The Impact and Effectiveness of Public Policy
“Any factor which deprives a person of a choice of alternative and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labor or services is compelled as a result of such ‘force’ it would be ‘forced labor’” (Genicot).
Picture public policy as an umbrella and those vulnerable to slavery as those protected by the umbrella. The root causes of slavery such as poverty, lack of education, and social discrimination are the monsoon rain showering from above.
Public policy has the power to protect its citizens by tackling issues in society; however, policy also has the power to further advance these issues. Imagine holes in the umbrella, allowing for the rain to pour through and continue drenching those beneath it. These holes, or loopholes in the governmental legislation and the government system, have enabled the institution of slavery to persist in our modern era.
As a means of setting rules and structure in a society public policy, also plays an imperative role in protecting its citizens from harm and from harming one another. Enforcement of policy plays an even bigger role in setting a structure in a society and has been an absent factor in the eradication of slavery in India. Over time, the prevalence of slavery in India has fluctuated in its importance to the economy, culture, and structure of society.
Policy only has as much power as the enforcement and support behind it. If a nation disapproves and disrespects the government, its laws, and its authority, a nation’s constitution and written foundation lacks influence over its people.
The elasticity of policy is also imperative in the fact that it can continually adjust to modern society and its ethics. Over time, as human civilization develops, cultures, philosophies, and morals adjust in correlation to the time period. The evolution of slavery in India can be viewed by the change in society’s beliefs and values over time. The laws of a society display the general morals of a society; however, these morals reflect a limited group of people in that society: those in power. As seen in modern India, those in power have the ability to manipulate law enforcement to benefit themselves and support their beliefs, while ignoring a majority. This has become a damaging issue in the eradication of slavery in India. Those at the top ignore those suffering at the bottom in order to maintain their affluent standard of living.
Setting a tone, legislation presents a written representation of an optimal society, however, written laws do not guarantee the same outcome that they outline.
In this paper I will discuss the power of policy in preventing slavery in modern India, and the loopholes that preclude the majority of the population from receiving government benefits and protections.
History of Expansion and Eradication
To further understand current policy revolving around slavery in India, one must understand the history and roots of India’s laws.
Slavery was defined by the International Labour Organization Forced Labour Convention in 1930 as: “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”. Slavery under this definition has been abolished in every nation, yet the reality is that slavery still exists in every nation (Prasad).
Expansion of Slavery
Slavery has evolved over thousands of years, beginning in ancient times, developing in the Vedic age, and was further established by the British. As the East India Company expanded and directed more power, the British used Indian slaves to leverage their economic success (Prasad). To prevent setbacks in their economic fluency, the British established a noninterference policy with India’s caste laws in 1772, and thus enabled caste discrimination of forced labor to continue (Prasad). While the rest of Britain’s colonies were freed from slavery, as the Slavery Abolition Act of 1833 was established, India was the only colony excluded from the written act.
“Tens of thousands of Indian females were trafficked across five decades to Surinam beginning in the 1870s, specifically for domestic servitude” (Prasad).
Soon, India became a prime source of slaves for the British. The trafficking of labor increased tremendously from India to the rest of the empire (Prasad). New policies were passed that established the institution of slavery further in the EIC territory, such as the Workman’s Breach of Contract Act of 1859. With the legality of bonded labor, British “slave masters” had unyielding power over their “slaves”. The British rule also caused an increase in slave labor through increased tax rates, leaving more individuals suspect to demeaning poverty levels (Prasad). Easily exploited after losing their economic sufficiency, many were swept up by the system and forced into bondage to survive. These policies enacted by the British helped to expand slavery in this region.
