Introduction

Trafficking in human beings involves the transportation, harboring or receipt of persons by means of threat, coercion, abduction or fraud for the purpose of exploitation. The problem of human trafficking, particularly in women and children has emerged as grave social issue which is one of the most serious affronts to the dignity and human rights of them. It is a gross commercialization and commodification of innocent human lives. Though it is a borderless crime, India among many South-Asian countries is rapidly used as a source, transit point as well as destination for the traffickers. It is just not about the violation of human rights but it is the defeat of human rights. It is not only the human rights which are failing but the society and institutions are also to share the blame. In the context of increasing violence and deep-seated patriarchal values the trafficker’s job becomes easy. Hence trafficking in women and children, which is the most vulnerable group, is the sordid tale of violation of human rights and dignity.

As per the record, in India, there are 1794 identified places of such origins (3-stages of crime: – origin, transition, and destination stage) from where female victims are being trafficked. The whole chain of this transportation process has involved number of stakeholders in this crime of trafficking. In fact, it is a billion dollar business industry and a complete chain of networking and lobbying from powerful to the gross root village/local level trafficker. The extent is that, it has resulted to make this industry as one of the organized crime industry in the world, and world’s 3rd largest crime after drugs and arms trafficking.  Around 161 countries across the globe are being infected by this heinous crime of heinous crime of human-trafficking as per the 2006 report of UN office on Drugs on crime, Trafficking in Persons, Global Patterns. According to ILO, Human Trafficking has become 32-billion-dollar profit making industry.

According to Oxford dictionary, ‘Trafficking’ means deal in something especially illegal. The conceptual meaning of human trafficking refers to “the criminal practice of exploitation of human beings where they are treated as commodities for profit and after being trafficker, are subjected to long term exploitation.” This organized crime of human trafficking has reached ‘a scary magnitude’ because the extent of violations of human right is unbelievable and unimaginable, especially where the most likely victims are women and children, who are forced to bear unimaginable amount of both physical and mental pain, due to extreme exploitation. The identification of the crime and offenders becomes more difficult because of 2 primary reasons; the first, because of its highly secret and clandestine nature; Second, being the general unawareness of the masses about the crime. The crime is termed as ‘modern day slavery’, since it in no way treats humans as humans, rather as mere animals or commodities, who lack human emotions.

Traffickers often recruit or buy women from destitute areas, promising to smuggle them to a new country and find them work as domestic servants. In truth, the women are often raped and abused by their recruiters, and then sent to brothels or underground prostitution rings where they are sometimes literally held under lock and key. Many are told that they will have to work in the sex industry until the debt for their transport has been paid off, which may effectively be for the rest of their lives. Health officials insist that trafficking in women causes significant health risks too, especially in terms of Sexually Transmitted Diseases. Women sold into prostitution are often discouraged or forbidden from using contraceptives such as condoms, and thus become high-risk candidates for the spread of diseases. Since, these women are tightly controlled, they don’t have any window to even file any complaint against the exploiters, and chances of their escape becomes very less and bleak.

Contemporary Relevance :-

According to a recent survey women are bought and sold with impunity and trafficked at will to other countries from different parts of India. These girls and women are sourced from Dindigal, Madurai, Madurai, Tiruchirappalli, and Chengalpattu in Tamil Nadu, Gaya, etc. and from other remote parts of different states. These women and girls are supplied to Thailand, Kenya, South Africa and Middle East countries like Bahrein, Dubai, Oman, Britain, South Korea and Philippines.

They are forced to work as sex workers undergoing severe exploitation and abuse. These women are the most vulnerable group in contracting HIV infection. Due to unrelenting poverty and lack of unemployment opportunities there is an increase in the voluntary entry of women into sex work. Trafficking both for commercial sexual exploitation and for non-sex based exploitation is transnational and complex challenge as it is an organized criminal activity, an extreme form of human rights violation and issue of economic empowerment and social justice. It violates the individual’s rights to life, dignity, security, privacy, health, education and redressal of grievances.

