law mantra think beyond others

Transcription

Volume 2
JUNE 2015
Law Mantra, THINK BEYOND OTHERS (New Delhi)
Website: lawmantra.co.in
Mob: +91-82550907
Email: [email protected] [email protected]
Issue: Special
LAW MANTRA
THINK BEYOND OTHERS
(International Monthly Journal, I.S.S.N 2321 6417)
www.lawmantra.co.in / www.journal.lawmantra.co.in
Editorial Board
Senior Editor




Prof. Aman Mishra (Chief Editor).
Dr.Sanjeev Tiwari, Associate Professor of Law, Associate Professor & Former Head (Law Dept,
The University of Burdwan).
Mr. Shailendra Kumar, PhD Scholar and Teaching Assistant, West Bengal National University of
Juridical Sciences, Kolkata (Managing Editor).
Ms. Akansha Dubey, LL.M Cambridge University.
Editorial/ Review Board














Ms. Anita Yadav, Research Associate, Distance Education Department National Law School of India
University (NLSIU), Bangalore.
Ms. Garima Sharma, Research Scholar, Centre for the Study of Law & Governance, Jawaharlal Nehru
University, New Delhi.
Ms. Jyotika, Asst.Professor, University of Delhi, NewDelhi.
Ms. Maryam Kalhor, (LL.M Andhra University) and Consultant and Legal Practitioner, Republic of
Iran.
Ms. Minali Deswal, Associates, NSM Law Offices, New Delhi.
Adv.Mukul Sharma.
Ms. Navtika, Assistant Professor, School of Law, Galgotias University, Greater
Noida.
Ms. Priyanshu Saxena, Advocate, Lucknow Bench of Allahabad High Court.
Mr.Ratul
Ms. Shalini Shuklaa , LL.M and LL.B (Hons.), Faculty of Law, University of Lucknow, Lucknow.
Ms. Shuchita Agarwal, Assistant Professor, School of Law, Galgotias University, Greater
Noida.
Ms. Srishty Banerjee, Assistant Professor, I.T.M University, Gurgaon.
Ms. Stuti Saxena, Academic Associate, I.I.M Bangalore, Indore & Ahmedabad.
Mr. Sukdeo Ingale, Asst. Professor, DES’s Navalmal Firodia Law College, Pune.
LAW MANTRA
THINK BEYOND OTHERS
Law Mantra is India’s
most popular and trusted website in the field of Law. It is formed as a Society for dissemination and
promotion of legal education in India through online web portal i.e. LAW MANTRA
(http://lawmantra.co.in/) under the guidance and supervision legal scholars, judges and academician
in India. Law Mantra’s mission is to provide comprehensive and easy-to-understand legal information
to users and make such information easy to find on the Internet. Law Mantra is having an Online
Journal and Web Portal, under the Chief patron of Justice K.N Saikia, former Judge, supeme Court of
India, Dr. Hon. Justice Malimath, former Chief Justice Karnataka and Kerala High Court, Dr. Prof.
Gurjeet Singh, Founder Vice-Chancellor National Law University and Judicial Academy, Assam, and
other luminaries from the legal fraternity. Law Mantra is running for the purpose of enhancing legal
academics and legal awareness in the society and in the practice of the same. Law mantra also has an
ISSN (2321-6417) online monthly journal and ISSN (2394-7829) for quarterly pint journal in the name
of International Journal of Legal Research and Governance which tries to disseminate knowledge and
research in various aspects of law.
This website offers legal professional and legal aspirants to bring forward their views and ideas
through high level of research and get acknowledged in front of masses. This also includes blog
writing, Articles, essay, case notes and others literary works.
Law Mantra was the online media partner of 4th International P.N Bhagwati moot court which is
organised by New Law College, Pune. Law Mantra was also media partner of Vibes 2014: 1st ILNU
Annual Cultural and VIPS International Moot Court Competition and presently we were also media
partner of World IP Forum-2015 and GOAL's Global Legal Conferences 2015.
It has been started in March 2013. Law Mantra believes “Think Beyond”. We believe that everyone
has tendency to do something new and creative but everyone does not get opportunity. We provide you
with this opportunity. Come join us and speak up your heart.
“All ambitions are lawful except those which climb upward on the miseries or credulities of the
mankind”. ~Joseph Conrad
LAW MANTRA
THINK BEYOND OTHERS
THE CRITICAL ROLE OF CIVIL SOCIETY
ORGANIZATIONS
IN
COMBATING
TRAFFICKING IN PROSTITUTION BY
DIVYA AGARWAL & SHRISTI BANERJEE
INTRODUCTION
With modernity touching the skies, slavery has also risen at an alarming rate. Human trafficking
constitutes a form of slavery which thrives to serve prostitution and blatantly violates human
rights. In the wake of signing the joint declaration against modern slavery by the world leaders
recently, it becomes imperative to examine the methods of implementation of the laws against
trafficking. Civil Society Organizations, functioning at the ground level, can be the finest at
implementation of the laws. This paper sheds light on the various ways adopted by the Civil
Society Organizations to implement the gargantuan resolutions adopted by different countries
since the rise of the United Nations. The central focus of this paper is on the implementation
tools adopted by these organizations to resist trafficking in India, with a special emphasis on
Kolkata, West Bengal. Accordingly, Section I of this paper provides a brief introduction to the
Civil Society Organization which is followed by an introduction to prostitution in section II.
Subsequently section III discusses the nexus between prostitution and human trafficking while
Section IV familiarizes the reader with the existing law regarding human trafficking and
prostitution. To combat trafficking, the role of the Civil Society Organizations has been
discussed in section V. To expand their role and to make their involvement intensive, section VI
puts forward some proposals by comparative analysis of the working of Civil Society
Organizations in different countries. Section VII concludes the paper with on an inclusive note.
INTRODUCTION TO CIVIL SOCIETY ORGANIZATIONS
Civil Society Organizations, (hereinafter ‘CSOs’) originated from the term ‘civil society’ that
came into existence after democracy as an institution was established. A civil society is
characterized by liberal and democratic norms that establish an egalitarian society. The essence
of a civil society is collective action, negotiation and struggle.1 CSOs are association of people
that help in resolving social issues by collective action to advance democratic causes.2 It
incorporates Non-Governmental Organizations (hereinafter ‘NGOs’), Trade Unions, Faith Based
Organizations et cetera. The main feature that distinguishes them from other organizations is that
they are not profit oriented and are autonomous from the state. Although areas of work within
CSOs may vary, the common thread of welfare as a driving force runs through them. They

Both the authors are 2nd year students of B.A. LL.B. at the West Bengal National University of Juridical Sciences,
Kolkata.
1
Michael Edwards, Civil Society (1st edn, Polity Press 2009)
2
Ibid
LAW MANTRA
THINK BEYOND OTHERS
supplement the work of the government and also protect the victims of trafficking from the
traditionalist policies of government like detention, prosecution and expulsion from the country. 3
In most CSOs, membership is voluntary which makes decision-making more democratic and
hassle free. This ensures protection of human rights and expeditious justice to the victims. The
CSOs are also capable of effective redressal as they can formulate their action on inputs taken
from a diverse group of people including the victims, which the government might be incapable
of. All these reasons together make the role of CSOs more important to address the issue of
trafficking.
PROSTITUTION
Prostitution has been derived from the Latin word “prostitutes” which means “to offer
indiscriminate sexual intercourse.”4 It has been prevalent in our society since the rise of the
Mesopotamian civilizations.5 Since, the sexual desire of a modern man has increased manifold,
trafficking has also escalated to balance the demand of sex with its supply. 6 “Sex trafficking” is a
modern word that finds its root in the women’s movement during the 1980s. 7 The trend of
trafficking has been consistently rising and women and children, being the more vulnerable
sections of society, constitute the major segment of the trafficked population. 8 The international
community has been late in taking cognizance of the matter; in fact, the United Nations adopted
the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children only in the year 2000.9
With some of the largest and the most notorious red-light areas globally, India has also been
affected by the problem. Regional statistics of trafficking vary, but women constitute 70% of the
trafficked population, and most are sold into the commercial sex trade.10 While the Immoral
Traffic (Prevention) Act, 1956 (hereinafter ‘ITPA’) is solely dedicated to wiping out trafficking
3
Trafficking in Persons <http://www.oecd.org/dac/gender-development/44896390.pdf>
4
Oxford Dictionary <http://www.oxforddictionaries.com/definition/english/prostitution?searchDictCode=all>
5
George Ryley Scott, A History of Prostitution from Antiquity to the Present Day (2nd edn, 1996)
6
Vidyamali Samarasinghe, Female Sex Trafficking in Asia. The Resilience of Patriarchy in a Changing World (1st
edn, Routledge Publications 2007)
7
Teela Sanders, Maggie O’Neill and Jane Pitcher, Prostitution: Sex Work, Policy and Politics (Sage Publications
2009) 13
8
Sunanda Goenka, Immoral Trafficking of Women and Children (Deep Publications 2011) 13
9
http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf
10
Vidyamali Samarasinghe and Barbara Burton, ‘Strategizing Prevention: A critical review of local initiatives to
prevent Female Sex Trafficking’ (2007) Development in Practise <http://www.jstor.org/stable/25548176> accessed
12 December 2014
LAW MANTRA
THINK BEYOND OTHERS
from India, we also have other legislations to fight this evil. 11 But the increase in the rate of
trafficking points to poor implementation of the laws.
The failure of proper implementation of laws leads to gross violation of human rights which can
be dealt by the CSOs. Being composed of the common populace and functioning at the grassroot level, CSOs can successfully interact with the victim’s environment. Their approachable
nature makes them an appropriate mode to implement the laws related to human trafficking to
serve the prostitution industry.
The increase in rate of trafficking makes it important to understand the working of the CSOs. A
field survey was conducted in a red-light district of Kolkata which forms the concrete basis of
examining their working pattern in this paper.12 A comparative analysis between the role of
CSOs in India and abroad presents the innovative methods observed while doing the research
which can be incorporated to successfully combat trafficking.
HUMAN TRAFFICKING: NEXUS WITH PROSTITUTION
Human trafficking, as defined by the United Nations, is the recruitment, transfer or acquisition of
people, by use of improper means, for the purpose of exploitation. 13 The illicit trade in human
beings not only violates their basic human rights but also undermines the dignity of the person. 14
The most common of the rights violated include right to personal autonomy, 15 right not be held
in servitude, 16 right to liberty and security of person,17 right to be free from cruel or inhumane
treatment, right to safe and healthy working conditions, 18 and freedom of movement.19 Despite
being such a grave offence, the rate of prosecution is extremely low because of lack of reliable
11
The Criminal law amendment act, 2013, Indian Penal Code, 1860, Prohibition of Child Marriage Act, 2006,
Children (Pledging of Labour) Act, 1933, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition
and Regulation) Act, 1986, Juvenile Justice Act, 2000 and Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989
12
According to a survey that was carried out by the authors in the child shelter home of Sanlaap in Bow Bazaar, a
red-light district of Kolkata. The working of the shelter home was analyzed to understand the working of NGOs.
13
United Nations Office on Drugs and Crime, Human Trafficking and Migrant Smuggling (2011)
<https://www.unodc.org/unodc/human-trafficking/>
14
Síle Nic Gabhan, ‘Human Trafficking: A Twenty-First Century Slavery’ (2006) The Furrow
<http://www.jstor.org/stable/10.2307/27665417?> accessed 12 December 2014
15
Universal Declaration of Human Rights (UDHR), Article 12
16
UDHR, Article 4
17
UDHR, Article 3
18
UDHR, Article 25 (1)
19
UDHR, Article 13
LAW MANTRA
THINK BEYOND OTHERS
data with respect to the amount of people trafficked which can be attributed to the clandestine
nature of the activity. 20
More than fifty percent of contemporary trafficking of women and children in India is done for
prostitution.21 It is estimated that more than half of the prostitutes in brothels of Bombay were
trafficked from Nepal. 22 The trafficking of girls into prostitution is a huge, incredibly lucrative,
and expanding global enterprise. 23 It flourishes due to the interminable demand for sex. 24 It is a
myth that prostitution is two people exchanging sexual favours for remuneration, each party
acting in the same level in complimentary ways. 25 According to a French Catholic group, “The
reality is that prostitutes in the clutches of this world unsuspected by many… find themselves
prisoners of a prostitutional system.”26 Prostitutes are often victims of the socioeconomic system
which forces them into prostitution as their only means of livelihood. These factors are complex,
and include poverty, the gendered division of labour, exploitation, and a history of abuse and
sexual control. 27 These factors, along with a well-developed market for sex workers, coalesce to
force women into sex work, while also escalating the level of exploitation and violence in the
profession.
