India

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National context

indiaForced labour and human trafficking for labour exploitation are pervasive issues in India. Forced labour and debt bondage are common practice across the primary, secondary and tertiary economic sectors in India, with widely reported cases in a significant number of industries, including brick kilns, carpet weaving, embroidery, textile and garment manufacturing, mining, manual scavenging, and agriculture. Some Bangladeshi and Nepali migrants are also subjected to forced labour in India through recruitment fraud and debt bondage.

Indian workers also migrate for work abroad, primarily to the Gulf, Europe and North America. These workers often pay exorbitant recruitment fees, and are particularly vulnerable to a wide range of exploitative labour practices, including contract substitution, withholding of documents, non-payment or withholding of wages, and exhausting working hours; and are often subjected to varying degrees of deception and coercion. In some cases, this exploitation amounts to human trafficking for labour exploitation, forced labour or slavery.

Forced labour, debt bondage and social vulnerability

Bonded labour is defined in the Bonded Labour System (Abolition) Act of 1976 as a system of forced or partly forced labour under which a debtor accepts an advance of cash or in-kind in exchange for a pledge of his or any family member’s or other dependant’s labour or service to, or for the benefit of, the creditor. The agreement can be oral or in writing, may be of a fixed duration of time or not, and with or without wages paid. Debt bondage denies individuals the right to choose their employer or to negotiate the terms of their contract. Workers are forced work until they repay a debt that is constantly manipulated and augmented through the imposition of interests, penalties and deductions, and they cannot work for other employers in the interim.

Bonded labour is deeply entrenched in India’s socio-economic structure. More than a mere economic model for the organisation of labour, debt bondage is an exploitative practice reinforced through coercion and custom. Moreover, evidence suggests that members of marginalised castes and tribes, religious minorities, refugees and migrant workers are disproportionately affected by debt bondage. The social and economic marginalisation of these communities in India, coupled with the limited ability for people to move out of these groups, renders members of these groups particularly vulnerable to severe labour exploitation, including trafficking and forced labour. Despite a number of steps taken by the government in this regard, much higher degrees of poverty and illiteracy remain among these communities than in the general population. Additionally, members of these groups often lack viable livelihood opportunities and access to credit and financial services, resulting in a culture of constant indebtedness. While laws do exist to protect these communities, enforcement remains weak.

The practice of debt bondage persists predominantly in the informal and unregulated sectors, which are estimated to employ around 94% of the workforce in India. The absence or lack of implementation of labour standards in these sectors creates severe power imbalances in employer-worker relationships and exacerbates workers’ vulnerability to exploitation. Furthermore, due to the chronic underpayment of minimum wages in low-skilled and semi-skilled work, large portions of the labour force have to resort to debt bondage in order to meet basic consumption needs, comply with social rituals, or deal with medical emergencies.

Under India’s federal structure, the implementation of the 1976 Act is the responsibility of state governments. However, the National Human Rights Commission has documented numerous instances of state authorities’ failure to effectively implement measures to address the issue. Moreover, according to Anti-Slavery International, while large numbers of Vigilance Committees have been set up throughout India with the purpose of identifying and supporting bonded labourers, these are generally inactive and ineffective in practice.

Criminal liability

The legal framework against bonded labour is provided in the Bonded Labour System (Abolition) Act, 1976, and is supported by labour legislation such as the Contract Labour Act of 1970, the Inter-State Migrant Workmen Act, and the Minimum Wages Act.  The Act formally abolished debt bondage and declared all customs, traditions, contracts, or agreements by virtue of which a person is required to provide bonded labour void. The Act also prohibits bonded labour, provides for individual and corporate criminal liability, and prescribes a penalty of up to three years of imprisonment and a 2,000 rupee fine for the acts of advancing a bonded debt, extracting bonded labour or compelling a person to provide bonded labour. However, despite this prohibition, debt bondage is widespread in India, partly due to the fact that the prosecution rate for these crimes remains extremely low, and in the event of a conviction, imprisonment penalties are hardly ever imposed.

Section 370 of the Indian Penal Code was introduced in mid-2013. This section prohibits trafficking for the purpose of physical and sexual exploitation, and defines exploitation to include:

  • sexual exploitation,
  • slavery or practices similar to slavery,
  • servitude, and
  • the forced removal of organs.

Surprisingly, the provision does not make an explicit reference to forced labour and debt bondage. However, according to research by the Freedom Fund and the Thomson Reuters Foundationmost legal experts believe that servitude and ‘practices similar to slavery’ would include situations of bonded and forced labour where a person does not have freedom of employment and is made to work. Importantly, this provision does not require movement of a person, for as soon as one person recruits or receives another for the purpose of exploitation, trafficking is established.

Section 370 also makes direct reference to government officials’ involvement in human trafficking, prescribing sentences of up to life imprisonment. Section 166A of the Penal Code also holds police responsible for delays in registering a First Information Report after a victim makes a complaint, and punishes inaction with six months’ to two years’ imprisonment. However, according to the 2015 US Trafficking in Persons Report, the numerous incidents reported in the Indian press, and instances of inaction by police and prosecutors indicate serious issues with the application of the anti-trafficking legal framework by law enforcement, inconsistent application of the law across jurisdictions, corruption, and a lack of awareness or capacity in some parts of the country. Furthermore, victims face other obstacles to access justice, including the inability to travel to court, social stigma and intimidation, and significant delays in trials.

Under the Child Labour Act 1986 children under the age of 14 are prohibited from working in certain industries including domestic work, working in roadside restaurants, working in mines, factories and in other industries. The Juvenile Justice Act 2000 also criminalises the exploitation of juvenile or child workers, including procuring a juvenile for the purpose of hazardous employment, keeping him or her in debt bondage, or withholding or using his or her earnings. Moreover, where a victim of child labour is rescued, the Court may suspend or cancel the business license of the relevant business and may order to seal the premises until back wages are paid to the victims or court fines are paid. A conviction is not required.

Labour protections

The labour legislation in India is complex, with over 40 central legal mechanisms segmented by industry or type of work, including a variety of Acts regarding work in factories, plantations and construction work. The legislation addresses issues such as maximum working hours, minimum wage, health and safety, and working conditions.

However, it is estimated over 90% of workers in India work in the informal economy, and are therefore vulnerable to exploitation in an informal and unregulated environment. 

In forced labour cases, labour officials who attend the rescue are meant to ensure that withheld wages of the labourer are paid. Generally, these are calculated on the day and a claim is initiated by the labour officials under the Minimum Wages Act.

 

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Evidence suggests that members of particular castes, tribes, religious minorities, refugees and migrants are disproportionately affected by debt bondage