Why India's New Trafficking Bill Is Just Empty Gestures

On 31 May 2016 the Walk Free Foundation released its 2016 Global Slavery Index. The foundation, headed by Andrew Forrest, an Australian mining magnate, grabbed headlines around the world when it claimed that there were 45.8 million ‘modern slaves’ around the world, of whom 18.3 million were to be found in India.

Although Forrest’s preface to the 2016 Global Slavery Index was interspersed with kind and appreciative words for Narendra Modi, the Indian prime minister, there was no mistaking that the world balked at India’s shame.

Perhaps in anticipation of this indictment, the Indian Ministry of Women and Child Development recently proposed the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 (hereafter the trafficking bill), on which comments are solicited until the end of June 2016.

I argue that the trafficking bill needs serious reconsideration to prevent it from becoming a missed opportunity. There is an urgent need for the Indian government to go back to the drawing board to formulate a comprehensive, effective anti-trafficking law.

Keeping up with the Joneses

In order to appreciate the trafficking bill, some understanding of the history of international and domestic anti-trafficking law is essential. Against this backdrop it will soon become clear that the proposed law will do little to alleviate India’s shame of harbouring the highest number of the world’s ‘modern slaves’.

It also seems to be a shallow attempt to ape a highly carceral, western approach to a juridically constructed problem of ‘trafficking’ undertaken in perfect amnesia of a richer, more systemic, and indigenous legal approach to the exploitation that has long afflicted vulnerable sections of India’s work force. Herein lies the irony of poorly thought out laws meant to act as band-aids on the long festering problem of severely unequal wealth and resource distribution.

Now onto a brief overview of the international legal framework on trafficking.

Although there has existed since the turn of the twentieth century an international legal regime around the ‘traffic’ of women and children into prostitution, the legal concept of ‘trafficking’ received its legal definition only relatively recently in the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereafter the UN trafficking protocol) supplementing the UN Convention against Transnational Organised Crime 2000 (hereafter, the UN organised crime convention).

According to Article 3(a) of the UN trafficking protocol:

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b): The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.

The UN trafficking protocol is an instrument of transnational criminal law wherein countries negotiate a crime suppression treaty which does not take effect on its own; instead the crime that countries agree to supress has to be enacted into domestic criminal law. Herein lies the key to the ineffectiveness of the UN trafficking protocol more generally.

Countries have symbolically adopted the definition of trafficking but how they define its core legal concepts of coercion and exploitation – both of which are irreducibly political ideas – varies widely.

To complicate matters, before the UN trafficking 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.

These include The Slavery Convention of 1926; The ILO Forced Labour Convention (No. 129 of 1930); The UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949);The ILO Abolition of Forced Labour Convention (No.105 of 1957); and theInternational Covenant on Civil and Political Rights (1966).

Little wonder then that, despite the extraordinary speed at which the UN trafficking protocol was ratified and despite the magnificent estimates of the number of ‘modern slaves’ around the world today, the number of prosecutions against traffickers remains abysmally low.

This is due, in no small part, to the fact that 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.

Another layer of complexity comes from trafficking’s long history of association with prostitution. Historically, and more recently under the Bush-run US administration, trafficking was conflated with trafficking for sex work and, indeed, with sex work itself.

When the US government then started ranking governments annually in the US State Department’s Trafficking in Persons Reports in terms of their actions to prevent trafficking and prosecute traffickers, and then withholding “nonhumanitarian, non-trade-related” aid from the worst offenders, governments scrambled to amend their anti-sex work laws in order to be placed higher up in the TIP rankings.

Regions of the world like south Asia, meanwhile, became playgrounds 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

It is in the context of these international developments that we need to assess the Indian trafficking bill. Like most countries around the world, India has a growing architecture of anti-trafficking law, put into place at different points in time to address varied manifestations of extreme labour exploitation.

Several provisions of the Indian Penal Code, 1860 (IPC), dealt with aspects of trafficking, such as: kidnapping or abduction (Sections 365, 367); procuring, buying and selling minors for prostitution (Sections 366A, 366B, 372, 373); slavery (Section 371); and unlawful compulsory labour (Section 374). In 2013, new offences of trafficking were added (Sections 370, 370A).

Yet the Indian Penal Code does not define the terms slavery, bondage, forced labour, orbegary (where a person has been forced to work against his will and without payment). Many of the labour-related provisions in the IPC were a product of colonial rule, and thus they reflected the realities of that time.

They also often furthered the colonial government’s interests in extracting compulsory labour from the natives (which would make it lawful and therefore not subject to Section 374).

Meanwhile, the Indian Constitution, as a self-styled radical legal document reflecting postcolonial aspirations for modern nationhood, is concerned with indigenous forms of servitude. Under Part III, which deals with fundamental rights, Article 23 prohibits the traffic in human beings, begary, and other similar forms of forced labour, making the contravention of this provision an offence punishable in accordance with law.