However, trafficking and prostitution are not synonymous as commonly perceived. The two
phenomena are linked so closely that it is difficult to study them separately. The difference is
that human trafficking may be for exploitative labour, where sexual abuse may or may not
coexist whereas sexual exploitation is intrinsic and ubiquitous in the sex trade.28 Anti-trafficking
20
Moni Nag, ‘Anthropological Perspectives on Prostitution and AIDS in India’ (2001) Economic and Political
Weekly < http://www.jstor.org/stable/10.2307/4411265?> accessed on 8 December 2014
21
Martti Lehti and Kauko Aromaa, ‘Trafficking for Sexual Exploitation’ (2006) 34 Crime and Justice
22
Rape for Profit (1997) http://www.hrw.org/reports/1997/06/01/rape-profit
23
Divya Singh, ‘Piercing the veil on trafficking in women’ (2004) The Comparative and International Law Journal
of Southern Africa < http://www.jstor.org/stable/10.2307/23252164?> accessed 14 December 2014
24
Supra 7
25
Leidholdt & Dorchen, ‘Prostitution: A Violation of Women's Human Rights’ (1993) Cardozo Women's Law
Journal
<http://heinonline.org/HOL/Page?handle=hein.journals/cardw1&div=10&g_sent=1&collection=journals#146>
accessed 12 December 2014
26
Laura Reanda, ‘Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action’
(1991) Human Rights Quarterly <http://www.jstor.org/stable/762660?seq=3> accessed 13 December 2014
27
Paul
Synder,
‘Prostitution
in
Asia’
(1974)
The
Journal
28
Dr. P. M. Nair, Trafficking Women and Children for Sexual Exploitation (2nd edn, 2007)
of
Sex
Research
LAW MANTRA
THINK BEYOND OTHERS
policies and laws in India are mostly focused on reducing trafficking to serve prostitution. This
focus reflects on how magnanimous the issue of prostitution is in relation to human trafficking.29
ANALYSIS OF THE LAW
Trafficking in India is governed by ITPA which is a revision of the Suppression of Immoral
Traffic in Women and Girls Act, 1956.30 It envisages only trafficking for prostitution and fails to
clarify whether practising prostitution by choice is a legal act. So, even though sex work is not,
per se, defined as a crime; various outward manifestations of sex work, such as brothel operation,
pimping, public solicitation et cetera are defined as offences. 31 The act mentions “authorities at
the centre and the state level” responsible for combating trafficking but does not mention the
constitution of such authorities.32 A welcome measure is that ITPA is one of those rare statutes
which penalizes even an attempt to traffic a person. Thus, the legislation comes into operation
even before a person is physically trafficked.
ITPA is used to terrorize and harass sex workers as commercial sex is not socially sanctioned
and is viewed as a sin by the society. Thus, a law with the objective of protecting women is, in
fact, being used to penalize them. The CSOs can function as a pressure group to bring in
desirable changes in the law. But, they have failed to make their presence felt in initiating this
change.33
COMBATING TRAFFICKING
Role of NGOs
India is the source, destination and a transit country for trafficking for commercial sexual
exploitation.34 The government has formulated many policies to combat trafficking. These
include, introducing and implementing legislations, developing cooperation between law
enforcement agencies and NGOs and raising awareness on the issue. But, lack of infrastructure
29
A. K. Jayasree, ‘Searching for Justice for Body and Self in a Coercive Environment: Sex Work in Kerala, India’
(2004) Reproductive Health Matters < http://www.jstor.org/stable/10.2307/3775972?> accessed 10 December 2014
30
SITA was modeled along the lines of the United Nations International Convention for the Suppression of Traffic
in Persons and of the Exploitation of the Prostitution of Others, 1949.
31
Supra 29
32
Immoral Traffic (Prevention) Act, 1956, Section 10
33
Rochelle L. Dalla, Global Perspectives on Prostitution and Sex Trafficking (Lexington Books 2011)
34
Moni Nag, ‘Sexual behaviour in India with risk of HIV/AIDS transmission’ (1995) 5 Health Transition Review
LAW MANTRA
THINK BEYOND OTHERS
has always prevented their implementation.35 This calls for the NGOs to participate effectively in
combating trafficking. Thus, NGOs are more active and prominent among all CSOs in India and
work with the government to eradicate the evil. 36
In order to gauge the addressal methods adopted by the Indian NGOs, field survey was carried
out where Sanlaap, a recognized NGO in this field, was interviewed regarding their working
pattern. It was found that the activities undertaken by Sanlaap are mostly preventive measures
against human trafficking. 37 Though the NGO does take up protective measures, their ideology
largely revolves around the fact that trafficking can be eradicated in a short period of time if
women are prevented from entering the profession. It innovatively uses youth power to carry out
raids for rescuing girls from the commercial sex houses. The rescued girls are taught skills and
are sometimes sent back to their families considering the acceptability factor in their community.
According to the coordinator, Sanlaap has been successful in spreading awareness not only
among the police officials but also among common masses. They also provide counselling
sessions to the victims.
Sanlaap has expanded its area of work to rehabilitate the children of prostitutes in consonance
with the Supreme Court judgment in Gaurav Jain v. Union of India. 38 The judgment emphasized
on the importance of the positive steps taken by the NGOs to accommodate the children of
prostitutes in reformatory homes as soon as they are identified. Sanlaap now runs a shelter home
in Bow Bazaar, a red-light district in Kolkata, where the children learn various life skills. Along
with helping them in procuring admission in schools, Sanlaap also helps in providing them with
technical skills to increase their chances of employment. The children of the shelter home act as
a peer group to prevent any child from joining the profession. They also contribute by becoming
witnesses while brothel raids are undertaken. 39
The Durbar Mahila Samanwaya Committee (DMSC) is another organization based in Kolkata,
formed in 1995, out of an STD/HIV intervention program undertaken in 1992 in Sonagachi. It
focuses on the health problems of the prostitutes.40 Additionally an NGO Sangram has embarked
35
Seo-Young Choa, Axel Dreherb and Eric Neumayerc, ‘The Spread of Anti-trafficking Policies – Evidence from a
New Index’ (2011) Centre for European Governance and Economic Development Research <http://www.cesifogroup.de/portal/page/portal/DocBase_Content/WP/WP-CESifo_Working_Papers/wp-cesifo-2011/wp-cesifo-201103/cesifo1_wp3376.pdf>
36
United Nations Office on Drugs and Crime, Trafficking in persons report (2010)
37
Supra 13
38
AIR 1997 SC 3021
39
Joseph Gathia, Child Prostitution in India (Concept publications 1999) 44
40
Geetanjali Misra, Ajay Mahal and Rima Shah, ‘Protecting the Rights of Sex Workers: The Indian Experience’
(2000) Health and Human Rights < http://www.jstor.org/stable/10.2307/4065224?> accessed on 10 December 2014
LAW MANTRA
THINK BEYOND OTHERS
on a peer education program in which sex workers act as peer educators, disseminating
information to others about HIV/AIDS, distributing condoms, training and counselling women. 41
In the red-light districts of Kolkata, more than half of the prostitutes are victims of trafficking. 42
Inspite of the efforts of NGOs working in those areas, the influx of adolescent girls is witnessed
every year. Reducing trafficking for prostitution is a challenging work for the NGOs. The corrupt
state machinery and inflexible government rules affect their efficiency. 43 There are instances of
police being bribed by the brothel owners. There is little hope for relief from the courts, as some
members of the judiciary have been found to be prejudiced against sex workers and their legal
defenders. 44 With growth in private sex homes instead of brothels, it becomes difficult to identify
the location and further rescue the victims.45 Often there is competition amongst NGOs to
accumulate funding which makes them subject to dictation by their donors and the government.46
The government has primarily focused on rescue and rehabilitation programmes to combat
trafficking. But, the greatest challenge to rescue and rehabilitation programmes, is that those
rescued often escape from the shelter homes and return to the brothels. They perceive ‘rescue’ as
substituting one system of control for another, as these rescues often result in either involuntary
repatriation to their home countries or prolonged, involuntary detention in closed shelters. They
are accustomed to their oppression and prefer to remain in the brothel rather than returning back
to their families with the repressive conditions, which caused them to migrate in the first
instance. Hence, most rescue and rehabilitation operations lead to further victimization of the
victim, while having a minimal impact on traffickers who circumvent the law.47 Yet ineffective
policies of long standing, such as rehabilitation, and a legal framework that is ambiguous in its
approach towards sex work, but seeks to restrict entry into it, continue to remain popular.
The role of other Civil Society Organizations
The other CSOs that operate in this field include unions, corporations and employment
agencies. 48 Activists, students and the victims can themselves form unions to implement the
41
Ibid
42
Supra 13
43
Michelle Kuo, ‘Asia's Dirty Secret: Prostitution and Sex Trafficking in Southeast Asia’ (2000) Harvard
International Review < http://www.jstor.org/stable/10.2307/42762608?> accessed 12 December 2014
44
M. Dhaliwal, ‘Rescued Sex Workers: From Here to Nowhere’ (1997) 12(3) Mumbai: Lawyer's Collective
45
Supra 13
46
http://www.coe.int/t/dghl/cooperation/economiccrime/trafficking/Projects/THB%20Azerbaijan/REPORT_H
OOFF.pdf
47
Janie A. Chuang, ‘Rescuing Trafficking from ideological capture: Prostitution reform and anti-trafficking law and
policy’ (2010) University of Pennsylvania Law Review, <http://www.jstor.org/stable/10.2307/25682362?> accessed
11 December 2014
48
Supra 2
LAW MANTRA
THINK BEYOND OTHERS
methodologies of combating trafficking. Some private companies and corporations have their
own philanthropic wing that marks their presence in making the society civil, by combating
trafficking. Employment agencies help in matching employers to suitable employees. The
authenticity of the employers should be checked and their details should be kept to protect the
employees from trafficking. They can spread awareness among their employees and customers to
equip them with preventive knowledge and protect them from trafficking. The Carlson hotel, for
instance, trains its’ staff members on preventive measures that can be taken. 49 They can also
raise funds to help the NGOs working to address the issue.
Unions of activists and students adopt different measures like organizing plays’; seminars et
cetera to spread awareness. There are various online platforms that deliberate on the issues of
trafficking.50 Awareness can be spread by including the common populace, who form the basic
unit of a civil society. The National Crime Records Bureau has indeed noticed a decrease in the
crime of trafficking, which may be attributed to these initiatives. 51 CSOs can be more successful
in combating trafficking if the centre of their efforts is to improve the conditions of work, to
provide legal protection and to eradicate forced labour or services. 52
PROPOSALS
The role of CSOs becomes important because of limited state participation in the implementation
of policies. Hence, CSOs have taken the centre stage in addressing the problems of trafficking in
India. Despite the existence of plethora of laws that seek to prevent human rights violation, the
poor implementation of these laws results in discrimination and gross violation of rights in the
areas of health, education, and work. It obviates the shortcomings in the methods adopted by the
CSOs. The lacunae can be filled by practising the methods adopted by the CSOs in other
countries.
Some asian NGOs, while espousing preventive measures, provide loans to those women who
want to start their own business. Maiti Nepal is an NGO which has made provisions of transit
homes for short stays in border areas.53 The Latin American NGOs view trafficking as a
subsidiary offence and include measures of combating trafficking while fighting the crimes
49
http://www.carlson.com/responsible-business/our-responsible-business-program.do
50
People have come forward to discuss and spread awareness on the subject of trafficking by adopting various
means of communication and even on the social media platform.
51
National Crime Records Bureau <http://ncrb.gov.in/CD-CII2012/cii-2012/Chapter%206star.pdf>
52
Annette Lansink, ‘Human Rights Focus on Trafficked Women: An International Law and Feminist Perspective’
(2006) Agenda: Empowering Women for Gender Equity <http://www.jstor.org/stable/4066725?s eq=9> accessed 12
December 2014
53
Marina Tzvetkova, ‘NGO Responses to Trafficking in Women’ (2002) Gender and Development
<http://www.jstor.org/stable/4030684> accessed 13 December 2014
LAW MANTRA
THINK BEYOND OTHERS
related to it, like prostitution.54 The NGOs in North America focus more on the development of
academic research to combat trafficking. The Purple Rose Campaign by Gabriela, a Pacific
NGO, earned fame as a massive awareness program regarding human trafficking. 55 La Strada
network has been famous for similar activities taken to increase awareness and educate local
communities on the matter.56 In Cambodia, auto-rickshaw drivers are trained to identify the
victims of trafficking. 57 The programme should also be implemented in India where it may be
extended not only to auto-rickshaw drivers but also to bus conductors and other staff members.
