TRAFFICKING IN WOMEN IN SOUTH ASIA
A Regional Perspective and Legal Framework
– Prof. G.S. Bajpai*
– Samya Roy Choudhury-**
For years the South Asia region has been a hot bed of paradoxes- from hosting the largest democracy in the world, to hosting the most volatile regionalcivic unrest, the subcontinent has fuelled constant need to monitor and safeguard civil society of its varied problems.
Illiteracy, poverty, class clashes, naturalcalamities, politicaland ethnic unrest have all constantly increased vulnerabilities of marginalized groups, and made them susceptible to Gross exploitation of human rights.
Tillvery recently the term “trafficking” was not precisely defined in internationallaw despiteits inclusion in a numbers of InternationalLegal Agreements. The recent attempt by the internationalcommunity to develop a consensus definition revealed major differences of opinion concerning the ultimate end result of trafficking, its constitutive acts and their relative significance. Definitions oftrafficking have tended to reflect the priorities and perspectives of promoters. For example, an organization concerned with orderlymigration has naturally emphasized the migration aspects of trafficking. One concerned with the human rights ofwomen has tended to placewomen at thecenter ofthe definition and identify human rights violations as the criticaldefiningfactor. Those seeking to advance the cause of women working in prostitution have preferred a different definition of trafficking to those who consider all forms of prostitution intolerable.
In 1994, the General Assembly of the United Nations referred to “trafficking” as : “the illicit and clandestine movement of persons across national and international borders… with the end goal forcing women and girl-children into sexually or economically oppressive and exploitative situations for the profit of recruiters, Traffickers, crime syndicates as well as other illegal activities related to trafficking such as forced domestic labor, false marriage, clandestine employment and forced adoption.” Five years later, the UN Crime Commissions took up the spirit of this definition by proposing a distinction be made between trafficking on the one hand, and migrant smuggling on the other. “Smuggling of migrants” has now been defined as: “…the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or permanent resident.” “Trafficking in persons” is defined as: “…the recruitment, transportation, transfer, harboring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having co ntrol over another person for the pu rposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, or the removal of organs.”
Through the work of the Crime Commission, the international community has now decided that trafficking means much more than the organized movement of persons for profit. The critical, additional factor separating trafficking from migrant smuggling is the presence of force or coercion throughout or at some stage in the process – that force or coercion being for the purpose of exploitation. It appears, therefore, thatan individualwho pays a group or organization to facilitate her or his illegal entry into a State will be considered, prima facie a smuggled migrant. This would apply even if that person was misled about the dangers of the journey irrespective of the treatment she or he receives at the hands of smugglers provided there is consent to the originaltransport and provided an exploitative relationship does not develop between the two parties. Similarly, the organized and illegal cross-border movement of an individualfor purposes of prostitution will not be considered trafficking in the absence of coercion – that coercion being specifically directed at securing the exploitation of the individual. The only situation in which non-coercion movement will be considered trafficking is when the individualinvolved is a child.
INTERNATIONAL FRAMEWORK OF LAWS RELATED TO TRAFFICKING
International Agreement for Suppression of White Slave Traffic, 1904
The agreement was formulated with the intention of securingto women of fullage who have suffered abuse or compulsion, as also under-age girls, effective protection against criminal traffic known as the “White Slave Traffic”.
International Convention for Suppression of White Slave Traffic, 1910
This convention criminalised procurement, enticement orleading away of a woman or girl under the age of 21, even with her consent for immoral purposes irrespective of the fact that the various acts constituting theoffence may have been committed in different countries.
International Convention for the Suppression of the Traffic of the Women and Children, 1921
The treaty prohibits the enticing or leading away of a woman orgirlfor immoral purposes, to be carried out in another country.
Slavery Convention, 1926
States Parties are enjoined to discourage allforms of forced labour. Slavery means control over another person, without full informed consent, for the purpose of exploitation.
International Labour Organisation Forced Labour Convention, 1930
Article 1 of this convention calls for suppression of the use of forced or compulsory labour in all its forms within the shortest possible period.
International Convention for Suppression of Traffic in Women of full age
This convention imposes a duty on the signing countries to prohibit, prevent,prosecute and/or punish those engaged in traffickingin women.
Universal Declaration of Human Rights, 1948
Article 4 of the Declaration prohibits allforms of slavery and the slave trade.Article13 recognises the rightof persons to freedom of movement and residence and Article 15 recognises the right to nationality.