However Article 23, much like the Indian Penal Code, does not define these terms.

The Indian 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 forms of exploitation that today travel under the conceptual banner of ‘trafficking’.

In the 1970s, India, keen to live up to the aspirations of the Indian Constitution, passed several social legislations.

These were the Bonded Labour System (Abolition) Act, 1976, as amended by the Bonded Labour System (Abolition) Amendment Act, 1985 (BLSAA); the Contract Labour (Regulation & Abolition) Act, 1970, as amended by the Contract Labour (Regulation & Abolition) Amendment Act No.14 of 1986 (CLRAA); and the Inter-State Migrant Workmen Act (Regulation of Employment and Conditions of Service) Act, 1979 (ISMWA).

All of these laws counter extreme forms of labour exploitation that are now commonly included under the term trafficking. Their intervention models are comprehensive, multi-pronged, community-based, and aimed at systemic reform – several notches above any simplistic attempts at rescue and rehabilitation.

The BLSAA, for instance, not only prohibits and penalises existing and future bonded labour; all bonded labourers are set free and, by law, their obligation to repay the debt is extinguished.

The BLSAA has several elaborate provisions rendering existing and future legal action arising from the debt void. Creditors accepting any 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 so as to prevent their becoming bonded again.

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 CLRAA and ISMWA, meanwhile, address chronic exploitation by intermediaries and sub-contractors by imposing on them the obligations of the employer.

Women carrying soil during the construction of national highways in India. Asian Development Bank/Flickr. (CC 2.0 by-nc-nd)

In the 1980s, the Indian Supreme Court, faced with the lack of implementation of these laws by the state and indeed the state’s own reliance on these forms of labour in vast infrastructure projects through subcontracting arrangements, interpreted the concepts of force and exploitation quite broadly to restore the dignity of the Indian worker.

For instance, the term force – for purposes of ‘forced labour’ – was interpreted to include the kind of economic coercion that required workers to accept a job under poor conditions over starvation. Similarly, any work where the remuneration was less than the minimum wage was considered exploitative.

To combat the executive’s inaction in enforcing these regulations, the activist Indian courts relied on expert state bodies such as the National Human Rights Commission to push recalcitrant provincial governments to enforce these laws.

Still chasing sex workers

Meanwhile continuing on from twentieth century international laws against the traffic of women was the domestic anti-sex work criminal law, namely theImmoral Traffic Prevention Act, 1956.

Section 5 of this act criminalises procurement for sex work, with or without the consent of the person; inducing a person to become an inmate of a brothel; taking a person from one place to another or bringing them up to take up prostitution; or inducing a person to carry on prostitution.

In 2005, in response to India’s low ranking in the US TIP reports – it was placed on the ‘tier two watch list’ – the Indian government came close to amending the Immoral Traffic Prevention Act, 1956 in order to criminalise the customers of sex workers.

It was due to the disagreements within the government itself, particularly between the home ministry and the health ministry, that the amendment did not pass muster. After all, India had since the 1990s spent an enormous amount of money on preventing HIV amongst so-called ‘high risk groups’ including sex workers; any law that criminalised a core stakeholder in the sex industry such as the customer was bound to undo decades of public health work by pushing the industry underground.

India ratified the UN trafficking protocol in May 2011. In 2013 as part of sweeping rape law reforms, (prostitution) abolitionist anti-trafficking NGOs prevailed on the Verma Committee to introduce a separate offence for trafficking, proposing an offence that conflated voluntary sex work with trafficking. Sex workers’ groups successfully protested this conflation.

The Indian Parliament then introduced a new section on trafficking into the Criminal Law (Amendment) Act, 2013: Section 370 criminalises trafficking and Section 370A the use of the services of a trafficked person. Section 370 mirrors the UN trafficking protocol’s definition of trafficking, except that it dropped two key terms.

The first was “an abuse of a position of vulnerability”, which could be interpreted very broadly to cover any economic or social coercion. The second was “forced labour”, which had already been interpreted expansively by the Indian Supreme Court.

A positive spin on these innocent omissions is that Indian law already included robust labour law provisions to counter forced labour, and thus Section 370 could omit this.

A more plausible (and perhaps cynical) interpretation, in my view, is that the Indian Parliament was trying to curb the scope of the crime of trafficking given the broad interpretation of the term ‘force’ by the Indian Supreme Court.

The close association of trafficking with sex work was handy here; prioritising trafficking for sex work was a convenient way for the Indian government to look the other way from the hundreds of thousands of workers labouring in extremely exploitative conditions.

