Beyond Trafficking and Slavery: Analysis

Does India really need the new Trafficking in Persons Bill?

India already has plenty of laws dealing with labour exploitation, why not use those instead?

Pankhuri Agarwal
5 August 2021, 11.25am
Salt production in South India
Nithi Anand/Flickr. Creative Commons (by)

The Trafficking in Persons (Prevention, Care and Rehabilitation) Bill 2021 will soon be introduced in the Indian Parliament. There are some welcome provisions in the bill. It recognises that people can request care and protection from the authorities, and that such care and protection is not dependent upon rescue (section 11). It does not make rehabilitation contingent on criminal proceedings (section 18). However, unless other areas of the bill are changed these important aspects will be reduced to mere gesture politics in practice.

In its present form, the bill reads like a complex amalgamation of existing laws that deal with various aspects of trafficking and bondage, such as those on bonded labour (Bonded Labour System (Abolition) Act, 1976 (BLSAA)), sex work (Immoral Traffic (Prevention) Act 1956 (ITPA)), and others. Shockingly, the bill does not refer to any of these laws directly, but simply states that the bill’s provisions will override any existing laws should there be any inconsistency. That statement is deceiving, and there remains plenty of potential for overlap and confusion in implementation.

For instance, the bill does not clarify how the proposed elaborate executive, judicial, administrative structures will function alongside the administrative structures that are already present in the existing laws. While the bill’s proposed administrative structures will fall under the authority of the National Investigation Agency (a counter-terror agency under the Ministry of Home Affairs), the structures that already exist are all under the Ministry of Labour and Employment and the Ministry of Women and Child Development. This vast chasm between the role, experience, and outlook of these ministries has the potential to do more harm than good for the persons concerned and create confusion for implementing stakeholders.

And because there is so much overlap, it is difficult to discern exactly what this bill is trying to achieve. If it is to create a better structure for addressing trafficking, its drafters should first investigate why existing laws sometimes do not work to avoid mistakes. If it intends to amalgamate all laws into one law, then it has not spelled out how the existing elaborate administrative and judicial structures under the present laws falling under different line departments and ministries will function alongside the new administrative structures under the National Investigation Agency.

The recognition of consent, although welcome, seems like a token gesture.

Moreover, while the bill recognises the need for consent when placing somebody into rehabilitation (section 16), the process of exercising this consent is complicated. The provision states that if a person does not want to be in a rehabilitation home, they should apply with an affidavit to the concerned magistrate, who will make a decision. This process requires writing an application, legal knowledge of what an affidavit is, administrative knowledge of how to apply, and the courage to speak up in a highly intimidating environment – all from someone who is most probably a marginalised community member. For these reasons, the recognition of consent, although welcome, seems like a token gesture.

More worryingly, the bill fails to meet survivors’ immediate need for livelihood and welfare and thus undermines their access to justice. Many workers become subjects of rescue because they have no access to traditional work protections. Moreover, if they are internal migrants, legitimising their identity in a city is tricky. This means that they lose access to many welfare entitlements as soon as they move from one state to another within India, as the delivery of entitlements is attached to their proof of residence in the home state. My research with workers rescued under the BLSAA and the ITPA shows that because of their internal migrant status, most people do not have the administrative, social, and economic capital to follow the legal process to completion after rescue. Their immediate need is a livelihood. It is therefore surprising that section 20 of the bill on reintegration overlooks any mention of how internal migrant workers will be connected to essential services, and if the existing welfare legislation will be used for that aspect (which would require extensive coordination between different line departments). This omission makes it much less likely for survivors to be able to see their quest for justice through.

Another problem with the bill is that it does not account for the complexity of recruitment practices and debt relations in the informal sector. Like the BLSAA, section 2(5) conflates giving advance wages to debt bondage, yet many recruitment and work practices in the informal sector are based on advances or informal credit. Contractors or employers usually give advances to the workers to travel to the city. Workers have told me that such credit is essential for them, as it gives them access to financial capital for weddings, medical emergencies, religious travels, and other social purposes when formal banks will not extend a loan. The workers need to take the risk of trusting the contractors for both work and informal borrowing. These debt relations are complex. They are not limited to one person or employment relation, but can be transferred and carried on for seasons and among various employers. By conflating the giving of advance to debt bondage, the bill creates new forms of exclusion and exploitation for workers seeking credit for their needs.

