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)

Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka Legal and Policy Review
UNODC, Regional Office for South Asia
Principal Author
Dr. Sarasu Esther Thomas

International law has witnessed considerable activity around the issue of trafficking in the past decade. Particularly significant is the adoption by the UN of the 2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking Against Persons, Especially Women and Children (“UN Protocol”)[1] supplementing the 2000 United Nations Convention Against Transnational Organized Crime.[2] In the less than ten years since the UN Protocol was adopted, no less than 147 states are party to the UN Convention, while117 are also signatories to the UN Protocol.[3] Further, given the regional nature of much trafficking, states have also begun to develop regional legal instruments to target trafficking. Against this backdrop and given the anecdotal information of the resistance of South Asian governments to the UN Protocol, it is useful to assess the state of anti-trafficking law in South Asia.

Undertaken for the Regional Office of UNODC in South Asia under the United Nations Global Initiative to Fight Human Trafficking, the 2011 report Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka Legal and Policy Review (hereinafter “Review”) is possibly the first comparative report assessing the legal and policy frameworks of many of the countries in the South Asian region. At the outset, it fills a major gap in the literature and is valuable for this very reason. Yet, for reasons not explained in the Review, there is a glaring omission of a major South Asian jurisdiction, namely, of Pakistan. There are of course other countries, which form part of the regional-political entity South Asian Association for Regional Cooperation (SAARC) such as Afghanistan, Bhutan and Maldives, which are also not considered in the Review.

The Review suggests that the domestic legal regimes of Bangladesh, India, Nepal and Sri Lanka against trafficking leave much to be desired. To begin with, not all of them are even signatories to the UN Protocol.[4] More significantly, the regional definition of trafficking as embodied in the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002, is at odds with the definition set forth in the UN Protocol to the extent it defines trafficking in terms of “moving, selling or buying of women and children for prostitution” with or without their consent. Thus the SAARC Convention narrows the UN Protocol definition of trafficking by applying it only to women and children rather than also including men, for the purposes of prostitution rather than employment in other labor sectors and by ignoring the possibility of voluntary migration.

This situation is repeated in each of the domestic legal settings (3, 11, 21, 22, 54, 59). None of the four South Asian countries have a comprehensive law dealing with trafficking. Neither do they define trafficking in terms of the UN Protocol. When trafficking is explicitly dealt with, it tends to be in the context of anti-sex work criminal laws (as in India) or laws dealing with violence against women (Bangladesh). Occasionally, trafficking for other purposes such as organ trafficking is acknowledged and rendered illegal (Nepal). Yet, they also equate sex work with trafficking (Bangladesh, Nepal).[5] Thus, it is clear that in the South Asian context, trafficking is very much associated with sex trafficking and sex work. In a sense, this is somewhat predictable. Indeed the preoccupation and sex panic around sex work is what ultimately drove the UN Protocol negotiations and the considerable resources states are now devoting to this problem.

Yet, if we understood trafficking in the most general terms as coerced migration for purposes of exploitation and want to make anti-trafficking law meaningful, we need to go beyond untethering domestic anti-trafficking law from its preoccupation with sex work. The Review makes a beginning in this respect when its lists the range of “miscellaneous” laws in each jurisdiction that could be thought to be dealing with trafficking. Perhaps as testimony to the colonial legal pasts of the four jurisdictions, these laws could be categorized into the following categories. The first category is of general criminal laws, which deriving from the Indian Penal Code, 1860 contain offences relating to kidnapping/abduction, slavery, buying and selling girls for purposes of prostitution and unlawful compulsory labor. To the extent that exploitative labor practices are of considerable vintage dating back from the days of slavery, these criminal laws reflect the prohibition of such practices. The Sri Lankan Penal Code is the only criminal code, which has incorporated in 2006 a broadly phrased offence against modern trafficking by drawing on the UN Protocol. The second category of laws deals with vulnerable subjects like children therefore covering issues of juvenile justice and child labor or bonded laborers or members of the scheduled caste and tribes who are enticed or sexually exploited. The third category of laws deals with foreign migration meant to address the exploitative practices, that more recent waves of South Asian migrants have faced when traveling to the Middle-East in particular for work. While this overview provided by the Review of the range of laws that could be used against trafficking is useful, the Review could have offered a sharper analysis of more recent laws in each of the four jurisdictions against coerced migration for exploitative work. Given the high levels of internal trafficking in countries like India, laws passed in the 1970s to deal with coerced internal migration such as the Inter-State Migrant Workers’ Act in India could have been considered. Similarly, the Review considers laws relating to foreign migration in some countries but not others (e.g. Emigration Act in India).

