Anti-Trafficking Bill: Is agency coerced or not?

The recently tabled Anti-Trafficking Bill seems to have brought to the fore debates around sex trafficking in India. While the supporters of the Bill focus on how it curbs trafficking of all trafficked individuals, the non-supporters believe that the enactment of the Bill will further marginalise vulnerable communities, such as consenting sex workers. Recently, a petition was also written to the Union Minister regarding the same. Against this backdrop, in this article, I shall focus on understanding the question of agency in commercial sexual exploitation, while outlining its broader understanding to include forced labour.

What does the recent unionisation mean?
The recent unionisation of the so-called “feminist” organisations working on sex work illustrate what happens when we fail to recognise that people are agents, where being an agent means both being constituted by an impossibly intricate network of experiences and having any number of stories of one’s own to tell. Noticeably, the usage of the prefix “so-called” is intentional here and its reasons are two-fold. First, it is incorrect to assume that a single-blanket definition can contain a wide range of subjective realities of marginalised identities. Second, I used the prefix “so-called “because it appears as if the real essence of feminism is lost in trying to be a “feminist”, as validated by a handful opinionated pupil. The true essence of “Agency” is also lost in the process of imposing your own ideas of freedom and unfreedom on another set of marginalised women, enchaining them by these imposed false ideals of “feminism” and “agency”.

I contend that this recent unionisation is based on blindness to the agency of others by an assumption that agency is equivalent to perfect freedom of choice or to the absence of coercion. Many so-called “feminists” attempt at harbouring this kind of defining narrative. Essentially, this voice by a handful learned individuals is substituting a single story for the complex and heterogeneous stories of many marginalised women and their unique struggles. It fails to see the constituent unit of this voice as an independent voice in itself, in other words—exercising power. And this power of the privileged class, the civil society, who has the platform to voice opinions, whiffs of a vested interest coupled with lack of desire to actually protect the victims of commercial sexual exploitation.

What is the existing policy framework?
It is vital to rethink the discourse on trafficking by moving beyond the binary of “forced” and “voluntary” sex work and instead, focusing on getting ahead with anti-trafficking interventions that decriminalizes women in sex work regardless of how they got there.

The PALERMO protocol gives out a detailed set of definitions of trafficking, and consent. From the Article 3, it is also understood that even the consent to be engaged in any process that is exploitative in its very nature including prostitution and other forms of sexual exploitation is no consent. Such consent arising out of the “position of vulnerability” or “after giving or taking of payment or benefit to achieve the consent” is not by free will and is no consent as per the International Labour Organisation, Convention 29 on Forced Labour, also ratified by India, defines forced labour as:
“Forced or compulsory labour is all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

Both these international instruments are binding by the Constitution. Moreover traffic has already been accepted in the Indian Constitution as a form of Forced Labor with Article 23 :
“Traffic in human beings and ‘begar’ and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.”

The Constitutional mandate being very clear that “traffic in human beings” is a form of “forced labour” and also that any violation of Article 23 has to be a punishable offence.

What is Agency?
The dichotomy conferred in debates on “forced” v/s “voluntary” hangs on a very slender thread in India. These policy mandates have been arrived at by analyzing the existing situation of the country where choices are expressed and operationalised as more akin to “forced choices”, since the positioning within particular discourses makes the “chosen” line of action the only possible action. The social edifice based on an individual’s gender, caste, class and ethnicity is a major push factor for women engaged in commercial sexual exploitation. In times like these when we open ourselves to debates on whether sex work is voluntary or forced, it is imperative to highlight that especially in the Indian context, the distinction between trafficking and consensual entry may be extremely blurred. Frederick (Evans and Bhattarai 2000) highlights, the social, familial and economic circumstances that drive women to choose to enter sex work and subsequently end up trafficked may be the same.

The research by the National Human Rights Commission (NHRC) of India also reveals that 100% of the victims were trafficked at some point or another, though many expressed inability to come out of their situations only due to non- availability of options for sustained livelihood. This is clearly indicative of the fact that even if we acknowledge that people in sex work do have a capacity for agency, it has lots to do with the social context in which one lives. Therefore, trafficking in human beings must be treated as forced labour, according to Article 23 and thus, considered a separate issue for which existing laws related to trafficking are sought to be strengthened through the new Bill.

The so called “feminists” supporting the Petition forget that being devoid of informed consent or agency means that there is an external force, latent or manifest that is being applied to prompt the desired action. In India, ‘force’, has been defined by the Hon’ble Supreme Court of India as:

“….Any factor, which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’ it would be ‘forced labour’…”

A lot of talks have been done around the idea of agency. But what is this agency or choice? And how does it intertwine with the idea of “force” as described above? It should be highlighted here that the existing idea of agency is fundamentally flawed. According to Judith Bulter’s performance of gender theory, social actions based on gender norms affect identity and thus individual agency. She argues that while gender is at the core of performance that does not mean that these performances in the form of social actions are a choice. Individuals are conceived as being in relation to something external to themselves called “social facts” (society) which acts forcefully upon them ( Durkheim, 1964). They are created by constant social interactions and cultural cues that continuously reinforce / repeat to the point where they are treated and believed as if true.

The value-loaded term- “Sex work”
The suffix “work” has value loaded subtext which may have a positive connotation. As has been mentioned, only a miniscule proportion is making “voluntary” choices but their choices are uninformed. Therefore, the word “sex work” is in violation of the rights of the person subjected to sexual exploitation. Also the use of a value neutral terminology takes away the force of the Constitutional mandate by allowing demand creating factors/ persons to get away with such a violation.

Futile arguments, over-interpreting the scope of the Bill, must be voiced with caution for the informed agency of all individuals involved in commercial sexual exploitation is more or less denied. Since trafficking is a crime because of the elements of abuse and the violations that are committed against women, not because of the movement or mobility per se (Sanghera and Kapur 2000), therefore, evaluation of the the effectiveness of the Bill against the misconstrued understanding of agency should be condemned.

To conclude, I reiterate that from the freedom to voluntarily engage in sex work comes the freedom to voluntarily disengage which is denied in the current understanding of “agency” (or non-agency) propagated through the ongoing protests of the non-supporters of the Bill.

The author is Abza Bharadwaj, Sociologist and a Social Researcher working in the field of Child Rights and Gender.

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