Women Trafficking: A Heinous Crime

Balram Kumar Patwa1 Chiranjeev Tandon2

Women Trafficking: A Heinous Crime ABSTRACT

Trafficking in persons mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the 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 of receiving of payments or benefits to achieve the consent of a person having control over another persons, for the purpose of exploitation. Socially, economically deprived people at the grassroots become easy prey to the trafficking trade.

The paper deals with the constitutional provision under article 23 and 24 of India, along with other substantive law provision like IPC, and others like Suppression of Immoral Traffic in Women and Girls Act(SITA), 1956; Karnataka Devadasi (Prohibition of Dedication) Act, 1982 etc. to combat the trafficking in India, authors also relate the legal provision relating it with various international convention like, The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2000; The Convention on the Elimination of All forms of Discrimination against Women, (CEDAW) 1979.

The authors approached both empirical and non-empirical approach to reach on the thesis. Primary and secondary data are used to give clear-cut idea to the readers about the role of state, media, and NGO in combatting the trafficking which leads to harm the dignity of the victim. The paper also deals with the Prevention of human trafficking which requires several types of interventions. Prevention as a strategy to combat trafficking has to focus on areas of sensitization and awareness among the public, especially those vulnerable pockets of trafficking

3rd Year (B.Com, LLB) Student of Gujarat National Law University, Gandhinagar; Email ID: balramp09@gnlu.ac.in; 2 rd 3 Year (B.Com, LLB) Student of Gujarat National Law University, Gandhinagar; Email ID: chiranjeevt09@gnlu.ac.in

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at source areas as well as convergence of a development services to forestall conditions responsible for it.

The authors concluded the paper with saying that the law itself cannot do everything but all have to fight against the trafficking.

Keywords: Trafficking Trade, Dignity of Women

Disclaimer: Author has written the article from Indian Law and from its Perspective.

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1. INTRODUCTION
Human Beings fight for their existence has never been so intense, they survived the physical infliction of pain from war weapons but it seems the invasion on their dignity in the form of slavery, forced prostitution, experimental dummy, organ smuggling and so forth has been unprecedented in inflicting the pain and misery in millions and millions of lives across the globe. Right to Dignified Life3 is most probably the beginning and ultimate end of Human Rights Principle. But, it is also true that the untold misery of people now days has to do with obliteration of this very basic Human Rights notion, even though people are not made to die they are left with no self-dignity, no voice and no remedy just a mere physical existence, thats all. People are losing their control over themselves; they dont have control over their own body, work and their movement. And perhaps, all will agree that the most obvious reason is Trafficking in Persons. Trafficking in human beings, especially in women, and children has become a matter of serious national and International concern. Women and children have been exposed to unprecedented vulnerabilities commercial exploitation of these vulnerabilities has become a massive organized crime and a multimillion dollar business. Nations are attempting to combat this trade in human misery through legislative, executive, judicial and social action.

Trafficking in persons is now one of the most lucrative businesses in world, according to U.S. Federal Bureau of Investigation, trafficking of persons generated 9.5 billion dollars in revenue in 2005.4 Similarly from 600,000 to 800,000 people are trafficked each year across international borders5, although an exact data is always elusive, total people trafficked within or outside a nation could be lot higher. And it is not that states across the world have not tried to acknowledge this problem and act reasonably; at least they thought they were reasonable policy of combating trafficking. But even with such huge sum, commitment, mobilization trafficking is
3

As the preamble of the Universal Declaration of Human Rights mentions Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, it is imperative to know that the drafters valued the dignity of human beings as the basis of Human Rights and the survival of Human Beings with peace. Similarly, other International Bill of Rights also recognizes the inherent dignity as the inalienable Human Rights of every individual. 4 http://www.state.gov/g/tip/rls/tiprpt/2005/ (Last Assessed on 10th Oct. 2011, at 7:12 PM) 5 Ibid

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far from getting curved. Hence, now it is not just that trafficking is the only problem but the mystery involved in its definition, prohibition and approach has come under serious scrutiny. In this paper, we will focus mainly on the trafficking of women.

