Anti-trafficking Draft Bill, 2016 – Salient features, Plus points and Shortcomings

As per the U.N. Office for Drugs and Crime, South Asia, with India at its centre, is the fastest-growing and second-largest region for human trafficking in the world, after East Asia. Thousands of Indians largely poor, rural women and children are lured to big cities each year by traffickers who promise good jobs but sell them into domestic or sex work or to industries or factories.

The draft of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 was released on 30th May 2016. Unveiling the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016, Union Minister Maneka Gandhi said the draft bill aims to unify existing anti-trafficking laws, prioritise survivors’ needs, and prevent victims such as those found in brothel raids from being arrested and jailed like traffickers.

The object of the Bill reads as, “to prevent trafficking of persons and to provide protection and rehabilitation to the victims of trafficking and to create a legal, economic, and social environment against trafficking of persons and for matters connected therewith or incidental thereto

Salient features of the Bill

The draft legislation provides for special courts to expedite trafficking cases, more shelters and a rehabilitation fund to help victims rebuild their lives. The draft bill makes providing narcotic drugs or alcohol for the purpose of trafficking, and using chemical substances or hormones for purposes of exploitation offences. It provides for Protection Homes and Special Homes for short term and long term rehabilitation support. For speedy trial with a view to increase prosecution and to reduce the trauma faced by the victims, the proposed draft Bill provides for establishing Special Courts in each district and experienced Special Prosecutors.

Anti-Trafficking Committee – The Bill provides for anti-trafficking committees – at district, state and central levels – with government officers and NGO representatives to mobilise efforts to prevent, rescue, protect and rehabilitate victims of trafficking, in addition to providing medical care, psychological assistance and skills development.

Special Agency – The Bill provides for a Special Agency to be constituted by the Central Government for investigation of offences under the provisions of the Act.

Anti-Trafficking Fund – The Bill provides for the creation of a fund for the effective implementation of the Act and also for the welfare and rehabilitation of the victims.

Punishment for disclosure of identity – Any newspaper, magazine, etc. who discloses name, address, etc. of a victim or a witness of a crime of trafficking shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one lakh rupees or with both.

Narcotic drugs, psychotropic or alcoholic substances for trafficking – Any person whoe uses any narcotic drug or psychotropic substance, or alcohol, for the purpose of trafficking shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees.

Use of chemical substance or hormones for the purpose of exploitation – Any person who administers any chemical substance or hormones to a trafficked woman or a girl or a child for the purpose of early sexual maturity and exploitation shall be punishable with imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine which shall not be less than one lakh rupees.

Confiscation, forfeiture and attachment of property – The Bill provides for the provision for confiscation of property of any person accused of using narcotic drugs, psychotropic or alcoholic substances for trafficking or using chemical substance or hormones for the purpose of exploitation or accused of section 370-373 of Indian Penal Code, 1860.

Plus points of the Draft Bill

1. Rehabilitation has been recognised as a right

2. Provision for shelter homes in every district for women

3. Provision of a fund for welfare and rehabilitation of victims of trafficking

4. Emphasis on medical check-ups and treatment after returning home

5. Provision for special court and special public prosecutor for trafficking issues

6. Provision for Confiscation and attachment of the traffickers’ properties to pay for fines

Shortcomings of the Draft Bill

1. The draft bill has not clearly defined trafficking, whether it would include those taken for organ harvesting or forced labour.

2. There is nothing in the Bill about preventing re-trafficking.

3. The draft bill does not talk about modes of rehabilitation and who will be responsible.

4. It is not clear how the government intends to set up the Organised Crimes Investigation Agency, as ordered by the Supreme Court, to investigate trafficking.

5. There is no provision for punishment of police officers who misguide or don’t do their duties properly or prevent victims from giving their statement to the magistrate after being rescued. Also there is no punishment for poor investigation.

6. The draft bill talks about a special investigative agency, but its structure, composition, powers and function are unclear.