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949
This convention is a compilation of four previous International Conventions (Conventions of 1904, 1910, 1921 and 1933). This convention made procurement, enticement, etc. for purposes of prostitution punishable irrespective of the age of the person involved and his/her consent to the same (Article 1). Brothel keeping was also denounced to be illegal and punishable (Article 2). The convention provided for repatriation (Article 19) and rehabilitation (Article 20) measures. However, the 1949 Convention is limited to trafficking for prostitution and related activities.
Supplementary Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices of Slavery, 1956 (Slavery Convention)
This convention condemned a variety of slavery-likepractices, including debt bondageand forced marriage. States Parties undertookto establish suitable minimum ages of marriageand registration of marriages.
Abolition of Forced Labour Convention, ILO, 1957
Under this convention, States Parties undertook to suppress any form of forced or compulsory labour as a means of political coercion, economic development, labour discipline, or racial, social, national or religious discrimination.
International Covenant on Civil and Political Rights, 1966
Forced labour and slavery are prohibited by Article 8 of the ICCPR. Article 24 outlines the rights of children.
Convention on the Elimination of all forms of Discrimination against Women, 1979 (CEDAW)
Article 6 of CEDAW requires States Parties to take all appropriate measures,including legislation,to suppress allforms of trafficin women.
United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
The convention provides against the expulsion or return of a person to another state if there are substantial grounds for deeming her to be in danger oftorture. Victim compensation measures are also stipulated in the convention.
Tourism Bill of Rights and the Tourist Code 1985
Adopted by the WTO,the Codeenjoins thatthe State should preclude any possibility of the use of tourism to exploit others for purposes of prostitution.
Convention on Protection of Rights of Migrant Workers, 1990
This Convention seeks to put an end to the illegal or clandestine recruitment and trafficking ofmigrant workers and lays down binding internationalstandards for their treatment, welfare and human rights.
Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women, 1999
The Protocolenables individuals or groups who haveexhausted national remedies to directly approach the Committee under the Protocol.
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000
The UN Trafficking Protocolseeks to create a global language to define trafficking in persons, especially women and children, assist victims of trafficking, and prevent traffickingin persons. It supplements the United Nations Convention against Transnational Organised Crime, 2000. Article 3(a) of the Protocol defines ‘trafficking in persons’ as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, offraud, of deception, of the abuseof poweror of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
This victim-friendly protocol provides for preventive measures (Art. 9), victim compensation and privacy protection (Art. 6), repatriation (Art. 8) and strengthened border control measures (Art. 11 & 12).
LEGAL FRAMEWORK AGAINST TRAFFICKING IN SOUTHASIAN COUNTRIES
The Bangladesh Constitution guarantees equal rights and equal protection to all regardless of gender. The fundamental Principle of State Policy requires the State to prevent prostitution. Article 34 (1) prohibits all forms of forced labour. The Penal Code of 1860 deals with the laws for shelteringgirls forced into prostitution and punishment for offenders procuring minor girls, both from within and outside the country. Sections 364 A, 366 Aand 373 provide protection to women who are victims of sexualoffences of illicit intercourse, by punishing the kidnapper or abductor. The Code of Criminal Procedure, 1898 outlines the procedurallaw in criminal matters. The police are vested with the powers to arrest without warrant on grounds of suspicion (Section 54).
The Child Marriage Restraint Act, 1929 prohibits the marriage of girls under the age of 18 and boys under the age of 21 and punishes parents/guardians who violate this prohibition. The Suppression of Immoral TrafficAct of 1933 protects allchildren up to the age of 18 from sexual exploitation. The Vagrancy Act, 1943 provides the definition of avagrant and his/her arrestand detention and rehabilitation. Under the Emigration Ordinance of 1982,registered recruitingagents foroverseas employmentcan losetheir licenses and forfeittheir security deposit if they are found to have violated the ordinance or to have been guilty ofother misconduct(including coercion or fraud in inducing someone to migrate). The Cruelty to Women (Deterrent Punishment) Ordinance, 1983 increased the punishment to life imprisonment and death penalty, for kidnapping orabducting women, traffickingof women and children,attempt to cause death,acid throwing, rape, etc.Abduction ofwomen and children was designated ‘terrorism’ under theAnti-terrorism Ordinance of 1992.
The Suppres sion of Immoral Traffic Act of 1993 provides punishment forforcing girls into prostitution and detaininggirls below the age of 18 years against their will, in any house, room or place in which prostitution is carried out. TheChildren (Pledging of Labour) Act, 1993 prohibits the making of agreements to pledge the labour of children under theage of 15 years and theemployment ofsuch children whose labour has been pledged. The Women and Children Repression (Special Provision)Act, 1995 prescribes death or life- long imprisonment for unlawful importation, exportation or sale of children (S.12). The same punishment is stipulated in the Cruelty to Women and Children (Special Provision)Act, 1995. The Women and Children Repression Prevention Act, 2000 provides for stringent penalties against trafficking, kidnapping, collecting ransom, rape, sexualoppression of women and children and against damage or deformation of any part of a child’s body with intent to engage him or her in begging. These provisions also apply to both internal and cross-border trafficking. Special tribunals may place the woman/child victim with an NGO or individualcustodian during trial. It also provides forvictim compensation.
