Since the beginning of COVID-19 pandemic, concerns about migrant workers’ rights and conditions in India have been very much in the news and have been escalated, yet the response from the Indian government is feeble (Janwalkar, 2020; Rukmini, 2020; Francis and Uniyal, 2021). Subir Sinha recently notes that Covid-19 has deepened existing inequalities, which blur the lines between waged, coerced and trafficked labour in India (Sinha, 2020). There are also reports showing a rise in trafficking cases in India because of this current pandemic situation (News18 Networks, 2020). In response to these concerns, the Women Safety Division of the Indian Ministry of Home Affairs issued an advisory, since July 2020, advising all states and Union Territories (UTs) for the urgent establishment of new Anti-Human Trafficking Units (AHTUs), and/or upgrade infrastructure in existing ones (Janyala, 2021). AHTUs in India are special police units, devoted to tackle human trafficking. Following MHA advisory, a recent report of 16 states and UTs suggest that 225 AHTUs existed only on paper, and only 27 percent of the AHTUs were operational (Janyala, 2021). While the MHA advisory has triggered more attention among anti-trafficking activists, increasing demands for quickly setting up AHTUs in all districts (Janyala, 2021), yet the highlighted claim of the report (that shows incompetence of AHTUs) indicates that MHA advisory, and demand for establishing AHTUs, is not enough. The proposed intervention is distorted by its failure to account for the colonial legacy and present contestations in policies that conflates the conception of human trafficking with the social control of consenting adult sex work and migration (e.g. see Bhattacherya, 2018; Giammarinaro and Boola, 2018). Successive attempts to reform the legal definition of human trafficking and interventions have resulted in the application of excessive and arbitrary state power and bureaucratic control (Tandon, 2015). These efforts reflect a misplaced focus on law enforcement rather than holistic human-rights based solutions that promote the agency of workers and migrants.
Current policies regarding human trafficking in India carries colonial legacy and resulting harms. For instance, being a colonial construct, established by British Raj that aimed to serve their military, racial and colonial interests (Chang, 2007; Tambe, 2009), the conception of human trafficking was defined by colonial regimes as the act of abduction and transport of women for prostitution (Irwin, 1996). This definition conflates human trafficking with prostitution, dispossessing consenting adult sex worker’s concerns and rights (Tambe, 2009). Besides conflation with consenting adult sex work, the colonial prostitution governance created a regulatory system that vested unimpeded authorities to the institutions like Police or its regime, resulting criminalization and incarcerations of sex workers. For instance, Indian Contagious Disease Act of 1868 provided for compulsory registration of sex workers, and entailed being forced to stay back (without work) for an indefinite period, and subjected to incarceration (Banerjee, 2000; Tambe, 2009). The focus of human trafficking interventions on criminalisation of sex work continued and also got support from Indian nationalists, who later favoured laws reflecting a similar conflation of human trafficking and sex work and/or related professions in legislation such as the Madras Hindu Religious Endowments (Amendment) Act of 1929 (Sreenivas, 2011) and/or The Suppression of Immoral Traffic Acts (SITA) during the 1920s and 1930s (Legg, 2014). SITA was reintroduced after India’s independence, and later replaced by the Immoral Traffic (Prevention) Act, 1986 (ITPA). ITPA carries a parallel colonial legacy and design of SITA, conflating consenting adult sex work with trafficking, except for some minor changes (Cunha, 1987). Along with ITPA, India has also got additional provisions regarding human trafficking, with an amendment in section 370 of Indian Penal Code, which defines human trafficking as:
Whoever, for the purpose of exploitation, recruits, transports, harbors, transfers, or receives, a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received, commits the offence of trafficking. The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude. The consent of the victim is immaterial in determination of the offence of trafficking” (Govt. of India, 2013: 5).
This definition in section 370 not only continues conflation of human trafficking with sex work, but introduces its own difficulties: the broad definition captures many persons displaced by forced migration, denies targeted person’s agency, and gives unrestricted power to the state and bureaucratic regime and its institutions, including police. It also encourages a criminalisation approach to tackle trafficking. Indian Government’s National Crime Record Bureau (NCRB) collects data and present number of trafficking cases on the basis of this definition of 370. According to data, 95% of trafficked persons in India are forced into prostitution (Divya, 2020). The recent NCRB lists a total of 6,616 human trafficking cases as registered in India, out of which trafficking for the sex trade are highest in numbers (Munshi, 2020). Since these number of cases get registered as per the definition of trafficking in section 370 that conflates with sex work, the reliability of these number thus remains contested. It is because these numbers could include cases of adult sex workers who consented but their consent got denied during anti-trafficking interventions as both ITPA and section 370 allows it. But these figures and legislations do bring workers in sex trade into a situation of selective targeting from anti-trafficking actors and interventions (see GAATW, 2007; The Telegraph, 2017; Chandra, 2018).