7. The draft bill talks of an Anti-Trafficking Fund, but it is not clear what the money will be used for.

8. There is no provision for the compensation to trafficking survivors or their families

9. There is no provision for mistreatment with trafficking survivors at the shelter homes

Law on Eve-Teasing in India

Eve-teasing is passing of objectionable or adverse remarks to a woman in a public place like street, market, malls, public transportation, etc. The term ‘Eve-Teasing’ has not been defined in the Indian law. The term ‘eve teasing’ has some demerits. Eve represents temptress and the term actually signifies that eves (women) tempt or provoke males for vulgar comments and behaviors. Ironically, that also means women cause the problem and are also a victim to it. But that is almost like blaming the victims for their sufferings. It also depicts an element of male chauvinism.

The term ‘eve-teasing’ refers to sexual assault or sexual harassment of women, verbally or by making vulgar gestures. Eve-teasing in simple words means harassment of a woman by making vulgar gestures, sexual remarks, winking, whistling, staring, touching her inappropriately, groping, etc.

As per the guidelines given by the Supreme Court in the case of Vishakha v. State of Rajasthan dt. 13-8-1997, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:

  1. physical contact and advances;
  2. a demand or request for sexual favours;
  3. sexually colored remarks;
  4. showing pornography;
  5. any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Law on Eve-teasing in India

Prior to 2013 the law on sexual harassment was not so wide and clear. Earlier the sections dealing with sexual harassment were 294 (Obscene acts and songs), 354 (Outraging the modesty) and 509 (Insulting the modesty) of the Indian Penal Code, 1860. But after the passing of the Criminal Law (Amendment) Act, 2013, the offences of Sexual harassment (354-A, IPC), Disrobing (354-B, IPC), Voyeurism (354-C, IPC) and Stalking (354-D, IPC) were added, thus expanding the meaning of the sexual harassment.

  1. Obscene acts and songs

Section 294 intends to promote public decency and morality.

Section 294 of the IPC punishes a person if he annoys by:

  1. Doing any obscene act: or
  2. Singing, reciting or uttering any obscene song, ballad or words

Punishment – Maximum 3 months or fine or both

Bailable Offence

  1. Outraging the modesty of a woman

According to Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct”.

Section 354 of the IPC punishes a person if he assaults or uses criminal force with the intention of outraging the modesty of a woman.

Punishment – Minimum 1 year but which may extend to 5 years plus fine

Non-Bailable Offence

The expression ‘woman’ in section 354 includes woman of all age including a child. In the case of State of Punjab v. Major Singh dt. 28-4-1966, it was held by the Supreme Court that the essence of a woman’s modesty is her sex. Even a female of tender age from her very birth possesses the modesty which is the attribute of her sex.

  1. Insulting the modesty of a woman

Section 509 of the IPC punishes a person if he:

  1. utters any word
  2. makes any sound or gesture, or
  3. exhibits any object

With the intention that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman.

Punishment – Maximum 3 years and fine

Bailable Offence

The object of section 509 is to protect the modesty and chastity of a woman. Any song, picture, or figure exhibiting lewd suggestions are considered as immoral and insulting women’s modesty.

  1. Sexual Harassment

Section 354-A of the IPC punishes a person if he commits any of the acts:

  1. physical contact and advances involving unwelcome and explicit sexual overtures; or
  2. demand or request for sexual favours; or
  3. showing pornography against the will of a woman; or
  4. making sexually coloured remarks

Punishment – Maximum 3 years or fine or both [For sexually coloured remarks – 1 year or fine or both]

Bailable Offence

  1. Disrobing

Disrobing is humiliating a woman publicly by stripping her or making her nude.

Section 354-B of the IPC punishes a person if he assaults or uses criminal force on a woman with the intention of –

  1. Disrobing, or
  2. Compelling her to be naked

Punishment – Minimum 3 years but which may extend to 7 years plus fine

Non-Bailable Offence

  1. Voyeurism

Voyeurism is the practice of spying on people engaged in intimate behaviors, such as undressing, sexual activity, or other actions usually considered to be of a private nature.

Section 354-C of the IPC punishes a man if he –

  1. Watches, or
  2. Captures the image of a woman, or
  3. Disseminates such images

Engaged in a private act or in the circumstances where she expects that no one is observing her.

However, if the victim consents to the capturing of the image or the act but not to the dissemination to third persons but still if the person disseminates those images then also he will be liable for the offence of voyeurism.

Punishment – Minimum 1 year but which may extend to 3 years plus fine [Subsequent conviction – Minimum 3 years but which may extend to 7 years plus fine]

Bailable Offence [Subsequent offence – Non-bailable]

  1. Stalking

Stalking is following or contacting the victim in person or monitoring her by electronic means despite indication of disinterest shown by her.