2. Meaning of Trafficking

Trafficking in persons has been defined by various scholars in its own way as from their perspective and hence, the definition of trafficking continues to be the subject matter of debate, and there is no conclusive or even commonly agreed upon definition globally, regionally or even nationally 6 This is because most of the time people were overwhelmed by the ambiguity of various other very closely related phenomena similar to trafficking.

In this regard Migration, Smuggling of people and Prostitution hold particular importance. It is very difficult, in fact, impossible to study anyone of the above process in complete isolation from each other but it is also true that if they are allowed to mix with each other while studying them, it can lead to nowhere in relation to the achievement of the set objectives. Hence, sometimes mixing trafficking and migration or other processes can be counter-productive in addressing the complex trafficking issues.7 . Traditionally trafficking was used synonymously with prostitution and at times this perception is still prevalent among us. For many trafficking takes place for prostitution, and may be it is true. The historical understanding of trafficking in International law has been focused primarily on the movement of women and girls across borders for the purpose of prostitution.8

But such conflation has many unwanted implications, trafficking for other purposes such as domestic labour, forced marriage, to other unregulated industrial and agricultural sites, etc., remain comparatively, largely neglected by anti-trafficking groups, hence the real picture can never be seen without keeping some distance between trafficking and prostitution.
6

Save The Children Alliance (UNICEF), Trafficking of Women and Children in South Asia: Taking Stock and Moving Ahead, A Broad assessment of AntiTrafficking initiatives in Nepal, Bangladesh and India, 1999 (pg. 30) 7 Md. Azad, Ambiguities and Confusions in the Migration-Trafficking Nexus: A Development Challenge, 2005 8 Save The Children Alliance (UNICEF), Trafficking of Women and Children in South Asia: Taking Stock and Moving Ahead, A Broad assessment of Anti Trafficking initiatives in Nepal, Bangladesh and India, 1999 (pg. 31)

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The most comprehensive definition of trafficking is the one adopted by the UN Office of Drugs and Crime in 2000, known as the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 under Transnational Organized the UN Convention against Crime (UNTOC). This Convention has been signed by the

government of India. As per Article 3:9

a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the 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 of receiving of payments or benefits to achieve the consent of a person having control over another persons, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour services, slavery or practices similar to slavery, servitude or the removal of organs; b) The consent of a victim of trafficking in persons to the intended exploitation set forth in sub para graph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c) The recruitment, transportation, transfer, habrouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in sub paragraph (a) of the article; d) Child shall mean any person under eighteen years of age.

This definition of the Palermo Protocol marks a major paradigm shift in the concept of trafficking; now trafficking has much broader scope. The most significant feature of this definition is that it recognizes exploitation as the most important element in trafficking rather than movement across a border, which is significant because when someone talks about Rights
Article 3 (a & b) of Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (2000) [Palermo Protocol]
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Based approach to the Trafficking it is not the technical details or mechanisms how trafficking takes place rather it is the person who is trafficked is important. Similarly by making consent of the victim irrelevant in trafficking it has stopped the fallacy that use of force can only amount to trafficking, thereby expanding the scope of punishing the perpetrators who use innovative and improvised10 way for trafficking people.

But only the substantive definition of trafficking cannot serve in totality, the real objective of addressing trafficking. In order to conceptualize the whole picture of human trafficking it is imperative that the trafficking process is judged aligning it alongside the misery and suffer of victims. After somebody gets trafficked the person no longer has control over what type of work they do, their work environment and the conditions of work, their freedom of movement and so forth.11

So, trafficking is not only the process involving the procurers and trafficked for some purpose but also the grave violation of basic Human Rights of the trafficked, which most of the times result into long term trauma both physical as well as psychological.

3. CONSTITUTION AND WOMEN TRAFICKING

Trafficking in women is a complex problem, related to different fields and interests. It can be seen viewed as a human rights or possibly a labour problem, or a problem of organized crime and then logically its solutions will be drafted accordingly. Often the real issues get camouflaged by taking moral stands and measures to combat trafficking aim at suppressing prostitution, either by criminalizing all parties in prostitution, including the prostitute herself or by criminalizing any third party.

