Mujeebu’s Fellowship is made possible by the Rural India Supporting Trust.
During my case analysis and fieldwork in Jharkhand, I understood that the experience of migrant labour, in the process of migration and work fall along a broad spectrum. At one end of the story, the individuals who have been thoroughly deceived about the working conditions at the destination, are confined to the workplaces, are physically or sexually abused, etc. At the other end, migrants who mobilized with full knowledge and agency; and who are not deceived or mistreated by contractors or employers. All the cases fall between these two poles. In some cases, one’s initial consent of the kind of work they are is diluted by subsequent unexpected demand or conditions; or the individual consents to performing a task that they initially considered distasteful but later define as acceptable because of its economic benefit – a very fine line between deception, socialisation by other participants, and normalisation of previously disliked tasks[i].
Sex labour and bonded labour comprise the vast majority of trafficking in India though begging industry and organ harvesting have also noted[ii]. In Jharkhand’s case, labour trafficking is a major concern. Understanding the larger challenges of the existing legal frameworks and policy actions to deal with trafficking as discussed in the previous article (Can development interventions reduce human trafficking?), what could be an alternative approach to try implement in the Indian context. Scholars[iii] have already discussed this aspect; a shift from its predominant human rights approach to a labour approach that targets the structure of labour market prone to severely exploitative labour practices can be an alternative. It is more relevant at least in Indian context because labour trafficking is the major trafficking issue in the country. This new approach offers more effective strategies for combating trafficking.
The human right approach is an individualistic, victim-centered approach that treats trafficking as an exceptional crime. The objective of the human rights approach is to save the individual from harmful work experience and environment and ensure ex-post aid. In such cases, victims are passively involved in the process of their rescue, rehabilitation, and repatriation. Whereas, the labour approach in tackling trafficking seeks not only help the victims rather make sure that they have been removed from the exploitative environment but also to transform the structure of the labour market that are particularly susceptible to trafficking.
As far as the current human trafficking law/law enforcement concerned, the criminal law-related provisions, the ex-post aid for trafficking victims, receive much greater attention; this is the common criticism against existing anti-trafficking initiatives. However, we need policies and actions, which ensures the rights of labours in the market itself and stop forced labour.
According to the supreme court of India – Asiad Workers’ Case (1982) and the Bandhua Mukti Morcha Case (1984):
“Any factor which deprives a person of a choice of alternatives and compels him to adopt a particular course of action, may properly be regarded as ‘force’ and if labour and service is compelled as a result of such ‘force’ it would be ‘forced labour’. The word ‘force’ must be construed to include not only physical or legal force but also force arising from compulsion of economic circumstances which leaves no choice of economic circumstance to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage. Therefore, when a person provides labour or service to another for remuneration, which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words ‘forced labour’.”
Therefore, the policy actions must judge all these aspects of forced labour in order to make sure a right based labour market mechanism, which can, consequently, challenge the labour traffickers. The labour approach understands the labour as the agent and enforces the possibility of an ongoing relationship and bottom-up change that can happen by changing the structural causes of power disparities. What makes it crucial is the ex-ante transformations it makes in the economic conditions and legal rules and regulations that enable severe forms of labour exploitations. Thus, labour approach; reach to strategies of collective action and bargaining, protective employment legislation, contextual standard setting, in its attempts to regulate the unequal power relations in labour sectors susceptible to trafficking whereas human rights approach only concern with the power of the individual relative to the state. It is about claiming the rights from the state for its citizens. Labour rights have tended to be more collective to be more collective oriented, stressing on the power of a group of labours in relation to the employers, capital[iv].
The labour approach also contributes into the transformation of changing the power relationship through laws: background rules of private law, immigration regime, relevant policies, criminal law, and certain welfare policies to the extent that these elements of the legal order which affect the bargaining power of the labour parties. The other point of difference between the two approaches is the conceptualisation of the exploitation in the context of trafficking. The human rights approach sees the trafficking as an exceptional crime whereas the labour approach see it as the instance of severe exploitation that shares characteristics with other forms of worker commodification, which is, typical of all employment contracts.
From a sociological point of view, the difference between these two concepts contributed into significant achievements of its goals: mostly in the form of unions, emphasized class struggles, solidarity, socioeconomic concerns, collective bargaining and contextualised bargaining as the main avenue to contextualize the bargaining power to improve the working conditions for labour and for increasing workers’ share of profit. The human rights movement, in contrast, has focused on identity-based struggles, civil and political rights, absolute universal values, and entrenching human rights in national constitutions and legislation.
[i] Molland, Sverre (2012). The Perfect Business? Anti-Trafficking and the Sex Trade Along the Mekong. Honolulu: University of Hawaii Press.
[ii] Huda, S. (2006). “Sex Trafficking in South Asia.” International Journal of Gynecology & Obstetrics 94(3): 374-381.
[iii] Shamir, H. (2012). “A Labor Paradigm for Human Trafficking.” UCLA L. Rev. 60: 76.
[iv] Kolben, Kevin (2010). “Labor Rights as Human Rights?” VA. J. INT’L L. 50: 449, 450, 474–84, 452. (describing the similarities and differences between the movements).
One thought on “Human Trafficking in India: Shifting to a Labour Approach”
Thanks, Mujeebu, for sharing this conclusion about your project for the Jharkhand Anti-Trafficking Network and the shift from a human rights to a labor approach. I enjoyed reading all of your blogs and learned a lot this year about why the right framework matters!