Will Trafficking Bill 2018 Harm Bonded Labourers?

The passage of the proposed Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 has been on the anvil for the past few years now. The bill pays scant, almost tokenist attention to the issue of bonded labour. Worse still, it is highly likely to harm the interests of bonded labourers. The first half of this article offers a critique of the bill from the perspective of the bonded labourers' movement. In the second half, unique features of the Bonded Labour System (Abolition) Act, 1976, which presents a superior alternative to the bill as a way of addressing bonded and forced labour in India today, are highlighted.

 

This article is a part of the Special Feature: Rethinking Trafficking Bill 2018. To read other articles in this feature, click here.

 

There is considerable ambiguity and confusion on the scope and application of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (hereafter referred to as the bill) if one looks at the bill’s Statement of Objects and Reasons (hereafter the statement),the initial clause introducing the bill and the text of the bill itself. Is the bill confined to commercial sexual exploitation or does it also extend to bonded labour, forced labour, and all cases of “practices similar to slavery?” 

 

Lack of Clarity on Who the Bill is Addressed To

The statement declares that the bill purports to address lacunae in existing legislations, namely, Section 370 of the Indian Penal Code (IPC), 1860 introduced in 2013, which, according to the bill, only defines and penalises trafficking of persons, and the Immoral Traffic (Prevention) Act (ITPA), 1956, which, according to the bill, deals only with commercial sexual exploitation and not trafficking of persons for “physical and other forms of exploitation.” Yet the statement does not make any direct reference to bonded labour and is silent on the Bonded Labour System (Abolition) Act (BLSAA), 1976. It declares that a comprehensive legislation is proposed to deal with all aspects of trafficking of persons. However, in all the ten salient features of the proposed legislation, there is not even one direct reference to bonded labour and forced labour, but only to trafficking, trafficking of persons, and victims of trafficking. Based on this observation, we can say that forced labour and bonded labour are not the concern of the bill. Sexual exploitation and sex work seem to be the target of the bill. This is further confirmed by going through the initial clause to the bill.

The initial clause states: “A bill to prevent trafficking of persons, especially women and children and to provide care, protection and rehabilitation to the victims of trafficking, to prosecute offenders and to create a legal, economic and social environment for the victims….” Here also, forced labour and bonded labour are not mentioned directly. The focus is therefore on the trafficking of persons, especially women and children, and the victims of trafficking. By specifying women and children as the main victims of trafficking, it is easy to infer that men are excluded from the purview of the bill and that the bill is concerned only with sexual exploitation. 

When considering the text of the bill itself, the trafficking of persons for forced labour and bonded labour is listed as one of the eleven most aggravated forms of trafficking of persons.[1] There is only one other minor reference in the bill to bonded labour, that is, regarding the repatriation of bonded labour (and none at all to forced labour). This leaves us bewildered as to exactly who the bill is addressed to. The entire bill appears to have in mind only sexual exploitation and other physical exploitation of women and children. And in the garb of sexual exploitation, the bill is concerned with the greater criminalisation of sexual exploitation and sex work with some reference to bonded labour at the end of the bill, as an aggravated form of trafficking of persons almost as an afterthought.

Avoidance of the Social Causes of Bonded Labour

The opening paragraph of the statement offers some clues as to why the bill systematically avoids the problem of bonded labour and pays only lip service to it. It categorically states that trafficking takes place due to poverty, illiteracy, and the lack of livelihood opportunities. The drafters of the bill, while stating that the majority of trafficking takes place within the country, are also conscious that a large number of victims are trafficked across Indian borders. Thus, the bill seems to be concerned with the emerging organised crime of trafficking in persons, mainly centred around sexual exploitation, and takes note of only economic factors without acknowledging the deep-seated social factors such as the caste system, which are at the root of the bonded labour system. 

Having established that the bill pays little attention to the problem of bonded labour, I elaborate on the core strategies of the bill, which I later contrast with the alternate approach of the BLSAA.

Prominence of Prosecution

Although the statement itself is silent on prosecution, prosecution occupies a major portion of the bill and seems to be equally, if not more important than the prevention, protection, and rehabilitation of trafficked persons. Thus, although the prevention of trafficking and the protection and rehabilitation of victims of trafficking are avowed concerns of the bill, greater criminalisation and stringent punishments through dedicated courts form its core. Whether these provisions can break the nexus of organised crime is a moot question.