The Public Security Act, 2000 protects women and children from extortion. The National Policy for Children, 1994 aims to integrate the principles of the Convention on the Rights of the Child with national development activities, and the National Policy for Women includes a five-year plan for improvement of the situation of women. TheNational Plan for Childrenexplicitly addresses child trafficking. In Bangladesh, the Women and Children Repression Prevention Act, 2000 recognises thedifferent motives for traffickingand provides severalvictim and witness protection measures and compensation. It also authorises the Special Tribunals to rehabilitate victims with the help of NGO’s and empowers Magistrates to hear depositions wherever required. However, on the downside, Section 54 CrPC of Bangladesh confers broad powers on the police to arrest on mere grounds of suspicion. Health services are often denied to a woman on thesole basis thatsheis aprostitute. Underthe Constitution,an individual is entitled to choose her occupation. Persons above the age of 18 years, on execution of an affidavit signifying volition, can prostitute themselves. Such a provision endangers the vulnerable segment of
women and girls whose human rights can betrampled upon by vested interests. The rape laws discriminate against sex workers because they are classified as ‘habituated’ to sexual intercourse, thereby making conviction near impossible.
In 2001, the committee on the Rights of the Child considered Bhutan’s initialreport and made certain concluding observations.The Committee noted the absence of legislation on the minimum age for admission to employment. There is insufficient data and awareness regarding the sexual exploitation of children. The committee has proposed that a national study on the nature and extent ofsexualexploitation and child labour should be undertaken. It has also suggested that newlaws should be promulgated and existing laws suitably amended to address these grave issues.
The law bars children less than 14 years of age from “places of waged work and from work that is not suitable for that child’s age, health or physicalability or that might obstruct the education or adversely affect the mentality or behaviour of the child”. The law also prohibits government employment of children under the age of 16. Forced or bonded labour by children is notspecifically prohibited. However, there are no official reports that such practices occur. The law does not prohibit trafficking in persons. There are no reports of persons being trafficked to, from or within the country. Following nationwide consultations, the government has drawn up aNational Plan ofAction on the basis of the Beijing Platform for Action and the Commonwealth Plan of Action on Gender and Development.
The Constitution of Nepal enshrines the principles of equality and justice to every citizen without any discrimination on the basis of race, caste, sex, creed, etc. and safeguards the human rights of all citizens. Under Article 20, it forbids the trafficking, and sale of women and children and other forms of slavery. The Muluki Ain, 1963 (Code of Law), contains provisions against inter-state and domestic trafficking. Section 1 decrees prison sentences of 20 years for international trafficking and 10 years imprisonment for attempted sale, plus fines equivalent to the amount of transaction.
The Open Border Agreement of 1950 allows Indian and Nepali nationals to travel freely between countries,without display of passports or visas. The Human Trafficking (Control) Act of 1986 (HTCA) establishes territorialjurisdiction for offences committed outside Nepal. Anybody with information that human trafficking is about to take place or is in progress can file a complaint at any police post with whatever evidence is available [S.5 (1)]. TheLabour Actof 1992, under Section 5 (1), prohibits the employment of a child under the age of 14 in any enterprise. TheChildren’s Act of 1992contains provisions to prevent the use of any child in an immoralprofession as also other forms of sexual exploitation; use of a child for begging; sale of girlchildren as religious offerings to temple deities; or for child labour. The Child Labour (Prohibition and Regulation) Act of 2000 expands the list of hazardous industries in which children less than 16 years of age are banned from working. The Foreign Employment Act of 1985 requires thatemployment agencies that recruitworkers forforeign jobs be licensed (S.3). Section 4 specifies the countries that may recruit Nepalese workers and empowers the government to cancelthe licenses of employment agencies for violations. The Human Trafficking Control Bill, 2000 has a wider definition of trafficking than the one under HTCA, 1986, and includes buyinga human being forany reason, enslaving ahuman being for bonded labour, indulging in prostitution, kidnapping children and all other forms of exploitation not covered in the 1963 MulukiAin.The operation of brothels and leasing of property to known traffickers is prohibited.Victim protection and compensation measures are included in thepending bill.
