India has to rethink human trafficking

BY PRABHA KOTISWARAN

PUBLISHED IN THE HINDU BUSINESS LINE

India can reframe the global debate on trafficking, by amending its domestic law in line with the 2000 UN Protocol.

Human trafficking is in the news these days. Many of these reports follow the predictable storyline of women enslaved in developing countries. India often features prominently in these narratives. For instance, Nicholas Kristof, the New York Times columnist and author of more than 46 op-eds on the subject of sex trafficking, recently conducted undercover raids in Sonagachi, Kolkata’s largest red-light district, along with the US abolitionist organisation, the International Justice Mission. There, he claims to have “transformed” the lives of five girls who were hours away from a series of rapes.

Journalists like Kristof frequently summon Western moral outrage against what they call “modern-day slavery” in the developing countries managing, in the process, to conflate trafficking with sex trafficking. While Kristof’s intervention is paradigmatic of contemporary debates around trafficking, it is important to ask how India might respond to the problem of human trafficking, given that 92 per cent of its working population is in the informal economy, many of whom are migrants working under precarious conditions.

UN PROTOCOL

In June 2011, India ratified an international legal instrument targeting trafficking, namely, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplemented the 2000 UN Convention Against Transnational Organised Crime. Signatory countries to the Protocol are required to criminalise all forms of trafficking defined in terms of recruitment, harbouring, or transportation by means of force, fraud, coercion, or abuse of position of vulnerability for purposes of exploitation. Exploitation, although undefined under the Protocol, includes, at a minimum, forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs. In other words, the Protocol is meant to target trafficking in labour sectors as well.

Yet, in the lapsed decade between when India signed the Protocol in 2002 and ratified it, its legal response to the problem of trafficking has been inordinately influenced by some other states’ use of the Protocol for achieving the twin ideological goals of eradicating sexual exploitation and enforcing border control.

The 2000 US law, the Victims of Trafficking and Violence Protection Act (VTVPA) and various policies of the erstwhile Bush administration have been particularly influential in this respect. Since 2001, the US Department of State has, under the VTVPA, ranked national governments receiving US aid on their performance in preventing trafficking, prosecuting traffickers, and protecting victims of trafficking. Countries that perform poorly so as to fall within Tier Three of the annual Trafficking in Persons (TIP) Report risk the withholding of non-humanitarian, non-trade-related foreign assistance. Until 2009, the TIP Report focused unduly on sex trafficking.

TIP RANKINGS

India’s response to the problem of trafficking has been considerably influenced by its TIP Report rankings. Between 2001 and 2003, India figured in Tier Two of the TIP Report before being demoted to the Tier Two Watch List. It was only in May 2011 when India ratified the UN Protocol that it made its way once again into the Tier Two List. India’s response to the trafficking problem in terms of abolishing trafficking isn’t unique in the sub-continent. Indeed, the 2002 SAARC Convention on Preventing and Combating Trafficking in Women and Children defines trafficking as sex trafficking following a 1949 UN Convention, rather than the 2000 UN Protocol.

The conceptual displacement of trafficking to sex trafficking is perplexing, however, given that the sub-continent is home to millions of bonded labourers, forced labourers, child labourers, and migrant workers who are routinely recruited and often transported under false promises to distant places regionally for purposes of work-related exploitation. These workers include men, women, and children who work in India’s brick kilns, rice mills, farms, embroidery factories, mines, stone quarries, and as domestic workers, beggars, agricultural workers, and carpet weavers. Indeed, 90 per cent of trafficking in India is said to be internal. These labourers could well be considered trafficked using the general definition of the Protocol.

BONDED LABOUR

To address these very social realities of bonded labour, forced migration, and deplorable working conditions of contract labourers and inter-state migrant labourers, the post-colonial Indian state passed several laws in the 1970s. The Indian Supreme Court during the heyday of public interest litigation in the 1980s progressively interpreted them. Despite the pathetic enforcement of these domestic laws in the following decades, they offer a useful alternative model to contemporary anti-trafficking law.

For one, judicial analyses of these statutes construed coerced entry into labour to include background conditions such as poverty (rather than mainly deceit), emphasising instead the redressal of exploitative working conditions.

Further, in contrast to contemporary anti-trafficking law, which uses the criminal justice system to rescue and offer weak rehabilitation schemes to victims of trafficking, that too, on the condition of assisting prosecutorial efforts, statutes dealing with contract labour and migrant labour were designed to be enforced by labour inspectors and imposed responsibility on intermediaries, such as recruiters and contractors, for providing appropriate pay and working conditions with a backstop to the primary employer.

If India is politically committed to addressing the problem of trafficking, understood in the most basic terms as coerced migration for exploitation, then it must revisit and strengthen its own domestic labour laws aimed both at internal migration and outward emigration. The International Labour Organisation (ILO) has, indeed, recently noted the increasingly significant role of the labour machinery in implementing anti-trafficking laws.

India can thus assume a leadership role amongst developing countries in countering hegemonic international notions of trafficking. It can, instead, creatively use the momentum generated by the Protocol as an opportunity for meaningful labour law reform.

Where developing countries were unable to counter the selective agendas of Western states in using the Protocol to achieve ideological ends (such as the abolition of trafficking) or political ends (such as border control against illegal migration), India has a renewed opportunity to reframe trafficking as it starts amending domestic law in light of its recent ratification of the Protocol.

(The author is Senior Lecturer in Law, School of Oriental and African Studies,University of London.)

This article is by special arrangement with the Centre for the Advanced Study of India, University of Pennsylvania

(This article was published on March 27, 2012)

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