Now days it is found that traffickers most of the times marry a girl to take her across the border, promise job, new opportunity, places in order to traffic them, they dont indulge in forced trafficking. Employment-induced Migration through Dalal (Broker) 59.4 %, Fraudulent Marriage 12.3 % False Visits 16.3 % Force (abduction) 6.4 % Missing 5.4% source: Dr. Monique Hennink, Sex Trafficking in Nepal: Context and Process, Opportunities and Choices working Paper 2004. 11 Md. Shahidul Haque, Right Based Approach to Human Trafficking, 2005

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The Constitution of India which is the highest law of the land and from which all laws emanate, guarantees equality as a fundamental right and prohibits traffic in human beings12. Article 23(1) specifically prohibits traffic in human beings, begar and other forms of forced labour. It is pertinent to mention here that there is no specific prohibition of prostitution, what is prohibited is traffic in persons.

3.1 IMMORAL TRAFFIC (PREVENTION) ACT, 1986

The Suppression of Immoral Traffic in Women and Girls Act, 1956 now Immoral Traffic (Prevention) Act, 1986 was enacted in pursuance of Indias commitment on ratifying the International Convention for the Suppression of the Traffic of Persons and of the Exploitation of the Prostitution of others (signed at New York on 9th May, 1950)(hereinafter referred to as the Convention). According to Articles 1 & 2 of the Convention countries are bound to punish persons who, to gratify the passions of another procures, entices or leads away, for purposes of prostitution, another person, even if it is with the consent of that person13. By section 3 of the Suppression of Immoral Traffic in Women and Girls Act 1956 the nomenclature of the Act has been changed to The Immoral Traffic (Prevention) Act (with effect from January 26, 1987)
12

Article 14 provides equality before the law or equal protection of the laws within the territory of India. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth, or of any of them. Article 15(3) provides for positive discrimination in favour of women and children. It states that, Nothing in this article shall prevent the State from making any special provision for women and children. Article 16 (1) provides equality of opportunity in matters of public employment. Article 23 prohibits traffic in human beings and forced labour. Article 38, enjoins the State to secure a social order for the promotion of welfare of the people. Article 39 enumerates certain principles of policy to be followed by the State. Among them being right to adequate means of livelihood for men and women equally and equal pay for equal work. Article 39 (f) provides that the children should be given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood should be protected against exploitation and against moral and material abandonment. Article 46 directs the State to promote the educational and economic interests of the Scheduled Castes, Scheduled Tribes and other weaker sections (in which women are included) and that it shall protect them from social injustice and all forms of exploitation. 13 Article 1. The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person. Article 2. The Parties to the present Convention further agree to punish any person who: (1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel; (2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others

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(hereinafter referred to as ITPA). It is pertinent to point out here that the Convention has proven to be a redundant and an ineffective international agreement, which only 72 had ratified or, acceded to (as of October 14, 1997).

The objective of the ITPA is to: y y y y Punish immoral trafficking; Punish traffickers; Punish persons living off the earnings of a woman; and Provide welfare measures directed towards rehabilitation of sex workers.

The Act in order to protect women in custody provides for punishment of any person who having the custody, charge or care of, or a position of authority over any person causes aid or abets seduction14. Licensing authorities are being empowered to cancel licences of hotels where of hotels where children or minors are detected to be used for purposes of prostitution. Interrogation is to be done only by women police officers if not in the presence of a woman social worker.

In fact, the Supreme Court has exercised its extra-ordinary writ jurisdiction making powers under Article 145 and Article 142, to lay down a comprehensive scheme to rescue and rehabilitate victims of sexual exploitation especially in the case of Gaurav Jain v Union of India15. The CSW on being questioned as to whether the profession they were practicing was legal or illegal; most did not understand the implications of the question nor did they have any knowledge of the law, not even sparingly. They had a fear of the law enforcing authorities, but at the same time they said that the police helped them and 66% of the women said they were satisfied with the behaviour of the police. On being questioned as to whether they wanted the profession to be legalized or not, 79 % said yes, but one is not sure if they still understood the implications. Only 13 CSWs out of the 100 interviewed had a previous criminal history, which is a surprisingly small figure. Even these women had no clue of the law or court procedures, all they knew was
14

Section 9. Seduction of a person in custody. Any person who having the custody, charge or care of, or a position of authority over any person causes aid or abets the seduction for prostitution of that person shall be punishable upon conviction for a term which shall be not less than seven years but which may be for life or a term which may extend to 10 years and shall also be liable to fine. 15 AIR 1997 SC 3021

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that they had to attend the dates regularly otherwise they would be summoned. The 13 women who had been arraigned as accused did not belong to any one particular state but were from different states.