Relatedly, the bill’s assumption that people are free of exploitation once rescued is analytically and empirically flawed. Rescue is not always desired or chosen. In my research, some workers got out of the worksite during a rescue because they saw others doing the same, or consciously chose to contact their local networks to address the oppression and violence they were experiencing in worksites. However, others moved out of work only because an NGO promised them wages and cash by way of legal action. Despite living in oppressed work conditions, others refused to be rescued for fear of more violence from the employer; the threat of their daughters and sisters being sexually exploited if they named their employers in the legal process; the fear of being without livelihood even though the current income barely sustained them; the fear of not finding work elsewhere because they could be labelled as trouble makers by raising their voices; or because of frustrating prior experiences with the legal process.

Rescue is not always desired or chosen.

The bill turns a blind eye to the violence of rescue and brushes over the agency of those rescued. My research with workers rescued under the BLSAA and the ITPA shows that it is difficult to ascertain who is really trafficked and who is willing to be rescued during rescue operations. Workers may also face a complex set of choices during a rescue. Some may actively escape; others might agree to be rescued; some may want to be rescued but cannot be rescued; others may take time to ascertain whether they would like to be rescued or not, and the rest may choose to stay on. These decisions are based on a variety of factors, including: what information the NGO gives to the workers and the promises it makes of life after the rescue; the workers’ experience with the law previously; the comparison the worker makes between being exploited and starving; and the information available from informal networks to workers. Amidst these interests, the act of choosing to be bonded or rescued is made to avert poverty and starvation. In doing so, the bill takes away agency of precarious workers who, through different strategies, manage survival and livelihood in a predominantly informal economy such as India, paving way for greater state surveillance and control.

In conclusion, the severe weakness of the bill is that it stands in isolation. It does not engage with current laws and discourses on trafficking, bonded labour, or sex work. It does not recognise the existence of an entire corpus of labour laws (and why they work or do not work) that addresses a host of issues related to exploitation at work. It also does not acknowledge the voices of those it concerns, namely, migrant workers, informal sector workers, union activists, and sex workers’ unions. The bill is distressingly oblivious to the intersectionality of power relations that account for the lived experience of marginalised persons, because of their caste, gender, internal migrant status, or work type. Moreover, relying too heavily on the building of an elaborate, multi-tier administrative structure and on the rationality of implementing stakeholders leaves ample room for influential NGOs and bureaucrats to exercise power and control, thereby creating new dependencies and new restraints on freedom for marginalised persons.

If there is a genuine will to address the causes of exploitation for marginalised persons, efforts should be made to amend and tighten the provisions of the existing laws on bonded labour, inter-state migrant workers, and contract labour. Clear guidelines should also be established regarding how and when these laws can be applied with other labour laws. My research shows that existing laws based on a raid-rescue-rehabilitation approach have not successfully delivered rehabilitation because they are often violent, and their expansive bureaucratic structures do not recognise rescued persons' urgent survival and livelihood needs. For this reason, all participants in my research returned to doing the same work from which they were rescued. The everyday survival needs of marginalised and vulnerable people in a country like India cannot be addressed through more elaborate bureaucratic structures. There are enough laws and policies. They need to be implemented.


From the BTS Editors

Pursuant to its ratification of the Palermo Protocol on trafficking, India has long sought to draft and pass an anti-trafficking bill. The first such attempt was made in 2013, when the offence of trafficking was introduced into the Indian Penal Code, 1860 after the rape and murder of a young woman in Delhi in 2012. In 2016 the Ministry of Women and Child Development built out these specific provisions of the IPC and invited a consultation on the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016.

Despite critique from several quarters on the 2016 bill, particularly of its criminal law approach, the government introduced an even more carceral version of the 2016 bill when it proposed the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 which was passed by the lower house of the Indian Parliament in July 2018. It lapsed before being introduced in the Upper House of Parliament.

In July 2021, with merely two weeks’ notice, the Ministry for Women and Child Development invited a consultation on the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021. The bill is slated to be listed for introduction and passage in the monsoon session of Parliament. The 2021 Bill is even more draconian than the 2016 and 2018 versions of the bill, as exemplified for instance by its introduction of the death penalty for certain forms of aggravated trafficking. It has been severely criticised not only by sex workers’ groups (who are typically at the forefront of countering anti-trafficking laws that conflate trafficking with voluntary sex work) but a range of state, civil society and international actors who have highlighted how significantly the bill (if passed) will violate the human rights of marginalised groups in India.

Given the potential consequences of the 2021 bill, Beyond Trafficking and Slavery invited a small group of exerts to unpack the bill’s provisions from different perspectives. Together they throw light of the bill’s likely impact on workers in the formal and informal economy, on bonded labourers, on sex workers, on transgender persons, on migrants from neighbouring countries in South Asia, and on NGOs working with marginalised communities. This article forms part of this special collection.

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