With its conventional raid-rescue-rehabilitation model and emphasis on sex work, the Bill will not meet its fundamental objective.
Children working at a brick kiln in West Bengal. Credit: Monirul Islam Mullick
On May 31, the Walk Free Foundation released its 2016 Global Slavery Index, which claimed that there were 45.8 million ‘modern slaves’ around the world, of whom 18.3 million were in India.
As the world balked at India’s shame, the ministry of women and child development proposed an anti-trafficking bill – Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016.
Unfortunately, the anti-trafficking bill is seriously inadequate. All concerned ministries must go back to the drawing board to formulate a comprehensive and effective anti-trafficking law.
The proposed law does little to alleviate India’s shame of ‘modern slavery’. It apes a highly carceral, Western approach to a juridically constructed problem of ‘trafficking’, in perfect amnesia of a richer, more systemic and indigenous legal approach to the exploitation that has long afflicted the vulnerable sections of India’s work force. Herein lies the irony of poorly thought-out laws that purport to act as bandaids for the deep, long-festering wounds caused by severely unequal wealth and resource distribution.
Keeping up with the Joneses
Although there existed an international legal regime on the trafficking of women and children into prostitution since the turn of the 20th century, the term received its legal definition only in the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplemented the UN Convention against Transnational Organised Crime. Article 3(a) of the protocol defines “trafficking in persons” as the recruitment, transportation and harbouring of persons, by means of force, fraud and abuse of power, or of a position of vulnerability for the purpose of exploitation. Exploitation includes the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude and the removal of organs. Many countries symbolically adopted this definition of trafficking, but how they domestically define its core legal concepts of coercion and exploitation – both of which are irreducibly political ideas – varies widely.
To complicate matters, before the protocol was adopted, every aspect of exploitative labour that it covers was already the subject of several international law regimes on slavery, slavery-like practices and forced labour. Hence, despite the extraordinary speed at which the UN trafficking protocol was ratified and its magnificent estimates of the number of ‘modern slaves’, the number of prosecutions against traffickers remains abysmally low. This is because governments, activists and scholars alike are struggling to demarcate the exact conceptual parameters of trafficking and cognate phenomena, including forced labour and modern slavery, all of which are used interchangeably by the global opinion-making elite.
Trafficking has long been associated with prostitution. More recently the Bush-run US administration conflated trafficking with trafficking for sex work and with sex work itself. When the US government then started ranking governments annually in the state department’s Trafficking in Persons (TIP) reports and withholding “nonhumanitarian, non-trade-related” aid from the worst offenders, governments scrambled to amend their anti-sex work laws to improve their TIP rankings. South Asia became a playground of sexual humanitarianism, as religious evangelicals and liberals alike sought to rescue third world sex workers and purchase their ‘freedom’.
Competing legal traditions and government inaction
India has a growing architecture of anti-trafficking laws, put in place at different points in time to address the various manifestations of extreme labour exploitation. The Indian Penal Code (IPC) already dealt with kidnapping, abduction, slavery, buying and selling minors for prostitution, and unlawful compulsory labour. In 2013, new offences of trafficking were added (Sections 370, 370A). The IPC does not define slavery, bondage, forced labour or ‘begar’ (a person who is forced to work against his will and without payment). Many IPC provisions reflected the colonial government’s interests in native labour. Meanwhile, under Article 23, the constitution prohibits the trafficking of human beings, begary and other similar forms of forced labour, making its contravention an offence. However, Article 23 also does not define these terms.
In the 1970s, India passed several social legislations on bonded labour, contract labour and interstate migrant work. All of these counter cases of extreme labour exploitation are now commonly included in the term trafficking. Their intervention models are comprehensive, multi-pronged, community-based and aimed at systemic reform – several notches above simplistic attempts at rescue and rehabilitation. The bonded labour law, for instance, prohibits and penalises existing and future bonded labour. All bonded labourers are set free, their obligation to repay the debt extinguished, and existing and future legal action arising from the debt deemed void. Creditors accepting repayment for an extinguished debt can face imprisonment and fines. Local district magistrates have to ensure the act’s implementation, the eradication of bonded labour and the rehabilitation of bonded labourers. Vigilance committees with representatives of the state, the affected community, social workers, rural development institutions and credit institutions are to assist the executive in this, while also defending suits against freed bonded labourers. The laws on contract labour and interstate migrant work, meanwhile, address chronic exploitation by intermediaries and subcontractors by imposing on them the obligations of the employer.
In the 1980s, the Supreme Court, faced with the poor implementation of these laws and indeed the state’s own reliance on such labour in vast infrastructure projects through subcontracting arrangements, interpreted the concepts of force and exploitation broadly to restore the worker’s dignity. The term ‘force’, as in ‘forced labour’, was interpreted to include the economic coercion that forces the worker to ‘choose’ a job with poor conditions over starvation. Similarly, any work paid less than minimum wage was considered exploitative. Courts relied on expert state bodies such as the National Human Rights Commission (NHRC) to push recalcitrant provincial governments to enforce these laws.