The National Action Plan against trafficking in children and their sexual exploitation contemplates intervention in six areas -rescue and reintegration;income and employment generation;awareness creation; advocacy; networking and socialmobilisation; health and education; legislation and enforcement; and policy research and institutional development.In Nepal, the MulukiAin, 1986 stipulates punishments for the purchaser and the seller of women and children, holding both equally liable. The Act has extra-territorial jurisdiction, with equal penalties for offences committed within or outside Nepal. The law facilitates complaints of human trafficking by anybody to any police force, with whatever evidence available. When a woman is taken outside Nepal by anybody other than a close relative for sale or compulsion into prostitution, the burden of proof to disapprove the charge rests on the accused. This is a victim friendly provision. In the new bill, proposed in the year 2000, more victim-friendly procedures like in-camera trials, non-requirement of a restatementby the victim in court, if it has already been recorded, etc., have been included. It also provides for specific rehabilitative efforts, rehabilitation centres, etc. The Children’s Act, 1992 of Nepal, under Section 20 (1), empowers NGOs to initiate cases in favour of children in the district courts. However, The HTCA has a strong undercurrent of morality and is, therefore, not oriented to a human rights perspective. There are no specific measures to protect the rights of the victims. The National Plan of Action is also criticised as not projecting a human rights perspective because there is no specific requirement for ensuring the protection of women’s rights and child rights during rescue and rehabilitation. The existing rape laws discriminate against women, in that, if the rapist can prove the victim to have been a prostitute, he can get away with a very minimal punishment. The provision in the Trafficking in Human Beings (Control)Bill, 2000holding voluntary engagementin sex work as synonymous with trafficking, has also been widely held to be in violation of human rights. Moreover, such a view is likely to trivialize the serious violations that are committed during trafficking. Further, the anti-trafficking laws in Nepal do not provide for integration or rehabilitation with rescue.
One of the country’s major problems is the smuggling of Pakistani children to Gulf countries for camelracing. Law enforcement agencies and the immigration department feel that increasingly high profits and lessening fearof harsh punishment havebolstered syndicates of human traffickers across Asia, the Middle East and Europe.
The ZinaHudood Ordinance (1979)criminalises Zina (extra-marital sex, including adultery or fornication), Zina-bil-jabr (rape outside of a valid marriage), and selling, hiring, buying or disposal of any person for the purpose of prostitution (Section 13, 14). The punishment for these acts is life imprisonment. The Foreigners Act of 1949 and Foreigners Order of 1951 does not permit foreigners to enter Pakistan except from designated areas and in a specified manner. New laws relating to illegalimmigrants (1996) lay down a jailterm of up to 10 years for unauthorized entry into the country. TheEmployment of Children Act lowered the minimum age for employment from 15 to 14 in mining, factories, shops and other commercial and industrial establishments. The Child LabourAct, 1991 allows children to be employed in ‘hazardous’ occupations if they are carried out with the help of family members or in a government-recognised formal school. The Prevention and control of Human Trafficking Ordinance, 2002 has been promulgated to dealwith alltypes ofhuman trafficking. It is a comprehensive legislation the first of its kind in the SAARC region. However, the legislation suffers from certain limitations. There is no specific attention to child trafficking as distinct from others. The role of NGOs has neither been identified nor assigned. Legislation is focused on trans-border trafficking and not on domestic trafficking. The Prevention and Control of Human Trafficking Ordinance, 2002 of Pakistan defines human trafficking to include trafficking for any purpose, viz. prostitution, forced labour and services, etc. This ordinance takes into consideration even mental injury of a person as an act of exploitation and provides for harsher sentences for serious violations. It also takes into consideration the organised nature of the crime and casts a vicarious liability on each member of the group by providing stringentpunishment. Theordinance also includes provisions for compensation to the victims.
Under Pakistani law, the level of proof for ‘Zina’ (extra-marital sex) and ‘Zina-bil-jabr’ (rape outside of a valid marriage), which is liable to ‘hadd’, requires either a confession or at least four Muslim male witnesses. If this high evidentiary requirementcannot besatisfied, then the crime of Zina or Zina-jal-jabr is liable to tazir, which does not require four Muslim male witnesses. If unable to prove rape,the court takes the rape victim’s statement as a confession of adultery, which results in the punishment of the rape victim. Under the Child Labour Act, 1991, children may be employed in hazardous places if the work is carried out with the help of female family members or any schools recognised by the government. This leaves ample scopefor violations of the human rights of such children.