The Act does not provide for a clear and precise definition of prostitute. Prostitution is defined in Section 2 (f) and according to it means the sexual exploitation or abuse of persons for commercial purposes, and the expression prostitute shall be construed accordingly. Section 2 (f) of the Act indicates that there should be sexual exploitation or abuse of persons for commercial purposes. Therefore, there has to be an element of commercial purpose which means offer of money by the customer and acceptance of the same by the person who offers her body in lieu of consideration received. To constitute a brothel a place must have been used for purposes of prostitution16. When the prosecution proved the presence of only one girl in the premises and a single instance of prostitution, the premises cannot be held used for brothel in the absence of any proof from the surrounding circumstances (In Re Dhanalakshmi17). Solitary instance of prostitution in a place does not make a place a brothel (Sushila v. State of Tamil Nadu18). Thus in case a single woman uses the premises she is committing no offence but if for the mutual gain of two prostitutes the same premises is used it constitutes a brothel. The last part of the definition is significant. It implies that where a single woman practices prostitution for her own livelihood, without another prostitute, or some other person being involved in the maintenance of such premises, her residence will not amount to a brothel (In Re Ratnamala19,).

The Act clearly deprives CSWs of the ability to work because, if the law is implemented perfectly, women cannot work in brothels and they cannot solicit on the street. Section 8 punishes seducing or soliciting for the purpose of prostitution 20 . It criminalizes the act of
Section 2(a) : brothel includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for the purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. 17 Cri. LJ 61 MAD 1974 18 Cri. LJ 1982 MAD 702 19 AIR 1962 MAD 31 20 Section 8: Seducing or soliciting for purpose of prostitution. Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or nota) by
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solicitation for prostitution, and is being used to arrest and punish women and girls who are victims of trafficking. The CSWs are left to find clients by some other means not involving solicitation. Seeking clients by soliciting is, indispensable to earning a livelihood and this section only lends clout to the police, who tend to harass the CSWs workers by threatening to invoke Section 8. This is based on the misguided premise of the International Convention that if the operation of the commercial sex industry is criminalized, the industry will collapse.

In fact the NHRC survey in which data was collected by interviewing 852 police officials (117 senior officials and 735 middle/junior rank officials) presents the following scenario 21:

The sex-disaggregated data of law enforcement shows that 93% of those arrested, mainly under Section 8 A (ITPA), 95% of those charge sheeted and 90% of those convicted were women

y y

40% of the police officials were not aware of the issue of trafficking Only 6.6% of the police officials had undergone some sort of training/sensitization on the issue.

54.8% police officers give no priority at all to trafficking, 25.3 give it low priority, 12.2% consider it to be a medium priority issue and only 7.7% think it is a high priority issue

Reporting on trafficking appears to be only 40%. As stated by the police officers themselves, 60% of the cases go unreported.

The Act was amended to make good some inadequacies in the light of the experience gained in its implementation; and presently empowers the State govt. to appoint Special Police Officers for

words, gestures, wilful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees. Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months. 21 National Human Rights Commission Website: nhrc.nic.in/ResearchStudies.

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dealing with offences under this Act in a specified area22. The Magistrate may confer upon any retired police or military officer all or any powers conferred on a special police officer with respect to particular cases or cases generally. Enabling provisions have been added to empower the Central government to appoint any number of trafficking officers who shall exercise powers and discharge functions in relation to the whole of India. Thus the trafficking officers appointed under the Act are empowered to investigate offences having inter-state ramifications.