The amendment in section 370 made modest but insufficient changes to the definition of trafficking as a response to the recommendation of Verma Committee (Khan, 2015). These changes were also precipitated by India’s commitment to the international actors, after India ratified United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Protocol) in 2011 (UNODC, 2004). Once again, akin to colonial policies, despite resulting in some improvements in India’s human trafficking or workers’ harsh labour conditions, these changes produced more harm than help. For instance, documented narratives (Sangram, 2018), experiences (Walters, 2018) of the targeted groups, and research (GAATW, 2007; Pai, Seshu and Murthy, 2018; Sangram, 2018; Walters and Ramachandran, 2018) even now showed (re)production of violence and harms in targeted person’s lives because of these contemporary anti-trafficking interventions, of which AHTUs mainly acts central implementing agency.
The intention of settling AHTUs appears to maintain a law enforcement anti-crime structure, as the definitions in ITPA and Section 370 understand trafficking through a criminalisation approach. However, practically, narratives of targeted persons at the local level indicates that this intervention does not promote the goal of human rights and protection of targeted persons.
Narratives from my current ethnographic research that gives epistemic priority to those adult migrant workers who experienced anti-trafficking interventions or are seen as trafficked ‘victims’ in the law (see Najar, 2020, 2021), in construction and sex sector of India, shows that the officials of anti-trafficking units were viewed by such workers as being corrupt and partial to the interests of the perpetrators. For instance, sitting inside her brothel room, Priya (name changed), a migrant cis female adult sexworker, said that “[…] Police is culprit here”. She shared an incidence of previous day that two policemen were harassing a customer and then the customer gave 1000 Indian Rupees to these Policemen. The police then allowed these customers to enter the brothel. She said the Police is a party in the business in that red light area. She also shared that usually work should be upto midnight or 1:00 am. But since the Police take rounds till midnight, there are very few customers who come before that midnight, due to the fear of harrashment from Police. Priya said that here the system is reverse as the market opens after 12, once the police gather their money and leave the place (D4:FW3). This narrative reflects how a system that gives more power and authority to institutions like police could be appropriated and misused, resulting more harm to the livelihood and rights of workers like Priya, rather ensuring and protecting their human rights.
Furthermore, state officials were viewed as holding unchecked authority over the targeted person’s decision, choices and trajectory. For example, Reshma, a non-brothel based adult migrant sex worker in Kolkata, who introduced herself as ‘flying sex worker’ while sharing her experiences in my research said that “[…] who knows when they (Police) will start harassing you. Sometime, they stop their vehicle in front of me, ask if I carry Ganja (Marijuana), daaru (alcohol) and talk with me a little and go ahead. But all power is in their hand. If they want, they can take me to the jail by saying that I am 15 years old or I am Bangladeshi (undocumented migrant). No one will come to help me then. They (Police) have the powers. So it’s better to not mess up with them and pay or do the work that they want”. (DW 12: FW11). This narrative indicates the fear and consequences among marginalized migrant workers, because of extra and unaccountable institutionalized authority to agents like police and conflation of policies with consenting adult sex work in India.
Total dependence on AHTUs hence has potential to reproduce situation of harms, resulting in diminished relief to the targeted person (see Sangram, 2018; Walters, 2018; Sen, 2021). Also, authority to and dependence on AHTUs may encourage further corruption, surveillance and control by police, reproducing problematic raid-rescue models and targeting of suspected migrants, especially sex workers, undocumented/informal workers, etc ( for example, see Sen, 2021 that highlights a very recent incident and explains how Police Raid to Rescue interventions Criminalised an Entire Neighbourhood). This situation is possible because the law conflates trafficking with sex work and forced migration, and has disproportionate focus on law enforcement strategies.
The disproportionate focus on law enforcement strategies prevents more structural efforts to grapple with these intersecting issues in a way that recognises the agency of targeted persons. The United Nations special rapporteur on trafficking in persons amplified in her report for a shift in focus away from law enforcement and towards human rights and the protection of victims (Okyere, 2020). United Nations special rapporteur on trafficking in persons in her report also pointed that a new international instrument may be required, because the current international instruments like Palermo protocol may not be sufficient or effective when it comes to considering such human rights goals. Analysing the Special Rapporteur’s argument, Sam Okyere argues “the Palermo protocol is irredeemably compromised and must be dismantled, rather than reformed. We instead need to strengthen existing international instruments focusing upon workers’ and migrants’ rights and protections. Any new instrument which is developed needs to avoid the trap of making crime fighting a primary goal” (Okyere, 2020). It thus reflects that current demand to tackle human trafficking and protect migrant’s rights signifies a shift from law enforcement focused intervention to human rights and protection of worker’s rights.
Given the colonial legacy and the continuing concerns arising from successive attempts at law reform, it appears that the current intervention to tackle human trafficking in India by only establishing AHTUs is not enough. India’s strategy to tackle human trafficking and migrant workers’ crisis should not completely and only depends on law enforcement institutions like AHTUs, instead, it also requires a rights based reform that dismantles the colonial legacy of the law which conflates human trafficking and sex work and migration. If Modi government in India fails to reform the policies, and simply promotes an intervention by only setting up law enforcement structures like AHTUs, it would mere be a token response to tackle trafficking and protect migrant worker’s rights, rather than a genuine effort.
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