Indian Law Commission Report
of 1841 – policy avoiding the issue
Today, India’s constitution prohibits slavery in all forms. However, it took centuries for India’s government to establish these laws and it is yet to effectively enforce them. The Indian Law Commission Report of 1841 displays how the issue of abolishing slavery in India has been a challenge for centuries. 200 years ago the report designates slavery as an evident issue and embarrassment to the nation. However, the report neither sets a standard to abolish the injustice nor does it agree that the issue is in fact solvable. Instead, the report prolongs the eradication of slavery into the future, by claiming the current bureaucratic system would incapable of enforcing the prohibition at that time, and any try to eradicated slavery would be ineffective and useless. While giving recommendations and addressing the issue of forced labor, the Indian Law Commission Report never actually agreed to abolish slavery in India (Prasad). Instead, the report repeatedly suggested that slaves in India were better off as slaves did not desire their freedom. This narrow-minded view has perpetuated into modern day India as well, as the statement “slaves do not want their freedom” establishes a means of justification for the existence of slavery.
This reluctance and avoidance prevents direct action and further corrupts India’s society as a whole. To this day, the government authorities in India and higher class ignore the prevalence and extent of slavery in their nation. Even the Supreme Court of Pakistan acknowledged in the Mashih vs. State case that, “This total degradation of this section of society is bound to affect the entire social fabric of our society if allowed to continue. The open violation of the Fundamental Rights of the supreme law of the land will give way to a ‘non-respect’ to laws of the country” (Prasad).
Acknowledgment of the issue allows for further action to be mandated. Over time more prohibitions were passed to compensate for the many branches of slavery. With the creation of the United Nations, higher powers felt the need to establish universal laws to protect civilians worldwide. In the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery in 1956, bonded labor was officially prohibited (Prasad). However, this claim did nothing to prevent the continuance of the practice.
Influential Supreme Court
Although policy has played a role in the expansion of slavery in India, it has had beneficial effects on the eradication as well. Two major cases in the Supreme Court helped set a foundation for the courts and how the problem of bonded labor should be addressed (Prasad).
In 1982, key changes were created and established by the court case: People’s Union for Democratic Rights vs. Union of India and Others, 1982.
First, under the constitution of India, bonded labor was officially considered a form of forced labor. Second, Justice Bhagwati established the ability for others to bring forth evidence on behalf of individuals who were incapable of providing their own evidence. This concept, referred to as a Public Interest Litigation, is essential in freeing bonded labors, as the majority are illiterate and do no have access to their bondage contracts. The statement: “Ordinarily no one would willingly supply labour or service to another for less than minimum wage…[unless] he is acting under the force of some compulsion which drives him to work through he is paid less than what he is entitled under law to receive.” (People’s Union of Democratic Rights vs. Union of India and Others, 1982 S.C.R at 464) set a precedent that further helped to identify bonded laborers as forced laborers. The court acknowledged that those performing labor under the stated minimum wage were then probably working by force (Prasad).
Another court case that heavily impacted the eradication of bonded labor was Bandhua Mukti Morcha vs. Union of India and Others, in 1983. After receiving a letter from Swami Agnivesh, the Supreme Court addressed the issue of a breach of fundamental rights in a quarry in Faridabad.
“It is absolutely essential we would unhesitatingly declare that it is a constitutional imperative that the bonded labourers must be identified and released from the shackles of bondages so that they can assimilate themselves in the main stream of civilized human society and realize the dignity, beauty, and worth of human existence.” – Justice Bhagwati
This case advanced many legal provisions in identifying a forced laborer.
“Whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer.” – Justice Bhagwati
The majority of bonded labors lack their identification and their bondage contracts; therefore, it is extremely common that the exploiters escape retribution by keeping proof from the court. Without the written loan that proves their bondage was an exchange for labor, the exploiter can claim that the laborer is not a bonded laborer. However in this court case, the Supreme Court ruled that a presumption could be made about providing forced labor (Prasad).
Revolution in Policy
In India, bonded labor became a rising interest in policy change between 1920 and 1975. Before India’s independence in 1947, a series of laws were passed to target bonded labor (such as Bihar Orissa Kamaiuti Agreement Act, 1920, the Madras Agency Debt Bondage Abolition Regulations, 1940, and the Hyderabad Bhagela Agreement, 1943); however, as these laws separated the issue by state, their enforcement was inefficient (Prasad).