3.2 IMPLEMENTATION OF IMMORAL TRAFFIC (PREVENTION) ACT (ITPA), 1956

Since ITPA is the main Act that can be used to book trafficking for commercial sexual exploitation, its implementation is essential for counter-trafficking. Under Section 23, the State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of the Act. Such rules may be formulated, notified and intimated to MWCD with a copy to MHA. y Under Section 13, the State Government may appoint Special Police Officers (SPOs) and the Non-official advisory bodies to advise the SPOs for dealing with offences under the Act. y Under Section 21, the State Governments may set-up Protective homes and Corrective institutions for ensuring proper implementation of the provisions of the Act. The information regarding these homes may be circulated to all Police Stations and officers dealing with the trafficking cases. y Under Section 22-A, the State Government may, by notification in the Official Gazette, and after consultation with the High Court, establish one or more Courts for providing speedy trial of the offences under the Act. y It is generally noticed that sections 8 and 20 of ITPA, which focuses on the victims, are more often invoked as a result of which the victim is re-victimized and the exploiters are
22

Section 13: 1.There shall be for each area to be specified by the State Government in this behalf a special area. 2: The special police officer shall not be below the rank of an inspector of police. 2(A): the District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally:

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not punished. It is, therefore, advised that sections 3, 6 and 7 which pertains to pimps, brothel owners, clients who are actual perpetrators of the crimes need to be invoked rather than sections 8 and 20. Law enforcement agencies need to adopt a victim centric approach in the investigations.

4. MAGNITUDE OF TRAFFICKING
The scale of the phenomenon is difficult to judge. It is very difficult to collect data on trafficking because of the clandestine nature of the operations. The trade is secretive, the women are silenced, the traffickers are dangerous and not many agencies are counting (Hughes 2000). Among the most quoted figures are the United Nations estimates that 4 million people are year are traded against their will to work in some form of slavery, many of them children and believes that in the last 30 yeas, trafficking in women and children for sexual exploitation in Asia alone has victimized more than 30 million people (Westwood n.d.).

A study by Congressional Research Service for the US Congress cities the following estimates of trafficked people worldwide: y y y y y y South-East Asia - 225,000; South Asia - 15,000; former Soviet Union - 100,000; East Europe - 75,000; Latin America - 10,000; Africa - 50 crores (CRS 2001).

Recent ILO figures for children in the worst forms of labour worldwide are: trafficking (1.2 million); forced and bonded labour 5.7 million); armed conflict (0.3 million); prostitution and pornography (1.8 million); and illicit activities (0.6 million) (ILO 2002).

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9000 8000 7000 6000 5000 4000 3000 2000 1000 0 2001 2002 2003 2004

The above table shows the number of cases that are dealt by judiciary of our country and more than stated above goes unreported.

5. LEGAL FRAMEWORK
In her critique of the trafficking laws in South Asia, Sanghera (1999) argues that the legal system is disempowering trafficked persons through an erosion of their constitutional and human rights in an ostensible attempt to protect them from harm and abuse an impact that is contrary to

aims of anti-trafficking measures. She also points out that the laws do not address cases of women rescued as adults but those who may have been trafficked as children, thereby infantilising women (Sanghera 1999).

Judiciary: Two widely mentioned Supreme Court judgments: Vishal Jeet v. Union of India in 1990 and Gaurav Jain v. Union of India in 1997 are considered instrumental in initiating government action on the issue of commercial sexual exploitation (DWCD 1998).

On the other hand, the judiciary is accused of playing a role in secondary victimization through its mode of questioning during court procedures and the long and tedious processes involved.
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The legal system is perceived to be formidable by the victims rather than being a deterrent to those who commit offences (DWCD 1996). Depending on the sensitivity of the judges, judgments, range from supporting the victims to aggravating their harassment (United Nations 2001).

Generally, Indian courts send rescued girls who are foreign nationals, for example Nepalese or Bangladeshis, back to their countries with the help of NGOs; sometimes, they are sent to government homes. Beyond that, there is hardly any activism or inquiry. Very little action is taken by the police or the judiciary against the traffickers and those who are initially responsible for the violation of the rights of these women. With regard to the evidentiary procedures involved in trafficking cases, the women and girls who are victims of the trafficking are the primary witnesses against the perpetrators. In cases involving organised crime, they are extremely vulnerable and in fear for their lives (United Nations 2001: 16).

Police: In the SAARC region, the police forces of the respective countries meant to be are the most important institutions in the struggle to eradicate trafficking (United Nations 2001: 15). In reality though, police involvement in trafficking is indicated in all the reports and corruption within the force is said to be endemic (ibid.).

