When hypercriminalization falls afoul of the constitution: the need to rethink the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021

Abstract

ABSTRACT Trafficking is a transnational legal problem that has attracted considerable attention since the adoption of the UN Convention against Transnational Organized Crime. In derogation of a robust indigenous jurisprudence on forced labour, the Indian state has, since 2000, imported the criminal law model of the Convention culminating in the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021. This Bill is a hypercarceral law, the relationship of which with pre-existing labour laws is unclear even as it seeks to abolish sex work. In its zeal to crack down on criminals, its provisions violate fundamental principles of criminal liability and Articles 14, 19, and 21 of the Constitution even while it casts the net of the criminal law wide, threatening to freeze sections of the economy and render the Indian worker a victim who is confined to rehabilitation homes. The article argues for a fundamental rethink of the Bill.