When India gained its independence, Gandhi and many others desired a Constitution that focused on freedom, justice, and equality. The Indian Constitution did envelop these ideas, with new Acts that created a ‘reservation system’ for positive discrimination, protecting the marginalized castes and tribes. Gandhi and Bhim Rao Ambedkar, a Dalit leader, constructed the new laws of the land to help bring these suppressed communities out of poverty and slavery (Thekaekara). However, while these goals set in place were ambitious and revolutionary, other actions would have to take place, such as the redistribution of land, and this never occurred.
The Constitution of India did however added articles to help eradicate slave labor and child labor. Important laws such as Article 23, prohibited human trafficking and forced labor (Prasad). Some articles narrowed their focus to specify particular illegal actions, such as Article 24, focusing on the prohibition of children employment in factories, and Article 43, establishing a livable working wage for workers in India. Others that started a national trend included the Orissa Agency Debt Bondage Abolition Act, 1948, Rajasthan Sagri System Abolition Act, 1961, and Bonded Labour System Abolition Act (Kerala), (Prasad). However, while these Acts drive to create equality and establish justice, the failure to enforce them led India to remain in its previous state of injustice even after the Constitution was constructed. Although these laws exist, the people of India continue to violate and ignore them. Gandhi and Ambedkar created a revolutionary groundwork to bring justice for the Dalits, but today Dalits still make up lowest poverty and health levels and are the majority of India’s illiterate and enslaved with lack of access to education and sufficient employment (Thekaekara).
In India, a number of state governments avoid dealing with the issue of forced labor by completely evading its existence. For example, when the Bonded Labour Act was established in 1976, many believed or claimed to believe that no more bonded laborers worked in their area. Believing they had all gained their freedom under the Act, many governments chose to ignore the need for enforcement of the Act’s (Prasad). Whether the bureaucrats are actually ignorant enough to believe the statements they make, or are simply refusing to tackle the colossal problem out of the shame of its existence, the issue still remains. When the Bonded Labour Act was initially passed, tens of thousands of bonded laborers were identified, released, and rehabilitated (Kara). However, after ten years the numbers stagnated, displaying the lack of action by state governments to enforce policy.
In 1976, the Bonded Labour Act refined and elaborated the system and steps to eradicated bonded labor, and continues to be modified.
Some of the important steps taken include:
- All bonded debts are extinguished
- All property of BL is freed form mortgage
- Freed BL cannot be evicted from their homes
- Paygents against a bonded debt can no longer be accepted
- District magistrates are charged with implementing the act
- District Magistrate should ensure that offenders of the act are prosecuted
- Vigilance committees are to be created by each state and mandated to help identity, free, and rehabilitate all bonded laborers (a Policy that wasn’t enforced until 3 decades later)
- Burden of proof resides with the accused to establish that debt is not a bonded debt
- Punishments for those who have done the crime are outlined including up to 3 years in prison, and a fine of $900 US dollars (began at $44, but most recently was updated in 1996).
Currently, slavery is banned in India under numerable laws and prohibitions that prohibit an umbrella of forms of slavery. Prohibitions have been updated to account for loopholes that preclude slaves from receiving their basic human rights under the law.
Examples of existing laws prohibiting forced labor include:
- Bonded Labour System (Abolition) Act, 1976
- Child Labour (Prohibition and Regulation) Act, 1986
- Contract Labour (Regulation and Abolition) Act, 1970
- Inter-State Migrant Workmen (Regulation of Employment and Condition of Service) Act, 1979
- Equal Remuneration Act, 1976
- Minimum Wages Act, 1948
- Constitution of India
- Articles 23 and 24
- Suppression of Immoral trafficking
Act of 1956, renamed Immoral Trafficking and Prevention Act (ITPA) in 1986
- Criminalizes pimping and running a brothel
- Equal Remuneration Act of 1976
- Establishing equal wage
Corruption invades the government in India and prevents justice from being upheld. Millions of laborers are continually exploited at the expense of a corrupt system that turns a blind eye. With an apathetic government, forced laborers find it difficult to seek help from higher authorities, who ignore their pleas and avoid their issues. A myriad of problems, including bribery, caste supremacy, and a thick, complex bureaucratic system, combine to create a vicious, concentrated system of corruption.
