How Did We Get Here? Or A Short History of the 2018 Trafficking Bill

This essay tracks the development of the Indian anti-trafficking law over the past two decades culminating in the Trafficking of Persons (Prevention, Protection and Rehabilitation) bill, 2018 (the Bill), proposed to be tabled in the Lok Sabha in the monsoon session of Parliament.

The Indian legal landscape on trafficking encompasses two strands of criminal law which in the parlance of the National Crime Records Bureau can be classified into the general criminal law, namely the Indian Penal Code, 1860 (IPC), and special and local laws such as the Immoral Traffic (Prevention) Act, 1986 (ITPA). Following the abolition of slavery, the IPC incorporated several colonial-era provisions on procuration, importation, buying and selling minors for prostitution, unlawful compulsory labour and habitual dealing in slaves. In 2013, Section 370, a stand alone offence on trafficking, was introduced mirroring the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (also called the Palermo Protocol), supplementing the UN Convention Against Transnational Organised Crime (United Nations 2000). The Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) (now the ITPA), passed pursuant to the ratification of the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, addressing trafficking in the context of sex work (UN 1949). Indian criminal law has thus mirrored international legal developments on sex work and trafficking. 

Long before Western governments even began to address extreme labour exploitation, including in the context of labour migration, India developed robust indigenous labour law jurisprudence in the 1970s on bonded, contract and interstate migrant labour, which experts would today categorise as “trafficking.” Unfortunately, however, these innovative labour laws have remained largely on the statute books. Although the remit of the Bonded Labour System (Abolition) Act, 1976 as amended by the Bonded Labour System (Abolition) Amendment Act, 1985 (BLSAA) was expanded through an amendment in 1985 to include contract labourers and interstate migrant workers whose working conditions satisfied the definition of debt bondage in the BLSAA, it is chronically under-enforced. Thus, of the 231 prosecutions that were launched under the BLSAA since 1996–97, only six had been decided and even those cases had resulted in acquittal (Kara 2012, 205). The Contract Labour (Regulation & Abolition) Act, 1970, as amended by the Contract Labour (Regulation & Abolition) Amendment Act No 14 of 1986 (CLRAA) has meanwhile been severely undermined. As experts note,

“the demand of employers and the approach of the judiciary, barring a few notable exceptions, has been to focus primarily on regulation while making it near impossible to abolish contract labour even as the rhetoric has focused on the deplorable conditions of contract labour and the need for amelioration of the same” (Sehgal nd).

The CLRAA has been unable to realise either of the goals of the law—neither abolition nor regulation of contract labour, with contract labourers routinely being paid less than the minimum wage. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 meant to regulate the movement and working conditions of vast numbers of migrant workers (400 million at last count), has been used even more sparingly than the BLSAA and the CLRAA.

Over the past two decades, we find the ascendance of a criminal law approach to trafficking fostered in no small part by Indian neo-abolitionists (Halley et al 2006: 339) who as I show below, have exerted an inordinate influence on the content of the Indian anti-trafficking law since the mid-1990s. Unfortunately, the Indian criminal law has developed on parallel tracks rather than in conversation with these labour law innovations. This has eclipsed the valuable and original contributions of Indian lawmakers in responding to labour exploitation and trafficking which can offer a powerful alternative to the global discourse on trafficking, forced labour and modern slavery. I start with a discussion of the ITPA given its centrality to the conceptual framing of trafficking before moving on to the IPC.

The ITPA Unpacked 

India’s anti-sex work criminal law, SITA, was amended in 1986 to enhance penalties and renamed the ITPA. Section 5 criminalises procurement for sex work, with or without the consent of the person, conflating trafficking with sex work. The ITPA criminalises several aspects of sex work but not the sale of sex per se. This ambiguous legislative, intent in permitting sex work but not acts essential for its performance, vests enormous discretion in the police resulting in their rent-seeking behaviour, including monetary and sexual pay-offs from them. The ITPA is, therefore a sword dangling over the necks of sex workers, undermining their economic bargaining power in sex work and contributing to pervasive societal discrimination against sex workers. Not only that, the lack of clarity over the legal status of sex work means that the police use various provisions of the IPC (Section 268 relating to causing public nuisance, and Section 294 relating to obscene acts and songs) as well as special and local laws (Section 110B, Bombay Police Act, 1951; the Gujarat Prevention of Anti-Social Activities Act, 1985; the Railways Act, the Police Act in Karnataka and the Narcotic Drugs and Psychotropic Substances Act, 1985) against sex workers. 