SRI LANKA :
In-country trafficking is one of Sri Lanka’s major problems.Sri Lanka prohibits the employment of children under the age of 12, although there are reports that child labour is still widespread. In Sri Lanka, child exploitation is reported to be closely linked to pornography. Section 360 of the Penal Code deals with the offence of trafficking, defined as the act of buying or selling or bartering of any person for money or for any other consideration. Those assisting, arranging the travel,recruiting, falsifyingbirth records,and impersonatingor engaging in the procurement of children for adoption are also liable for prosecution. In 1998, the code was amended again to provide for offences against children,such as causing orprocuring children to beg, or hiring children for sexualintercourse. In addition, a provision was inserted for their protection from pornography. The Amendment of theAdoption of Children Ordinance, 1992decreed that the custody and care of a child for adoption must beentrusted to a person in charge of a registered government orphanage (fora period of fiveyears). This means that no child from a private home can be legally adopted.
The Evidence (Special Provisions) Act, 1999 amends the Evidence Ordinance to make it sensitive to the vulnerabilities of a child witness, fore instance, by permitting admission of a video recording of a preliminary interview between an adult and the child witness with respect to an offence relating to child abuse as evidence.
The National Child Protection Authority Act, 1998 focuses on prevention of child abuse and protection and treatment of children who are victims of such abuse. ANationalChild Protection Authority was established under this Act to monitor implementation and advise the government on the related issues.
In Sri Lanka, in order to protect children from pornography, Section 286 A of the penal court makes it mandatory for developers of photographs and films to report any indecent or obscene film or photographs to thepolice station. The Evidence (SpecialProvisions) Act, 1999 enables a court to receive achild’s evidence without causing oath. It also provides admission of videotaped evidence of an earlier interview between the victim and others. The National Child Protection Authorityis a landmark initiative in preventing child abuse and protecting the rights of children.
Owingto the increase in the numberof foreign nationals in Thaibrothels, the Anti-Trafficking Act was passed in 1928. Section 7 of the Act states that women and girls who have been trafficked into Thailand willbe exempted from imprisonment and/or fines. The Suppression of Prostitution Act of 1960intended to eliminate prostitution (defined as “an act promiscuously rendering sexualservices for remuneration”) by making it an illegal activity. The Act stipulated that convicted prostitutes should be reformed through medical treatment. The Entertainment Places Act of 1966 was designed to pave the way for brothels to be legalised in the guise of massage parlours, bars, nightclubs, teahouses, etc. The Act defines various kinds of entertainment places and allows such places to operate only under a license to be obtained from the localpolice station and sets 18 years as the minimum age forwomen to work in such establishments. Under the Penal Code of 1956, prostitution is not illegal, but procurement for the same is. This act stipulates harsh punishment for abuses against girls forced into prostitution. The nature and severity of the punishment is in direct relation to the age of the victim. The Thai ImmigrationAct of BE 2522 (1979) prohibits entry into the kingdom of Thailand, of foreigners who are deemed, on reasonable grounds, to be motivated to enter the kingdom for the purposes of engaging in prostitution orin thetrafficking ofwomen and children and ordains the withdrawalof permits where the individual is suspected of indulging in such acts. The Prevention and Suppression of Prostitution Act of 1996 continues to maintain prostitution as illegalbut considerably reduces the penalties for the prostitute.In addition, if theprostitution is forced, then the prostituteis notdeemed to have committed an offence. Sex with children under 18 years of age is a crime and the customer may facea very heavy fine.Allthose involved, likeprocurers, traffickers, pimps etc., are punishable by imprisonment and a fine.
The Measures in Prevention and Suppression of Trafficking in Women and Children Act, B.E. 2540 (1997) extends coverage to both boys and girls under 18 years of age. It defines as a crime, the conspiracy to commit an offence involving the trafficking of women and children. The Penal CodeAmendment Act (no. 14), B.E. 2540 (1997) covers those who procure, lure or traffic, boys and girls, adult males and females for the sexual gratification of another person. The nationality and location of the offender is irrelevant in such a case. The Criminal Procedure AmendmentAct (No. 20), B.E. 2542 (1999) was aimed at makingtheActchild-friendly. In the revisedAct, videotape recordings shall be used to take the statement of the child victim or witness in orderto protect the child from repeated victimisation. Other initiatives include efforts towards total elimination of the entry into commercialsex of children, both boys and girls, under the age of 18. Thailand has set up “The National Secretariat on Trafficking in Women and Children in the Mekong Sub-Region” to coordinate work with countries in the Mekong sub-region. It has joined the Association of SoutheastAsian Nations (ASEAN) to develop and implement an ASEANplan of action to prevent and combat trafficking in women. In order to support cooperation between the Government and NGOs,a MoU(Memorandum ofUnderstanding) has been drafted between the RoyalThai Government and NGOs, on the framework for cooperation and implementation of activities for the eradication of trafficking in women and children. This is supplemented by two other MoUs, one between the various Government Departments of Thailand and another between the various NGOs working on related issues. However, there is a need for a nationalmonitoring agency or a Task Force to ensure the implementation of these MoUs.
