Opinion: Labour approach offers more effective strategies for combating trafficking

Understanding the larger challenges of the existing legal frameworks and policy actions to deal with trafficking in India, a shift from its predominant human rights approach to a labour approach, which targets the structure of labour market prone to severely exploitative labour practices, can be an alternative.

The human rights approach is an individualistic, victim-centred approach. 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 not just helps the victims, rather, it ensures that they have been removed from the exploitative environment. It also seeks to transform the structure of the labour market that are particularly susceptible to trafficking.

As far as the current human trafficking law/law enforcement is 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 the 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.

The labour approach also contributes into the transformation of changing the power relations 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.