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COMMENT

A Battle Half-Won
The new legal strengthening of anti-trafficking provisions should be followed up by better implementation.
Prabha Kotiswaran writes:
lthough the recently enacted Criminal Law (Amendment) Act, 2013 (CLA) is primarily concerned with targeting rape and sexual assault, it 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 seven 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 in Persons, Especially Women and Children which India signed on 12 December 2002 and ratified it in May 2011. However, there are some interesting differences. 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. But the omission of one of the forms of exploited labour listed in Article 3, namely, forced labour or services and addressed by the Indian Constitution under Article 23, is perplexing.

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Since 2006, the Indian government has attempted to strengthen its anti-trafficking law by amending the Immoral Traffic (Prevention) Act, 1956 (ITPA). Thus in the Criminal Law Ordinance 2013, exploitation was defined to include prostitution whether voluntarily performed or not. When Indian sex workers’ groups protested, the definition was amended in CLA to bring within the ambit of exploitation “any act of physical exploitation or any form of sexual exploitation”, which 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. It is unclear 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. 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 Supreme Court articulated an indigenous anti-trafficking jurisprudence 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 for purposes of workrelated exploitation. Thus bonded labour was outlawed and statutes on contract labour and interstate 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 that can be used to prosecute traffickers in a range of labour sectors. One can only hope that the government 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.

Economic & Political Weekly

EPW

april 27, 2013

vol xlviII no 17

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