Overlap Between ITPA, IPC 370, the Bill, and BLSAA and Resulting Non-clarity

Of particular concern is the overlap between the ITPA, IPC 370, the bill and BLSAA and the lack of clarity as to which legislation should be used for which crime.  As a result, none may be in a position to function effectively. The fallout could be that the first three legislations will be used in coordination (to the neglect of the BLSAA) resulting in no action against bonded labour at all. There would be tremendous confusion in approaching the appropriate authority for any particular form of exploitation and in interpreting the definitions in the various legislations concerned. Since these legislations are enforced and monitored by different ministries, there may not be any coordination regarding their implementation. This will provide further scope for district and sub-divisional administrations to not take action against bonded labour and pass on the responsibility to the bodies proposed under the bill, which may not entertain bonded labour at the definitional stage itself. Section 59 of the bill clarifies that its provisions are in addition to and not in derogation of provisions in any other law, but in cases of inconsistency, the bill’s provisions will prevail. However in practice, especially when taking the first steps of identification, release, rehabilitation and prosecution, the field authorities are likely to be inactive regarding bonded labour. If at all they take up action, they will only focus on the prosecution provisions of the bill. 

Confusion between Existing and Proposed Anti-Human Trafficking Bureaucracy 

Under the ITPA, anti-human trafficking units are managed by the home ministry at the district level. Setting up almost similar sounding anti-trafficking units in districts, but under the control of the Ministry of Women and Child Development will definitely add to the confusion besides multiplying structures for dealing with similar offences. There is also a plethora of structures and officers to address similar and related issues—the National Anti-Trafficking Bureau, National Anti-Trafficking Relief and Rehabilitation Committee, State Anti-Trafficking Committee, State Police Nodal Officers, State Nodal Officers, District Anti-Trafficking Committee, District Nodal Officers, Anti-Trafficking Units, Anti-Trafficking Police Officers, local police stations that take up anti-trafficking work in places where anti-trafficking units are not set up, and designated sessions courts in each district. The need for so many agencies is questionable.

The Treatment of Child Victims as Juveniles

Generally, many sections refer to trafficking of persons,[2] but in quite a few instances women and children are mentioned. Whenever children are mentioned, action is to be taken according to the Juvenile Justice (Care and Protection of Children) Act, 2015. This will unenviably cause children in forced labour and bonded labour to be treated as juveniles. Institutional care will be prescribed for those who do not require it.

Institutional Care Cannot Replace Community-based Rehabilitation

In terms of rehabilitation, the bill sets up protection homes for shelter, food, clothing, counselling, and medical care and rehabilitation homes for long term rehabilitation, for monetary reliefs (interim reliefs and appropriate reliefs), compensation, prevention measures, programmes for welfare and rehabilitation, entrepreneurial support, skill development, vocational training, capital and infrastructure to set up small business, and community-based programmes for prevention. This gamut of proposed schemes and structures seems grandiose.  The end result could be that a few victims subject to aggravated forms of trafficking would be taken care of, leaving out a large section of the victims.  Further, rehabilitation is sought through institutional care and not through community-based rehabilitation. 

Decent Work over Rescue, Raid and Rehabilitation

Rescue, raid, institutional care, and repatriation are the main strategies proposed to deal with victims of trafficking. These strategies have mainly been developed in addressing  “prostitution,” sexual exploitation, and child labour and have been taken over and applied to situations of forced labour and bonded labour. To deal with forced labour and bonded labour, the government needs to ensure decent conditions of work and provide for meaningful assets to earn a decent livelihood. 

 

An Alternate Paradigm: Unique Features of the Bonded Labour System (Abolition) Act, 1976

In contrast to all these drawbacks in the bill, the BLSAA has quite a few unique features which are simple to comprehend, are of great significance and which, if implemented in letter and spirit, go a long way in eradicating bonded labour. Importantly, although the BLSAA contains mostly general provisions, they are clear, straightforward, and deal fully well with the Indian reality of bonded labour. All these features will be conveniently ignored if the bill were to be implemented in its present proposed form.