To illustrate the point: in the lead up to the passage of the Criminal Law (Amendment) Act, the government initially proposed to criminalise anyone who engaged trafficked persons irrespective of the sector in which they worked. Ultimately, Section 370A only criminalised those who engaged trafficked persons or minors for sexual exploitation, but not the users of trafficked persons in domestic work, agriculture and the construction industry.

The 2016 trafficking bill

The 2016 trafficking bill is only the latest (proposed) addition to the existing patchwork of Indian laws against trafficking.

Can the trafficking bill achieve what it sets out to do, namely, “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”?

I claim that the bill in its current form will not be able to achieve its stated objectives.

This is because there are at least three sets of laws that are applicable to the various manifestations of domestic trafficking in India today: the generally enforceable Indian Penal Code (IPC); the specialist criminal law; and the Immoral Traffic Prevention Act (ITPA), which is applicable to the sex sector as well as to a range of specialist labour legislations covering bonded labour, contract labour, and inter-state migrant work.

As indicated, they all arise from different legal sources and harbour varied ideas about what constitutes ‘trafficking’ or extreme exploitation, which arise in turn from divergent political understandings of coercion and exploitation. Finally they envisage radically different regulatory mechanisms to go about addressing exploitation.

India needs a comprehensive anti-trafficking law that not only consolidates these varied streams of anti-trafficking laws, but also their very different political visions of what constitutes extreme exploitation and the best regulatory means of addressing them.

This difference of approach is visible in many respects. While the IPC and ITPA are embedded in a carceral approach, labour laws relating to bonded labour, contract labour, and inter-state migrant work envisage elaborate administrative and labour law mechanisms that operate at the local level.

While the criminal laws are focused on targeting ‘bad men’ traffickers (rotten apples), the labour laws assume that exploitation is endemic in Indian labour sectors and use a combination of penal provisions and labour law doctrines to impose obligations for better working conditions on a whole range of intermediaries.

The older IPC provisions are rarely used (see NCRB data on statistics relating to prosecutions under Sections 371, 372 and 373; these amounted to less than 100 in 2014), and it is too soon to assess the effectiveness of the more recently legislated Sections 370 and 370A, the huge enforcement gap of the labour laws despite activist judges, the National Human Rights Commission and several dedicated officers from the Indian Administrative Service is a painful reminder of the callous indifference of sections of the executive and of Indian society to labour exploitation.

The government has considered changes to these different forms of anti-trafficking law several times in recent years, often in opposite directions. The Ministry for Women and Child Development has repeatedly considered amending the ITPA to criminalise customers of sex workers in accordance with the Swedish model.

The National Advisory Council under the erstwhile United Progressive Alliance government headed by the Congress Party, meanwhile, commissioned reports on the reforms of laws relating to bonded labour.

On the face of it, the trafficking bill seeks to build out the infrastructure around Section 370, a provision that was hastily passed as part of the Criminal Law (Amendment) Act, 2013.

However, India needs a comprehensive and effective anti-trafficking law that not only consolidates these varied streams of anti-trafficking laws, but also their very different political visions of what constitutes extreme exploitation and the best regulatory means of addressing them. Unfortunately, the trafficking bill is not the consolidated legislation that we need.

The key features of the trafficking bill

The trafficking bill envisages the creation of district and state level anti-trafficking committees. These will consist of government officers and NGO representatives in charge of mobilising 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 victim after rescue is to be first brought to the district committee or a police station either by the investigating officer, public servant, social worker, or the victim herself.

The bill envisages the creation of protection homes to provide for shelter, food and clothing, counselling, and medical care of rescued victims, while special homes provide long term institutional support.

The government is required to formulate schemes and programmes for rehabilitation, support, after care, and reintegration services. The state governments are to form specialised schemes for women in prostitution or any other form of commercial sexual exploitation.

There is then an underdeveloped provision on placement agencies requiring that they register. However no further protections are available to victims who may be duped by such placement agencies other than a fine payable by the placement agency itself.

A Central Anti-Trafficking Advisory Board will advise the government on the implementation of the bill.

The trafficking bill creates certain new offences. It criminalises using a narcotic substance, alcohol, or psychotropic substance for the purpose of 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.

In cases where such information is published in the media, the offending media person and the owner of the media venture can both 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 cognizable and non-bailable (in the IPC ‘cognizable’ refers to situations where a complaint is not necessary in order for a police officer to arrest an offender).

Various other provisions enable the confiscation, forfeiture, and attachment of property where anyone has committed offences under Section 16 and 17 of the proposed act or under or Sections 370-373 of the IPC.

The latter deals with trafficking; engaging a trafficked minor or person for sexual exploitation; habitual dealing in slaves; selling or disposing of or hiring a minor for prostitution. The burden of proof as to guilt for these offences is also reversed, such that the commission of the crime is presumed unless proved otherwise.

Special courts are to be instituted for the prosecution of offences under Sections 370-373 of the IPC and offences under the act; experienced prosecutors are to be appointed as special public prosecutors.

