What Is Wrong With India's Trafficking Bill 2018: An Introduction

An international legal regime on the “traffic” of women and children into prostitution had existed since the turn of the 20th century. However, the spate of recent legislative activity on “trafficking” was triggered by the adoption of the Palermo Protocal, (United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons), a widely ratified international legal instrument, in 2000. Anti-trafficking initiatives between 2000 and 2009 were characterised by sex work exceptionalism; they were preoccupied with trafficking for sex work and with sex work itself. Three terms: trafficking, trafficking for sex work and sex work itself were often conflated with each other. 

This understanding of trafficking with an exceptionalist focus on sex work gave way to an expansive understanding of trafficking as encompassing forced labour (leading to the adoption of the Forced Labour Protocol by the International Labour Organization or ILO in 2014) and modern slavery (a project promoted by philanthrocapitalists (Chuang 2015) such as the Walk Free Foundation). Where drafters of the Palermo Protocol visualised trafficking as a involving cross-border movement, by 2009, this requirement was not considered necessary, leading to a renewed focus on internal migration and trafficking without movement (for example, bonded labour). 

The formulation of the Sustainable Development Goals (SDGs), particularly SDG 8 relating to economic growth, and target 8.7 [1] on the eradication of trafficking, forced labour and modern slavery by 2030 has catapulted trafficking into the development sphere. This has refocused attention on precarious work and the extreme exploitation that are rife in labour markets. Some states now require transparency on forced labour in corporate supply chains. This elasticity of the concept of trafficking (or “exploitation creep,” Chuang 2014) forces governments and civil society to rethink the relationship between anti-sex work laws, general criminal laws, labour laws, corporate laws and immigration laws. The Indian government’s bill unfortunately appears to be stuck in the first-generation thinking on trafficking. After all, India’s approach to trafficking—as I show in a companion piece to this introduction in this special issue—has long been marked by sex work exceptionalism, possibly to detract attention from forced and bonded labour. Even though the bill is not limited to sex work, its regulatory response to all forms of trafficking is forged in the crucible of anti-sex work laws.  

A Critique of the 2018 Trafficking Bill

Although the bill seeks to expand the remit of section 370 to several sectors, including any work involving forced labour and bonded labour, it is silent on its relationship with various laws dealing with bonded and contract labour, inter-state migrant work, and sex work which is likely to lead to definitional and operational inconsistencies. Further, although the bill does not explicitly concern itself with sex work, several of its provisions are formed in the carceral mould of the Immoral Traffic (Prevention) Act (ITPA) and are applied mindlessly to trafficking into other labour sectors. 

The bill relies heavily on criminal law without many of the substantive and procedural safeguards that are integral to criminal law systems around the world. It creates new offences which are unrelated to trafficking, creates vaguely worded offences with disproportionate sentencing, reverses the burden of proof and introduces absolute liability offences which are constitutionally suspect. It introduces strict liability offences which impose high burdens on defendants (particularly third parties like owners of property where trafficking is committed), and create offences that are cognisable, non-bailable and punishable with high, often minimum, mandatory sentences, including life imprisonment for the remainder of one’s natural life. No clear sentencing policy is discernable in the bill. Provisions relating to bail presume guilt rather than innocence. The bill has a highly restrictive non-criminalisation clause that is contrary to the defence of duress under the Indian Penal Code, 1860. Compared to previous drafts of the bill where victim’s rights were robustly protected, the bill rolls back on these protections.

A recent consultation in Delhi in June 2018 saw activists from various movements representing sex workers, transgender persons, trade unions, domestic workers, civil liberties groups and migrant rights’ groups. They expressed concern that the bill has been framed at a time when criminal law is increasingly used to address complex social problems, including child rape, child marriage, stalking, triple talaq and crimes committed by juvenile sex offenders.