Indian NGOs can move a step closer to eradicating trafficking by being flexible and inclusive,
while incorporating these initiatives.
In order to combat trafficking, policies of protection, prevention and prosecution should be
adopted by the NGOs.58 Protection to the victims can be provided by adopting rehabilitative
measures. Such measures would include shifting the victims to a proper place of residence,
providing them with basic necessities and ensuring them some means of livelihood for future. It
can be done by the coordination of the state and the NGOs. The state, having the power of
legislation, can provide its sanction and the NGOs can provide their human and infrastructural
resources. The next step, prevention, can only be successful after identifying the root cause of
trafficking. According to Sanlaap, poverty, child marriage, dowry, man-made and natural
disasters, social stigma, increasing rate of female feticide, unemployment, domestic violence,
lure of marriage/job/love and traditional prostitution are some of the major push factors for
women to be trafficked for prostitution.59 Addressal of these issues, complimented by
infrastructural development can help in prevention.60 It can be more effective if the perpetrators
are identified. Identifying the attributes that are typical to the traffickers can help in their
prosecution and also in making the vulnerable aware. Further, on identification, the traffickers
can be counselled and encouraged to give up trafficking. Spreading awareness, both among the
victims and the populace, as to the punishment dictated by ITPA, that is, three to seven years
imprisonment, is the best method to prevent trafficking.61 Prosecution is the next stage in the
attempt to eradicate trafficking. The major hurdle faced in prosecuting traffickers is gathering
witnesses. The stigma attached to the profession prevents people from testifying against the
54
Ibid
55
Ibid
56
Ibid
57
ChildSafe International <http://www.childsafe-international.org/CountryInfo.asp>
58
J. Chuang, ‘Beyond a Snapshot: Preventing Human Trafficking in the Global Economy’ (2006) Indiana Journal of
Global Legal Studies <http://www.jstor.org/stable/10.2979/gls.2006.13.1.137?> accessed 11 December 2014
59
Indrani Sinha, ‘Trafficking and children at risk’ Sanlaap (2006)
60
Ibid
61
Immoral Traffic (Prevention) Act, 1956, Section 5
LAW MANTRA
THINK BEYOND OTHERS
traffickers. The college students and peer groups of the shelter homes should assist the NGOS by
becoming witnesses during prosecution. 62
As Vishal Jeet v. Union of India, 63 lays down the importance of preventive measures, they can
most effectively be exercised, if all the NGOs coordinate with their research and measures. The
NGOs that work in the red-light areas should thus coordinate with each other to form a larger
group which will ensure that all the issues related to trafficking are addressed.
Any effort of the NGOs cannot be effective without the participation of the civilians, who ought
to be called upon to denounce the social injustice and the violence to which the victims of
trafficking are subjected. It is almost impossible to obliterate trafficking unless the society takes
cognizance of the plight of the trafficked and embraces them. 64
CONCLUSION
The presence of CSOs is imperative to combat the social evil of human trafficking which is
intricately linked with prostitution. As traced above, the working pattern of CSOs involves
numerous methodologies which make them active in the process of combating trafficking. The
CSOs ensure implementation of the legislations meant to combat human trafficking. This has
been exemplified by the initiatives taken by the regional NGOs.
The need to improvise on their strategies has been discussed in the paper as their diligent efforts
have not been successful in recognizing substantial reduction in human trafficking. Sufficient
recognition has been given to the problems faced by CSOs to witness a change in reducing
trafficking. But, the plight of the victims can be reduced only if the CSOs adopt efficient
methods and strategies. Some proposals have been laid down by comparatively analyzing the
work of CSOs in India and other countries. The paper encourages the CSOs to adopt innovative
ideas that have been successful in combating trafficking.
62
N. Islam and N. Sultana, ‘Role of NGOs in Empowering the Vulnerable Women: A Study on ACD’ (2005) Asian
Affairs < http://ssmemorialschool.com/img/8582.pdf> accessed on 12 December 2014
63
AIR 1990 SC 1412
64
Ronald Weitzer, ‘Prostitution: Facts and Fictions’ (2007) Contexts
<http://www.jstor.org/stable/10.2307/41801078?> accessed 09 December 2014>
LAW MANTRA
THINK BEYOND OTHERS
PROSTITUTION: A REASON FOR HUMAN
TRAFFICKING BY SNEHAL GUPTA &
BINITA SHANKAR
INTRODUCTION
Atmaja a poor Indian girl was born in broken family. Her father was alcoholic and use to abuse
and beat her mother every day. Her mother instead of consoling her took out all anger and
frustration on her telling her that she was an unwanted child and should have died the day she
was born. Atmaja was married in younger age with a man who used to rape and abuses her every
night and telling her that she deserve this and this was her fortune. Atmaja showed courage and
left her husband and came to live with her mother and started to teach tailoring to a girl who
lived far away. While tailoring she became friend with two auto drivers who latter tricked her to
offer job in Delhi where she could earn 10000 for teaching tailoring. Innocent Atmaja followed
them and came to Delhi where these auto drivers sold her at G.B.Road (the largest brothel of
Delhi). At the brothel She was beaten and kept without food or water. Her first customer was a
huge man who had a cynical smile. She says “how can I ever forget that dreadful night? My
hands were tied to the bed, two people parted my legs and held them and the man raped me. He
tore my body apart.” brothel owner would charge customer Rs 5000 and Atmaja would get just
50.
One day, Aatmaja felt severe stomach pains and was taken to the hospital where she had kidney
stones removed. After taking a blood test she found out that she was HIV+. She says that she
doesn’t know how long she has to live, but is trying to make the best of each day, each moment
that she is alive. Today she doesn’t feel ashamed to reveal that she is HIV+ and has learned to
fight the trauma and disease.
Trafficking is something To be deceived or taken against your will, bought, sold and exploited
just to satisfy someone's greed and power.
In trafficking girls are sold at global market place where they are considered as product and have
price tag and our inhuman society auction them, sell them, rape them, beat them and make them
bleed until they are sexually satisfied.
The easy to make money has made this crime so popular that it stands 3rd position in crime list in
world. According to UN report prostitution generates $32 Billion annually... Shocking but true.
This figure has encouraged criminals to trafficking women and children for prostitution around
the globe to satisfy the customer that are invisible.

Fourth year, Seventh Semester, B. A. LL. B. Hons., C.N.L.U Patna
LAW MANTRA
THINK BEYOND OTHERS
Prostitution is widely socially tolerated, with the buyers socially invisible. Even today, many
mistakenly assume that prostitution is sex, rather than sexual violence, and a vocational choice,
rather than a human rights abuse. It is important to address men’s demand for prostitution.
Acceptance of prostitution is one of a cluster of harmful attitudes that encourage and justify
violence against women. Violent behaviors against women have been associated with attitudes
that promote men’s beliefs that they are entitled to sexual access to women, that they are superior
to women and that they are licensed as sexual aggressors. Those concerned with human rights
must address the social invisibility of prostitution, the massive denial regarding its harms, its
normalization as an inevitable social evil, and the failure to educate students in the mental health
and public health professions. Trafficking and prostitution can only exist in an atmosphere of
public, professional and academic indifference.
Talking about India, India is 4th dangerous country for women. In India, a whole gamut of human
trafficking is run whereby women and girls are trafficked within and into India since they are
most vulnerable into the sex trade. The enormous bulk of trafficked women and girls are poor,
some belong to landless families, and most come from dalit, adivasi or other low caste
communities. In 2009 it was estimated by India's Central Bureau of Investigation that about 90
percent of trafficking took place within the country and that there were some 3 million
prostitutes, of which about 40 percent were children.
Prostitution and Human Trafficking
Human trafficking for sexual purposes i.e. prostitution is one of the thresholds for achieving the
social and gender equality in this modern era where the human dignity and rights are treated as
the paramount consideration. Trafficking profoundly violates human dignity and the right of
individuals to decide over their own lives and their own bodies. The vulnerable group like
women, girls and in some cases boys are exposed in this evil. The human trafficking by way of
prostitution can be said to be the combination of ancient profession with the modern slavery.
Time and again this menace has emerged as a hot topic for debate and went through cycles of
criminalization-tolerance-legalization. Young girls are trafficked to work in the sex industry. For
this purpose several ways like inducing them are kidnapping them or enticing they are followed
by the traffickers. They are forced to have sex with the clients and if they desist to do so, they
are beaten mercilessly or they are drugged of forced to drink alcohol until senseless. Trafficked
girls are threatened to have they leave or escape.
There are various countries where the prostitution has been legalized while in some other it is
still illegal. It has been seen that the countries where prostitution is legalized, there is a greater
demand for human trafficking victims and nearly always an increase in the number of women
and children trafficked into commercial sex slavery. Legalization of the prostitution have
boosted the growth of the sex industry and created a safe heaven for the traffickers to escape the
clutches of the legal action. Legalization simply makes it easier for them to blend in with a
purportedly regulated sex sector and makes it more difficult for prosecutors to identify and
punish those who are trafficking people.
LAW MANTRA
THINK BEYOND OTHERS
One of the report states that around 600,000 to 800,000 people trafficked cross international
borders annually, 80 percent of victims are female, and up to 50 percent are minors. Hundreds of
thousands of these women and children are used in prostitution each year. 65
Causes
Poverty, illiteracy, unawareness of the rights, are some of the factors which are contribution the
menace. The poverty stricken parents often sell their girl child to the person who sold these girls
again and compel them to work in the sex industry. In some cases these traffickers induced the
parents and carry away the girls on the false pretext like better life, marriage etc. but instead of
that they sell them in the sex industry. It has been seen that the some brothels owners and
trafficker breed the girls. Their sons become the bonded laborers and their daughter becomes the
prostitute. Although the purpose of the trafficking is to compel the girls to work in the brothel
but with the growth of the porn industry, the most of the trafficking is taking place to supply the
girls for these industries.
Position in India
India is listed among those countries which have been failed to combat the human trafficking.
India is still the hotspot for the forced labor and sex industry. The way of Nepal is one of the
easy escapes for the traffickers to import and export the girls from India for this very purpose.
Most of the attention o human trafficking on those who are trafficked across national borders
every year, and in many cases, forced to work as prostitute or virtual slaves.
There is fairly wide framework of the laws enacted by the union parliament and state legislatures
of combat this evil, but all these efforts have proved futile. Poor implementation of these
legislations, low conviction rates and serious corruptions are adding problem rather solving it. In
the recent time several efforts which have been done by the social action groups, NGOs and
community welfare groups have proved effective tools to combat the prostitution by human
trafficking. Gender discrimination is prevalent throughout the India and sexual abuse of women
in many parts of the country is widespread. There are several victims of the human trafficking
who are sexually exploited and forced into the darkest phase of prostitution. Due to rampant,
deep rooted stigma and other factors, there are only few institutions which are working for
curbing this menace. 66
Every year between 5000-7000 Nepali girls are being trafficked into the Indian red light cities.
Many of the girls are in between the age group of 9-18. There have been the rampant trafficking
if Nepali girls in India. These girls are cabined for many days, staved, beaten and it has been also
reported that these girls are subjected to mass rape in order to make them learn to have the 20 sex
per day.67
65
Malarek, Victor, The Natasha’s: Inside the New Global Sex Trade. Arcade Publishing, New York, 2004.
www. Rescuefoundation.net
Accessed on 12-12-2014.
67
Ibid.
66
LAW MANTRA
THINK BEYOND OTHERS
The vast majority of the victims come from the vulnerable groups like Dalits or Tribals. Most of
the trafficking is internal or inter-state in India. The areas of West Bengal, Orissa, Bihar,
Jharkhand and North-Eastern states are serving the hotspot for this evil. Large number of girls
are deported to another world through the way of Nepal or on false pretext and are then thrown
in the illicit business of the prostitution.68 The prostitution industry have been proved much
beneficial to the traffickers much of the vast profit generated by the global prostitution industry
goes into the pockets of human traffickers.
Thus the trafficking for prostitution represents the darkest phase of any legal system. It is the
gross violation of the human rights. The thinking of treating women as commodities and
compelling them in the sex industry need to be curbed and the legal wing in association with the
social action groups must come forward to safeguard the integrity and dignity of the women and
curb this menace.