The Continued Relevance of the Definition of Bonded Labour under BLSAA 

While the BLSAA addresses bonded labour in all traditional social and economic contexts, the definition of “bonded labour system” also identifies three generic elements that go into making a labour situation bonded: (i) being under an obligation such as repayment of loan;[3] (ii) meeting the obligation (that is, repaying the loan) through unpaid or underpaid labour or service; and (iii) having no freedom to escape the obligation. These generic elements can be applied to any new situation. 

In fact, section 23 of the BLSAA itself implies that these elements of bonded labour can be found in companies also. An amendment to the act in 1985 specifically extended the definition to include labourers that come under the Contract Labour (Regulation and Abolition) Act, 1970 and Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 if they satisfied these generic conditions.[4] Similarly, the National Commission of Rural Labour recommended to the central government to amend the act to include all workmen in the amended explanation clause to Section 2g of the act, if they satisfied these generic elements (Ministry of Labour 1991). However, these amendments are not required if the definition in Section 2g is interpreted in its true spirit. 

Supreme Court’s Interpretation of Forced Labour Responds to Indian Realities

A few ambiguities in the BLSAA have still to be clarified, but the fresh interpretation given to forced labour by the Supreme Court brings out clearly one specificity of the Indian reality. In most cases of bonded labour in India, persons get into bonded labour on their own and without any compulsion of the creditors. They request loans from the creditors and seem to agree on their own to provide bonded labour to repay the debt they would receive. This evidently goes against one of the two main components of forced labour as defined in the International Labour Organisation’s Forced Labour Convention 29 of 1930. But the Supreme Court in its judgment in People’s Union for Democratic Rights v Union of India (1982) held that though bonded labourers seem to get into bonded service willingly, they are doing so under the force of their dire economic conditions. Hence force is not just restricted to physical or legal compulsion, but is broadly interpreted to also include economic compulsion. 

Prioritising Welfare over Criminalisation

Although the BLSAA is concerned with criminal offences, the act is primarily focused on the economic and social welfare of bonded labourers. The act succinctly mandates that a freed bonded labourer be rehabilitated so that she does not relapse into further bondage. Existing schemes stress the need for giving assets to bonded labourers that suit their knowledge and skills. Though this does not preclude taking stringent criminal action wherever needed or required, the implementation of the act reveals only a few convictions so far.

Summary Trials Ensure Decent Conditions of Work

The BLSAA provides for summary trials by executive magistrates empowered with judicial powers. If acted upon fully, keepers of bonded labour can be brought before law enforcers expeditiously, made to give up bonded labour practices, and ensure decent conditions of work and minimum and equal wages. Cases can be disposed of speedily and workers’ rights can be respected.

People’s Participation in Vigilance Committees  

Another great feature of BLSAA (that is not acted upon) is that it provides for setting up vigilance committees at the district and subdivisional levels. Their composition reveals great potential for action against bonded labour. Out of the 10 members in the district vigilance committees and the 11 in the subdivisional vigilance committees, seven to nine members could be non-government organisations. Of these, three definitely have to be from the Scheduled Caste and Scheduled Tribe communities. In addition, if the two social workers to be nominated on the vigilance committees under the BLSAA were required to work on bonded labour, then the voice supporting the interests of bonded labourers in those statutory bodies would be stronger. Similar statutory bodies representing people’s voices have to be encouraged to address any social evil effectively, instead of multiplying structures manned by government personnel.

 

Conclusions

To date, three types of organisations have promoted the bill.  One advocates greater and more stringent criminalisation as the best method to deal with all types of trafficking. Another advocates institutional care and refers every child labourer to juvenile homes. A third advocates rescue, raid, and repatriation which have been developed in the context of sexual offences and child labour but may not be suited to all contexts of bonded labour. In sum and substance, the bill is not a well-thought-out legislation. Transnational organised crime dealing mainly with sexual exploitation, forced labour, slavery, forced removal of organs, and other crimes against women and children specifically in the Indian subcontinent is unlikely to be addressed effectively. It will only lead to duplication of efforts and institutions. Meanwhile although the bill does not abrogate BLSAA, its grandiose schemes and structures will negatively impact the use of the BLSAA. The “culture of denial” regarding bonded labour will get entrenched further, making the fight against bonded labour all the more difficult. 

 

This article is a part of the Special Feature: Rethinking Trafficking Bill 2018. To read other articles in this feature, click here

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