The thick government structure makes manners insufficient for bonded laborers trying to gain their freedom and identify themselves as slaves. The number of government levels before the district magistrate slow the speed of releasing slaves and rehabilitating them. Beginning at the patwaris in villages and rural areas, the local land clerks record and receive complaints from bonded laborers. However, it is here that the complaints usually stop and are almost never passed onto the tax collectors, tehsildars. From there the subdistrict magistrates would then deliver the complaints to the district magistrates. Unfortunately, landowners easily bribe government authorities, who are usually a higher caste and would therefore refuse to help the majority of whom are Dalits. Patwaris also force bonded laborers to deliver their complaints in front of their landowners, which deters them from telling the truth in fear of punishment. The alliances between landowners and bureaucrats prevent forced laborers from escaping their conditions through the help of the government. Even when complaints are passed on, they rarely travel to the next level of government; therefore, it could take years for the District Magistrate to begin the freedom process (Prasad).
Bribing tremendously perpetuates slavery in India at all levels and is extremely common in the system of sex-trafficking. Police are easily bribed to keep quiet and almost always turn a blind eye. Border police and city police allow for the trafficking of slaves and have even created a system to collect monthly or annual bribes, and medical examiners overlook the age of sex slaves and prostitutes in brothels for a little money or for free sex. With limited trafficking police units to enforce the ending of this expansive trade and practice, even the small police units who do try and prevent the issue are left helpless amongst the immensity of the system (Kara).
Other issues arise with the power and dominance of the upper class in India. Throughout history, they have taken advantage of their power to diminish potential solutions in policy. In 1972, a company adopted a new system called Ryotwari. Instead of using intermediaries to collect taxes, this new system avoided corrupt and greedy intermediaries by paying the actual cultivators of the land individually instead of the landlord. However, after complaints and extreme resistance from the local mirasidars, this idea was rejected and the exploitative agricultural systems returned to its original corrupt ways (Viswanath).
Current policy also fails to establish a livable precedent for its impoverished citizens. Although a government minimum wage exists, these wages are insufficient for bonded laborers to survive on independently. Ranging from $1-2.60 per day, this minimum places millions below the income poverty level and impedes the ability for bonded laborers to create any form of savings (Prasad).
Another issue with the eradication of bonded labor and other forms of slavery in India is inefficiency within the three step process: rescue, rehabilitate, and retribution.
Corruption Seeps into the Three R’s: Rescue,
Rehabilitate, and Recover
Another issue with the eradication of bonded labor and other forms of slavery in India is inefficiency within the three step process: rescue, rehabilitate, and retribution.
The release phase falters in the difficulty for slaves to self-identify themselves as exploited laborers. Even though new policies are renewed to further establish strategies, such as Guidelines for Release of Funds Under Centrally Sponsored Scheme for Rehabilitation of Bonded Labour, 1978, district magistrates and vigilance committees are still incapable of freeing laborers. Bonded laborers should receive a release certificate that guarantees their freedom; however, it may take months or years for the district magistrate to deliver this certificate, and in the mean time many relapse back into slavery. Many return to their original landowners and beg for their jobs, often accepting an even lower pay and worse working conditions. Since 1976, when the Bonded Labour Act was established, only 290,000 of the 10.7-12.7 million bonded laborers living in India have been freed (2.3%). This number includes a majority who have already died.
The second phase of the process is the rehabilitation phase. This consists of training and providing government funds to help former bonded laborers and slaves create and ensure a new, sustainable livelihood. These rehabilitation funds can come in the form of money or something physical such as a new cow or goat to provide a source of income and business. If a slave doesn’t have access to education, training, or a sufficient income that will enable them to start a new life and succeed in society, they will fall back into the same cycle of debt and bondage.
