This article is a part of the Special Feature Rethinking Trafficking Bill 2018. To read other articles in this feature, click here.

The Global Alliance Against Traffic in Women (GAATW)[1] welcomes the move by the Government of India to address the problem of human trafficking with a comprehensive legislation that aspires to be in line with current international law. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 (henceforth referred to as the bill) that has been approved by the cabinet will become law, if passed in Parliament. With this law, the government aims to “make India a leader among South Asian countries to combat trafficking” (Ministry of Women and Child Development 2018).

The United Nations Transnational Organised Crime Convention, 2000 and its protocols have led many countries to revise their anti-trafficking legislations. The last 18 years have also seen a wide range of initiatives in the area of prevention, protection (of rights of trafficked persons) and prosecution of human trafficking. Compared to 2000, there now exists a wealth of knowledge about what works and what does not work in anti-trafficking efforts and there is a better understanding of the relationship between migration policies and human trafficking. Policymakers and anti-trafficking service providers can now utilise well-researched evidence on the negative impact of anti-trafficking legislation and initiatives on the human rights of working-class migrants and sex workers (GAATW 2007). These analyses of the impact on human rights should give India a key advantage to create progressive, rights-affirming and victim-centred legislation.

While we are broadly supportive of the Indian government’s move for a new legislation, our years of evidence-building through grass roots, community work with women migrants and trafficked persons across the globe lead us to be quite concerned that this bill will work in ways that undermine, rather than protect human rights, and could heighten migrants’ risk of abuse and exploitation, and create confusion between the distinct legal concepts of trafficking in persons, and the smuggling of migrants. We think that the bill buys into a simplistic understanding of trafficking as a crime that can be contained through stringent punishment. As such, the bill ignores the underlying socio-economic factors that drive people to make desperate choices. The GAATW therefore calls on the Government of India to fundamentally rethink the bill.

Anti-migration in the Guise of Anti-trafficking?

The right to migrate or “the right to leave any country including one’s own as well as to return,” is well established in international law, including in the Universal Declaration of Human Rights (UDHR), and a number of conventions ratified by India, including the International Covenant on Civil and Political Rights (ICCPR), Article 12, and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Article 5 (UN General Assembly 1948; 1965; 1966).[2] Although this right does not have a corresponding right to enter any country, and states have the sovereign right to control their borders, irregular entry or stay are not crimes per se, and international law is clear that these concerns are subordinate to states’ obligations to respect, protect and fulfill the rights of all persons, regardless of their migration status.[3] The fact remains that many people, regardless of the availability of regular pathways for migration, need to, and have a right to migrate, whether out of a well-founded fear of persecution, poverty, or the inability to survive or prosper in the place of origin.

The bill has a new category of offence called aggravated trafficking—“by encouraging or abetting any person to migrate illegally into India or Indians to some other country”—with a minimum punishment of ten years. This approach undermines the right to migrate to and from any country, including one’s own, conflates trafficking and smuggling, and ignores the reality of migration and the dramatic mismatch between migratory pathways and regular migration opportunities. Moreover, the reference to the legality or illegality of migration is also out of step with international law. As far back as 1975, the United Nations (UN) member states endeavoured to avoid the word “illegal” in reference to migrants.[4] The use of such language acts as a barrier to cohesion, is discriminatory, and misrepresents the reality of migration, most of which, globally, is regular.

The text confuses human trafficking with smuggling of migrants. Referring to aiding and abetting the migration of a person in and out of a country as “trafficking” overlooks two of the three necessary components of the most up to date and internationally recognised definitions of trafficking in persons. In the UN protocol on trafficking in persons, which requires an “act,” a “means,” and a “purpose” (exploitation). The conflation of smuggling and human trafficking can lead to the mischaracterisation of the relationship between the smuggler and the migrant (Sanchez 2017), the criminalisation or stigmatisation of migrants and all people who assist with the migration process, and the denial of migrants’ human rights. The conflation makes plain the anti-migration agenda that underlies such efforts. States should provide rights-based responses and protection that are applicable under the specific protocols as well as under human rights law.

This provision is also a disconcerting development in the context of the ongoing discussions in the global compacts for migration and for refugees. The process of the global compacts was initiated to address protection gaps for migrants in vulnerable situations, who do not fit the definition of a refugee under the 1951 Refugee Convention. In this process, some states, including India are looking to limit the human rights protections enshrined in international law for undocumented migrants, roll back on agreed language on human rights regardless of status,[5] sometimes using a fight against human trafficking and smuggling as justifications for harsher border regimes and criminalisation. The draft text of the Global Compact for Migration (2018) calls upon states to “design, review, and amend relevant policies and procedures to distinguish between the crimes of smuggling of migrants and trafficking in persons by using the correct definitions and applying distinct responses to these separate crimes ...” as well as “[ensure] that definitions of trafficking in persons used in legislation, migration policy and planning, as well as in judicial prosecutions are in accordance with international law, in order to distinguish between the crimes of trafficking in persons and smuggling of migrants.”

