A Battle Half-Won: India’s New Anti-Trafficking Law
The Indian Parliament recently enacted the Criminal Law (Amendment) Act, 2013 (CLA). Although primarily concerned with targeting rape and sexual assault, the Bill incorporates a range of other offences dealing with violence against women many of which the Indian Penal Code, 1860 (IPC) did not envisage. Two such offences relate to trafficking, an area of considerable policy and legal reform internationally.
Specifically, the new Section 370 defines the offence of trafficking thus replacing the prior Section 370, which dealt with the buying or disposing of any person as a slave. The new Section 370 criminalises anyone who recruits, transports, harbours, transfers or receives a person using certain means (including threats, force, coercion, fraud, deception, abduction, abuse of power, or inducement) for purposes of exploitation. Exploitation in turn is not defined but is said to include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Punishment ranges from 7 to 10 years’ rigorous imprisonment with fine. This is further enhanced and graded depending on whether the victim is an adult or minor, if more than one person or minor is trafficked, if the trafficker is a repeat offender and whether the trafficker is a police officer or public servant. Recognising that targeting the demand for trafficked labour is often crucial in the fight against trafficking, Section 370A criminalises anyone who engages a trafficked minor or adult for sexual exploitation.
In many respects, the CLA simply downloads the definition of trafficking in Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking Against Persons, Especially Women and Children supplementing the 2000 United Nations Convention Against Transnational Organized Crime. After all, India signed the UN Protocol on December 12, 2002 and ratified it in May 2011. There are some interesting differences however. Section 370 omits one of the means by which a person can be trafficked, namely, “the abuse of a position of vulnerability.” This is welcome as the phrase is an ambiguous concept with no precedent in international or domestic law. Perplexing however is the omission of one of the forms of exploited labour listed in Article 3, namely, forced labour or services and indeed addressed by the Indian Constitution under Article 23. The significance of these differences will become apparent once I lay out the international context in which India has recently criminalised trafficking, marking a shift from its own earlier response to the trafficking question.
A little before the UN Protocol came into effect, the US passed a domestic legislation in 2000 on violence against women, including trafficking under which the US Department of State annually ranks countries around the world on their anti-trafficking initiatives. Countries performing poorly so as to fall in 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 trafficking for sex work. In the initial years of the TIP Reports, India performed favourably but was soon demoted to the Tier Two Watch List between 2004 and 2010 before returning to the Tier Two List in 2011. Since 2006 however, the Indian government, keen to be upgraded in the TIP rankings (which were driven by the erstwhile Bush administration’s opposition to prostitution) attempted to strengthen Indian anti-trafficking law by amending the Immoral Traffic Prevention Act, 1956 (ITPA). In particular, the Ministry of Women and Child Development tried to adopt the Swedish model under which, customers of trafficked sex workers were to be criminalised. The proposed amendment lapsed in Parliament in March 2009 due to disagreement within the Union Cabinet on the setback that this move would offer to the state’s HIV prevention efforts. Yet the impulse to single out prostitution in what is really a larger universe of severely exploited and trafficked labour is remarkable.
Thus in the Criminal Law Ordinance, 2013 (which clearly drew on the hastily drafted section on trafficking in the Justice Verma Committee Report), exploitation was defined to include prostitution whether voluntarily performed or not. Indian sex workers’ groups protested this. In a welcome move, the CLA back-tracked to list within the ambit of exploitation “any act of physical exploitation or any form of sexual exploitation,” which despite its circularity does not conflate it with prostitution. The CLA further criminalises anyone who engages trafficked persons or minors for sexual exploitation but not the users of trafficked persons in other labour sectors such as domestic work, agriculture, and the construction industry. Why the use of those trafficked into sexual exploitation is criminalised under Section 370A but not the rampant use of trafficked labour in several other sectors is unclear. Incidentally, the Criminal Law Ordinance, 2013 criminalised employers of workers trafficked into any labour sector. Will sexual exploitation under Section 370 then be used as a euphemism for sex work?
It is here that the significance of the exclusion of forced labour from Section 370 becomes clear. After all, although the new anti-trafficking provisions are a response to India’s obligations under international law, the chronic problems of labour exploitation in India are far from new. Ninety per cent of trafficking in India is said to be internal. Indeed, the Indian Supreme Court articulated an indigenous anti-trafficking jurisprudence way back in the 1980s, to address the predicament of millions of bonded labourers, forced labourers, child labourers, and migrant workers who were and continue to be routinely recruited and often transported under false promises to distant places regionally for purposes of work-related exploitation. Thus bonded labour was outlawed and statutes on contract labour and inter-state migrant work, designed to be enforced by labour inspectors held intermediaries, such as recruiters and contractors, responsible for providing appropriate pay and working conditions. The Indian state has made a mockery of these laws by consistently failing to implement them. Thus, it is a welcome move that the IPC now has a provision on trafficking, which can be used to prosecute traffickers in a range of labour sectors, including India’s brick kilns, rice mills, farms, embroidery factories, mines, stone quarries, homes and carpet factories and not only sex work. Yet, one can only hope that if India is serious about tackling trafficking, that it will use the new anti-trafficking provisions in conjunction with existing labour laws so as to not merely rescue and rehabilitate trafficked workers but to ultimately improve their working lives.
(An edited version of this post was published as an editorial in the Economic and Political Weekly at http://www.epw.in/comment/battle-half-won.html)
- An Update on India’s Criminal Law Amendment
- Sex trafficking and the sex industry: The need for evidence-based theory and legislation
- The Unintended Consequences of Nick Kristof’s Anti-Sex Trafficking Crusade, Aziza Ahmed
- “We have the right not to be ‘rescued’…”*: When Anti-Trafficking Programmes Undermine the Health and Well-Being of Sex Workers by Aziza Ahmed
- Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy by Janie Chuang