Causes of Women Trafficking :-

  • Trafficking is victims’ vulnerability exploitation and the victim vulnerability is result of many factors. These factors are generally classified into two branches, i.e. push and pull factors. Push factors are the factors which exist at the point of origin and the pull factors works at the place of destination. Pull factors has been considered as the vices of uneven development. Pull factors and Push Factors are complementary. Push factors can be minimized while pull factors cannot be stopped for the time being. Mishra has suggested that push factors are deep rooted problems which can be changed by continuous education and not by confrontation approach. Both these factors have been described by some as ‘supply’ and ‘demand’ theory where pull factors have been equated with demand and push factors with supply. In the push factors, social means prevalence of caste and class structure and gender based discrimination which makes people vulnerable. In cultural context, irrational traditional practices like community-based prostitution enhance the vulnerability. Economic factors mean unequal distribution of opportunities and wider gap between rich and poor compels people to fell into the hands of traffickers. Poverty has been linked with human trafficking patterns. Also, displacement and dislocation of people make situation favourable for traffickers. It appears from the case studies that extreme poverty and other causes of deprivation not only push people to fall in the tripod the traffickers, they also create for some an incentive for trafficking. Often the prostitute, who have no option to come out of the exploitative environment, gradually develop intimate connections with the traffickers and follow in their footsteps.
  • The pull factors are : lucrative employment propositions in big cities, easy money, promise of better pay and a comfortable life by the trafficking touts and agents, demand of young girls for marriage in other regions, rise in demand for women in the rapidly expanding sex industry, demand for young girls in places of military concentration, demand for young girls for sexual exploitation as a result of the misconception that physical intimacy with young girls reduces men’s chances of contacting HIV/AIDS, or of the myth that sex with a virgin can cure HIV/AIDS and impotence. The rampant practice of female feticide also fuels internal trafficking. Since, in these regions there is a shortage of women, having a low female to male ration, they have become fertile ground for the operation of traffickers. Traffickers procure girls from faraway states like Assam and Orissa; trick their families into believing they are to be married, only to later push them into prostitution.
  • The movement of young girls and women from Bangladesh and Nepal into Indian brothels is common. There is further movement of these women and girls to the Middle East as well as other destinations. At times of hardship, this starts out as illegal migration and ends up as trafficking. Such migration occurs in the backdrop of supply and demand in the sending and receiving countries. The supply side is associated with structural inequality, poverty, illiteracy and lack of opportunities for livelihood, whereas the demand rises from the need of cheap labour in the destination. Usually people from the poorer countries like Bangladesh and Nepal are at risk of exploitation and are trafficked to their neighbouring country India. An assessment study on sexually exploited children and youth by the Economic and Social Commission for Asia and Pacific (ESCAP) shows that in South Asia young girls from certain rural areas of Bangladesh, India and Nepal are trafficked for marriage and then sold into prostitution.
  • The major problem also faced by poor families in India is the members’ limited ability to communicate outside their place of residence. Many of them are illiterate-cannot read or write. So they depend on others for sending letters or making a phone call to their relatives. Often the guardians of law do not support the victims. It has often been alleged that police harass the victims more than those who have committed the crime. All these limitations not only make the socially and economically deprived sections of society vulnerable to trafficking, but also explain why re-trafficking is so rampant in our society. Apart from the increased demand of cheap labour in the production sector, globalization has played a major part for the growth of tourism business and entertainment industries the world over. As a result, the sex trades like sex tourism have registered rapid growth.
  • Rising male migration to urban areas as well as stressful working conditions of the Business Process Outsourcing (BPO) sector workers have also contributed to a growing demand for commercial sex in the cities.
  • Child marriage is one of the easiest modes applied by the traffickers to send young girls from one place to another. In a traditional village community, there is a stigma attached to a single women.
  • In a traditional Indian village community, there is a stigma attached to single women. Inability to arrange the marriage of a daughter becomes a cause of embarrassment and matter of shame for the parents. In this situation, when the traffickers approach the poor families with marriage proposals (sometimes with cash rewards between Rs. 1000-5000 on an average) minus dowry, the parents find it hard to refuse the offer. After the marriage, the girls are sold, and resold, until she reaches the ultimate destination.
  • Apart from child marriage, other modes of trafficking are fake marriage, false recruitment, Promising jobs in factories, Offering money, Luring them with ‘pleasure tips’, offering them to take on pilgrimages, kidnapping and abduction of children, transportation of children with the consent of guardians, adoption of children, using poor families with jobs and better living conditions in cities are some other modes of trafficking. Sometimes, traffickers use different approaches like sometime they employ local source, relatives. The recent trend that has been noticed, especially in case of India, is the trend of traffickers using marriage bureaus, placement agencies and tutorial agencies, even in cases there have been found involvement of NGOs too (who used to give children to adoption in consideration of heavy donation).
  • Insufficient and inadequate laws, poor enforcement, ineffective penalties, minimal chances of prosecution, the relatively low risks involved, corruption and complacency, poor visibility and less debate on the issue, the lack of political will of the governments to implement policies and to provide adequate services for victims-all of them play role in perpetuating trafficking.