Does legalized prostitution increases human trafficking:
As per the survey the prostitution laws vary from country to country and their local laws and
jurisdictions among them. Sex work is legal in some parts of the world and could be regarded as
a profession, while on the other hand in some other countries it is a crime which is punishable by
death.69 In most of the jurisdictions we can see that the sex worker is the party which is subject to
penalty and on the other hand it is client who is subject to penalty. It seriously had been
condemned as a single form human rights abuse and an attack on the dignity and worth of human
beings and not only women, while we can see that some schools of thought stated that sex work
is a legitimate occupation. In most of the countries sex work is controversial. Some members of
religions oppose prostitution as it is threat to moral codes, while other parties via it as a
necessary evil.
As per the United Convention for the suppression of the traffic in persons and the exploitation of
the prostitution of others70 favored the criminalizing of these activities of those seen as exploiting
or coercing prostitutes, while leaving sex workers free from regulation. It is stated by the
convention that “prostitution and the accompanying evil of the traffic in persons for the purpose
of this were in compatible with the dignity and the worth of human beings. Prostitution mostly
are actually practiced satisfied the element of trafficking. Sex workers activist and organizations
tries to distinguish between the human trafficking and legitimate sex worker, and asserted the
importance of recognizing that trafficking was not synonymous with sex work. But as per
UNAIDS Guidance it was noted that on HIV and Sex Work recognized that sex worker
organizations are the best positioned to refer people who are the victims of trafficking to
appropriate services71.Legalization had been spurred traffickers to recruit children and
marginalized women to meet demand. The presence of an adult sex industry had increased both
the rates of child sexual exploitation and trafficking. It might be true that some women in
commercial sex exercised some level of informed choice, had other options to entering and had
68
www.dfn.org.uk,
Accessed on 12-12-2014.
69
"Burma". State.gov. 25 February 2009. Retrieved 16 January 2012.
70
"China". State.gov. 25 February 2009. Retrieved 16 January 2012.
71
"China". State.gov. 25 February 2009. Retrieved 16 January 2012. "Laos". State.gov. 25 February 2009. Retrieved
16 January 2012
LAW MANTRA
THINK BEYOND OTHERS
no histories of familial trauma, neglect or sexual abuse. But, these women were in the minorities
and unable to represent the overwhelming majority of women, girls, boys and transgender youth,
for whom the sex industry was not about choice but lack of choice. The issue that legalizing
prostitution made it safer for women just had not been borne out in countries which implemented
full legalization. Amsterdam, touted the model and recently started recognized rates of
trafficking into the country had increased and was beginning to address the enormous hub of
trafficking and exploitation had been created. Criminalization of women and girls in commercial
sex was not the solution but neither its legalization. Focus had been given on criminal justice
resources on traffickers and buyers was a promising step, as it was providing services, support
and authentic options to women being bought and ensuring children and youth are treated as
victims, a step taken by New York’s groundbreaking Safe Harbor Act in 2008. While truly
addressing trafficking and commercial sexual exploitation, it’s critical to address the systematic
factors making girls and women so vulnerable – poverty, gender inequity, racism, classism, child
sexual abuse, lack of educational and employment opportunities for women and girls globally.
So, sanctioning an industry that preys upon some of the most marginalized and disenfranchised
individuals in our society is not the answer.72 A study published in 2012 in World Development,
“Does Legalized Prostitution Increases Human Trafficking?” had investigates the effect of
legalized prostitution on human trafficking which inflows into high-income countries. The
researchers had analyzed cross–sectional data of 16 countries to determine the effect of legalized
prostitution on human trafficking inflows. In addition, they also reviewed case study of
Denmark, Germany and Switzerland to examine the longitudinal effects of legalizing or
criminalizing prostitution. The results are as follows:
1) Countries which had legalized prostitution were associated with higher human trafficking
inflows than countries where prostitution is prohibited. The scale effect of legalizing prostitution,
i.e. expansion of the market, outweighs the substitution effect, where legal sex workers are
favored over illegal workers. On average, countries with legalized prostitution reported a greater
incidence of human trafficking inflows.
2) The effect of legal prostitution on human trafficking inflows in stronger in high-income
countries than middle-income countries since trafficking for the purpose of sexual exploitation
required that clients in a potential destination country have sufficient purchasing power,
domestic supply acts as a constraint.
3) Criminalization of prostitution in Sweden had resulted in the shrinking of the prostitution
market and the decline of human trafficking inflows. When Sweden is compared with Denmark
(where prostitution is decriminalized) and Germany (expanded legalization of prostitution) were
consistent with the quantitative analysis, showing that trafficking inflows decreased with
criminalization and increased with legalization.
4) It hardly matters what type of prostitution but it only matters prostitution is legal or not. So
legalization of prostitution itself was more important in explaining human trafficking than the
type of legalization.
72
http://www.nytimes.com
LAW MANTRA
THINK BEYOND OTHERS
Hence, the likely negative consequences of legalized prostitution on a country’s inflow of human
trafficking might be seen to support those who argue in favor of banning prostitution, thereby
argumentation overlooks potential benefits that the legalization of prostitution might have on
those employed in the industry. Working conditions could be substantially improved for
prostitutes at least those legally employed- if prostitution is legalized. Prohibition of prostitution
also raised tricky “freedom of choice” issues concerning both the potential suppliers and clients
of prostitution services.73 Prostitution and related activities always encouraged the growth of
modern day slavery by providing a façade behind which traffickers for sexual exploitation
operate. Where prostitution was tolerated, there was a greater demand for human trafficking
victims and nearly always increases in the number of women and children trafficked into
commercial sex slavery, few women seek out or choose to be in prostitution and most are
desperate to leave it. In the study it was found that 89 percent of women in prostitution want to
escape prostitution but had no other options for survival. Margareta Weinberg former Deputy
Prime Minister of Sweden , as per her We will never succeed in combating trafficking in women
if we do not simultaneously work to abolish prostitution and the sexual exploitation of women
and children.
Role of government:
The effect of prostitution laws on human trafficking and voluntary prostitution is subject to
debate so far we have seen. There are basically four legal approaches to prostitution. It can be
criminalized, legalized, decriminalized or abolished. Where there was criminal prostitution, all
parties to the prostitution transaction were arrested: the woman who is selling sex in prostitution,
the buyer, the pimp and the trafficker. Abolition of prostitution is human rights based legal
approach that aims to stop the buying, selling and trafficking of women in prostitution while at
the same time. As far we have seen that Prostitution and Trafficking for sexual purposes
represents a serious obstacle to social equality, gender equality and the enjoyment of human
rights. Most of the victims are women and children, but men and boys are also exploited. As per
the studies which shows great majority of sexual services are purchased by men. To cope with
such a situation efforts must be proceeding from a judicial, social and gender equality
perspective and be based on the human rights principle. Sweden’s commitments in the EU, the
Council of Europe and the UN serve as a basis for government policy in the sphere.
The action plan which is started by the government aimed to intensify outreach activities and
give priority to sheltered housing, treatment centre and other forms of support and protection to
the victims. Contacts have been established with the children and young people who are exposed
to or being exposed to sexual exploitation is particularly difficult. Professional groups working
with people in prostitution and trafficking victims needed more knowledge and training. It
includes greater protection and support for children and young people at risk, Training for staff
working with health care, the social services, youth clinics and sheltered housing, rehabilitation
for the victims, intensified efforts in the substance abuse and addiction care service, additional
support for the national board of institutional care, all are a safer return for the victims of
trafficking for sexual purposes. An important part of preventive work is to heighten people’s
73
Cho, Seo-Young; Dreher, Axel; Neumayer, Eric; “Does Legalized Prostitution Increase Human Trafficking?”
World Development, 2013.
LAW MANTRA
THINK BEYOND OTHERS
awareness and help them rethink their attitudes to those exposed to prostitution and trafficking.
Here, education and information are the most vital ingredients. Among both official bodies and
voluntary organizations, ethical guidelines and codes of conduct are an important aspect of
preventive work which has been included by the government. Special priority is to be attached to
information targeting children and young people.
The members of the SOUTH ASIAN ASSOCIATION FOR REGIONAL COOPERATION
(SAARC) focused and included the following aspect: Emphasizing that the evil of trafficking in
women and children for the purpose of prostitution is incompatible with the dignity and honor of
human beings and is a violation of basic human rights. The parties of the different nations which
are members would provide sufficient and adequate means, training, research and assistance and
care to their authorities and representatives so that they can work more effectively and purposely
and conduct inquiries, surveys and investigations of offences under this Convention, The Parties
should increasingly makes concern over their law enforcement agencies and the judiciary in
respect of the offences and other related factors.
There has been a long and very important effort and contribution made by many NGOs to
eliminate and exempt prostitution per se from the category of Human Rights violations. This
effort reached the climax especially influencing public at large and the society at large and
eradicating and removing this social evil. Instead of seeing and viewing prostitution itself as
violence and exploitation against women, and thus a human rights violation, had acted on the
presumption that the term prostitution is a human right, a right of woman to do what she wants
with her body. A lot of NGOs have the right words to say against violence against women. For
example- Recently a report of Human Rights Watch Asia is carefully researched and
responsively written report on the trafficking of Nepali Girls and Women into India. Yet after
percept the extreme youth, the poverty, the horrendous abuse, the force and completely
kidnapping of young 10-14 year old girls into prostitution in India. 74
Several Non-Governmental Organizations such as Guria75 whose objective is to built a just and
humane world where all beings co-exist in harmony, fight against human trafficking and forced
prostitution especially among women and children, elimination of second generation prostitution,
prevention of forced labor, other forms and sexual exploitation, awareness among the women,
elimination of negative cultural attitudes and practices against girls, livelihood support in
vulnerable rural areas. It is basically a non-profit organization which works against the sec
trafficking and prostitution which had became severe due to sex tourism and HIV/AIDS. They
strongly believed that it is not charity that is wanting in the world but it is justice to make a
humane world where all beings co-exist in harmony. The Constitution of India, the fundamental
law of the land also disallows trafficking in persons. Article 23 expressly forbids traffic in human
beings and beggar and other similar forms of forced labor. Article 24 explicitly disallow
employment of children below 14 year of age in factories, mines or other hazardous
employment, besides it Article 14, 15, 21 ,22. The Immoral Traffic ( Prevention) Act, 1956
9ITPA) , initially enacted as the ‘Suppression of Immoral Traffic in Women and Girls Act, 1956,
is the main legislative tool for preventing and combating trafficking in human beings in India. 76
74
www.catwinternational.org/
www.guriaindia.org
76
nhrc.nic.in
75
LAW MANTRA
THINK BEYOND OTHERS
Conclusion:
Trafficking in persons” shall 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
receiving of payments or benefits to achieve the consent of a person having control over another
person, 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 labor or services,
slavery or practices similar to slavery, servitude or the removal of organs; Human trafficking for
sexual purposes that is prostitution is one of the threshold for achieving the social and gender
equality where the human dignity and rights are treated as the paramount consideration. The
present scenario is vulnerable, pathetic, defenseless, unguarded women, girls, and in some cases
boys also exposed in the evil. It is basically that is human trafficking by way of prostitution can
be said to be the combination of ancient profession with the modern slavery. For this purpose
several ways including abducting them or inducing them are also included. Legalization of the
prostitution have boosted the growth of the sex industry and created a safe heaven for the
traffickers to escape the clutches of the legal action. Poverty, illiteracy, unawareness of the rights
are some of the factors. India is listed among those countries which has been failed to combat the
human trafficking, hotspot for forced labor and sex industry. The government of India signed the
Trafficking Protocol on 12th December 2002, this is a huge step forward in advancing the human
rights of trafficked people as it not only prevents and protects the victims of trafficking but also
punishes the traffickers.
LAW MANTRA
THINK BEYOND OTHERS
EXPLOITATION OF CHILDREN BY RAZIA
BEEVI P J
INTRODUCTION
Children are considered as the nation’s supremely important national asset 77.The future of
any nation is largely depends on how its children grow and develop. The issues relating to child
trafficking, Child care and welfare have been constantly engaging the attention of the world.
When children has been declared as ‘national assets’ it is legal as well as moral
obligation of every Indian to look after, their interests, take care of their health and welfare and
protect them from ruins78.