There are certain other blind spots in the Review that I will allude to. First, the UN Protocol presumes that trafficking is driven by organized crime, which may not be sociologically true in the South Asian context. Hence despite the repeated reference in the Review to the fact that South Asian laws do not provide adequately for organized crime apart from some general principles of criminal liability, we might ask whether this might not simply be the result of a factual disjuncture in way trafficking is organised in South Asia and in the West. This points to a larger problem within the Review. Given the dearth of comparative work in South Asia on trafficking, I hoped very much that the Review would marshal literature from the four jurisdictions to problematize our preconceived notions of trafficking by illustrating the range of trafficking scenarios in South Asia. Instead, sadly the Review draws heavily on the US TIP reports for describing the trafficking problem in the four countries. This is problematic given the poor empirical basis of the TIP reports historically speaking. This is also tied into the silence within the Review on the impetus for the recent passage of anti-trafficking laws in countries like Bangladesh (Women and Children Repression Prevention Act, 2000) and Nepal (Trafficking in Persons and Transportation (Control) Act, 2007). After all, if the South Asian region has so far shown little interest in conforming domestic law to the UN Protocol. Some indication here of the pressures that South Asian governments may have felt in response to their ranking by the US Trafficking in Persons Report under the Victims of Trafficking and Violence Protection Act, 2000 might have been useful.

In conclusion, the Review usefully documents contemporary legal developments around trafficking in Bangladesh, India, Nepal and Sri Lanka. It focuses on constitutional legal frameworks in these countries, their domestic statutory law and judicial pronouncements. This understanding of domestic law becomes critical as international organizations like UNODC and ILO point to the conceptual ambiguities that have haunted the Protocol, its definitions and its operationalization. In other words, the diffusion of the UN Protocol will depend largely on how domestic law builds on the core legal concepts central to the UN Protocol namely of the mode of trafficking and the coercion and exploitation involved in the process. It is indeed unfortunate that the true spirit of the UN Protocol has not been realised in the laws of Bangladesh, India, Nepal and Sri Lanka given their inordinate emphasis on prostitution rather than other trafficking into other labor sectors. It is very much hoped that these countries will in the future expand their understanding of trafficking drawing on their high levels of internal migration and outward migration levels to articulate a vision of anti-trafficking law from the perspective of developing countries. Countries like Nepal have already shown that they can build higher levels of procedural safeguards for victims of trafficking and the adjudication system (such as through Trafficking in Persons and Transportation (Control) Act, 2007) when compared to international law.

Prabha Kotiswaran, Coerced Victims or Exploited Workers? Rightswork.org (February 20, 2012)

This article originally appeared on Rightswork.org. To view the original, click here.

Mahdavi’s book Gridlock offers a fascinating report of the negative consequences in the Middle-East, specifically in the United Arab Emirates (UAE) and Dubai as a result of the impact of the UN Trafficking Protocol[i] and the U.S. anti-trafficking law[ii]. Mahdavi focuses an invisible group of the Emirates’ inhabitants, namely, its migrant workers, ranging from domestic workers, cab-drivers and male construction workers to beauticians working in malls and sex workers. She undertakes an ethnographic study of these several groups of migrant workers to offer a powerful critique of the current paradigm of international anti-trafficking law and its implementation in Dubai arguing that they hurt the very people they seek to protect. Mahdavi claims that contemporary anti-trafficking discourse has been inordinately preoccupied with the increased criminalization of sex work. She instead successfully argues for reframing trafficking as an international migration and human rights issue.