International Law on Women Trafficking :-

As far as the legal framework and perspective on the issue of Human-trafficking is concerned, several International and National Conventions, laws and protocols have been adopted by the international and state agencies and departments. The international interventions include: International agreement for suppression of white slave traffic (1904 and 1910), International convention for the suppression of the traffic of the women and children (1921), Slavery Convention (1926), ILO Forced Labour Convention (1930), International Convention for Suppression of traffic in women of full age, Universal Declaration of Human Rights (1948), Convention for the suppression of the traffic in persons and of exploitation of the Prostitution of others (1949), UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Tourism Bill of Rights and the Tourist Code (1985), Convention on Protection of Rights of Migrant Workers (1990), Optional Protocol to the Convention on the elimination of all discrimination against Women (1999), UN protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, 2000 etc.

In 1949, the problem of trafficking got major attention when the UN adopted a ‘Convention for the Suppression of the Traffic in Persons and the Exploitation of Prostitution’ which was the sole convention, which existed for fifty years. But after a lot of efforts of the Global North feminist groups in reviving the anti-trafficking movement, UN created ‘UN Special Reported on violence against women’ in 1994 and ‘South Asian and Association for Regional Cooperation (SAARC) Convention on Prevention of trafficking in women and children for prostitution’ in 2002.

The current international legal standard, which gives shapes to many domestic definitions is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, a protocol to the United Nations Conventions Against Transnational Organised Crime, commonly knows as the Palermo Protocol (UN, 2000). The Palermo Protocol defines trafficking as: 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 receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation.

The Palermo Protocol (UN 2000) for the first time defined trafficking from a wider perspective as a matter of international law. It took into account the pre-existing individual crimes such as abduction, kidnapping, forced prostitution and slavery. It recognized that any human can be trafficked, not just women and children (though they are the most vulnerable groups). Human trafficking, is not just for sexual exploitation, it is for labour and other areas also, (though in women trafficking, most of the times it includes sexual exploitation). It categorically mentions that force, coercion or deception must be present. The intent to exploit and control another human being is central to the crime of trafficking.

The Protocol requires the states to criminalize the trafficking in persons; provide assistance and protection to victims in countries of origin, transit and destination; provide assistance in the repatriation of victims; have management on migration to prevent and detect trafficking; have thrust on training, research and information to prevent trafficking.

India signed the protocol on December 2, 2002 and ratified recently on May 13, 2011. As a signatory to the protocol, India is bound to comply with the laws conforming to UNTOC and protocol’s mandate.

women are often in great danger in the place where they should be the safest i.e. within their families. For many ‘home’ is that place where they have to face a regime of terror and violence in the hands of somebody close to them – somebody they should be able to trust. It is that place that imperils lives and breeds some of the most drastic and heinous forms of violence perpetrated against women and girls. Those victimized suffer physically and psychologically. With different processes of socialization that men and women undergo, men take up stereotyped gender roles of domination and control, whereas women take up that of submission, dependence and respect for the authority. Their human rights are denied, even equality, security, self-worth and dignity are at stake and their lives are stolen from them by the ever-ending threat of violence. This violence against women has increased manifold in India. The safety of women, who constitute of almost half of the country’s population, still remains a far cry.