In India there are no laws that specifically target child trafficking and exploitation. Such
cases are handled under various sections of the Indian Penal code. Commercial sex-trafficking
offences are handled under the immoral Traffic (Prevention) Act. Labour trafficking offences are
handled under the Child Labour Act for those hazardous industries in which child labour is
considered an offence. There is no law prohibiting employment of children in work outside the
definition of hazardous”. As a result, many cases of trafficking are not booked by the police 79
NATURE AND SCOPE OF TRAFFICKING
Any form of trafficking of children is a betrayal of trust of the child and all use in an exploitation
manner. The constitution of India prohibits and penalizes human trafficking. There is however,
no legal definition of human trafficking per se in any of the substantive, procedural or local laws.
This is one of the biggest challenges before us in working towards stopping of trafficking of
children.
Another definition of trafficking is “the recruitment, transportation, transfer, harbouring
or receipt of persons, by means of threat or use of force or others forms of coercion, of
abduction, of fraud, of deception of the abuse of power or of a position of vulnerability or of
giving or receiving payments or benefits to achieve the consent of a person having control over
another person for the purpose of exploitation”80.

LLM 4TH SEMESTER, GOVT. LAW COLLEGE, THIRUVANANTHAPURAM, UNIVERSITY OF KERALA
Sheela Barse V. Union of India AIR 1986 SC 1873.
78
.Dr Kamala Jam and Dr. K.C. Jam, and Dr. K.C. Jam, Human Right aspects of child health and child labour,
central law quarterly 1998, Vol. XI, P. 226.
79
P.V. Sivakumar, “The Proposed offences Against Children Bill, 2005, Loopholes “, Front Line, Vol. 23, Issue 12.
Jun 2006, P. 26
80
The UN Protocol to prevent, Suppress and punish Trafficking in persons, especially women and children, 2000.
77
LAW MANTRA
THINK BEYOND OTHERS
Exploitation shall include, at a minimum the exploitation of the prostitution of other or
other forms of sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs. Black’s Law Dictionary defines traffic as:
i)
Commerce; trade, the sale or exchange of things as merchandise, bills, and money.
ii)
The passing or exchange of goods or commodities from one person to another for an
equivalent in goods or money.
iii)
People or things being transported along a route.
iv)
The passing to and for people, animals, vehicles, and vessels along a transportation
route. Almost all the constitutions in Democratic nations are sensitive to this issue,
more particularly with regard to right against exploitation.81
REASONS AND PURPOSE OF TRAFFICKING
Main Reasons Which Contributes to Child Trafficking
There are two types of factors which contribute to the child trafficking one is supply
factors and the other is Demand factors.82
a) Supply Factors:
1.
Economic Margi nation’s leading to break down of traditional livelihood options.
Trafficking may be due to large number of developmental problems like population
explosion, increasing unemployment situation and lack of alternative Opportunities for
employment and has led the rural population to ingrate to the towns for livelihoods. So
poverty plus other factors lead to the exploitation of children.83
2.
Low status of women and girls in society.
3.
Inadequate educational and employment opportunities due to gender disparities.
4. Lucrative business with low investments but high monetary returns attracting crime
syndicates84.
5.
81
82
83
84
Internal and international migration of women into labour market giving rise to channels
of trafficking.
Black’s Law Dictionary 6th edition
.Suman Gupta Sharma, Child Trafficking and.legal safeguards”, Dr.Nirmal Kanti Chakrabarthi (2004), Law and
Child (2004), P. 175
Gaurav Jam V. Union of India, AIR 1990 SC 292.
Suman Gupta Sharma, “Child Trafficking and Legal safe guards”,
Nirmal Kanti Chakrabarthi, Law and Child 2004) P. 169.
LAW MANTRA
THINK BEYOND OTHERS
6.
Traditional and religious practices in some communities of dedicating girls to gods and
goodness85.
7.
Social conventions such as child marriage, polygamy, dowry and social stigma against
single.
8.
Erosion of traditional family system and values.
9.
Lack of a strong political will and weak law enforcement mechanisms
b) Demand Factors:
1.
Patterns of development like industrialization rural to urban migration of particularly
males generated demand for commercial sex.
2.
Expanding commercial sex industry in the Asian region employing a large number of
memoirs increasing the demand for services of sex workers86.
3.
Preference for younger women and virgin girls because of fear of HIV infection.
4.
Demand by employers for cheap labour of children and women
5.
Male dominated value system in society purposes of child Trafficking.
Purpose of Child Trafficking
In India a growing number of children are engaged in illegal begging, very often
under the supervision of adults, who may even be the parents or guardians. The adult members in
the gang fix certain target and if it not collected, the child is likely to be subjected to physical
cruelties to ensure his or her sincerity in the profession87.
The criminal gangs kidnap by force or deceitful means very young children for begging
or other illegal purposes. With that object the children are maimed in order to facilitate the
gainful begging. In 1959, IPC was amended and S.363-A was inserted to meet this threat88
Another appalling aspect of the problem of sexual exploitation is the cure of sex tourism.
According to many Child Advocacy Organizations, several countries are identified as
destinations for men who desire sex with children. Sex tourism is increasing in our country.
Child Trafficking is done for illegal Adoption also. A writ was filed complaining of malpractices
indulged in by social organization and voluntary agencies engaged in the work of offering Indian
85
The velvet Blouse—Sexual exploitation of children “, A report on child
Trafficking - A Socio-Legal Study National .Commission for Women, 2001, P. 35.17
Dr. Manik
Chakrabarthy, “International Law on Trafficking in child for prostitution: The Indian experience, Dr. Nirmal Kanti
Chakrabarthi, Law and Child (2004), P. 150
87
Subhash Chandra Singh, “Growing Problem of Child abuse and neglect, “2001 CrLJ. P. 52.
88
Justice Palok Basu, Law relating to protection of Human Rights [2002], P. 155.
86
LAW MANTRA
THINK BEYOND OTHERS
children in adoption to foreign parents89. Supreme Court considered such situations and certain
guidelines were made to follow while adopting a child by foreign parents.
Trafficking children for forced labour is a curse to the children and in India this practice
is very old90. Its existence is widespread in carpet industry, match fireworks industry in
Sivakazshi, Stone quarrying, Brass workers in Moradabad, Glass Bangle industry in Firozabad,
Sari making work in Lecknow etc. Working condition of these children is pitiable. Most of these
children belong to poor illiterate, ignorant weaker and oppressed section of the population91.
Children are also exploited widely as bonded child labourers. The term widely used to
include virtual of children to repay debts incurred by their parents. This practice is widely
followed in the interiors of India where the people are illiterate and to manipulate.
TRAFFICKING TECHNIQUES
Women and children are generally recruited from rural areas or small towns. In the
transhipment process they are handed over and taken over by numerous procures, brokers and
intermediaries, usually not known to authorities as ones with criminal records:
1. Local Contacts:
Traffickers enlist with the help of local persons and Village to identify vulnerable
families. Traffickers operate in an organized network having their agents make contacts with
unsuspecting women and children around bus and train stations.
2. Directs Sales:
Children are sold to traffickers by parents or other family members. Traffickers sell
young girls to brokers across borders in Asian-countries for consideration.
3. Deceit:
Unscrupulous agents deceive parents, lure girls with false promises of well-paid work in
cities or marriages to rich pasture.
4. Debt bondage
Economic incentives to parents and arrangements which bound children and young
women into sex-slavery or other exploitative forms of labour.
5. Kidnap:
Criminal gang or middleman kidnap children, force them to work against their will and
often sell them to brothels.
89
Laxmi K.ant Pandy V. Union of India, AIR 1984 SC 469.
MC Mehta V. State of Tamil Nadu, AIR 1997 SC 699.
91
Pawan Sharma - Child Labour A Socio-Legal Study, JILl - 1994, Vol. 36, P. 213.
90
LAW MANTRA
THINK BEYOND OTHERS
6. Falsification of documents:
False documents and passports make it difficult to identify and trace trafficked persons.
7. Bribes
Commonly paid to various officials or police to procure false documents or at border
crossing.
8. Transportation:Women and children are transported by foot, buses, pick-up vans and boats.
Key Agents in Trafficking:
Many persons and agents are involved in the trafficking business from the initial
recruitment and procurement of women and children, to their widespread movements with
countries and across borders.
Agents in the Trafficking network.
a) Parents, relatives and friends.
b) School teachers.
c) Employment agents.
d) Tourists and Travel agencies.
e) Foreman and Trafficking gangs.
f) Crime syndicates with bases in many countries.
g) Bar Madams, local women recruiters.
h) Brothel owners and agents.
i) Pimps and procuress.
j) Individual paedophiles and their organization.
k) Customers, clients of sex workers.
l) Corrupt officials leg: police, customs, immigration, border patrollers.
TRAFFICKING, A SPECIAL EMPHASIS ON GIRL CHILD
Trafficking is by and large gendered phenomenon evidence from major government and
NGO sources indicates that the incidence of trafficking in women and girls has increased
LAW MANTRA
THINK BEYOND OTHERS
considerably. The majority of trafficking in India, both trans-border and in country, happens for
the purpose of commercial sex work and over 60 percent of those trafficked into sex work are
adolescent girls in the age group of 12-16 years
1. The social evil:
The social evil of sale-of-women and girls has been growing in India during recent
years . Trafficking of girls for flesh trade has emerged as one of the most profitable trades in the
world today. The girl child, already accorded a secondary status in the society, is treated as an
expendable commodity to be used for wealth.
92
Trafficking in girls is a social evil as these trafficked people often suffer from a multitude
of physical and psychological health problems. Girls are specifically vulnerable to reproductive
and other gender specific health problems in trafficking situations as they have little or no access
to reproductive health care. And they suffer the risk of pregnancy, frequent abortions, maternal
mortality, sexuality transmitted diseases, HIV, AIDS, etc.
Truly speaking, no human being can be allowed to be treated as a chattel in this twentieth
century93. Women and girls, however, particularly need the protection of the law, because they
are peculiarly vulnerable to exploitation.
2. The gravity of the offence
Not much argument is needed to support the proposition that the sale of a human being is
an anti-social act of the most heinous character whatever the purpose is.
It tends to destroy all that mankind in its journeys through centuries of progress towards a
civilized society has sought to achieve. It inevitably creates a species of such human beings, thus
violating all norms of civilized society.
3. Fact situation of problem of girl trafficking in India.
 At least 50,000 girl children are trafficked for prostitution every year94.
 At least 25,000 children are engaged in prostitution in major metropolitan cities like
Bangalore, Kolkata, Delhi, Hyderabad, Chennai, Mumbai, and Bhubaneswar95.
 5,00000girl children below 18 years of age are victims of immoral trafficking 96.
 In Mumbai alone 40,000 girls between ages of 10 to 16 years are selling their bodies
from door steps97.
92
Nihal Singh V. Ram bai, AIR 1987 M.P. 126
.“Selling of women and children” 146th Report of National Law Commission
94
The Statesman, 25th November, 2001.
95
lbid.
96
India Today Magazine, March 1990, P. 22
97
A Report of National Commission of women, 1997.
93
LAW MANTRA
THINK BEYOND OTHERS
 There are 18 red light areas, 405 used premises, 10241 fixed prostitute, and 3,585 flying
prostitutes and total 13,826 prostitutes who are mainly girls below 18 years trafficked
for flesh trade from elsewhere98.
4. Girls who are usually trafficked
a)
Poor girls are the key target group.
b)
Girls from impoverished households in rural areas and urban
slums, seeking jobs,
those engaged in marginal economic activities and in other low status work and
services.
c)
Girls who are unmarried, divorced, separated or widowed.
d)
Ethnic minorities, “Scheduled castes or other backward classes”, indigenous people, hill
tribes, refuges and illegal migrants are the easy victims.
e)
Girls with low level of education, some with primary school education, or illiterates are
the usual preys.
LEGAL FRAME WORK ON TRAFFICKING IN NATIONAL LEVEL
1. Constitution of India.
Any form of trafficking of children is a betrayal of trust of the child and abuse in an exploitive
manner. The constitution of India prohibits and penalizes human trafficking. There is however,
no legal definition of human trafficking’ per se in any of the substantive procedural or local laws.
This is one of the biggest problems before us in working towards stopping of trafficking of
children.
The constitution of India specifically declares “rights against exploitation as a part of the
fundamental rights guaranteed by the constitution99.
The right against exploitation has figured before the Supreme Court in several cases 100.
It is rightly pointed that “children as a class constitute the weakest, the most vulnerable
and the defense less section of the human society. They are always at the mercy of their elders.
But unfortunately sufficient attention was not given to the future citizens of India in the
constituent assembly deliberation. Of course there are some bare references. The nation promises
98
A Survey report of all India Institute of Hygiene and public health, 1992.