The bill, then, falls foul of the global compact for migration before it has even been agreed. The proposed criminalisation of irregular migration overlooks the realities of migration today and the fact that large portions of many states’ economies rely on undocumented migrant labour, with the pathways for regular migration, particularly for women, and low-paid sectors remaining inadequate. India is the world’s largest remittance receiving country and the benefits of migration should be clear to the policymakers. Yet, India has always demonised migrants from neighbouring countries rather than recognising their rights and contributions.

The issue of human trafficking does not exist in a vacuum, but is closely interlinked to migration and labour. Consequently, legal and policy responses to trafficking are only effective and rights protective, when they are matched by effective and rights-protective labour and migration policies, among others. The Government of India needs to adopt a whole-of-government approach to migration that does not exacerbate the risks and consequences of trafficking, that distinguishes clearly between trafficking and smuggling, and is consistent with existing obligations under international law to protect the rights of all migrants regardless of status. This is a trend noted by the UN Special Rapporteur on trafficking in persons in the most recent report to the United Nations Human Rights Council (UNHRC). The report says that states’ migration policies are often disconnected from their legal obligations towards trafficked persons, and that “[c]urrent approaches to migration and the identification of victims and potential victims of trafficking are taking place in a context in which poisonous political discourse is leading many countries to adopt anti-migration and even racist positions” (Giammarinaro 2018). Let not India be amongst those countries.

Rehabilitation and Reintegration of Trafficked Persons

The proposed bill places great faith in rehabilitation and reintegration initiatives. While on the face of it this may be seen as a strength, it is important to be aware of lacunae in current practices in assisting trafficked persons and take steps to address those. Many in our constituency, both in India and across the globe, take issue with the idea that there is necessarily something that one needs to be “rehabilitated” from. Our members have learned that when the factors that lead to trafficking in the first place have not been resolved, there is a high risk of repeated trafficking or of the person returning to the environment of exploitation. Most “reintegration” initiatives facilitate a return to the person’s community/country of origin, which may not always be the best solution and might, in fact, work against their social inclusion in the long term (GAATW 2016).

The most durable and rights-affirming approaches put the person at the centre, and support community-led approaches, rather than the protectionist and institutionalised care approach proposed in the bill, which limit women’s rights and freedoms and violate their privacy. Community-based reintegration models, such as those run by Shakti Samuha, our member in Nepal, have been critical in being able to address one of the most damaging elements of the trafficking experience—social stigma.

Prosecution Model

The GAATW’s experience over the last 25 years has also contributed to our concern over what we see as an excessive focus on prosecution. In 2016, we invited scholars and practitioners to analyse and debate the problems with prosecuting human trafficking. Increased penalties, arrests and prosecutions take the focus away from victims and survivors, aggravate victim traumatisation and move us away from meaningfully addressing the problem. Indeed, Gallagher (2017) has referred to the global efforts to prosecute trafficking as “miserable”—with only 9,000 prosecutions made in 2016 against a problem of a scale that, while not accurately quantified, is estimated to be in the tens of millions. Based on her firsthand experience in South-east Asia, Gallagher has also observed that “the drive for prosecutions (largely initiated and perpetuated by the United States government through the Trafficking in Persons Report process) is contributing to miscarriages of justice on a significant scale as countries scramble to prove their commitment to anti-trafficking efforts in a way that will appeal to their assessors. Cases that are not trafficking (such as pimping and marriage brokering) are being prosecuted as such and convictions are leading to penalties that are grossly disproportionate to the seriousness of the underlying conduct. Accused persons are too often being denied the right to challenge their accusers, to benefit from a presumption of innocence and to secure assistance in their defence (Anti-Trafficking Review 2016).

Implementing a rights-based approach that facilitates, and does not criminalise migration and one that promotes decent work is the most constructive approach to preventing trafficking in persons. It reduces opportunities for exploitation and enables individuals to report crimes and seek assistance without fear of detention and deportation. Trafficking and indeed migration cannot be looked at in isolation from development and economic policies that are creating an increasingly unequal world. Without addressing the structural drivers in the global economy that fuel the demand for the cheap goods and services made possible by poor pay and working conditions with little or no labour regulation, the conditions for labour exploitation, including that of migrant workers and which may constitute trafficking in persons, will continue (GAATW 2017).

Conclusion

Overall, the weakest point of the bill is not in its text, but rather in its sub-text which seems to believe that trafficking happens in a vacuum and can be stopped by stringent punishments. In late 2017, when the Government of India spared no efforts to criticise the Global Estimate of Modern Slavery (2017), we were hopeful that India would resist sensationalism with strong labour laws and workers’ rights protection. The new anti-trafficking bill belies that hope. However, there is still time to turn it around and come up with a progressive legislation that is based on a realistic people-centred social analysis.