E-Paper
‘New anti-trafficking law sans clarity on AHTUs will be toothless’
Research on the functionality of AHTUs, conducted in 2019, shows that the progress in creating and legitimising AHTUs across the country has not been a priority with a majority of them having remained notional offices with no dedicated officers.
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The quality and outcome of investigations of human trafficking cases done by specialised Anti Human Trafficking Units (AHTUs) are starkly different from those done by the local police stations. While the investigation by the local police is mostly restricted to the jurisdiction of the police station, AHTU investigations spread across both source and destination states, linking the chain of events and crimes with the traffickers. leading to a robust investigation. It is trite law that in a case of circumstantial evidence, unless the chain of circumstance is complete, conviction cannot be based on the same. The said chain cannot be said to be complete if no investigation happens at all the seats of crime.
However, unfortunately, the AHTUs across the country are running on the basis of state notifications. There is no statutory support regarding these specialised units. The Immoral Traffic (Prevention) Act, 1956 does not mention anything about AHTUs, neither does Section 370 IPC. AHTUs get their power from what we call ‘subordinate legislation’, namely the executive notifications.
Unless these bodies get statutory recognition and support their roles, responsibilities and accountability will remain a grey area. Under the Code of Criminal Procedures, there are specific provisions dealing with the power and functioning of the police. Similarly, the power and functioning of the AHTUs needs to be clarified in the legislation meant to combat human trafficking. Without that, these units will lose its teeth and or will remain unempowered to take action against the organised crime of trafficking.
Research on the functionality of AHTUs, conducted in 2019, shows that the progress in creating and legitimising AHTUs across the country has not been a priority with a majority of them having remained notional offices with no dedicated officers and nominal budgets for infrastructure and operational costs coming from the central government, often diverted and used for other matters than what they were meant for. However, the issue of slack in formalising AHTUs has not been drawn into concern by any agency, including anti trafficking NGOs which, in turn, to strengthen the anti-trafficking response.
Evidence from several cases in West Bengal show that even when local police stations conducting investigation of trafficking cases are urged to transfer the cases to AHTUs, they are reluctant. This is despite the direction by the Calcutta high court in the case of “Sangita Sahu” (2018) that all cases of human trafficking must be sent to thr AHTU within 24 hours of its registration. Writ petitions had to be filed in several cases to get the investigation transferred to the AHTUs. One speculates that this is a systemic resistance to avoid having to create and empower AHTUs in every district of the country as has been suggested by the Union ministry of home affairs multiple times to the state governments. Thus, AHTUs need a legislative mandate.
That the crime of human trafficking is required to be responded with organised law enforcement is something even the Immoral Traffic Prevention Act of 1956 had envisioned and therefore directed that Special Police Officers be appointed in every state to investigate crimes of human trafficking with special powers. However, this has been neglected then. In 2006, the MHA passed a directive to state government to constitute AHTUs. In most states there are a handful of AHTUs and a number of notional AHTUs without any kind of notification or appointment of officials. According to a recent study by Sanjog, only 27% of AHTUs are functional and 51% being notified with all the powers and resources. The study based on RTI responses from 22 states and UTs also revealed that 225 AHTUs are set up only on paper with no centralised process to notify them.
The draft Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021, for which the women and child development ministry had asked for feedback in July, mentioned that the National Investigation Agency (NIA) will be responsible for investigation, prosecution and coordination in cases of trafficking in persons. Unfortunately, it does not clarify the role, functioning and accountability of AHTUs.
If the trafficking Bill do not define the role and functions of the AHTU and the relationship between AHTU and NIA is not clarified, and if all of this are kept under the state model rule as being speculated, this would be completely arbitrary because state rules cannot go beyond the statute.
So, if the legislation comes in without clarifying the roles and responsibilities of the AHTU, it would lead to local police stations continuing to register cases and not sending those to AHTU, and the investigation will be perfunctory as they do not have either human or financial resource to conduct interstate investigation nor are they well equipped to coordinate with other state agencies. Therefore, the conviction rate will remain low and trafficking will continue in its full force. According to the NCRB data, the conviction rate in human trafficking cases in 2020 was 10.6 per cent which might be due to the lack of easy transportation due to the pandemic. It was 29.4% in 2018 and 22% in 2019.
The local police will continue to conduct arbitrary raids and rescues in brothels and will neglect cases of labour trafficking cases because they will only act on complains received. However, the AHTU has the ability and recourses to gather intelligence and identify trafficking victims and not criminalise them. If the proposed trafficking law does not elaborate on the functions of AHTU, as a lawyer I find it is going to be a real disappointment.
(Kaushik Gupta is an advocate at Calcutta high court who provides legal counsel to more than 75 survivors of human trafficking in India)