Article. 23 of the constitution
100
Peoples Union of Democratic Rights. V. Union of India, AIR 1982 SC 1473, Sanjit Roy V. State of Rajasthan,
AIR 1983 SC 328, Salal Hydroelectronic Project V. State of J&K, AIR 1984 SC 177, Bandhu Mukthi Morcha V.
Union of India, AIR .1984 SC 802, Neeraja Chowdhary V. State of M.P. AIR 1984 SC 1099.)
99
LAW MANTRA
THINK BEYOND OTHERS
a discriminatory treatment for the children in pursuance of provision as laid down in Art. l5
(3)101. There is a specific provision, which prohibits similar forms of forced 1abour.
The nation has also promised a state policy for protecting the children against
exploitation and against moral and material abandonment. The children are to re-given
opportunities and facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and against moral and
material abandonment102.
2. Criminal Law and Child Trafficking
IPC does not treat human trafficking as a specific crime nor does it define human
trafficking and the criminal liability of the offenders for committing this crime. But it contains
several provisions that can be used in the cases of child trafficking Viz., (a) kidnapping from
lawful guardianship103, (b) kidnapping or maiming a minor for purposes of begging104,
kidnapping for reasons105, kidnapping, abduction or inducing women to compel her marriage106,
prosecution of minor girl107, importation of girl from foreign country108, selling minor for
purpose of prostitution109, buying minor for purposes of prostitution110, and illicit intercourse111.
The underlying object of S. 360, 361 IPC is to give legal protection and liberty to
children of tender age from being kidnapped or abducted or seduced for improper purposes.
101
.Nothing in this article shall prevent the state from making any special provision for women and children. Also in
Anjali V. West Bengal 56 LWN 801.
102
Art 39 (F) of the constitution specifically require the state to direct its policy towards securing the principles that
children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
103
. S. 361 IPC whoever takes or entices any minor out of the keeping of the lawful guardian is said to kidnap such
minor. The word kidnapping has been derived from the word .Kid’ means child and ‘napping’ to steal.
104
S 363 PC - “whoever kidnaps any person form India shall be punished with imprisonment.”
105
364 A “whoever kidnaps or keeps a person in detention after such kidnapping and threatens to cause death or hurt
to such person shall be punished.
106
S 366 IPC “whoever kidnaps any woman with intent that she may be compelled to marriage against her will shall
be punished.”
107
S. 366 A IPC - “whoever induces any minor girl with intent that she will be forced or seduced to illicit intercourse
with another person shall be punished.
108
S. 366 B. - “Whoever imports into India any girl under the age of twenty one years with the intent that she may be
forced or seduced to illicit intercourse with another person shall be punished.”
109
S 372 IPC. - Whoever sells, lets to hire or otherwise disposes any minor with intent that such person shall be
employed or used for the purpose of prostitution of illicit intercourse with any person or for any unlawful and
immoral purpose shall be punished.
110
S. 373 IPC - “Whoever buys hires or otherwise obtains possession of any minor with intent that such person shall
be employed or used for the purpose of prostitution or illicit inter course with any person or for any other unlawful
and immoral purpose shall be punished”
111
Supra. note. 18
LAW MANTRA
THINK BEYOND OTHERS
And in S363 the meaning of begging 112 is defined. This section aims at punishing
unscrupulous persons who have been known to organize an industry and fallen on the ill-gotten
gears obtained from the practice of begging 113.
S. 366 A and 366 B IPC were inserted in the code in the year 1923, to give effect
to certain articles of the international convention114. These sections have been framed more with
the desire of safeguarding the public interest in morality than the chastity of the particular
interest115. Section 372 and 373 IPC aim at the suppression of slavery116. The section is also
intended to prevent bonded labour117 which is one of the main purposes of child trafficking.
3. Special and Local Laws
There is a special legislation which relates to children in need of care and protection118.
The term child in case includes the trafficked children then law provides for their care, protection
and rehabilitation by adopting a child friendly approach in the adjudication and disposition of
matters in the best interests of children chapter IV of the Act has been incorporated to
exclusively deal with rehabilitation and social integration and sections 8,9,34 and 37 provides for
provisions of residential homes for the children in need of care and protection.
Local Laws
Traditional and religious practices in some communities of dedicating girls to gods and
goddesses are prevailing in our country: As these are one of the main causes for the increasing
number of trafficked girls, it was banned in Karnataka119 and Andhra Pradesh120. ‘These Acts
ban customary dedication of girls to gods and stipulate punishment for those who perform;
promote, abet, take part in the dedication care money.
There is a legislation to protect children who are for sex tourism, in Goa121. This Act
provides punishment for abuse and assault of children through child trafficking different
purposes, sexual offences, and sex tourism.
The soliciting or receiving alms in public places under any presence is punishable in
Bombay122.
112
. In S. 363 A -Whoever kidnaps or maims any minor in order that such minor may be employed or used for the
purposes of begging shall be punishable.
113
Subhash Chandra Singh, “Growing problem of child abuse and neglect”, CrLJ 2001. P. 50
114
International convention for suppression of traffic in women and children, 1933
115
Bhagwathi Prasad V. Ernperor, AIR 1929 All 709.
116
Per Stuart, CJ in Ramkuar, (1880) 2 A 11723.
117
K.D. Guar; The Indian Penal Code (2004), P. 573. Bonded labour is a system a usury (lending of money at a high
rate) under which the debtor or his descendants or dependents have to work for the creditor without reasonable
wages, in order to extinguish debt.
118
The Juvenile Justice (care and protection of children) 2000.
119
The Karnataka Devadasi (Prohibition of dedication) Act, 1982.
120
The Andhra Pradesh Devadasi’s (Prohibition of dedication) Act, 1988.
121
The Goa Children’s Act, 2003.
122
The Bombay prevention of begging Act, 1959.
LAW MANTRA
THINK BEYOND OTHERS
5. State Rules
In the exercise of the powers - conferred under the Immoral Traffic (Prevention) Act
1956, different state rules are made in order to prevent trafficking 123. States such as Andhra
Pradesh124, Bihar125 Gujarat126, Himachal Pradhes127,Jammu and Kashmir 128, Kerala129, Madhya
Pradesh130, Manipur 131, Punjab132, Rajasthan133 and West Bengal134 made State rules in order to
prevent immoral trafficking in women and girls. These rules provide for protective homes and
other rehabilitative measures for the victims of trafficking
Recently, the Second World Congress was held in Yokohama in 200lwhich witnessed the
participation of children who detailed their own experiences in its opening sessions 135. The
congress expressed serious concern on the major increase in the availability of child pornography
because of the emergence of the internet.
SOCIAL RE-INTEGRATION OF CHILD VICTIMS OF TRAFFICKING
Children are considered as nation’s supremely important national asset. The future of any
nation is largely determined on how its children grow and develop. The issues relating to rights
of child care and welfare have been constantly engaging the attention of the world. However, the
community has developed during the last two decades which has brought on the national agenda
issues like child abuse, child marriage and child labour136
1. Social re-integration of child victims.
What is required for social re-integration? First thing is that, the victim child must be
agreeable to go back to the family.
The child may be persuaded to go back to the family through counselling. At the same
time the family must be counselled properly to accept back the child.
123
S. 23 of the Act Says — “the state government may, by notification in the official gazette, make rules for carrying
out the purposes of the Act.”
124
The Andhra Pradesh Suppression of Immoral Traffic in women and girls rules, 1958
125
The Bihar Suppression of Immoral Traffic in Women and girls rules1958.
126
The suppression of Immoral Traffic in women and girls (Gujarat) Rules, 1985.
127
The suppression of Immoral Traffic in women and girls (Himachal Pradesh) Rules, 1982
128
The suppression of Immoral Traffic in women and girls (Jammu and Kashmir) Rules, 1959.
129
The prevention of Immoral Traffic (Kerala) Rules, 1959.
130
The suppression of Immoral Traffic in women and girls (Madhya Pradesh) Rules, 1960.
131
The Manipur suppression of immoral Traffic in women and girl rules, 1958.
132
The Punjab suppression of Immoral Traffic in women and girls rules, 1960.
133
The Rajas tan suppression of Immoral Traffic in women and girls Rules, 1958.
134
The West Bengal Suppression of Immoral Traffic in Women and girls Rules, 1959.
135
Second world congress against commercial sexual exploitation ofchildren, 2001.
136
Sheela Barse V. Union of India, AIR 1986 SC 1773.
LAW MANTRA
THINK BEYOND OTHERS
If the trafficked child is a girl, lot of awareness at the community level need to be done
for attitudinal change. Even a passing remark made to such victim girl might make her mentally
deranged and might try to take revenge on the society or even might go for making suicide.
At the pre-restoration stage there must be provision for counselling till it is required. The
staff in the remand home need to be oriented properly on how to behave with such a traumatized,
trafficked or sexually abused child. There should be proper facilities for education, vocational
training and recreational programmed and games etc. in the home.
In every case of reintegration local panchayath need to be involved for keeping the family
on pressure, to behave properly with the victim child. So that she is reintegrated with the family
without much difficulty. Local police should also keep vigilance. So that victimized child don’t
run away again.
It is the duty of the state and all voluntary non-government organizations and public
spirited persons to come into their aid to retrieve them from prostitution137 rehabilitate them with
a helping hand to lead a life with dignity of person, self-employment through provisions of
education, financial support, and developed marketing facilities as some of major avenues in this
behalf138.
Marriage is another object to give them real status in society139. Acceptance by family is
also another important input to rekindle the faith of self-respect and self-confidence. Housing,
legal aid, free counselling assistance and all other similar aids and services are meaningful
measurers to ensure that unfortunate fallen women do not again fall into the trap of red light area
contaminated with foul atmosphere.
The supreme court deal with the problem of trafficking for prostitution and ‘flesh trade’,
the constitutional scheme relating to it, the international covenants relating to the issue, the IPC
and also the earlier judgments of the Supreme court in relation to the welfare of children and
made some appropriate observations i.e., many unfortunate teenaged female children in full
bloom are being sold in various parts of the country, for paltry sum even by their parents hoping
that their children would be engaged only in household duties or manual labour. These children
are forced into ‘flesh trade’. Hence Court gave the following directions for the rehabilitation of
victims of trafficking.
1. All the state governments should direct their concerned law enforcing authorities to take
appropriate and speedy action under the existing laws in eradicating child prostitution without
giving room for any complaint of remissness or culpable indifference.
137
Dr. Syed Maswood, “Law Relating to Women” (2004), P. 92.
V.K. Sarkar, Supreme Court on Women’s law (2001), P. 257.
139
G.B. Reddy, Women and the Law (2001), P. 143.
138
LAW MANTRA
THINK BEYOND OTHERS
2. The state governments should, set up a separate advisory committee within their respective
zones consisting of the secretary to the social welfare department, law department, sociologist, criminologist members, members of Indian Council of Child Welfare as well as
the member and associations etc., the main object of the Advisory Committee being to make
suggestions of :a. the measures to be taken in eradicating the child prostitution; and
b. the social welfare programs to be implemented for the care, protection, treatment development
and rehabilitation of the young fallen victims namely the children and girls rescued
either form the brothel houses or from the vices of prostitution.
3. All the state governments shou1d take steps in providing adequate and rehabilitative homes
manned by well qualified trained social workers, psychiatrists and doctors.
4. The Union Government should setup a committee to implement welfare programs on national
level for the care, protection, and rehabilitation etc. of the young fallen victims and to make
suggestions of amendments to the existing laws or for enactment of any new law, for the
prevention of exploitation of children.
5.
The governments and committee can also go deep into Devadasi system and jogging
tradition and give their valuable advice and suggestions as to what best the Government
could do in that regard.
In another landmark judgment, another Division Bench of the Supreme Court stressed on
the need to take appropriate action to rehabilitate not only the victims of prostitution, but also
their children who can easily trafficked. The court issued several directions relating to the
rehabilitation of the children of the prostitutes, child prostitution and establishment of Juvenile
Homes for them.
3. Governmental Action:
The Government of India does not fully comply with the minimum standards for the
elimination of trafficking; however, it is making significant efforts to do so. The quality and
magnitude of the government’s anti-trafficking response, particularly in the law enforcement
area are seriously insufficient to huge trafficking in person’s problem. Some important
improvements were observed in the last year. The government has made a Secretary for the
efforts to consolidate and coordinate for women and child development, who serves as, the
governments “nodal officer” for anti-trafficking programs and policies. Modest but uneven
improvements in anti-trafficking law enforcement efforts were seen in some localities, most
notably the cities of Mumbai and Chennai and some other states. The use of Fast Track Courts
was the key to greater prosecutions andconvictions.5 The March 2005 Order by the Home
Minister of Maharashtra State to close down “dance bars”, many of which served as prostitution
and trafficking outlets. And this may check a new trend of traffickers favouring this more
LAW MANTRA
THINK BEYOND OTHERS
sophisticated and concealed format for selling victims of trafficked for the purpose of sexual
exploitation over more blatant brothel based trafficking.
