Events And Issues

New Delhi, 30 April 2007

Human Trafficking

DRAFT RIGHTS-ORIENTED LAW

By T.D. Jagadesan

Efforts to eradicate human trafficking are being made globally during the past decade.  The UN, European Union and the SAARC countries have made laws to combat trafficking.  These efforts have been assisted by human rights organizations, women’s groups and other social justice movements. 

Unfortunately, however, the progress in this social justice legislation being pursued in the name of human rights, especially of women and children, is emerging as disingenuous and illusory.  Indeed, anti-trafficking is perhaps the most explicit example of how good intentions can boomerang.  Despite a decade of efforts, there is an increase in the human trafficking statistics and the level of prosecutions and convictions remain abysmally low.

One primary reason is that anti-trafficking work is being used to pursue agendas that have little to do with women’s rights. They either adopt a paternalistic attitude towards migrant women and feed anti-immigrant policies in destination countries, or support sexually- conservative agendas, led by faith-based groups in the US and anti-sex work groups in India and elsewhere.

These competing agendas are present in the current Bill.  As defined in the UN Trafficking Protocol, trafficking involves the recruitment, movement or transportation of a person through force, deception, fraud or violence into a site of exploitative work. Recruiting a person by deceipt into domestic work or forcibly transporting somebody to a bar where she is made to perform sexual service constitutes trafficking.

The central problem with the proposed law is that it collapses the issue of sex work with sex trafficking and equates all trafficking with sex trafficking. The Committee had honed in on this confusion, recognizing that trafficking takes place into a broad range of sectors, such as construction, agriculture, or domestic work.

Secondly, it clarifies that trafficking should be distinguished from consensual commercial sex work, and that not all sex workers are trafficked. Yet the Committee does not take the logical step of recommending a comprehensive law on human trafficking and a separate law to address the concerns of sex workers.

The Committee recommends some major amendments.  It strongly criticizes the proposal to criminalize clients, recognizing that such a provision would be used to further harass sex workers, and do little or nothing to stop trafficking. The recommendations go some way in recognizing consensual sex work and the need to protect the rights of sex workers. Yet it still fails to delink the issue of trafficking from sex work, thus making any effort to seriously tackle human trafficking unworkable. Similar tensions have plagued efforts made by the Government since 1993 to reform the law.

Given these inherent tensions, why is the Government supporting such a flawed law?  The answer lies partly in pressure being exerted by the US.  In 2000, Christian evangelicals successfully lobbied for the enactment of the trafficking in Victims Protection Act with the support of the Bush presidency and anti-sex work groups.  Under the Act, a task force annually evaluates the anti-trafficking efforts of over 150 countries and classifieds them into three tiers.

Tier-one for those who have met the minimum standards for fighting trafficking. Tier-two for those who have not met the standard but are trying and Tier-three a Watch List for those who better shape up or else they will be pushed into Tier-three, a category that triggers the withdrawal of non-humanitarian aid from the US, as well as US opposition to non-humanitarian assistance from institutions such as the IMF and the World Bank.

India is the only South Asian country to be placed in the Tier-two Watch List for the third consecutive year because of its apparent “failure to show evidence of increasing efforts to address trafficking in persons”. While India has a range of legal provisions on trafficking, kidnapping and slavery, it does not have a legislation outlawing prostitution.

The USAID, which sits on the task force, has an explicit policy of refusing funding for HIV/AIDS or anti-trafficking projects to “organisations advocating prostitution as an employment choice or which advocate or support the legalization of prostitution”. Yet opposition to prostitution is not the central criterion for tier placement.

Pakistan had been placed in Tier-two, though it has not enacted a single significant law against trafficking. Nepal was placed in Tier-one in 2005 after the monarchy’s grab for power, but pushed into Tier-two in 2006 after the Maoists’ victory.  Bangladesh provides the death penalty for certain forms of trafficking and bans unskilled and semi-skilled works from working abroad. It is in Tier-two.

The Committee recognizes that the proposed reforms serve as only a “half-hearted” effort to combat trafficking. The US bullying and the threat of sanctions should not push India in a direction that will harm more women than it will help.  India should draft a comprehensive human trafficking law that is human rights-oriented.

And this law needs to be framed against a comprehensive policy on migration and rights of migrant workers. Otherwise, the security of migrants, especially female migrants, may end up less threatened by people smugglers and traffickers than by the system of protection offered by anti-trafficking laws. ---INFA

(Copyright, India News and Feature Alliance)