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Neoabolitionism’s last laugh: India must rethink trafficking

India’s new trafficking bill seeks a wide array of new powers to punish, but does nothing to address the causes of exploitation in the first place.

Carpet weaving in Rajastan, India. Jeffrey Leventhal for ILO/Flickr. CC (by-nd)

In October 2017, India vehemently protested the release of the Global Estimates of Modern Slavery: Forced Labour and Forced Marriage (GEMS) by the International Labour Organisation (ILO), Walk Free Foundation (WFF) and the International Organisation for Migration (IOM). GEMS estimated that there were 40.3 million  ‘modern slaves’ worldwide with 24.9 million persons in forced labour and 15.4 million in forced marriage.

GEMS did not name countries, but the writing on the wall was clear. After all, the GEMS study conducted 17,000 survey interviews in India, compared to 1000 interviews in most countries, and 61.78% of the 40.3 million ‘modern slaves’ were in Asia and the Pacific. Furthermore, the WFF had, the year before, estimated that of the 45.8 million ‘modern slaves’ worldwide, 40% were in India alone. Registering its protest with the ILO, India vowed to undertake its own surveys. Bibek Debroy, economic adviser to the prime minister and member of Niti Aayog (the think-tank responsible for the sustainable development goals or SDGs), was scathing in his critique of GEMS. He called its estimates on forced marriage “confused and fuddled” and urged reliance on the government’s reports on child marriage.

But as GEMS forms the baseline for achieving SDG 8.7 (requiring states to eradicate forced labour, end modern slavery and human trafficking; prohibit and eliminate the worst forms of child labour; and by 2025 end child labour), India’s desire to measure ‘more’ and ‘better’ to protect its international image is wholly inadequate. Rather than succumb to the cult of the numbers game played by international organisations and philanthrocapitalists, India could be more ambitious.

It could, for example, assert a leadership role in the global fight against exploitation by countering the influence of neo-abolitionism. This is a discourse that perpetuates sensationalist accounts of ‘modern slaves’ as victims tricked by unscrupulous traffickers, beaten into submission for exploitation and whose only hope is to be rescued, rehabilitated and repatriated by law-enforcing heroes. After all, long before neo-abolitionist groups like WFF and a handful of western countries set the global (and Indian) policy agenda on ‘trafficking’, India and Brazil had already developed a rich, indigenous jurisprudence on exploitation with a structural understanding of coercion and exploitation in labour markets backed by a creative regulatory response. But sadly, today, the Indian government is set to introduce the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill (Trafficking Bill), which exemplifies neo-abolitionism.

Yet another flawed law

Elsewhere I have written about India’s complex patch-work of anti-trafficking laws ranging from the Indian Penal Code, 1860 (IPC) to the Immoral Traffic Prevention Act, 1986 (ITPA) to social welfare legislations on contract labour, bonded labour and inter-state migrant work. While criminal laws like the IPC and ITPA target ‘bad men’ traffickers (rotten apples), labour laws presume endemic exploitation in Indian labour markets and use a combination of penal, labour and contract laws to impose obligations for better working conditions on intermediaries. Unfortunately, as the topic of trafficking gained international prominence, the Indian government began to understand trafficking as equivalent to sex trafficking and sex work itself. It came close to punishing customers of sex workers in 2005 and conflated trafficking with voluntary sex work in 2013.

The current definition of trafficking in Section 370 of the IPC is not limited to the sex sector. However, despite the abysmally low convictions for trafficking worldwide (below 6000 in 2013), and the historical abuse of the criminal law in several Asian countries to further marginalise vulnerable populations, the Trafficking Bill, which builds out Section 370 and has been in the works since May 2016, is patently neo-abolitionist.

The bill is highly carceral and pursues the classic raid-rescue-rehabilitation model, with stringent penalties for trafficking, including life imprisonment for its aggravated forms, reversals of burden of proof and provisions for stripping traffickers of their assets. It creates a plethora of new institutions with unclear roles, capacious powers (including for surveillance) and no accountability, alongside a parallel adjudication machinery with special courts and special public prosecutors. There is no clarity on how the bill relates to the ITPA and to labour laws.

What should India do instead? In a recent statement, scholars, activists and workers’ rights groups argued against extending a criminal law, raid-rescue-rehabilitation model beyond sex work to other labour sectors. They called instead for a multi-faceted legal and economic strategy; robust implementation of labour laws; a universal social protection floor; self-organisation of workers; improved labour inspection, including in the informal economy; and corporate accountability for decent work conditions.

They also reiterated the need for systemic reforms to counter distress migration; end caste-based discrimination; ensure sustainable development; redistribute resources; enforce the rural employment guarantee legislation; avoid the indiscriminate ‘rescue’ of voluntary sex workers; and protect migrants’ mobility and rights, domestically and internationally.

As the introduction of the trafficking bill in parliament appears imminent, only a bold, creative and holistic response to what is fundamentally a socio-economic problem of labour exploitation can help realise SDG 8.7. Otherwise, the very neo-abolitionists that the Indian government countered last year will have the last laugh.

A shorter version of this article was published on 13 February 2018 in The Hindu.

About the author

Prabha Kotiswaran lectures in Criminal Law at King’s College London. She is the author of Dangerous Sex, Invisible Labor: Sex Work and the Law in India, published by Princeton University Press (2011) and co-published by Oxford University Press, India (2011). She also blogs for the Interdisciplinary Project on Human Trafficking.


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