NATIONAL FRAMEWORK OF LAWS RELATED TO TRAFFICKING IN INDIA:
The Constitution of India, under Art. 23 (1), prohibits trafficking in human beings and forced labour. This right is enforceable against the State and private citizens. The Indian Penal Code, 1860. relevant provisions under the Indian Penal Code are Sections 293,294, 317, 339, 340, 341, 342, 354, 359, 361, 362, 363, 365, and 366, 370,371, 372, 373, 375, 376, 496, 498, 506, 509, 511. Of significance are Sections 366A, which makes procuration of a minor girl (below the age of 18 years) from one part of India to another punishable and Section 366 B, which makes importation of a girl below the age of twenty-one years punishable. Section 374 provides punishment for compelling any person to labour against the will of that person. Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) was enacted under Article 35 of the Indian Constitution with the object of inhibiting or abolishing the immoraltraffic in women and girls. It was also in pursuance of the Trafficking Convention, which Indiasigned on 9 May 1950. TheAct aimed to rescue exploited women and girls, to prevent deterioration of public morals and to stamp out theevilofprostitution, which was rampantin various parts ofthe country. In 1978, SITA was amended by the Amendment Act 46 of 1978, which took effect from 2 October 1979. This was owing to the realisation that the social evil needed to be curbed and that existing provisions failed to do so. In 1986, SITA was drastically amended and renamed the Immoral Traffic (Prevention) Act, 1956.
The Immoral Traffic (Prevention) Act, 1956 is a speciallegislation thatdeals exclusively with trafficking.TheAct defines theterms ‘brothel’, ‘child’, ‘corrective institutions’, ‘prostitution’, ‘protective home’, ‘public place’, ‘special police officer’ and ‘trafficking officer’. The purpose of theenactment was to inhibit or to abolish commercialised vice, namely the traffic in women and girls for the purpose of prostitution, as an organised means of living. Offences under theAct are:
• Punishmentfor keeping a brothelor allowing premises to be used as a brothel (S.3)
• Punishment for living on the earnings of prostitution (S. 4)
• Procuring, inducing or taking persons for the sake of prostitution (S. 5)
• Detaining a person in premises where prostitution is carried on (S.6)
• Prostitution in or the vicinity of public places (S. 7)
• Seducing or soliciting for the purpose of prostitution (S. 8)
• Seduction of a person in custody (S. 9).
The law confers wide powers on the concerned authorities in matters of rescue and rehabilitation of victims and survivors and provides for stringent action against exploiters including the eviction of brothels, surveillance, externment, as well as aggravated punishment when the offences are committed on children.
The Various Transit and Destination Point :
India is a source,destination, and transit country for men, women, and children trafficked for the purposes of forced labor and commercial sexualexploitation. Internalforced labor may constitute India’s largest trafficking problem; men, women, and children in debt bondage are forced to work in industries such as brick kilns, rice mills, agriculture, and embroidery factories.
According to a report of the NationalCommission forWomen, (NCW) at least half of the 612 districts in the country are affected by trafficking of women and children for commercialsexual exploitation. The NCW report says that in 378 districts, there are 1,794 identified places of origin from where females are trafficked and 1,016 areas where commercialsexual activities take place.
The states in southern and eastern India are the most vulnerable as far as trafficking is concerned. Tamil Nadu with approximately 93.3% of its districts are affected, is leading the tally of the states affected by human trafficking followed by Orissa with 86.7% and Bihar 86.5%. Also 2.4% of the totalfemale population in age group of 15-35 years in the country is affected by commercialsexual exploitation and over 22% women are trafficked and forced into flesh trade by family members.
In eastern India, the situation is worse in areas which are underdeveloped. Pangsa and Dimapur in Nagaland and more in Manipur are themajor transitand demand centers. Women and children from Assam and Bangladesh are trafficked to more and from there, they are moved out to Myanmar and other countries in South East Asia through the Golden Triangle. Similarly,women and children from Assam (especially Jorhat), Nagaland (especially Mokokchung, Tuensang, Pangsa) and Bangladesh are trafficked through the Pangsa International Treat Tower and then moved to the Golden Triangle. Dimapuris atransit centerfor people trafficked from Assam, especially upper Assam, Lumding, Guwahati, etc. They are moved to More or the international border at Tuensang and from there to the Golden Triangle.