In the literature surveyed, the police are accused of supporting brothel owners, being in complicity with traffickers and according the crime of trafficking a low priority (HRW 1995; DWCD 1996; DWCD 1998; United Nations 2001). The conduct and management of rescue operations has been severely criticised. Reports are critical about the behaviour of police personnel, age verification procedures and the lack of appropriate networking with other concerned agencies; for instance, protective homes (STOP 2002a: 26; ADB 2002b: 32; Nirmala Niketan, College of Social Work 2003).

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Women Trafficking: A Heinous Crime 6. STATISTICAL DATA ANALYSIS

A study conducted by the End Childrens Prostitution in Asian Tourism, 1991, estimates that there are two million prostitutes in India of whom 20 percent are minors. At any time, 20,000 girls are transported from one part of the country to another for prostitution. Research on the trafficking of Nepalese women and girls into India shows that around 5,000 to 7,000 Nepalese girls are trafficked yearly into India.23 It is important to note that 6.4 per cent of them were under 16 years of age and 14.3 per cent were in the 1617 age groups, bringing the total share of children (under 18 years of age) to 20.7 percent.24 Among the adult respondents, in many places, the majority was in the 1820 age group. It is quite possible that most of the survivors have recorded their age as being 18 years and above because of pressure from the exploiters. The case study on age assessment (No. CS-MH-19) explains the context in which child victims are made to say that they are above 18 years of age. States Age Group 0-15 Delhi Bihar West Bengal Goa Tamil Nadu Karnataka Andhra Pradesh Maharashtra Uttar Pradesh Assam & Meghalaya Rajasthan Total 0 0 14 4 1 3 2 10 1 0 1 36 16-17 6 2 10 16 1 3 7 31 3 1 0 80 18-20 42 1 17 7 0 11 29 38 11 2 3 161 21+ 33 7 13 3 78 42 66 7 31 0 4 284 81 10 54 30 80 59 104 86 46 3 8 561 Total

23 24

http://www.unafei.or.jp/english/pdf/RS_No72/No72_13VE_Chattoraj.pdf Data Available at : http://nhrc.nic.in/Documents/ReportonTrafficking.pdf, pg 81 (Last Accesssed on 10th October 2011, at 8:21 PM)

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In respect of the nationality of the respondents, 93.5 per cent were from India, 1.8 per cent from Bangladesh, 4.5 per cent from Nepal and 0.2 per cent were from Pakistan. Thus, the total share of non-Indian nationals is 6.5 per cent. This indicates that trafficking takes place from these countries to India, calling for appropriate steps with regard to repatriation and the prevention of the trans-border trade in women and children. As for the location of their native place, 68.6 per cent came from rural areas, 25.7 per cent were from urban centers and 5.7 per cent from urban slums. The education profile of the respondents shows that 65.1 per cent were illiterate or barely literate. Of the literate respondents, 14.6 per cent had studied up to the primary level, 10.7 per cent up to the middle level, 8.7 per cent up to higher secondary and 0.9 per cent were graduates and above. The large majority of illiterates among the trafficked survivors points to education as an important safeguard against trafficking.

7. Cause of Women Trafficking

There are several factors that lead to trafficking of women and children or cause them to become victims of trafficking. These factors can be broadly classified into two categories i.e. supply factors and demand factors. Supply Factors o Abject poverty sometimes forces parents to sell their children to traffickers. o Harmful cultural practices often make women and children extremely vulnerable. Child marriage is sometimes the route for a child to be trafficked for sexual purposes. The stigma attached to single, widowed, and abandoned women, or second wives through bigamous marriages, causes such women to be abandoned by society. They become easy targets for traffickers. o Female illiteracy and lack of access to education by girls. o Male unemployment and loss of family income puts pressure on women to earn and support the family.

