Human trafficking is in the news a lot these days. Many of these reports follow the predictable storyline of sex workers enslaved in the back alleys of bleak, third world cities. India often features prominently in these narratives. For instance, Nicholas Kristof, the New York Times columnist and author of over forty-six op-eds on the subject of sex trafficking, recently conducted undercover raids in Sonagachi, Kolkata’s largest red-light district, along with U.S. abolitionist organization, 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 world managing in the process to conflate trafficking with sex trafficking and sex work. 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 percent of its working population is in the informal economy, many of whom are migrants working under extremely precarious conditions.
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 (ie, Protocol), which supplemented the 2000 UN Convention Against Transnational Organized Crime. Signatory countries to the Protocol are required to criminalize all forms of trafficking defined in terms of recruitment, harboring, 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, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, or the removal of organs. In other words, the Protocol is meant to target trafficking not only into prostitution but other labor 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 other states’ use of the Protocol for achieving the twin ideological ends of eradicating prostitution and enforcing border control. The 2000 U.S. law, the Victims of Trafficking and Violence Protection Act (VTVPA) and various anti-prostitution policies of the erstwhile Bush administration have been particularly influential in this respect. Since 2001, the U.S. Department of State has, under the VTVPA, ranked national governments receiving U.S. 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.
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 back into the Tier Two List. Since 2006 however, the Indian government, keen to be upgraded in the TIP rankings, sought to strengthen anti-trafficking laws by proposing an amendment to the Indian anti-sex work criminal law, the Immoral Traffic Prevention Act, 1986. Here, following the Swedish model, the amendment sought to criminalize customers of trafficked sex workers. Trafficking was however broadly defined to render all sex workers as trafficked and therefore all customers as criminals. Interestingly however, given the potential damage of any such policy to the state’s HIV prevention efforts, the amendment generated considerable disagreement within the Union Cabinet and eventually lapsed in Parliament. Yet it is clear that the Indian state has very much understood human trafficking in terms of sex trafficking and sex work.
India’s response to the trafficking problem in terms of abolishing prostitution is not unique in the sub-continent. Indeed, the 2002 SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, defines trafficking as sex trafficking following a 1949 UN Convention on prostitution, 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 laborers, forced laborers, child laborers, 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 percent of trafficking in India is said to be internal. These laborers could well be considered trafficked using the broad definition of the Protocol.
To address these very social realities of bonded labor, forced migration, and the deplorable working conditions of contract laborers and inter-state migrant laborers, the postcolonial 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 abysmal 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 labor broadly to include background conditions such as poverty (rather than mainly deceit), emphasizing 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 labor and migrant labor were designed to be enforced by labor inspectors and imposed obligations 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 labor laws aimed both at internal migration and outward emigration. The International Labour Organization (ILO) has indeed recently noted the increasingly significant role of the labor machinery in implementing anti-trafficking laws. India can thus assume a leadership role amongst other 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 labor 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 prostitution) or political ends (such as border control against illegal migration), India has a renewed opportunity to reframe trafficking as it sets about amending domestic law in light of its recent ratification of the Protocol.
Prabha Kotiswaran is Senior Lecturer in Law at the School of Oriental and African Studies, University of London. She is the author of Dangerous Sex, Invisible Labor: Sex Work and the Law in India (Princeton 2011/OUP India 2011) and editor of Sex Work: A Reader (Women Unlimited, 2011). Email: pkotiswaran@gmail.com
India in Transition (IiT) is published by the Center for the Advanced Study of India (CASI) of the University of Pennsylvania and funded by the Nand and Jeet Khemka Foundation. All viewpoints, positions, and conclusions expressed in IiT are solely those of the author(s) and not specifically those of CASI and the Khemka Foundation.
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