This rehabilitation phase is incredibly inefficient in India. The government rarely gives benefits due to corruption, and the slow system may take years to finally give the former slave their rehabilitation package. Corruption can be seen in this process in many ways. Often, landowners register on behalf of their bonded laborers and take the money for themselves; bureaucrats will charge extra fees against the former laborer so that they gain no money after paying off the false deductibles.
The third phase, and the most infrequently completed phase, is retribution. Criminals who exploit slaves are almost never criminalized for their acts. This is due to inefficiency and corruption, and has resulted in NHRC’s estimate of only 1.35% reported cases that were registered. Of the 1.35% registered, 0.08% were prosecuted. Between 1997 and 2012, only 250 prosecutions per state were ordered and 80-90% of the retributions were in the processing phase in court (Prasad). Of the 250 prosecutions, approximately 90% were acquittals, meaning the criminals were charged as not guilty of the crime (Prasad).
It is too common that investigators submit invalid reports, claiming that no bonded laborers or slaves are present or the laborers had already been freed. After the judge orders the district magistrates to investigate the area, no one else verifies their reports. The corruption within the system is evident when seeing the statistics. With a total of 10,916 prosecutions between 1989-2005, approximately 2000 were decided, 300 convicted, and 1700 were in acquittal (Prasad).
Incentive for exploitation also remains high, as the probability of prosecution is low for the criminals and the fees are extremely minor. Even if a persecution goes through, the highest fine is $445 for holding laborers in bondage. In comparison to the net profits gained from low wages and forced labor, this small amount of money is insignificant (Kara).
Helen Stacey’s work acknowledges a fourth dimension to the three steps: partnership. The three P’s: prevention, prosecution, and protection, are similar Kirin’s three R’s. However, when dealing with trafficking, partnership becomes another major factor.
Sex slavery and human trafficking are issues that must be dealt with internally by sub regions to better understand the different cultures and social customs of a region. The expansion of globalization has also led to the expansion of human trafficking through cross-regions—an issue that cannot be tackled with out communication and collaboration between nations and regions. This leads to partnership.Partnership between governments, agencies, and NGOs can help monitor border migrations and better report illegal crimes (Stacy).
The United Nations brought
governments together to establish a universal policy for trafficking. The
Palermo Accord in 2000, working with the United States’ Trafficking Victims Prevention Act, only had
32 countries follow its approach. This Protocal focused on persecution of
traffickers as well as rehabilitation for the victims. However, to this day
104 countries lack any regulation to protect trafficked victims and fail to
monitor this illegal form of migration (Stacy).
Although collaboration is beneficial and essential in many ways, universal policies can also overlook cultural differences between regions and the different demands that are derived by different populations. Therefore, these policies may be ambitious and well-intentioned but remain inefficient (Brysk).
Policy only has as much power as the people behind it. These people include the bureaucrats and police who enforce the rules, and the citizens who must respect and acknowledge the laws in place.
Policy makers also have the responsibility of matching their legislation to protect pre-existing traditions without harming these societal norms. For policy to be efficient, it must match regional cultures, adapt over time, and set a precedent. If policy doesn’t adapt to new changes in society over time, it can become harmful. For example, in South Africa a traditional practice called Ukuthwala or “bride abduction” has been a tribal tradition for centuries. Two young individuals of about the same age are married with the ability to return to their parents if they suddenly feel uncomfortable; however, with an increase of HIV-aids, there was a dynamic shift (Stacy). Girls were suddenly being married off to older men for a dowry, funding their families, and yet the practice remained legal. Although the policy’s intent was to sustain the tribal traditions, it failed to protect the recent exploitative practices that developed over time.
Similarly, India has many ancient traditions rooted in society, and although the constitution has prohibited many practices such as sati and child marriages, many villages ignore legislation due to its lack of enforcement. Vulnerable families, who lack the funds to raise and protect their other children, often find themselves in a bind, and sell their daughters to save provide for their other children.
In the past, policy has been a cause of slavery and allowed for its expansion. However, policy has the potential to be a solution as well. Although there are regulations in place that work towards eradicating bonded labor, child labor, human trafficking, etc, more legislation can be passed to further tackle the root causes.