There arealso victimsof labortrafficking amongthe thousands ofIndians who migrate willingly every year to the Middle East, Europe, United Kingdom and United States for work as domestic servants and low- skilled laborers. In some cases, such workers are the victims of fraudulent recruitment practices committed in India that lead them directly into situations of forced labor, including debt bondage, restrictions on movement, unlawful withholding of passports, and physical orsexual abuse.
POLICIES AND RESPONSES OF THE GOVERNMENT :
The Constitution of India, the fundamental law of the land, forbids trafficking in persons. The commitment to address the problem of trafficking in human beings is also reflected in various laws/legislations and policy documents of the Government of India. The Indian Penal Code, 1860 contains more than 20 provisions that are relevant to trafficking and impose criminal penalties for offences like kidnapping, abduction,buying orselling aperson forslavery/labour, buyingor selling a minor for prostitution, importing/procuring a minor girl, rape, etc.
The Immoral Traffic (Prevention) Act, 1956 (ITPA), initially enacted as the ‘Suppression of Immoral Trafficin Women and Girls Act, 1956, is the main legislative toolfor preventing and combating trafficking in human beings in India. However, tilldate, its prime objective has been to inhibit/abolish traffic inwomen and girls forthe purposeof prostitution as an organized means of living. TheAct criminalizes the procurers, traffickers and profiteers of the trade but in no way does it define ‘trafficking’ per se in human beings. Hence there is a marked absence of any standard guideline for intervention or law enforcement in preventing trafficking from occurring.The Governmentis in the process of amending the ITPA, with a view to making the laws victim-friendly and,at thesame time,making punishment for traffickers more stringent and putting greater criminal culpability on them. India has not ratified the 2000 UN TIP Protocol. Also there is a UN Convention against TransnationalOrganised Crime (the Palermo Protocol) that will, when implemented, give a comprehensive definition of trafficking, but this has still not been ratified.
However, the other relevant Acts which address the issue of trafficking in India are the Karnataka Devdasi (Prohibition of Dedication) Act, 1982; Child Labour (Prohibition and Regulation)Act, 1986; Andhra Pradesh Devdasi (Prohibiting Dedication) Act, 1989; Information Technology Act, 2000; the Goa Children’s Act, 2003; and the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. Beside these, there are also certain other collateral laws having relevance to trafficking. These are the Indian Evidence Act, 1872; Child Marriage Restraint Act, 1929; Young Pers ons (Harmful Publications ) Act, 1956; Probation of Offenders Act, 1958; Criminal Procedure Code, 1973; Bonded Labour System (Abolition)Act, 1976; Indecent Representation of Women (Prohibition) Act, 1986; and the Transplantation of Human Organs Act, 1994.
P RE VE NTIVE ME ASURES TAK EN B Y THE GOVERNMENT :
Indiacontinues to conduct information and education campaigns against trafficking in persons and child labour. In late 2008 the central government completed its 18-month long consultation process with the Ministry of Women and Child Development, Ministry of Home Affairs, NationalHuman Rights Commission and NationalCommission for Women have decided to work in unison and draw up an Integrated Plan ofAction to Preventand Combat Human Trafficking with Special Focus on Children and Women. In January 2009, the central government approved a nationwide model that merges its national educationaland poverty alleviation programs together to combat child labour.The governmentundertook severalmeasures to reduce demand for commercialsex acts during the reporting period, such as the arrests of 856 customers of prostitution in Andhra Pradesh, Maharashtra, Bihar, Goa, and West Bengal.
PROSECUTION BY THE GOVERNMENT :
Indian Government authorities made significant progress in law enforcement efforts against sex trafficking and forced child labor during the year, but made little progress in addressing bonded labor. The Constitution of India, underArticle 23, prohibits trafficking of human beings forany exploitation.However, the ITPA takes into consideration only trafficking for sexualexploitation. This is a speciallegislation with stringentprovisions forpunishing violators and exploiters,with enhanced punishment for sexual exploitation of children. There are several steps prescribed in this legislation towards prevention oftrafficking. However, it is a fact that most of the provisions of the law remain un-enforced and unimplemented. Usually, there are serious distortions in implementation. Despite ITPAbeing a social legislation, no role has so far been envisaged for DWCD in monitoring the law enforcement process.
State Governments continued to demonstrateefforts to address forced child labour, but failed to punish most traffickers. In February 2009, the New Delhi Government rescued over 100 children from forced laboursituations. In Jharkhand (with a population of 29million people), the state labour ministry and police, in collaboration with an NGO, conducted raids on 120 establishments during a planned operation and rescued 208 children from forced or bonded labour situations. The Central Government has allocated $18 million to the Ministry of Home Affairs to create 297 anti-human trafficking units across the nation to train and sensitize law enforcement officials. According to NGOs, state-level officials who received such training in the past are increasingly recognizing women in prostitution as potentialvictims of trafficking and therefore not arresting them for solicitation.