Section 354-D of the IPC punishes a man if he follows or contacts a woman despite clear indication of disinterest by such woman.

  1. Physically – Physically following or contacting or attempting to contact woman to foster personal interaction
  2. Electronically – Monitoring the use by a woman of the internet, e-mail or any other form of electronic communication

However, a person will not be liable for the offence of stalking if he proves that:

  1. It was pursued for the purpose of preventing or detecting crime
  2. It was pursued under any law or to comply with any condition or requirement
  3. There was reasonable or justified conduct

Punishment – Maximum 3 years plus fine [Subsequent conviction – Maximum 5 years plus fine]

Bailable Offence [Subsequent offence – Non-bailable]

What a victim should do?

The victim/complainant should immediately go to the nearest police station or the nearest women’s police station, or at the public grievance cell at the Commissioner of Police’s office and file a FIR. She should note that the FIR is written down in the register and take the registration number or ask for a receipt of the same. If there are further inquiries, being a woman, it is victim’s right to request the police to come at her home and collect the information. It is advisable to consult a lawyer before registering the F.I.R.

At the time of incident she can call on 100 (Police) or 1091 (Women helpline number)

Society and the Parents role in curbing eve-teasing

The eve-teasers belong to the society only. Whenever a girl faces eve-teasing she must raise a hue and cry immediately. Public reaction and condemnation scares the wits out of the eve-teaser. The public must help the victim and nab the eve-teaser rather than remaining a mute spectator. The people and the police must make sure that the deeds of the eve-teaser are known to his parents. This will make him feel guilty and the sense of shame will ensure that they never resort to such a thing again. Parents should talk with their daughters and ask them to be bold when faced by such an incident and they should also advise their sons to not ever indulge in such cheap acts. Obviously, family values influence one’s character and deeds.

Eve teasing is a form of sexual harassment indulged in by men, never mind their intelligence or their education. Eve teasing violates a woman’s basic right to live in dignity. Men need to change their attitude towards the woman. It is a complex problem and it requires more attention that what it has actually got.

 

Salient features of the Maternity Benefit (Amendment) Bill, 2016

The Maternity Benematerfit (Amendment) Bill, 2016 seeks to amend the Maternity Benefit Act, 1961. The Bill was introduced in the Rajya Sabha on August 11, 2016 and was passed by the Rajya Sabha on the very same day.

The Maternity Benefit Act, 1961 regulates the employment of women in factories, mines, plantations, shops or other establishments employing ten or more persons, except the employees who are covered under the Employees’ State Insurance Act, 1948, for certain periods before and after child-birth and provides for maternity and other benefits. The 2016 Bill amends provisions related to the duration and applicability of maternity leave, and other facilities.

Salient features of the Maternity Benefit (Amendment) Bill, 2016 are:-

  1. Duration of maternity leave – The 1961 Act states that every woman will be entitled to maternity benefit of 12 weeks. The 2016 Bill will increase this to 26 weeks.
  2. Maternity benefit prior to expected delivery – Under the 1961 Act, this maternity benefit should not be availed before 6 weeks from the date of expected delivery. The 2016 Bill changes this to 8 weeks.
  3. Maternity benefit for a woman having two or more children – If a woman has two or more children, the maternity benefit will continue to be 12 weeks, which cannot be availed before 6 weeks from the date of the expected delivery.
  4. Maternity benefit to adopting mother and commissioning mother – As per the 2016 Bill a woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother.
  5. Provision for Crèche facility – The 2016 Bill introduces a provision which requires every establishment with 50 or more employees to provide crèche facilities within a prescribed distance. The woman will be allowed four visits to the crèche in a day. This will include the interval of rest allowed to her.
  6. Option to Work from Home – The 2016 Bill introduces a provision that states that an employer may permit a woman to work from home. This would apply if the nature of work assigned to the woman permits her to work from home. This option can be availed of, after the period of maternity leave, for a duration that is mutually decided by the employer and the woman.
  7. Informing women employees of the right to maternity leave – The 2016 Bill introduces a provision which requires every establishment to intimate a woman at the time of her appointment of the maternity benefits available to her. Such communication must be in writing and electronically