The new millenium has brought with it a greater push towards acknowledging the incidence of violence against women and an international consensus has developed on the need to deal with the issue. The Convention on the Elimination of all forms of Discrimination against women adopted by the UN General Assembly and the Platform for Action adopted at the Fourth International Conference on Women in Beijing in 1995 is a testament to this. India has also tried to deal with domestic violence in several ways and has finally enacted a legislation on it in 2005.

Indian Law on Women Trafficking :-

India has addressed trafficking both directly and indirectly in its Constitution. There are three Articles spread over Fundamental Rights in Part III and Directive Principles of State Policy in Part IV which directly address trafficking related issues.

Article 23 of the Constitution, prohibits trafficking in human beings and forms of forced labour, and ensures this is as a fundamental right. Article 39(e) and (f) provided under Directive Principle of State Policy, obligates the state to ensure that health and strength of individuals are not abused and that no one is force by economic necessity to do work unsuited to their age and strength, and also that childhood and youth should be protected against exploitation.  Indirectly, other fundamental rights also accommodate human trafficking as a violation of them, like art. 14 and art. 21, which ensures right to equality and right to life respectively, indirectly covers human trafficking issues too within it.

The two principle Indian laws that address trafficking and prostitution in particular are:

  • The Suppression of Immoral Traffic in Women and Girls Act of 1956 (SITA) and
  • The Immoral Traffic (Prevention) Act of 1986 (ITPA), colloquially called PITA, an amendment to SITA.

Neither law prohibits prostitution per se, but both forbid commercialized vice and soliciting. Aside from lack of enforcement, SITA is problematic in several ways. One of its drawbacks is that the prescribed penalties discriminate on the basis of sex: a prostitute, defined under SITA as always a woman, who is arrested for soliciting under SITA could be imprisoned for up to an year, but a pimp faces only three months imprisonment. SITA allowed prosecution of persons other than the prostitutes only if the persons involved “knowingly” or “willingly” made women engage in prostitution. Accordingly, pimps, brother owners, madams, and procurers could feign ignorance of prostitution and escape punishment. The client, moreover was not viewed as an offender and could not be sanctioned under SITA. Finally, SITA only addressed street prostitution; prostitution behind closed doors was left alone – a loophole that actually promoted the establishment of brothels.

Immoral Traffic Prevention Act, 1986 is the amendment, but it also does mix up issues of trafficking and prostitution. Keeping a brothel is a punishable offence, as is living on the earnings of the prostitution of others. The latter would inadvertently also cover family members or dependents of the woman, which was not the intention of the legislation (which was made to cover only pimps). There have been cases where the trafficked woman has herself been charged under this provision.

Some of the major elements of trafficking are covered by the enactment. These include, procuring,  inducing or taking a person for prostitution, detaining a person in premises where prostitution is carried on and soliciting. If a person is found with a child in a brothel, there is a presumption that the child has been detained in that place for sexual exploitation. It is a presumption which can be rebutted by the defense on production of appropriate evidence. On rescue and rehabilitation, the Act also provides for rescue on the directions of a Magistrate. In order to ensure that the women rescued are not harassed it requires that two women police officers be present during the search procedures and also that the interrogation be done by a woman police officer. There is a provision for placing the woman or child in intermediate custody in a safe place and to refrain from placing her with those who might have a harmful influence on her. If trafficking has been by the members of the family, or there is suspicion that they may be involved, the trafficked persons may not be released to their families.

The Indian Criminal Code, i.e., Indian Penal Code, 1860 also covers offence of trafficking and other offences which happen as a result of human trafficking. S. 370 of the IPC, as amended by Criminal Law Amendment Act, 2013, specifically deals with Trafficking of Person. It provides that, “whoever, for the purpose of exploitation, recruits, transports, harbours, transfers, or receives, a person or persons, by using threats, force, coercion, abduction, fraud, deception, abuse of power, inducement, including giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred, received, commits the offence of trafficking.” The definition provided in IPC is very wide, gender neutral (both victim and offender) and covers each and every participant of the crime, while covering different type of actus reus too. It also defines word “exploitation” as any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. The consent of the victim is also immaterial in determination of the offence. The punishment provided under the act can not be less than 7 years imprisonment, and can extend to ten years imprisonment, with fine too. The punishment increases to life imprisonment for the habitual offenders (convicted for same crime more than once), and if done by public servant or police officer. Section 370, amended one, is inspired from Goa Children’s Act, 2003, which provided definition of ‘child trafficking’, though restricted to children and operated within the state, the provision was very broad in nature, and thus got place in central law too with some modifications.