CHALLENGES FACED :
India’s CentralGovernment faces several challenges in demonstrating a more robust anti-traffickingeffort: states under theIndian Constitution have the primary responsibility for law enforcement and state-level authorities are limited in their abilities to effectively confront interstate and transnational trafficking crimes; complicity in trafficking by many Indian law enforcement officials and overburdened courts impede effective prosecutions; widespread poverty continues to providea huge source of vulnerable people; and the Indian Government faces other equally pressing priorities such as basic healthcare, education, and counter terrorism.
About 22% of traffickers are not prosecuted due to their political backing. The significant problem of public officials’ complicity in sex trafficking and forced labor remains largely unaddressed by Central and StateGovernments. Corrupt law enforcement officers reportedly continues to facilitate themovement ofsex trafficking victims, protect brothels thatexploit victims, and protect traffickers and brothel keepers from arrest and other threats of enforcement.
There is need for an integrated approach involving the components prevention and prosecution in effectively addressing trafficking. Since traffickingis an organised crime, involving a multiplicity ofactors linked together in a chain,professionalmethods of dealingwith them are called for. Certainty and stringency of punishment of the exploiters, without any delay whatsoever, is the essential requirement for preventing trafficking. Simultaneously, the victims need to be rescued and rehabilitated.As lack of priority, timeand sensitivity as wellas ignorance of the issues concerned are commonly seen as the factors responsible for the present day dismal picture in enforcement, an effective networking of the law enforcement agencies with NGOs can make adequate dent in the given situation. The order of the High Court of Delhi directing that NGOs should be associated with all rescue operations of the Delhi police testifies to the deliverance capability of this partnership. Effective methods of rehabilitation, counseling, reintegration, redressalof grievances and monitoring are instrumental in ensuring that the rescued persons arenot retrafficked. These initiatives by individuals and organisations, which aresensitive and committed to the cause, need to be appreciated and institutionalized.
Regardless of thetargets and focus of the awareness raising, particular attention should be paid to the dangers of domestic violence, as this is often a breedingground and catalyst for trafficking in human beings.
It’s critical to understand that trafficking cannot be solved in isolation without addressing issues of gender disparity, poverty, livelihood and unsafe migration. A holistic response to the problem needs to also recognize thatthere arelimitations within the enforcementparadigm in responding to issues of trafficking, which is propelled by strong forces of demand and supply, arisingout of economic and social compulsions and realities. Trafficking has to be understood and addressed more as an exploitative process in a continuum of events and conditions, and notas aone-off, exploitativesituation. Whatthis means in programmatic terms is that initiatives aimed at prevention or reduction of trafficking should deal notjust with the actualact of trafficking, but recognize and address the causal factors, and more critically, the conditions and circumstances accompanying/preceding the act. It is important to deal with issues of gender, age, class and caste dimensions, which have very clear roles to play in defining vulnerabilities. Economic aspects like poverty, lack ofopportunities, and breakdown oflivelihood options are also factors, which need to be addressed, but have to be situated within the contextual reality of harm, which has different impacts on gender, age, caste and class. The line between legalmigration for better livelihood options as against illegalmigration bordering on trafficking and movement fortrafficking per-se, is gettingmore and more blurred.
There have been growing indications by grassroots groups that this concern needs to be addressed by anti- trafficking programs. Most of thesolution would need to look ata longterm approaches.The challenge is of moving from the broad picture to the specifics:from thegeneral to the particular. There is need to adopt a human rights approach and move away from a service delivery approach; to ensure that women’s rights are notviolated but protected and promoted. While dealing with sex trafficking programmatic and conceptualapproach needs to shift from a moralisticor traditionalprotection modelunder theumbrella of criminallawto a genuine human rights model.The coreobjective should be to ensure a commitment towards empowering the survivors and getting them to move away from the construct of victimhood to being acknowledged as autonomous human beings capable of acting in their own best interested.
1. A Report on Trafficking in Women and Children in India 2002-2003 by NHRC, UNIFEM and ISS Project.
2. Research Study on Human Right Violation of Victims of Trafficking Conducted by Social Action Forum for Manvaadhikar Commission.
3. The Caritas Internationalis Commitment on Combating Trafficking in Human Beings – October 2005.
4. Trafficking in Persons Report, US Dept of State- June 2009.