The Government of India’s intention to strengthen measures to tackle human trafficking is welcome. The proposed Trafficking of Persons (Prevention, Care and Rehabilitation) Bill 2021, however, is unlikely to achieve that goal unless it is revised to reflect international labour standards, especially those related to forced labour. From the point of view of labour law, there are four main points of concern.

Impact of the bill on the world of work

In addition to human trafficking, the bill covers areas of labour and employment. In India these are the mandate of the Ministry of Labour and Employment. Any changes in labour laws require adequate discussion and consultation with workers and employers’ representatives in line with ILO Convention No. 144 on Tripartite Consultation (International Labour Standards), which has been ratified by India.

Particularly concerning is the bill’s over-reliance on criminalisation as a method of deterrent. This undermines labour law. While it is understandable that forced labour and trafficking offences are linked to criminal offences, this current bill brings common labour relations, such as recruitment, poor working conditions, non-payment of wages, and other irregular work arrangements, under the domain of criminal law. Labour relations like these are best addressed under the ambit of applicable labour law and the Bonded Labour System (Abolition) Act, 1976. Criminal law is not the optimal mechanism to address them unless a criminal offence has been established by the Court of Law.

It is furthermore surprising, given the purpose of the bill, that the definition section (Chapter 1) leaves trafficking in persons undefined. Chapter 8 on penalties and offences uses wording that is inspired from the Palermo Protocol’s definition of trafficking (Article 3, a), but does not refer to it as a source of definition. It is globally recognised that addressing human trafficking requires much more than penal measures, and it would hence be advisable that the human trafficking definition from the Palermo Protocol be in Chapter 1. Also problematic is the proposed definition of ‘exploitation’, which includes causing of harm to or taking of benefit or gain from a victim without due or appropriate consideration. This definition encompasses many employment relationships.

The need to focus on the prevention of forced labour and the improvement of recruitment to decent work is absent

Any mechanism to address forced labour should also address its root causes and focus on prevention rather than merely addressing symptoms. While there may be need to punish offenders who engage in trafficking and forced labour with penal measures, it is also important to recognise that labour and employment law provide mechanisms for resolving labour disputes, addressing individual workers’ grievances, improving social dialogue, and opening space for collective bargaining – all of which are critical in preventing forced labour.

Article 1 of Protocol 29 of the ILO, which supplements the ILO Forced Labour Convention No. 29, is meant to oblige member states to suppress forced labour while also encouraging effective measures to prevent and eliminate its use. The Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203) enjoins each member state to adopt ‘preventive measures’.

Apart from prevention, the need for progressive increments in improving labour and employment conditions is critical in large economies, such as India, where informal employment and the informal sector play a preponderant role. Employment policies, working conditions, and wages need to be improved. Workers need to be organised, unionised, and supported to engage in social dialogue.

The bill over-emphasises criminal offences

The bill over-emphasises criminal responses, particularly in Chapters 8 and 9, which results in the criminalisation of wide-spread employment practices that are often beyond the control of employers, labour recruiters, and workers (i.e. child domestic work, informal recruitment to precarious jobs). Such criminalisation bestows significant power and discretion on law-and-order authorities, who at the same time are not mandated to deal with labour relations. Given the preponderance of informal labour, the bill can be misused in many ways – not least as a rent-seeking tool. This can negatively impact businesses as well as mobility of workers across the country.

Moreover, a large number of workers make use of their kinship networks to migrate for work in formal and informal enterprises. This is beneficial not just for workers but also for employers, who cannot reach the locations where workers are hired. Recruitment of workers across and within India’s states into sectors where working conditions are not optimal is a widespread practice. The bill as it stands would largely criminalise this practice. Under the bill, particularly sections 25, 29, 30 and 31, significant numbers of economic actors in both the formal and informal economies may be exposed to unbailable charges of abetment, conspiracy and attempt to commit a trafficking offence, leading to severe penalties of imprisonment.

This would undermine both employment and migration, and can be interpreted to violate Article 19(1)(g) of the Constitution of India under which a citizen has the right to practice any profession or to carry on any occupation, trade or business. There is a need to recognise recruitment agencies as legitimate labour market service providers, requiring registration and following the norms laid down for fair and ethical recruitment. A criminal punitive system alone will further drive labour recruitment underground and expose workers to greater risks.

The bill restricts the agency of victims and reneges on a rights-based approach

The bill promotes 'rescue and rehabilitation’. Experience has demonstrated that such models tend to be less effective than other measures because they fail to address the root causes that create the conditions for trafficking in the first place. They also do not respond to the reasons why workers migrate or their need for agency. Such rescues take away the livelihoods of workers instead of improving their wages and working conditions. Rescued workers often end up with little choice but to take more unsafe migration journeys and accept more precarious work arrangements in order to meet their basic needs.

While victims are given the option to demand the right to leave a rehabilitation home, the procedure requires presentation of an affidavit. This is difficult to do for most victims living in poverty, and the magistrate may still overrule the victim’s desire if he thinks the victim is being compelled. In this sense, the bill promotes compulsory institutionalisation of victims in the name of rehabilitation rather than an approach that protects and promotes the rights of those who are abused.

The use and role of district trafficking committees should be monitored and addressed with caution as experience on the ground has shown that the institutional mechanisms to 'protect' women can become 'anti-migration' institutions that create barriers to free migration.

The bill furthermore appears to conflate sex work with trafficking for sex. This is a moralistic approach to sex work, rather than one that places the worker and rights of the worker at the heart of policy responses. This approach of criminalisation may drive the industry further underground, exposing sex workers to greater occupational health and safety risks, such as HIV and AIDS, and could make them even more vulnerable to forced labour and violence at work. The approach will increase stigma against consensual sex workers and sanction state-based discrimination.

Finally, the bill includes sweeping criminal law provisions, which include criminal liability of landlords and lessors of premises where the offence has taken place or is likely to take place, and closure of business. Implementation of these provisions could throw large numbers of workers out of jobs and not just the ones who are 'trafficked'. This negatively affects the labour market, jobs and the economy.

In short, much unlike international labour standards, the proposed legislation does little to prevent trafficking in persons and instead introduces stringent criminal measures which undermine access to work and labour rights.

The views expressed in the above article are the personal views of the authors.