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o Natural calamities and poor rehabilitation of disaster victims puts pressure on women to earn and support the family. o Dysfunctional families or families that have difficulty functioning and communicating in emotionally healthy ways; a family that has a negative environment, which contributes little to the personal development and growth of family members.25 o Desertion by one or the other parent uncared for or abandoned children. o Traditional practices give social legitimacy to trafficking. These include the Devadasi and Jogin traditions where Devadasis are often trafficked and sexually exploited. This is equally applicable to other communities such as the Nats, Kanjars, and Bedias where traditionally girls are made to earn through prostitution. o Porous borders. Weak law enforcement and inefficient and corrupt policing of the borders ensure that women from neighbouring countries are brought into India and forced into prostitution in different towns. o Clandestine nature of the crime and weak law enforcement. The crime does not come to light very often because of its clandestine nature. Victims are unable to access justice and even when they attempt to do so, weak law enforcement enables the traffickers to escape. o Urban opportunities. Many women are either lured by false promises of jobs in urban areas or they voluntarily migrate to urban areas on hearing about the opportunities in cities from their neighbours and friends. When a woman is pushed into prostitution due to these causes, the issue of consent of the trafficked person is not relevant. Even if a woman knows that she is being trafficked and gives her full consent, it does not absolve the trafficker of guilt. o Trafficking is an offence irrespective of the womans consent (Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956

Demand Factors o Rising male migration to urban areas and demand for commercial sex. o Growth of tourism, which sometimes indirectly encourages sex tourism.

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www.kent.k12.wa.us

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o Scare of HIV/AIDS and prevalent myths on sexuality and STDs (Sexually Transmitted Diseases) leads to greater demand for newer and younger girls. The number of trafficked girls thus increases and their age decreases. o Hope for jobs / marriage o Demand for cheap labour o Enhanced vulnerability due to lack of awareness o Creation of need and market by sex traffickers for experimental and tender sex. o Internet pornography o Organized crime generating high profits with low risk for traffickers.

Trafficking dont occurs only for prostitution commercial sexual exploitation but are trafficked for several other purposes, some of which are enumerated below. o Forced labour, including bonded child labour, in the carpet, garment, and other industries/ factories/worksites.26 o Forced or bonded domestic work may be bought and sold or forced to work in inhuman and violent conditions that include sexual abuse.27 o Forced labour in construction sites with little or no wages.28 o Forced employment in the entertainment industry, including bars, massage parlours, and similar establishments. In addition to poor or no pay and bad living conditions, sexual harassment is common.29 o Children are sometimes trafficked for begging.30 o Organ trade such as sale of kidneys.31 o Fraudulent or forced marriage: this includes sham, fraudulent, and illegal marriages, entered into by the man, residing in India or abroad, with the criminal intention of sexually exploiting the woman. Mail order brides where women are purchased or lured

26

27

The Child Labour (Prohibition and Regulation) Act, 1986. The Bonded Labour System (Abolition) Act, 1976 and The Child Labour (Prohibition and Regulation) Act, 1986. 28 For women The Minimum Wages Act, 1948. For children The Child Labour (Prohibition and Regulation) Act, 1986. 29 The Immoral Traffic (Prevention) Act, 1956 and The Indian Penal Code (IPC). 30 States have their own laws for prevention on beggary. 31 The Transplantation of Human Organs Act, 1994.

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with false promises of a marriage abroad and subsequently recruited into prostitution is also a form of trafficking.32 o Purchase and sale of babies for adoption, both within the country and abroad, against established laws and procedures for adoption.33

8. Challenges and Complexities

Combating trafficking in India is especially challenging due to its myriad complexities and variations. The initial challenge lies in changing the mindsets of the key protagonists, such as civil society, enforcement agencies, and the judiciary that sometimes trivialize trafficking and perceive it as prostitution, the oldest profession. The root cause of trafficking in India is poverty that leads to the inherent vulnerability of victims. Poverty, compounded by illiteracy, lack of skills, and few livelihood options, makes women and children easy targets of organized criminal networks that exploit this vulnerability through fraud and deception, promising jobs and a better life. The matter becomes more complex when trafficking for prostitution is a traditional cultural practice and has the tacit support of family and society, such as in the Devadasi and Jogin traditions still prevalent in some parts of India. Although these traditions have been declared as illegal by the government and comprehensive preventive and rehabilitative programmes have been initiated for them, they still persist in certain patches. The multi-causal nature of trafficking, and the size and cultural diversity of Indias population, demand multiple customizations for addressing each form of trafficking. The clandestine nature of trafficking and the resultant paucity of data add to the challenge. The erosion of border