Still chasing sex workers
The domestic anti-sex work criminal law, the Immoral Traffic Prevention Act, 1956 (ITPA), drew on 20th century international laws against the trafficking of women. Section 5 of the ITPA criminalises procurement of sex work, with or without the consent of the person. In 2005, in response to India’s low ranking (‘tier two watch list’) in the US TIP reports, the government almost amended the ITPA to criminalise the customers of sex workers. Disagreements between the home ministry and the health ministry led the amendment to lapse. After all, India had since the 1990s invested heavily in preventing HIV amongst so-called ‘high risk groups’, including sex workers; any law that criminalised a core stakeholder like the customer would undo decades of public health work by pushing the sector underground.
India ratified the UN trafficking protocol in May 2011. In 2013, as part of sweeping rape law reforms, anti-sex work NGOs prevailed on the Verma Committee to introduce a separate offence for trafficking that conflated voluntary sex work with trafficking. Sex workers’ groups successfully protested against this. The Indian parliament then introduced Section 370 (criminalising trafficking) and Section 370A (criminalising the use of the services of a trafficked person) into the Criminal Law (Amendment) Act, 2013. Section 370 mirrors the UN protocol’s definition of trafficking, but drops two key terms: “an abuse of a position of vulnerability”, which could be interpreted very broadly to cover any economic or social coercion, and “forced labour”, which had already been interpreted expansively by the Supreme Court.
One may attribute these apparently innocent omissions to the pre-existence of robust Indian labour law against forced labour. More plausibly, however, the parliament sought to curb the scope of the crime of trafficking given the Supreme Court’s broad interpretation of the term ‘force’.
The close association of trafficking with sex work was handy here; prioritising trafficking for sex work helped the government to conveniently look the other way from lakhs of workers labouring in extremely exploitative conditions. Thus, when debating the Criminal Law (Amendment) Act, although the government initially proposed criminalising anyone who engaged in trafficking, irrespective of the victims’ employment sector (including domestic work, agriculture, construction), Section 370A ultimately only criminalised those who engaged trafficked persons or minors for sexual exploitation.
The 2016 anti-trafficking Bill
The 2016 anti-trafficking bill is only the latest (proposed) addition to the existing patchwork of Indian laws against trafficking.
The bill in its current form will not achieve its objectives of preventing trafficking and providing protection and rehabilitation to trafficked victims.
This is because there are at least three sets of laws applicable to the various manifestations of domestic trafficking: the generally enforceable IPC; the specialist criminal law, that is, the ITPA, which is applicable to the sex sector, and several specialist labour legislations covering bonded labour, contract labour and interstate migrant work. They all arise from different legal sources and harbour varied ideas about what constitutes ‘trafficking’ or extreme exploitation, emerging in turn from divergent political understandings of coercion and exploitation. Finally they envisage radically different regulatory mechanisms to counter exploitation.
The differences in these approaches are visible in many respects. While the IPC and ITPA are carceral, laws on bonded, contract and migrant labour envisage elaborate local-level administrative and labour law mechanisms. While criminal laws target ‘bad men’ traffickers, labour laws presume that exploitation is endemic and use both penal and labour law doctrines to impose obligations for better working conditions on all intermediaries. While the older IPC provisions are rarely used, and it is too soon to assess Sections 370 and 370A, the huge enforcement gap of labour laws, despite activist judges, the NHRC and several dedicated IAS officers, is a painful reminder of the callous indifference on the part of sections of the executive and Indian society towards labour exploitation.
The anti-trafficking Bill seeks to build an infrastructure around the hastily-passed Section 370. However, India needs a comprehensive and effective anti-trafficking law that consolidates not only these varied streams of anti-trafficking laws, but also the very different political visions of extreme exploitation and the best regulatory means to address them. Unfortunately, the trafficking Bill is not that piece of legislation that consolidates.
The key features of the bill
The anti-trafficking Bill envisages creating district and state-level anti-trafficking committees 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.
Under its current layout, a rescued victim is to be initially brought to the district committee or a police station, by the investigating officer, public servant, social worker or the victim herself. The bill envisages creating protection homes to provide shelter, food, clothing, counselling and medical care to rescued victims, and special homes to provide long-term institutional support.
The government is to formulate programmes for rehabilitation, support, after-care and reintegration services. The state governments are to form specialised schemes for women in prostitution or who have been the victims of other forms of commercial sexual exploitation.
There is, additionally, an underdeveloped provision on the registration of placement agencies – the violation of which attracts a fine, but there are no protective measures for victims duped by such agencies.
A Central Anti-Trafficking Advisory Board will advise the government on the Bill’s implementation.
