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The devil in the details: India's anti-trafficking bill

by Prabha Kotiswaran and Joel Quirk | King's College London
Tuesday, 18 December 2018 18:30 GMT

* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

The Indian government needs to pause and reflect, to ask whether or not the current trafficking bill will do more harm than good

Prabha Kotiswaran is professor of law and social justice at King’s College London; Joel Quirk is professor of politics at the University of the Witwatersrand, Johannesburg.

The Indian government is currently considering new legislation designed to target human trafficking. In support of this legislation, which passed the lower house in July, trafficking victims have been writing to the Prime Minister, Narendra Modi, to help ensure that the bill passes the upper house during the current session. No one denies the stories of pain and suffering of these survivors of human trafficking. Unfortunately, the bill in its current form will push back their struggle for justice. 

Many governments have recently passed laws targeting human trafficking. In 2016, the United Nations Office on Drugs and Crime estimated that 158 governments had introduced laws criminalizing most forms of trafficking in persons. This was a remarkable jump – 125 new laws in little more than a decade – from only 33 governments in the same position in 2003. This global trend suggests that governments are now taking human trafficking very seriously. 

Much as we would like to report otherwise, we cannot take this trend at face value. Numerous governments have passed laws in an effort to demonstrate that human trafficking is a problem which they are keen to address, but the specific provisions found in these new laws have often proved to be ineffective or counterproductive. Not all laws against human trafficking are good laws. The devil is in the details. 

We therefore need to ask one question: will the specific provisions found in the 2018 Indian trafficking bill make things better or worse?

When thinking about this question, it is important to keep in mind that India already has laws concerned with human trafficking which cover sex work, bonded labour, contract labour, inter-state migrant work, child labour and child sexual exploitation. The latest addition came in 2013 in the form of Section 370 of the Indian Penal Code. Instead of unifying these existing laws, the 2018 bill leaves everything in place, but also includes a clause which declares that it supersedes other laws in cases of conflict. This lack of clarity is a recipe for disaster in definitional and operational terms. Key terms are not even defined, such as forced labour, which will inevitably create conflict with repeated rulings by the Indian Supreme Court that forced labour is any labour paid less than the minimum wage.

Like many recent laws against human trafficking, the 2018 Indian bill favours heavy criminal punishments. This tough-on-crime approach has already been tried in India for other offences –  rape, child rape, narcotics, juvenile crime – but in all of these cases the implementation of new penalties has been hamstrung by police corruption and a crumbling criminal justice system.

The implementation of the 2018 bill is likely to be especially challenging, because it includes new offences unrelated to trafficking, vaguely worded offences with heavy criminal penalties (except for employers), an illogical gradation of offences, absolute liability offences (where only the act needs to be proved not the mental state of the defendant), no specific provisions regarding sentencing, bail provisions which presume guilt rather than innocence and reversals of burden of proof.

While some efforts have been made to provide legal protections for trafficking victims, these protections contain significant holes. When these and other problems came to light earlier this year, the United Nations Special Rapporteurs on Contemporary Forms of Slavery and Human Trafficking took the unusual step of issuing a joint statement expressing their grave concerns with the bill, which was said to risk “further harming already vulnerable individuals.”

This reference to harm is especially applicable in the case of rehabilitation. On paper, the 2018 trafficking bill supports a victim-friendly framework for rehabilitation at the national, state and local levels. However, there are no real accountability or oversight mechanisms when it comes to shelter and rehabilitation homes beyond a requirement to register. This is a major problem.

There have been consistent reports of very serious abuses, including a recent scandal involving sexual abuse in shelter homes in Muzzafarpur. The National Commission for Women recently found “extremely pathetic” conditions in 24 of the 25 government funded shelter homes under study with “gross violations” reducing the homes to “congested prisons.”

Instead of trying to address existing problems, the 2018 bill doubles down on this failed model by giving magistrates the power to pass orders detaining adult victims in ‘protection’ or ‘rehabilitation’ homes without a hearing for a ‘reasonable’ but unspecified period. These orders cannot be reviewed or appealed against. This is paternalism on steroids.

Many anti-trafficking organisations within India are heavily invested in this model of rehabilitation through incarceration. Their voices have been especially influential in setting government policy on trafficking, with the final language found in the 2018 bill being shaped via consultations with government which excluded other perspectives.

Organisations representing bonded labourers, contract workers, inter-state migrant workers, domestic workers, sex workers, transgender people and, especially, trade unions have too often been left on the outside looking in. Instead of rushing to the finish line, the Indian government needs to pause and reflect, to ask whether or not the current trafficking bill will do more harm than good, and to consult with a broader range of perspectives in order to come up with something better.