Even when compared to these criminal laws, the bill presents a new low, because it effectively violates the rights of defendants to a fair trial, with overbroad definitions of offences, the lack of right to anticipatory bail, presumptions of burdens of proof, stringent minimum sentences, cognisable and non-bailable offences, inconsistent gradation in offences, and the creation of absolute liability offences (Kotiswaran 2018). In this respect, it is on par with anti-terror laws. It is also a bill that lacks consultation with key stakeholders, including sex workers, workers’ groups, migrant rights’ groups and even government ministries such as the Ministry of Law and Justice, Ministry of Labour and Employment, Ministry of Skill Development and entrepreneurship, Ministry of Micro, Small and Medium and the Ministry of Social Justice and Empowerment.

Not only that, even as the eradication of trafficking is increasingly being given significance as a development issue internationally, given its incorporation within SDG 8 (target 8.7), the Bill is indifferent to the growing agrarian crisis, the high levels of distress migration and increasingly precarious forms of labour across the country, the loss of jobs due to demonetisation and tax reforms, faulty development projects, long-raging conflicts, local migration due to caste bias, poverty and poor work conditions or wages, which renders individuals and communities vulnerable to trafficking. The government is instead relying on criminal law as a method of addressing deep socio-economic inequalities, which cannot be addressed through economic reforms.

This special issue seeks to bring back into the conversation on trafficking, the voices of labour activists, for whom, “trafficking” as a category has had little political resonance, but who are deeply immersed in organising workers against labour exploitation across a range of sectors. We start with the Global Alliance Against Traffic in Women (GAATW), a global network of over 80 women’s rights, migrant rights and labour rights organisations and a key international player on trafficking for two decades. The essay by Bandana Pattanaik and Leah Sullivan of GAATW views the bill from the perspective of migrants and calls on the government to reconsider it and its anti-migrant stance. Of particular concern for GAATW is the bill’s criminalisation of migration and irregular migration, contrary to international law protections for all human beings, irrespective of migration status. 

At the domestic level, the bill does not fare any better. Tripti Tandon of the Lawyers Collective highlights how contract, labour and immigration laws are all implicated in addressing trafficking, but whose provisions are not consolidated in the bill, leading to more confusion and a real risk of non-enforcement.  Meanwhile, Kiran Kamal Prasad, of Bangalore-based non-governmental organisation Jeevika, assesses the bill from the perspective of the bonded labour movement. Further, although the bill is silent on its relationship with the ITPA, Murthy, Pai and Seshu build on extensive evidence that the raid–rescue–rehabilitation model of the ITPA has failed over the past 50 years. Specifically, they draw on empirical research with hundreds of sex workers in four Indian states conducted between 2015 and 2017 to critique the strategy of raid, rescue and rehabilitation, which is central to the bill. Writing from the perspective of women in the unorganised sector as well as interstate migrant workers, Nalini Nayak problematises the meaning of trafficking in a country with endemic coercion and exploitation in labour markets, and proposes a labour rights perspective to trafficking.

How can India Lead on Trafficking?

As international efforts to realise SDG 8.7 gather momentum, the bill exemplifies a deep dissonance within the government. NITI Aayog, which is responsible for the implementation of SDGs, has been highly critical of the ILO Global Estimates on Modern Slavery et al (2017) and the creeping expansion of “modern slavery” to include forced marriage (Debroy 2017). The MWCD, on the other hand, is influenced by Indian neo-abolitionist groups, which align with Walk Free Foundation’s reliance on a highly carceral approach to eradicating a problem of deep socio-economic inequality. This dissonance must be managed as India sets up empirical baselines and benchmarks for realising the SDGs. So far, the government has focused on SDG 8, as if economic growth alone will eradicate trafficking and forced labour. Individual states’ plans on SDGs in general and on SDG 8.7 are chequered. Greater clarity on SDG 8.7, and creative and effective strategies to achieve it are essential. India must consider enacting a supply chain accountability clause, which has been enacted by the United Kingdom, California and France, and is under consideration in Switzerland and Australia. Paying attention to the full range of labour exploitation across the economy, including in domestic supply chains is preferable to relying on a criminal justice system that appears tough but that relies on failed models and institutions. 

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