The IPC under s. 370A punishes the person who knowingly or having reason to believe that a person or a minor has been trafficked, sexually exploits him. This covers clients in the trafficking offence, who normally exploit the women like slaves. The punishment provided therein is not less than 3 years, but which may extend to 5 years.

Other sections which can be invoked while invoking provisions of trafficking, are sections relating to abduction, kidnapping, rape, buying and selling minor for prostitution, compelling a person to labour, causing grievous hurt to any person etc. (like sections 366,366A, 366B, 367, 371, 372, 373, 374).

Other legislations which covers trafficking are Prohibition of Child Marriage Act, 2006 (s. 12, if after the child marriage, minor is sold or trafficked or used for immoral purposes), Children (Pledging of Labour) Act, 1933 (s.4-6, Penalties for pledging labour of children, under 15 years), Bonded Labour System (Abolition) Act, 1976 (s. 16, Compelling a person to render bonded labour or forced labour, Juvenile Justice Act, 2014, etc.

Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 envisages creating district and state-level anti-trafficking committees with government officers and NGO representatives to mobilise efforts to prevent, rescue, protect and rehabilitate victims of trafficking, in addition to providing medical care, psychological assistance and skills development. The government is to formulate programmes for rehabilitation, support, after-care and reintegration services. The state governments are to form specialised schemes for women in prostitution or who have been the victims of other forms of commercial sexual exploitation. It makes some new offences too, provisions regarding confiscation, forfeiture and attachment of property are also provided, burden of proof is also presumed to be now against the offender, unless otherwise proven.

There are some supreme court judgements which do emphasise on victims rights and state duty to do some positive work to curb trafficking.

In PUCL v. Union of India (1998 (8) SCC 485), compensation was ordered to be paid where children were trafficked/bonded for labour.

In Vishal Jeet v. Union of India (1990 3 SCC 318), the Supreme Court give directions for the protection and rehabilitation of those who had been dedicated as Devdasis by their families or communities for cultural reasons and were currently in prostitution. This was also applied to Nepali women who are also dedicated, albeit in Nepal, and find themselves in brothels in India.

In Gaurav Jain v. Union (AIR 1997 SC 3021), the court affirmed that the state had a duty to rescue, rehabilitate and enable women to lead a life of dignity.

In Prerna v. State of Maharashtra, Supreme court specifically declared that children who have been trafficked themselves should also be considered as children ‘in need of care and protection’, as according to Juvenile Justice Act, and not as a children in conflict with the law.

In Lakshmikant Pandey v. Union of India, the court examined the vulnerability of children being trafficked in adoption rackets due to the lack of an effective protection mechanism. The court went on to create an appropriate mechanism to fill the gap, especially in the context of inter country adoptions.

Suggestions :-  

Though preventive and deterrent measures are needed to curb the crime of women trafficking, but what is more vital is to reduce the vulnerability of the women for being the target the crime. This can only be done, when women is provided literacy, social awareness (with legal awareness) too, and awareness about crimes like these. Because, women can be easily lured into the crime when they are uninformed of the crime. Dedicated centres must be opened by the governments to deal with this crime, and it must be accessible easily so that the victim can complaint easily. The trial and other legal procedures must also be made speedy and efficient so that the victims get speedy justice.

CONCLUSION:-

The organised crimes like women trafficking cannot be easily handled by only amending domestic legal provisions, or international legal provisions. They occur in wider social, economic and psychological framework. Unless changes are made into them, these organised crimes cannot be reduced. It becomes more difficult to deal with them because clients, whom this crime serves, include many strong political and affluential persons, and even they do not hesitate in breaking the law since they know that they cannot be caught. Hence, it is impossible without a stronger political and social will, to curb this crime. Catching the king will help, not the pawn.

 

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