NEED FOR A CODE WHICH DEALS WITH CHILD TRAFFICKING
A child shall be protected from all forms of neglect, cruelty and exploitation140. Our
constitution promises a discriminatory treatment 141 for the children and protection against all
exploitation.
Article 23 of the constitution prohibits traffic in human being and beggar and other
similar forms of forced labour. But nowhere the word trafficking was defined in the constitution:
Parliament is authorized to make laws for punishing acts prohibited by this Article. And in
pursuance of this, parliament has passed The Suppression of Immoral Traffic in Women and
Girls Act 1956 and now it is amended as “The Immoral Traffic (Prevention) Act 1956.
Commercial sex trafficking are handled by this. But in order to eliminate the problem of child
trafficking, there should be a code exclusively dealing with child trafficking.
The existing legal frame work is rather dispersed and inadequate. So the existing laws
should be consolidated into a single comprehensive one.
There should be a code which contains a uniform definition of child. There must be a
specific provision against non-discrimination especially towards the girl child 142.
The civil rights and freedoms enumerated in the constitution are available to the adults as
well as to children. So there must be a law which contains specific measures giving such rights.
Then only the problem of Child Trafficking can be eradicated.
There is no law prohibiting engagement of Children in sectors like tourism and hotels.
The main use of trafficking children is to make use of them in sex tourism.
The use of Internet is now increasing and so child pornography should be prevented and
so a comprehensive law relating to child pornography in order to criminalize its production,
distribution and possession.
Punishments to the agents, buyers etc. and others involved in the trafficking are very less
in IPC. So a new law exclusively dealing with trafficking can impose much more strict
punishments143.
140
Sathyavan Kottarakkara V. State of Kerala. AIR 1997 Ker. 133.
Article 15 (3) says that nothing in Article 15 shall prevent the state from making any special
provision for
women and children.
142
Tapti Bose, “ A comparative study of the UN convention on the rights -of the child and Indian Laws”, Dr.
Nirmal Kanti hakrabarthi, Law and Child, P. 71
143
Gathia Joseph; “Child Prostitution in India”, concept publishing Co. New Delhi, 1999. P.65.
141
LAW MANTRA
THINK BEYOND OTHERS
The existing laws in trafficking contain only bare references about child trafficking. So in
order to keep the spirit of our constitution, there should be an exclusive law dealing with child
trafficking.
Need for a code
It is important to note that though the Immoral Traffic (Prevention) Act, 1956 prescribes
stringent punishment; it is not a self-sufficient piece of legislation. It depends upon the Indian
Penal Code to address some of the serious offences that constitute commercial sexual
exploitation and trafficking. It is really unfortunate that the Act does not define “trafficking”.
Besides, it is also totally silent on the issue of second generation trafficking, that is, induction of
the children of victims into flesh trade. This Act has failed to address the entire problem of sex
tourism where hundreds of children are being trafficked regularly for sexual purpose.
Finally the Act has totally ignored the international dimensions of the crime as there is no
provision in the Act to tackle the ‘cross border’ trafficking which is one of the most challenging
issues in the world today.
A major lacuna in the Indian laws is that the age of the child in all these Acts varies.
Again the documentation V regarding the buying and selling of girls is very poor. The law
enforcement agencies have been week and incept in handling traffickers and also do not see the
clients as the accused.
Thus, a special legislation is a need of the hour to give effect to the international
conventions144
Why a special case for children?
First, Children are individuals; they have equal status with adults.
Second, the healthy development and active participation of children are uniquely crucial
to the optimum development of any society.
Third; children are more affected by the action or inaction of government or others.
Fourth; children have no vote and so no part in political process.
The humanist compassionate emphasis in our constitution145 is a reassertion of the duty
of every Indian citizen to behold the noble spark in every child, which is innocent, simple and
free from inhibitions and greed for grab146. It is true that every third Indian is a child. Therefore,
the paramount commitment to the child is the first source on India’s resources. Regrettably, we
have in India many foul practices relating to children, more wicked when it turns to girl child.
144
Convention on Rights of Child 1989, and Second World Congress against Commercial Sexual Exploitation of
Children held in Yokohama, Japan, on December, 2001.
145
Article 5 1A says that, “it is the duty of every citizen to Promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women”
146
V.R. Krishna Iyer, “Legally Speaking”, (2003), P. 188.
LAW MANTRA
THINK BEYOND OTHERS
Young girls are subjected to torture, abduction and trafficked and the criminal law turning a
Nelson’s eye on these ghastly crimes is Pathetic; and so, gender jurisprudence, with special
emphasis on the girl child is a social necessity.
SUGGESTIONS
Considering the miserable situation of the child, for the purpose of prevention of child
trafficking and for protection of child right, the following suggestions are made.
1.
Minimum facilities of health care for the children and women147.
2.
Education and support for the children who are victims of the child trafficking and for
children of women engaged in prostitution148.
3.
Basic provisions for shelter, housing, ration cards and voting rights to acknowledge
their very human existence and rights.
4.
Care and rehabilitation of children engaged in sex work.
5.
Prevention of abduction, rape and sexual abuse of children and deterrent laws to its
perpetuation.
6.
Appropriate Government shall, compel to make a census regarding the victims of child
exploitation149
7.
The Govt. shall take all steps in eradicating the miserable situations of the children who
are trafficked once.
8.
The Govt. shall take necessary step in the control of population more successfully so that
number of trafficked children may be controlled.
9.
Sensitizes the ill of diseases like AIDS etc.
10.
An AIDS awareness programmed should be compulsorily broadcasted. Traffickers
engaged in the prostitution may know the ultimate ends of prostitution very seriously.
147
Lawrance Gomes, “The Immoral Traffic (Prevention) Act, 1956 - A detailed discussion “, CrLJ 2004, P. 89
Ibid.
149
Dr. Durga Das, “Some highlights on Prevention of Trafficking in children and protection of child right in India.
“CrLJ. 2002, P. 350.
148
LAW MANTRA
THINK BEYOND OTHERS
EXPLOITATION
OF
CHILDREN
BY
MANISH MULCHANDANI
AND POOJA
DESAI
The Government of India has always taken a great interest in the protection of children, the
recognition of their rights, and their welfare. However, despite the considerable number of
existing instruments, recommendations and resolutions it is blatantly obvious that children
continue to be victims of abuse, violence and exploitation of every kind. Is this due to loopholes
in the current law? It is a fact that there is a glaring discrepancy between the rights secured to
children on paper and the reality. Every day, millions of children forced into labor, prostitution
or armed groups are denied their fundamental right to safety and security Children are considered
as principle assets of any country. Children’s Development is as important as the development
of material resources and the best way to develop national human resources is to take care of
children. India has the largest child population in the world there are efforts being made by India
for the development and welfare of children. Significant progress has been made in many fields
in assuring children getting their basic rights. The country renews its commitment and
determination to give the highest priority to the basic needs and rights of all children. Children
are most vulnerable to exploitation and abuse, a lot more has to be done for this problem how
children should be kept safe. It is unfortunate that girls in particular face debilitating
discrimination at all stages. Therefore, specific concentration is being given to the efforts to
improve the life and opportunities of the Girl Child.
Introduction
All children due to their age are considered to be at risk for exploitation, abuse, violence and
neglect. But vulnerability cannot be defined simply by age. Though age is one component,
Vulnerability is also measured by the child's capability for self-protection. The question that
arises is, are children capable of protecting themselves. Can children provide for their basic
needs, defend against a dangerous situation or even recognize a dangerous situation is
developing? These questions call for a redefinition of the concept of self-protection. A child's
vulnerability comes from various factors that hinder a child's ability to function and grow
normally. Hence self-protection is more about the ability of the child to lead a healthy life within
a child protection system; the ability to protect themselves or get help from people who can
provide protection. The term vulnerable children refer to an age group that is considered at risk.
Critical Concerns



Every fifth child in the world lives in India
Every third malnourished child in the world lives in India
Student, Auro University, School of Law, Surat
LAW MANTRA
THINK BEYOND OTHERS











Every second Indian child is underweight
Three out of four children in India are anemic
Every second new born has reduced learning capacity due to iodine deficiency
Decline in female/male ratio is max in 0-6 years: 927 females per 1000 males
Birth registration is just 62% (RGI-2004)
Retention rate at Primary level is 71.01% (Elementary Education in India Progress
towards UEE NUEPA Flash
Girls' enrolment in schools at primary level is 47.79% (Elementary Education in India
Progress towards UEE
1104 lakh child labor in the country (SRO 2000)
IMR is as high as 58 per 1000 live births (SRS- 2005)
MMR is equally high at 301 per 100,000 live births (SRS, 2001-03)
Children born with low birth weight are 46% (NFHS-III)
Children under 3 with anemia are 79% (NFHS-III)
Immunization coverage is very low (polio -78.2%, measles-58.8%, DPT-55.3%, BCG78%(NFHS-III)
Definition of Child
For the purpose of this study, a child was defined as a person not having completed 18 years of
age. Children were divided into three age groups: younger children (5-12 years), children (13-14
years) and adolescents (15-18 years).
Working definition of child abuse
For the purpose of this study, the following working definitions of child abuse have been
adopted:
Child abuse refers to the intended, unintended and perceived maltreatment of the child, whether
habitual or not,
The National Policy for Children, 1974, declared children to be a 'supreme national asset'. It
pledged measures to secure and safeguard all their needs, declaring that this could be done by
making wise use of available national resources. Unfortunately, ten successive Five Year Plans
have not allocated adequate resources to meet the needs of children.
Harmful traditional practices like child marriage, caste system, discrimination against the girl
child, child labour and Devadasi tradition impact negatively on children and increase their
vulnerability to abuse and neglect. Lack of adequate nutrition, poor access to medical and
educational facilities, migration from rural to urban areas leading to rise in urban poverty,
children on the streets and child beggars, all result in breakdown of families. These increase the
vulnerabilities of children and exposes them to situations of abuse and exploitation.
LAW MANTRA
THINK BEYOND OTHERS
Introduction on child abuse
India is immensely diverse country. India’s States encompass diverse natural environments,
economic resources, social ethnicities and practices, varying levels of education, gender
differences, child labour, poverty and local governances. In other words, it encompasses many
„countries‟ with unique social and economic characteristics that affect the protection and
vulnerability of its children. Further, the myriad complexities of caste, class and ethnicity have
not been understood in terms of abuse and exploitation. Generalizing the emerging factors
therefore becomes difficult, as it is possible that the social and economic transition influences
child abuse.
Child abuse is a state of emotional, physical, economic and sexual maltreatment meted out to a
person below the age of eighteen and is a globally prevalent phenomenon. However, in India, as
in many other countries, there has been no understanding of the extent, magnitude and trends of
the problem. The growing complexities of life and the dramatic changes brought about by socioeconomic transitions in India have played a major role in increasing the vulnerability of children
to various and newer forms of abuse.
Child abuse has serious physical and psycho-social consequences which adversely affect the
health and overall well-being of a child. According to 150WHO: ''Child abuse or maltreatment
constitutes all forms of physical and/or emotional ill-treatment, sexual abuse, neglect or
negligent treatment or commercial or other exploitation, resulting in actual or potential harm to
the child's health, survival, development or dignity in the context of a relationship of
responsibility, trust or power.
The term “Child Abuse” may have different meaning in different cultural and socio-economic
situations. A universal definition of child abuse in the Indian context does not exist and has yet to
be defined.
Effects Of Child Abuse And Neglect
All types of child abuse and neglect leave lasting scars. Some of these scars might be physical,
but emotional scarring has long lasting effects throughout life, damaging a child’s sense of self,
ability to have healthy relationships, and ability to function at home, at work and at school. Child
abuse and neglect can have lifelong implications for victims, including on their well-being.
There are several long-term consequences of experiencing the trauma of abuse or neglect. A
child or youth’s ability to cope and even thrive after trauma is called “resilience,” and with help,
many of these children can work through and overcome their past experiences.