In addition to the prescribed penalties for committing an offence of trafficking, the bill provides for the payment of back wages, which is a welcome move.

An ‘anti-trafficking fund’ is to be set up to fund the implementation of the act, but with no financial commitment from the government (unlike say the Nirbhaya fund for the safety, security and empowerment of women and girl children); the fund is somehow supposed to attract “voluntary donations, contributions or subscriptions as may be made by any individual or organisation”.

Perhaps this is an invitation to philanthrocapitalists to bankroll the government’s anti-trafficking initiatives?

Good intentions perhaps, but likely ineffective

In effect, the trafficking bill proposes the creation of a separate criminal law infrastructure to deal with trafficking. The district trafficking committee is the first port of call where a range of social actors, governmental and otherwise, must report a victim of trafficking.

It is not clear which agency undertakes the raid and rescue, but the victim is housed at the protection home, the police investigate 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 their assets, and a parallel adjudication machinery consisting of special courts and special public prosecutors.

Protective homes under the ITPA have produced perverse consequences, such as state officials sexually abusing women and colluding with brothel-keepers and pimps.

The trafficking bill thus proposes to make the prosecution of trafficking under Section 370 meaningful and on paper it looks workable.

However the bane of the Indian legal system historically, and particularly in relation to bonded labour, has been the inability of the executive to meaningfully translate law on the books into action.

The raid-rescue-rehabilitation model built into the ITPA has similarly been a failure; protective homes under the ITPA have in fact produced perverse consequences, such as state officials sexually abusing women and colluding with brothel-keepers and pimps.

Compounding the proposed replication of the failed model of rescue and rehabilitation is the complete lack of clarity regarding how the infrastructure proposed by the bill interacts with the existing vigilance committees under the bonded labour laws and the protective homes set up under the ITPA.

In the absence of any financial commitments from the government, one is left to conclude that the trafficking bill is an empty gesture meant to appease modern-day abolitionists and secure a better ranking in the Global Slavery Index and away from its current ‘hotspot’ status.

Worse still, India has had a strong history of sex work exceptionalism. In other words, Indian 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 the release of the 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 the rehabilitative measures to facilitate women’s exit from sex work.

Labourers in an Indian brick field. UNDP/Flickr. (CC 2.0 by-nc-nd)

Recollect that Indian anti-trafficking NGOs are predominantly anti-sex work/abolitionist groups, whereas organisations working against bonded labour find little resonance in the trafficking label.

The proposed law is thus perceived at being directed primarily at victims of commercial sexual exploitation, a convenient distraction for the government from the millions of men and children working under extremely exploitative conditions in brick kilns, stone quarries, construction sites, rice mills, carpet workshops and agri-business.

Thus, where the trafficking bill could have consolidated existing statutes and enforcement machinery while also lending conceptual coherence to the term ‘trafficking’, what we have instead may be token legislation that makes a mockery of a serious drive to counter labour exploitation.

What could India do instead? To begin with India might acknowledge that many countries have a patchwork of legislation on trafficking and have worked to consolidate them (the UK Modern Slavery Act, 2015 is an example).

So far I have discussed trafficking within Indian borders. But the Indian government also needs to revisit, as part of any comprehensive anti-trafficking law, the predicament of the hundreds of thousands of Indian migrant labourers who have for decades faced precarious working conditions in the Gulf.

It needs to consider further that situation of hundreds of thousands of workers toiling within the global supply chains of western corporations that manufacture in India through elaborate sub-contracting arrangements.

Above all, the Indian 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 forms of exploitation that today travel under the conceptual banner of ‘trafficking’.

It then needs to work out the precise relationship between the varied streams of anti-trafficking law in India and consolidate them, conceptually (in terms of the relationship between forced labour, bonded labour, the legal status of the debt and/or advance, trafficking, procurement), definitionally and in regulatory terms while prioritising improved labour conditions and the redistribution of wealth and resources.

Indian lawyers, bureaucrats, judges, and activists have long debated every single conundrum that anti-trafficking advocates grapple with today.

Whether it is over the scope of the offence of trafficking; the nitty-gritty meanings of the various forms of exploitation that its umbrella definition covers; the futility of trying to demarcate the worst forms of labour exploitation from endemically exploitative practices in a given labour sector; 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.

Last but not the least, the starting point for any responsible government in power should be what a labourer once told a young bureaucrat investigating bonded labour and the “immoral trafficking of women”, namely that efforts to deal with her predicament through nariniketans (women’s homes), widow pensions, checkposts, police raids etc., are all fun and games.

She said: “buy freedom for our men, give them land and only land. It is this land, these green fields, which will protect their girls. Nothing else can”.

It is this call to redistribution that the Indian government must heed.

This article was republished from OpenDemocracy.net.