The bill creates new offences. It criminalises using a narcotic substance, alcohol or psychotropic substance for trafficking (Section 16), administering any chemical substance or hormone to a trafficked woman or child to enable early sexual maturity (Section 17) and revealing the identity of a victim or witness to a crime of trafficking. If such information is published in the media, the offending individual and owner of the media venture are both liable to be punished. The bill also penalises the contravention of the registration requirements for protection homes, special homes and placement agencies.
Offences relating to the administration of chemicals and hormones are cognisable and non-bailable. Other provisions enable the confiscation, forfeiture and attachment of property when offences are committed under Section 16 and 17 or under Sections 370-373 of the IPC. The latter deals with trafficking, engaging a trafficked minor or person for sexual exploitation, habitual dealing in slaves and selling, disposing of or hiring a minor for prostitution. The burden of proof for these offences is also reversed: the commission of the crime is presumed unless otherwise proven.
Special courts are to be instituted for prosecuting offences under Sections 370-373 of the IPC and offences under the Bill; experienced prosecutors are to be appointed as special public prosecutors. The Bill also provides for the payment of back wages – a welcome move. An ‘anti-trafficking fund’ is to be set up to fund implementation, but with no financial commitment from the government (unlike say the Nirbhaya fund); the fund is supposed to attract voluntary donations – which is, perhaps, an invitation to philanthro-capitalists to bankroll the government’s anti-trafficking initiatives.
Good, but ineffective, intentions
In effect, the anti-trafficking Bill proposes a separate criminal law infrastructure on trafficking. The district trafficking committee is the first port of call where a range of social actors, governmental and otherwise, must report a victim. It is unclear which agency undertakes the raid and rescue, but the victim is housed at the protection home, the police investigates the crime and the special public prosecutor initiates prosecution in a special court.
This classic raid-rescue-rehabilitation model is grounded in a robust criminal law system with stringent penalties, reversals of burden of proof, provisions for defanging traffickers by stripping them of assets and a parallel adjudication machinery consisting of special courts and special public prosecutors.
The anti-trafficking Bill thus proposes to make the prosecution of trafficking under Section 370 meaningful. However, the Indian legal system has historically been unable to meaningfully translate the law into action. The raid-rescue-rehabilitation model built into the ITPA has similarly been a failure; protective homes under the ITPA have perversely resulted in state officials sexually abusing women and colluding with brothel-keepers and pimps.
Compounding the replication of the failed model of rescue and rehabilitation is the complete lack of clarity regarding how the proposed infrastructure is to interact with existing vigilance committees under the bonded labour laws and protective homes under the ITPA. Without any financial commitments from the government, the anti-trafficking bill is an empty gesture, meant to appease modern-day abolitionists and secure a better ranking in the Global Slavery Index, moving it away from its current ‘hotspot’ status.
Worse still, India has a strong history of sex work exceptionalism; policy makers have often viewed trafficking purely through the lens of sex trafficking and sex work – whether it was the changes to the ITPA proposed in the wake of US TIP reports, or the bias in Section 370A towards users of sex trafficked victims. Several provisions of the trafficking bill highlight this continued emphasis on sex work, including the creation of offences under Sections 16 and 17 and rehabilitative measures to facilitate women’s exit from sex work.
Recollect that Indian anti-trafficking NGOs are predominantly anti-sex work abolitionist groups, whereas organisations working against bonded labour find little resonance with the trafficking label. The bill thus seems directed primarily at victims of commercial sexual exploitation, a convenient distraction for the government from the millions of men and children severely exploited in brick kilns, stone quarries, construction sites, rice mills, carpet workshops and agri-business. The Bill could have consolidated existing statutes and enforcement machinery and lent conceptual coherence to the term ‘trafficking’. What we have instead seems to be token legislation.
What could India do instead? The government must revisit the predicament of lakhs of Indian migrant labourers who have for decades faced precarious working conditions in the Gulf. It must consider the plight of lakhs of workers toiling within the global supply chains of Western corporations that manufacture in India through elaborate sub-contracting arrangements. Above all, the government needs to pause and dig deep into its own long and complex legal history, as well as its unique vision of dealing with extreme exploitation that is understood today under the conceptual umbrella of ‘trafficking’. It then needs to work out the precise relationship between the varied streams of anti-trafficking law and consolidate these, conceptually (in terms of the relationship between forced labour, bonded labour, the legal status of the debt, trafficking and procurement), definitionally and in regulatory terms, while prioritising improved labour conditions and the redistribution of wealth and resources.
Indian lawyers, bureaucrats, judges and activists are long familiar with the futility of demarcating the worst forms of labour exploitation from endemically exploitative practices, the division of labour between private and public law responses to intractable and socially embedded labour practices and the failure of rescue and rehabilitation in the face of executive inaction. Armed with this realisation, the government must earnestly undertake a fundamental redistribution of wealth and resources.