In the introduction to Gridlock, Mahdavi asserts that the dialogue about trafficking itself has been trafficked (p. 11). In particular, the term trafficking is used in definitional and policy terms to primarily connote women, often young, who have been duped or forced into sex work (p. 13) —  even though the international legal definition in the UN Protocol refers to any worker who is recruited or transported through means such as force, fraud, or coercion for purposes of exploitation.

Consequently, the exploitative conditions under which a large percentage of Dubai’s migrant non-sex worker population labors is not considered seriously. All sex workers on the other hand are considered to be trafficked (p. 62). This has been reinforced by US influence on trafficking discourse, particularly, the US TIP Report for Dubai which certainly prior to 2009 focused on sex trafficking. This is compounded by the fact that political and social actors in the UAE experience the TIP report as an instance of US imperialism and hegemony and more generally as a tool of US trade and foreign policy. Their suspicion is justifiable considering that Dubai has occupied literally every place in the TIP report rankings from Tier 1 (2003) to Tier 3 (2001, 2002) and Tier Two and the Tier Two Watch List in other years (pp. 19, 21, 25).

In the ensuing chapters, Mahdavi is keen to show that there are women in the sex industry who have not been trafficked and that there are many instances of abuse inflicted on both men and women outside the sex industry. Thus chapters 3, 4 and 5 of her books are focused on specific labor markets in Dubai.

Chapter 3 on Sex work for instance demonstrates what global research on sex work typically reveals, namely, the diversity of the sex industry. The situation is even more complicated in a state like Dubai where 92% of its population consists of migrants and where the city is divided and constructed along the lines of gender, race and citizenship. Hence, Dubai’s sex industry is segmented into the high-end group of Iranian sex workers who operate collectively and without pimps in the plush newer condo developments of South Dubai, while South East Asian and South Asian sex workers are in the city’s bars and African sex workers are on the streets of North Dubai.

Mahdavi is at pains to show how these sex workers cannot be easily characterised solely as victims or agents and that for them both force and choice co-exist (p. 63) and lie along a continuum —  so the motivations to enter sex work are several and complex. Any attempt to ignore this reality and dictate that all sex workers are ‘victims’ translates into rescue operations, which go against sex workers’ wishes. More significantly, it leads to the provision of social services to sex workers in Dubai along racial lines as street-based sex workers have greater access to services when compared to sex workers working in relatively safer indoor environments.

Related to the chapter on sex work is Chapter 5 on female migrant workers engaged in domestic work. Here Mahdavi demonstrates that women who can legally enter the formal economy of domestic work often choose to enter the informal illegal space of sex work for the relative autonomy and higher pay that it offers. They prefer sex work to the highly exploitative working conditions and the absence of labor rights they face as domestic workers. When domestic workers are deceived about their hours of work, their visa status and their pay, which is not paid for months on end, they run away from their employers – this renders their immigration status illegal. Hence moving into sex work very quickly becomes a “deliberate well-reasoned act of income generation” (p. 141). The most significant insights here for those who advocate against sex trafficking according to Mahdavi is that many women enter sex work through legal migration channels and from jobs in the formal economy.

Having thus exploded certain myths around sex work and sex trafficking, Chapters 4 and 7 of Mahdavi’s book offer a poignant account of the appalling working and living conditions of migrant laborers in other sectors in Dubai.  They arrive on fake visas and pay exorbitant fees to recruitment agencies. They are tied to their employers by the kefala system, which prevents them from changing jobs.  This system undermines their bargaining power, forces them to live in squalid living conditions and work even when seriously injured. It often results in unpaid salaries and, even when paid, wages are well below what was agreed to. These serious abuses are further compounded by high penalties for living illegally in Dubai. So for some migrants, exit to their home country becomes practically impossible as the authorities would detect their illegal status upon departure. Thus Mahdavi points to the “discrepancy between imagined ideas about trafficking and the actual realities of forced labor and migration.”

