India's new trafficking bill undermines labor rights

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Law & Policy

India’s newly proposed Trafficking of Persons (Prevention, Care and Rehabilitation) Bill 2021 is coming under fire for its lack of adherence to international labor standards and over-reliance on criminalization as a deterrent to trafficking.

Writing in Open Democracy, Igor Bosc, Bharti Birla, and Neha Wadhawan argue that the Bill needs significant revisions, particularly in regards to forced labor.

They explain that there are four areas of concern:

  1. Impact of the bill on the world of work
    Particularly concerning is the bill’s over-reliance on criminalisation as a method of deterrent. . .while it is understandable that forced labour and trafficking offences are linked to criminal offences, this current bill brings common labour relations, such as recruitment, poor working conditions, non-payment of wages, and other irregular work arrangements, under the domain of criminal law.

  2. The need to focus on the prevention of forced labour and the improvement of recruitment to decent work is absent
    Any mechanism to address forced labour should also address its root causes and focus on prevention rather than merely addressing symptoms. . . it is also important to recognise that labour and employment law provide mechanisms for resolving labour disputes, addressing individual workers’ grievances, improving social dialogue, and opening space for collective bargaining – all of which are critical in preventing forced labour.

  3. The bill over-emphasises criminal offences
    [This] results in the criminalisation of wide-spread employment practices that are often beyond the control of employers, labour recruiters, and workers (i.e. child domestic work, informal recruitment to precarious jobs).

  4. The bill restricts the agency of victims and reneges on a rights-based approach
    The bill promotes ‘rescue and rehabilitation’. Experience has demonstrated that such models tend to be less effective than other measures because they fail to address the root causes that create the conditions for trafficking in the first place.

The Bill takes a paternalistic approach in that ‘rescued’ victims would be institutionalized in the name of protection. Victims would need an affidavit in order to leave a rehabilitation home, which is difficult for people living in poverty to access. Even if this is produced, the magistrate can still overrule the victim’s request if they believe they are being compelled — a far cry from promoting the rights and agency of victims and survivors.

Furthermore, the Bill conflates sex work with trafficking. Such a moralistic, criminalization approach may drive the sex industry underground, exposing sex workers to health and safety risks, including HIV and STIs, as well as forced labor and violence.

As the authors conclude, “the proposed legislation does little to prevent trafficking in persons and instead introduces stringent criminal measures which undermine access to work and labour rights.”

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