In the 1990s, the availability of international funding for HIV prevention enabled the mobilisation of Indian sex workers who organised into the National Network of Sex Workers (NNSW) and the All India Network of Sex Workers (AINSW). They reframed “prostitution” as sex work—a legitimate form of reproductive labour albeit performed under conditions of capitalist patriarchy. Meanwhile, during this time, the National Commission for Women proposed abolishing sex work which became the government’s default position. This position is supported by neo-abolitionist anti-trafficking non-governmental organisations (NGOs). As radical feminists, some of these groups, for example Apne Aap, characterise all “prostitution” as sexual violence requiring the targeting of male demand.[1] Alternatively, others such as Prerana, Prajwala, Shakti Vahini, Guria, Sanjog and Bachpan Bachao Andolan (BBA), are opposed to sex work, possibly persuaded by a cultural nationalist and socially conservative politics seeking to protect the “dignity” of Indian women and children. Neo-abolitionist NGOs have been heavily invested in raids, rescue and rehabilitation, and subscribe to a crime control paradigm of trafficking.[2]

 However, as efforts to amend the ITPA did not materialise, these groups took to public interest litigation (PIL) as a route to achieving institutional reform. Activist Supreme Court lawyers had already approached the courts in Vishal Jeet v Union of India 1990 and Gaurav Jain v Union of India 1997, but through the 1990s, neo-abolitionist NGOs like Prajwala, Prerana and Shakti Vahini, and since 2010, Apne Aap and BBA followed suit. These groups sought to hold a weak and understaffed executive (and ineffective police) accountable for the prosecution of exploiters and traffickers (Nair and Sen 2004), the framing of a Victims’ Protection Protocol and guidelines for proper rehabilitation (Human Rights Law Network nd). They soon became repeat players before the appellate courts. The courts responded by directing the executive to formulate plans for rehabilitation while facilitating the partnership between the neo-abolitionist NGOs and the police in raid and rescue operations. These early writ petitions led to continuous monitoring of the executive by courts for over a decade, leading to the creation of several expert advisory bodies. 

Windfall Gains: The 2013 Rape Law Reforms 

In May 2006, after India was downgraded from Tier Two to the Tier Two Watch List in 2004 under the Trafficking in Persons (TIP) Report issued by the United States (US) State Department, the Ministry of Women and Child Development (MWCD) introduced a Swedish-style amendment to criminalise customers of trafficked sex workers, “trafficking” being defined broadly. However, the negative public health implications, especially on HIV prevention efforts, of criminalising customers led to disagreement within the Union Cabinet, leading to its lapse in March 2009. 

In May 2011, India—which had signed the Palermo Protocol in December 2002—finally ratified it and was returned to the Tier Two List of the US TIP report. The MWCD’s inter-ministerial committee appointed in September 2012 associated trafficking exclusively with sex work. The Criminal Law (Amendment) Bill presented in Parliament on 4 December 2012 in fact had no anti-trafficking offences. Days later, Jyoti Pandey was raped and murdered. Although feminists in the Indian women’s movement did not lobby for anti-trafficking offences (and have stayed away from sex work and trafficking), the second longest chapter in the Justice Verma Committee Report (after the rape) dealt with trafficking. What explains this? The vacuum left by feminists was filled by neo-abolitionist NGOs like BBA. The committee proposed a new trafficking offence that did not distinguish trafficking from voluntary sex work (Verma et al 2013). The Criminal Law Ordinance, 2013, even adopted the committee’s recommendation and defined “exploitation” in the definition of trafficking to include prostitution, whether performed voluntarily or not. 

Ironically, at a time when feminists were decrying the ordinance, BBA and Apne Aap welcomed it.[3] It was only when NNSW protested, did the committee members clarify that they meant to exclude voluntary sex work from trafficking (Pawar 2013). The neo-abolitionist NGOs, however, fought hard for the original recommendations of the Verma Committee to be included in the Criminal Law (Amendment) Act, 2013 (CLA) (First Post 2013). Ultimately, Section 370 of the CLA, which criminalised trafficking did not conflate it with prostitution. Although Section 370 mirrors the Palermo Protocol’s definition of trafficking by covering trafficking for sex work and other labor sectors, it dropped two key terms. The first was “an abuse of a position of vulnerability,” which could be interpreted broadly to cover any economic or social coercion. The second was “forced labour,” already interpreted expansively by the Supreme Court.[4] Moreover, the Criminal Law Ordinance (2013) proposed to criminalise anyone who engaged trafficked persons, yet Section 370A criminalised only those who engaged trafficked persons or minors for sexual exploitation, suggesting the continued influence of neo-abolitionists and their singling out of prostitution over severely exploited labour performed in households, construction sites, rice mills, brick kilns, factories and farms.

How has Section 370 been used since its passage in 2013? In research conducted by myself, Neenu Suresh, and Hrishika Jain, we analysed a total of 125 appellate cases between April 2013 and July 2018 which showed that Section 370 is often invoked in conjunction with various other legislation. The break-up is as follows: 

The ITPA, 1956 (32); 

The BLSAA, 1976 (8);

The Child Labour (Prohibition and Regulation) Act, 1986 (8);

 IPC Provisions on Rape, Sexual harassment and Outraging modesty (22);

 The Protection of Children from Sexual Offenses Act, 2012 (27); 

Juvenile Justice (Care and Protection Of Children) Act, 2000 (23) 

and other provisions (69).