Some of these policies include:
- Increased education and empowerment of self-identity to marginalized communities and castes
- Increased access to credit and microfinance intuitions
- Increased access to land
- Guaranteed and immediate rehabilitation packages from the government to former slaves
lock down on caste discrimination and discrimination against women
- This can include an enforcement of unsegregated schools, as in small villages segregated schooling still exists and sets a precedent for inequality between castes at a young age
- Higher minimum wages and higher retribution fines and penalties
When specifically focusing sex-trafficking, the core issues revolve around lack of enforcement, insufficient education, and discrimination. In India, three-fourths of the women are illiterate, 90% of rural and 70% of urban women are unskilled, and lack of access to food, medical treatment, education, and increased physical and sexual violence has led to increasing death rates (Stacy) and susceptibility to trafficking and forced labor. Women from schedule castes face extra discrimination with a high rate of 62% in commercial sex (Stacy).
Policy has the power to diminish these shameful numbers by increasing women’s access to opportunities and power through education and credit. Rehabilitation packages for released sex slaves are also imperative to enable a safe and effective recovery and reintegration back into society. In India, when a girl has been sexually abused and it becomes public knowledge, she is often subject to more abuse and automatically casted out by her own family due to the shame she has brought. With such engrained cultures and ideologies in India, it makes government legislation harder to enforce against societal norms. This is why slavery is not simply an economic or political issue, but also a social issue that calls for action in all three spheres. The government must set a standard that no longer tolerates any forms of caste or misogynistic discrimination (Upadhyay).
Increased education for children is another fundamental strategy in deterring future generations from past prejudices and exploitative mindsets. As marginalized communities make up the majority of those enslaved, governments need to establish programs that target these communities and give them skills, education, and empowerment to escape this oppressive cycle (Upadhyaya).
While educating their citizens, the government must also pass legislation that will provide an improved economic standard. A minimum wage that meets a proficient living standard must be passed and enforced so that bonded laborers do not depend on informal loans.
In India, the government struggles to maintain its citizens and enforce its laws. Its exploding population makes it difficult to keep track of those trafficked and exploited. However, the government has the ability to expand its welfare programs and access to credit. This would bring vulnerable communities out of poverty and away from possible bondage and trafficking. Furthermore, if the families that depend on loans have access to reliable credit and consumption loans from the government rather then exploitative, informal sources, they can remain socioeconomically independent (Garance). Welfare programs will also lift subject women and families out of the poverty levels that leave them subject to slavery (Garance).
Policy revolving around land redistribution could also give marginalized groups more economic power, preventing bondage. Working for themselves instead of for corrupt, exploitative landowners, oppressed groups would gain power in society and independence. Enforcement of retribution will also give criminals less incentive for continuing their crimes. This would require a stronger and more efficient bureaucratic system with a well trained and ample police force to enforce these laws. The United States experienced success through this approach after enforcing a high retribution, and thus diminishing the profit motive of traffickers (Stacy).
While the Indian Constitution was created to serve all of India’s citizens, only the organized sector receives government benefits. The unorganized sector, which consists of approximately 92% of India’s workforce, is precluded from government protections. According to the National Accounts Statistics Report of 1995, 65% of the national income comes from the Unorganized Sector. Existing labor laws exclude this sector, because they are not considered workers under the set definition. Agricultural workers and women are most affected by this. A separate umbrella legislation needs to be created to incorporate the separate informal sector of the India’s population. Until this is done, one third of India’s population will continue to receive no government benefits such as workers compensation (Prasad).
Kiran Prasad states that these 6 steps are critical to give rights to this sector (Prasad):
- Recognize unorganized workers by including them in official surveys
- Those working should be given an identity card (legal identity and recognition)
- Workers in this section should be entitled to protection and welfare not only because they are citizens but also because they are the main contributors to the wealth of the nation.
- Provide rights to social security
- To improve economic status of poor women, there should be strategies to enhance their ownership and control over productive assets
- Provide a Central Fund for women workers