Based on Mahdavi’s account so far, one might look to the space of civil society for addressing the serious rights infractions of migrant workers in Dubai. Except that the UAE formally prohibits the formation of labor unions. As a result, organisations that have been set up to support migrant workers lead a precarious legal existence. They are hampered by the inability to raise funds, scale up their operations or vocally advocate for workers’ rights.

It is this fragile space of civil society according to Mahdavi that has suffered the most from the politicisation of the trafficking issue and the mandate of the 2009 TIP report to the UAE to step up law enforcement efforts against trafficking, increase raids and arrests against sex trafficking and tighten borders (p. 213). These TIP recommendations according to Mahdavi led Dubai to import law enforcement personnel and dramatically increased the surveillance of female migrant workers. Further by reiterating the received US notion that countries in the Middle-East have no civil society, the efforts of existing groups amongst migrant workers were rendered invisible. Worse, of the four migrant workers’ organisations that Mahdavi chronicles, two were shut down by the government for harbouring illegal migrant women and ‘running a brothel’ while one other group decided to direct its efforts towards male migrants.

In conclusion, Mahdavi deploys her ethnography of migrant labor markets in Dubai to powerfully situate trafficking at the crossroads of complex macro-social forces operational in both sending and receiving countries – the structural realities of the migration process (such as the kefala system, the lack of the recognition of domestic work and sex work as forms of labor) and the powerful grip of the anti-trafficking discourse which renders abuse in non-sex work sectors invisible, while ‘fetishizing victimisation’ in the sex industry.

Despite the global moral panic that animates contemporary efforts against trafficking, Mahdavi is confident that the trafficking framework could potentially be used as a catalyst to improve migrant workers’ human rights. But for this to occur, the selective focus on sex work will need to be broadened to include all forms of labor and a greater emphasis will need to be placed on conditions that exist at the end of the migratory process rather than solely on consent to entry into a labor market. A systemic reform of the kefala system to allow for worker rights will be essential as well as better training of police personnel, an increase in the numbers of labor inspectors and the recognition of the legal status of NGOs supporting workers. Thus, it is by only by understanding trafficking as migration gone wrong (p. 12), can we address the ‘gridlock’ of contemporary anti-trafficking policy.

Prabha Kotiswaran, The Hindu (March 27, 2012)

This  article originally appeared in The Hindu. To read the original article, click here.

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 deals with the reform of prostitution laws in India. It begins with an outline of the current legislative framework available in this regard and then critically evaluates the various alternatives to the framework that have been proposed through the 1990s by the Indian government, universities and research institutions, the Indian women’s movement and sex-worker organizations. Mter undertaking an historical examination of prostitution laws in India from colonial times up to the present, the author recommends the decriminalization of prostitution with a strong emphasis on the protection of the civil rights of prostitute women as a matter of policy. More importantly, the author challenges the underlying assumptions of much Indian feminist theory and practice on the issue, critiques the politics of representation in the law reform process and seeks to highlight the agency of Indian prostitute women in the debate on prostitution laws.

Preparing for Civil Disobedience- Indian Sex Workers and the Law

The global sex panic around sex work and trafficking has fostered prostitution law reform worldwide. While the normative status of sex work remains deeply contested, abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal laws can eliminate sex markets, whereas for sex work advocates, decriminalization can empower sex workers. I problematize both narratives by delineating the political economy and legal ethnography of Sonagachi, one of India’s largest red-light areas. I show how within Sonagachi there exist highly internally differentiated groups of stakeholders, including sex workers, who, variously endowed by a plural rule network— consisting of formal legal rules, informal social norms, and market structures—routinely enter into bargains in the shadow of the criminal law whose outcomes cannot be determined a priori. I highlight the complex relationship between criminal law and sex markets by analyzing the distributional effects of criminalizing customers on Sonagachi’s sex industry.

Born unto Brothels