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India’s new trafficking bill undermines access to work and labour rights
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Date: None

It is furthermore surprising, given the purpose of the bill, that the definition section (Chapter 1) leaves trafficking in persons undefined. Chapter 8 on penalties and offences uses wording that is inspired from the Palermo Protocol’s definition of trafficking (Article 3, a), but does not refer to it as a source of definition. It is globally recognised that addressing human trafficking requires much more than penal measures, and it would hence be advisable that the human trafficking definition from the Palermo Protocol be in Chapter 1. Also problematic is the proposed definition of ‘exploitation’, which includes causing of harm to or taking of benefit or gain from a victim without due or appropriate consideration. This definition encompasses many employment relationships.

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. While there may be need to punish offenders who engage in trafficking and forced labour with penal measures, 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.

Article 1 of Protocol 29 of the ILO, which supplements the ILO Forced Labour Convention No. 29, is meant to oblige member states to suppress forced labour while also encouraging effective measures to prevent and eliminate its use. The Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203) enjoins each member state to adopt ‘preventive measures’.

Apart from prevention, the need for progressive increments in improving labour and employment conditions is critical in large economies, such as India, where informal employment and the informal sector play a preponderant role. Employment policies, working conditions, and wages need to be improved. Workers need to be organised, unionised, and supported to engage in social dialogue.

The bill over-emphasises criminal offences

The bill over-emphasises criminal responses, particularly in Chapters 8 and 9, which 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). Such criminalisation bestows significant power and discretion on law-and-order authorities, who at the same time are not mandated to deal with labour relations. Given the preponderance of informal labour, the bill can be misused in many ways – not least as a rent-seeking tool. This can negatively impact businesses as well as mobility of workers across the country.

[1] Url: https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/indias-new-trafficking-bill-undermines-access-to-work-and-labour-rights/
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