The Majority of the cases relate to sex work but a few also deal with the exploitation of workers in other sectors, such as brick kilns, leather factories, domestic work, and Indian migrants to other countries (for example, Malaysia). Appellate court judges have so far typically dealt with Section 370 in a procedural context; there has been little elaboration of the substantive provisions of the law. Interestingly, Section 370 is used extensively beyond trafficking cases. It often appears as an additional charge in criminal law cases relating to rape and sexual harassment, as well as in completely unrelated cases such as where a wife left her husband and took her child to live with another man. Section 370 is frequently used as a proxy offence for wrongful confinement. Exploitation for the purposes of Section 370 is thus understood rather broadly. The true scope and application of the Section 370 is therefore dynamic.

Additionally, there has been little substantive elaboration of Section 370A. The High Andhra Pradesh high court (S Naveen Kumar v State of Telangana 2015 (2) ALD(Crl.) 156(AP)) has held that a customer of a sex worker could be charge-sheeted under Section 370A. The Gujarat High Court has, however, clarified that this is dependant on whether the relevant facts are proved through investigation (Vinod v State of Gujarat and Ors, Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 8156 of 2017). Section 370A thus has the potential for being used to target customers of all sex workers whether trafficked or not. In fact, between July 2017–2018, Section 370 was used the most in conjunction with ITPA cases suggesting its increased use against the sex sector.

Meanwhile, one of the PILs filed by Prajwala in 2004 (Prajwala v Union of India 2015) came alive, leading the National Legal Services Authority (NALSA) to institute a new committee with judges and civil society members (all neo-abolitionist NGOs, including BBA, Shakti Vahini and Prajwala), which submitted a report in August 2015 on anti-trafficking legislation (NALSA 2015). With MWCD’s assurance, the Supreme Court disposed of this long-standing petition. The MWCD then drafted the Trafficking of Persons (Prevention, Protection and Rehabilitation) bill, 2016. Several versions have appeared since, culminating in the current bill. Yet, the basic framework has remained the same. Following the NALSA report, it entrenches a classic raid-rescue-rehabilitation model, alongside a robust criminal law system with stringent penalties, reversals of burden of proof, provisions for forfeiting traffickers’ assets, and an adjudication machinery with designated courts and special public prosecutors. 

Aggravated trafficking includes trafficking for bonded labor, forced labor, bearing a baby through assisted reproductive technologies, for marriage and begging. Offences are cognisable and non-bailable. The bill focuses on recue and rehabilitation; this is perplexing as protective homes under the ITPA have been at best, ineffective (causing women to escape and return to sex work) and at worst, facilitate sexual abuse and even suicide (Deccan Chronicle 2018; Economic & Political Weekly 2016; Govindan 2013; Ahmed and Seshu 2012; Magar 2012). Importantly, the bill does not repeal the ITPA or labour laws on bonded labour making the relationship between them unclear. The bill bears the clear imprint of neo-abolitionist thinking achieved through litigation, lobbying and the presence of key neo-abolitionist NGOs on every single expert committee on trafficking, whether court-directed or set up by the executive.

 

Will SDG8.7 Disrupt the Hegemonic Anti-trafficking Discourse?

In conclusion, the period since the 1990s has witnessed the ascendance of a neo-abolitionist approach to trafficking undergirded in criminal law. Now, with the mainstreaming of trafficking into development discourse, there is potential for the government to revive labour law frameworks and duplicate their innovative strategies in countering trafficking, including their prioritisation of welfare over rescue and rehabilitation, their models of community-based rehabilitation over institutionalised care and rehabilitation, their imposition of liability on intermediaries with a backstop to the principal employer with a view to ensuring decent work conditions and their sparing use of the criminal law resulting in a more prominent role for the executive than the police. Sadly, however, the bill makes no attempt to consolidate these existing laws and fails to use the full range of regulatory responses against labour exploitation present in these very laws. If anything, it is informed in letter and spirit by the anti-sex work laws and unthinkingly applies techniques developed in the context of sex work such as raids, rescues and rehabilitation to all forms of extreme exploitation. Thus although the definition of trafficking now extends to various sectors of labour exploitation beyond sex work, the letter and spirit of the labour law jurisprudence is entirely missing from the bill and its neo-abolitionist priors (for example, the 2005 amendment, the 2013 amendment to the IPC). In light of target 8.7 of the SDGs [5], we hope for the revival of indigenous forms of labour jurisprudence, which in turn can help India play a leadership role in the global fight against trafficking and forced labour.

Cases Cited

Gaurav Jain v Union of India (1997): SCC, SC, 8, p 8 114.

“Anti-Trafficking” (nd): Human Rights Law Network, http://hrln.org/hrln/anti-trafficking/.

Prajwala v Union of India (2015): SCC, SC, 17, p 29. 

Prajwala v Union of India & Ors (2004): Writ Petition (Civil) No 56 of 2004, SC. 

Vishal Jeet v Union of India (1990): SCC, SC, 3, p 318.

 

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