32 33

Indian Penal Code, 1860 Ibid

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barriers by globalization, technology, and improved communication has inadvertently facilitated the trafficking networks. Further, the ambivalent attitude of society towards trafficking results in a complacent response from the influential sections of society, rural or urban. The tendency to equate trafficking with prostitution keeps respectable opinion leaders away and prevents them from exerting their power. It is often difficult to get witnesses to prosecute traffickers. Enforcement agencies, if not in complicity with traffickers, sometimes remain indifferent, equating trafficking with a petty offence in contrast to crimes such as murder or theft. As the very concept of trafficking and trafficked victim is questioned in legal proceedings, traffickers exploit this grey area and the loopholes it throws up to escape punitive action. The question of trafficking of women and children has of late been receiving serious attention by the National Human Rights Commission (NHRC), the Department of Women and Child Development (DWCD) and UNICEF. These agencies have undertaken several activities to study the problem in greater depth, so that more effective steps can be taken to prevent the problem and curb it at source, protect the victims more meaningfully, and provide them sustainable rehabilitation. During the several discussions and consultations among the NHRC, UNICEF, government counterparts, and NGOs, a recurring complaint that came up was the callousness and lack of sympathy of various functionaries who play a statutory role in the prosecution and punishment of the traffickers. With reference to the District and Taluka (block) level judiciary, the main problems expressed were long adjournments, easy bail for the trafficker, harassment and humiliation of the victim, and the ease with which the trafficker, who is undoubtedly more powerful than the victim, exploits the legal system. It was also commonly felt that the

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implementation of the Immoral Traffic (Prevention) Act, 1956 (ITPA) clearly revealed that its provisions were being interpreted mechanically and not used against the traffickers but against the trafficked victims, which was against the very intent and spirit of the Act. It was felt necessary that the prevailing procedures and interpretations of the ITPA that tilt the balance heavily against the victim should be replaced by a sensitive and humane interpretation of the law and exercise of discretion as provided in several Sections of the Cr.P.C so as to not further victimize the victim.

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9. CONCLUSION
Being a complex phenomenon, trafficking can be viewed from different perspectives. Thus, it is important to acknowledge the standpoint from which it is being approached from. The problem is deeply rooted in the socio-economic, political and cultural reality of the context in which it occurs, although this may not be its immediate cause. The culprits are the traffickers about whom relatively little is known. This gap has to be urgently addressed, along with the demand factors which drive trafficking. It is a fundamental violation of the rights of human beings and shows a blatant disregard for the dignity of a person.

Trafficking is a phenomenon shrouded in ambiguities involving issues which most would prefer to avoid. As suggested by a UNDP study, it is a subject wrapped in layers of silence. The process of clarity will involve numerous debates and arguments. This search is an indicators of the attempts, some successful, of various agencies to bring this issue on the agenda of governments and other concerned authorities. One may say that it is in the inception stage, offering an opportunity for all to deeply reflect on the problem and keeping in mind the people are most affected.

The concern with prevention and redressal reflected in the literature has not been concretised in to policies and programmes, as seen in the responses of government agencies or civil society. While plenty of recommendations have been made, translating them into programmes on the around has not been an easy task. Formulating effective policies becomes all the more difficult because of the association of trafficking with other extreme forms of exploitation. This requires a much greater effort on the part of the concerned agencies than what has been reported in the literature. The biggest hindrance to this, we believe, is the lack of a baseline study for the country, which makes an in-depth analysis of the issues involved.

Literature on trafficking in India is completely dominated by the issue of commercial sexual exploitation, so much so that trafficking as a distinct separate crime does not get highlighted. At times is almost reduced to insignificance in comparison to commercial sexual exploitation. Even
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though there seems to be considerable information available, one is unable to form a picture which reflects the reality of trafficking in women and children in India.

Hence through rights based approach sustainable solution of trafficking can be achieved. Similarly when trafficking is approached in this way, dilemmas and ambiguity regarding the interconnection of Migration, Prostitution, Smuggling and Trafficking can be resolved once for all. Therefore there is only one possible solution that can check trafficking, prevent trafficking, solve trafficking and serve trafficked, that is, the rights based approach to trafficking.

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