing investigative stories on human trafficking in a compromised situation, as approaching the police at an inopportune moment could not only jeopardise only themselves and their sources but more importantly, victims and their families. Mandatory reporting in the absence of sensitive approach to victims, witness protection and source protection, would have a chilling effect on journalism itself.

Please read the detailed comments submitted by the Coalition here:

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