Children who are maltreated often are at risk of experiencing cognitive delays and emotional
difficulties, among other issues. Childhood trauma also negatively affects nervous system and
150
http://wcd.nic.in/childabuse.pdf
LAW MANTRA
THINK BEYOND OTHERS
immune system development, putting children who have been maltreated at a higher risk for
health problems as adults.

Lack of trust and relationship difficulties: If you can’t trust your parents, who can you
trust? Abuse by a primary caregiver damages the most fundamental relationship as a
child—that you will safely, reliably get your physical and emotional needs met by the
person who is responsible for your care. Without this base, it is very difficult to learn to
trust people or know who is trustworthy. This can lead to difficulty maintaining
relationships due to fear of being controlled or abused. It can also lead to unhealthy
relationships because the adult doesn’t know what a good relationship is.

Core feelings of being “worthless” or “damaged.”: If you’ve been told over and over
again as a child that you are stupid or no good, it is very difficult to overcome these core
feelings. You may experience them as reality. Adults may not strive for more education,
or settle for a job that may not pay enough, because they don’t believe they can do it or
are worth more. Sexual abuse survivors, with the stigma and shame surrounding the
abuse, often especially struggle with a feeling of being damaged.

Trouble regulating emotions: Abused children cannot express emotions safely. As a
result, the emotions get stuffed down, coming out in unexpected ways. Adult survivors of
child abuse can struggle with unexplained anxiety, depression, or anger. They may turn to
alcohol or drugs to numb out the painful feelings.
10 Signs of Child Abuse
1) Unexplained injuries: Visible signs of physical abuse may include unexplained burns or
bruises in the shape of objects. You may also hear unconvincing explanations of a child’s
injuries.
2) Changes in behavior: Abuse can lead to many changes in a child’s behavior. Abused
children often appear scared, anxious, depressed, withdrawn or more aggressive.
3) Returning to earlier behaviors: Abused children may display behaviors shown at earlier
ages, such as thumb-sucking, bed-wetting, fear of the dark or strangers. For some
children, even loss of acquired language or memory problems may be an issue.
4) Fear of going home: Abused children may express apprehension or anxiety about leaving
school or about going places with the person who is abusing them.
5) Changes in eating: The stress, fear and anxiety caused by abuse can lead to changes in a
child’s eating behaviors, which may result in weight gain or weight loss.
6) Changes in sleeping: Abused children may have frequent nightmares or have difficulty
falling asleep, and as a result may appear tired or fatigued.
LAW MANTRA
THINK BEYOND OTHERS
7) Changes in school performance and attendance: Abused children may have difficulty
concentrating in school or have excessive absences, sometimes due to adults trying to
hide the children’s injuries from authorities.
8) Lack of personal care or hygiene: Abused and neglected children may appear uncared for.
They may present as consistently dirty and have severe body odor, or they may lack
sufficient clothing for the weather.
9) Risk-taking behaviors: Young people who are being abused may engage in high-risk
activities such as using drugs or alcohol or carrying a weapon.
10) Inappropriate sexual behaviors: Children who have been sexually abused may exhibit
overly sexualized behavior or use explicit sexual language.
Further Child Abuse is defined in different forms which are:






Physical Abuse
Sexual Abuse
Emotional Abuse
Neglect
Family Violence
Organized Sexual Abuse
1) Physical Abuse:
Physical abuse involves physical harm or injury to the child. It may be the result of a
deliberate attempt to hurt the child, but not always. It can also result from severe
discipline, such as using a belt on a child, or physical punishment that is inappropriate to
the child’s age or physical condition.
Many physically abusive parents and caregivers insist that their actions are simply forms
of discipline ways to make children learn to behave. But there is a big difference between
using physical punishment to discipline and physical abuse. The point of disciplining
children is to teach them right from wrong, not to make them live in fear.
2) Sexual Abuse:
Sexual abuse involves forcing a child to take part in sexual activities, including
prostitution, whether or not she/he is aware of what is happening, Activities may involve
physical contact, including penetrative and non-penetrative acts. ‘Penetrative acts’
include ‘rape’ (forced penetration of vagina, anus or mouth with a penis).
3) Emotional Abuse:
Emotional abuse is the persistent emotional ill treatment of a child such as to cause
severe and persistent effects on the child’s emotional development. Emotional abuse does
not only occur in the home. Children can be emotionally abused by teachers and other
LAW MANTRA
THINK BEYOND OTHERS
adults in a position of power over the child. Children can also be emotionally abused by
other children in the form of "bullying".
4) Neglect:
Neglect includes many things such as
 Provide adequate food, clothing or shelter (including exclusion from home or
abandonment)
 Protect from physical and emotional harm or danger
 Meet or respond to basic emotional needs
 Ensure adequate supervision including the use of adequate care-takers
 Ensure access to appropriate medical care or treatment
 Ensure that her/his educational needs are met
5) Family violence:
Family violence, or domestic violence, usually refers to the physical assault of children
by male/female relatives. In these situations, a man uses violence to control his children.
6) Organized sexual abuse:
Organized sexual abuse refers to the range of circumstances in which multiple children
are subject to sexual abuse by multiple perpetrators. In these circumstances, children are
subject to a range of serious harms that can include child prostitution, the manufacture of
child pornography, and bizarre and sadistic sexual practices, including ritualistic abuse
and torture.
How are children being abused?
 Trading sex:
For food and other non-monetary items or services
 Forced sex:
Where an adult physically forces a child to have penetrative sex with them
 verbal sexual abuse:
Where an adult says sexually indecent words to a child
 Child prostitution:
Where an adult pays money to have sex with a child
 Child pornography:
Where a child is filmed or photographed performing sexual acts
 Sexual slavery: where a child is forced to have sex with an adult by someone else who
receives payment
LAW MANTRA
THINK BEYOND OTHERS
 Indecent sexual assault: where an adult touches a child in a sexual manner or makes a
physical sexual display towards them
 Child trafficking linked with commercial Sexual exploitation: where a child is
transported illicitly for the purposes of child prostitution or sexual slavery.
Who is it happening to?
Vulnerable children are particularly at risk of sexual abuse and exploitation by peacekeepers and
aid workers. These include orphans and children separated from their parents; those from
especially poor families; children who are discriminated against; children displaced from their
home communities; and children from families who depend on humanitarian assistance. The
particular risks to already vulnerable children should be considered when identifying ways to
prevent the abuse from happening and for targeting support services to victims.
Who are the abusers?
After doing the research it was found that the abusers are mainly known or they come in relation
of the child who is been abused, in many of cases it was seen parents were the abusers.
Why is abuse not reported?
The reporting of abuse is fundamental to keeping children safe. If cases of abuse are not reported
to the police authorities, it cannot stop the abuse from reoccurring, punish the perpetrator and
help the victim. Reporting an abuse requires information being passed on to those people
responsible for responding to it. This may occur through various channels of communication,
including parents, children and young people, community groups, the police.
151
Major findings
1) Across different forms of abuse and across different evidence groups, the younger
children (5-12 years of age) have reported higher levels of abuse than the other two age
groups, boys as compared to girls are equally at risk of abuse.
2) Persons in trust and authority are major abusers.
3) 70% of abused child respondent never reported the matter to anyone.
Data
Number of children annually who are abused
681,000
Number of children annually who received preventative services from Child 3,300,000
151
http://www.statisticbrain.com/child-abuse-statistics/
LAW MANTRA
THINK BEYOND OTHERS
Protective Services
Number of children that die every day as a result of child abuse
Percent of children who die from abuse that are under the age of 4
Percent of abused children that will later abuse their own children
Percent of men in prison that were abused as children
Percent of women in prison that were abused as children
Annual cost of child abuse and neglect in the United States
Percent of child abuse perpetrators that are female
Percent of homeless youth that ran away to escape abuse
Abused children are 25 % more likely to experience teen pregnancy
Type of Child Abuse
Neglect
Physical Abuse
Sexual Abuse
Psychological Maltreatment
Medical Neglect
Other / Unknown
Percent of Cases
78.5 %
17.6 %
9.1 %
9%
2.2 %
10.6 %
Perpetrator Demographics
Age
Age 20-29
Age 30-39
Age 40-49
Other Age
Relationship
Parent
Nonparent
Unknown
4
80 %
30 %
14 %
36 %
$124,000,000,000
53.6 %
46 %
25 % more likely
Percent
36.4 %
32.3 %
15.9 %
15 %
80.9 %
16.4 %
2.9 %
Recommendations
1) Effective local complaints mechanisms
Effective local complaints mechanisms should be established to help children and others
in the community to speak out about the sexual exploitation and abuse against them.
2) Tackling the root cause or drivers of abuse
LAW MANTRA
THINK BEYOND OTHERS
The public authorities should find out the root cause of child abuse and try to fix the
problem and problem will only solve when there will be cases registered of child abuse
than we can easily pin point the root problem.
Conclusion
In this research I found that there are 2 lacunas which are not being addressed satisfactorily
First children and adults are not being adequately supported to speak out about the abuse against
them. Children, in particular, need effective services to help them report abuse. These services
must be safe, confidential and easy to use, and must reach out to marginalized and excluded
people, such as orphans, street children and minority ethnic groups
And the 2nd is lack of investment in child protection by governments and donors.
\
LAW MANTRA
THINK BEYOND OTHERS
“THE CRITICAL ROLE OF THE CIVIL
SOCIETY
ORGANIZATIONS
IN
COMBATING TRAFFICKING IN HUMAN
BEINGS" BY RITESH KUMAR
Introduction
Human trafficking can occur within a country or trans-nationally. Human trafficking is a crime
against the person because of the violation of the victim's rights of movement through coercion
and because of their commercial exploitation. Human trafficking is the trade in people, and does
not necessarily involve the movement of the person from one place to another. Traffic in human
beings means “selling and buying men and women like goods and includes immoral traffic in
women and children for immoral or other purposes.”
Trafficking in human beings, especially in women, and children has become a matter of serious
national and international concern. Women and children, boys and girls have been exposed to
unprecedented vulnerabilities and 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 but still there
is a big path to be traveled to achieve the aim of zero tolerance of human trafficking. Especially
women are forced into flesh trade and so are children. The condition of poverty stricken children
is dismal. Regardless of the law and the fundamental rights, they are made to labor (Sexual
Slave). The biggest issue is once victims return home they are faced with the same dire economic
and social conditions that led them to be trafficked in the first place, which creates the problem
of re-trafficking. For example, there are estimates that thirty to fifty percent of trafficking
survivors who are repatriated into countries in Eastern Europe are eventually re-trafficked
because as we know that there is hardly any rehabilitation scheme. Major part of commercial sex
worker community in India comprises of trafficking victims. The seminar aims to focus upon
these issues, the provisions of law and; the local, national and international perspective of the
same.
Definition
Human trafficking is the trade in humans, most commonly for the purpose of sexual slavery,
forced labor or commercial sexual exploitation for the trafficker or others. The Trafficking
Protocol is the first global, legally binding instrument on trafficking in over half a century, and
the only one with an agreed-upon definition of trafficking in persons. One of its purposes is to
facilitate international cooperation in investigating and prosecuting such trafficking. Another is
to protect and assist human trafficking's victims with full respect for their rights as established in
the Universal Declaration of Human Rights. The Trafficking Protocol, which now has 164
parties, defines human trafficking as:
(a) 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
LAW MANTRA
THINK BEYOND OTHERS
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. Exploitation shall include, at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or 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 subparagraph (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, harboring 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 this article;
(d) “Child” shall mean any person under eighteen years of age.
According to Article 23 of the Constitution of India talks about a prohibition of traffic in human
beings and labor. Clause (1) of Article 23 provides that traffic in human beings and begar and
other similar forms of forced labor are prohibited and any contravention of this provision shall be
an offence punishable in accordance with law.
Victims of Trafficking
There are following tips for recognizing Victims of Trafficking
•
Understand the different forms of trafficking: labor or sex trafficking.
•
Visible Indicators of Trafficking.
Different forms of trafficking
Sex Trafficking
Victims of sex trafficking are often found in the streets or working in establishments that offer
commercial sex acts, i.e. brothels, strip clubs, pornography production houses. Such
establishments may operate under the guise of:
•
Massage parlors
•
Escort services
•
Adult bookstores
•
Modeling studios
•
Bars/strip clubs
Labor Trafficking
People forced into indentured servitude can be found in:
LAW MANTRA
THINK BEYOND OTHERS
•
Sweatshops (where abusive labor standards are present)
•
Commercial agricultural situations (fields, processing plants, canneries)
•
Domestic situations (maids, nannies)
•
Construction sites (particularly if public access is denied)
•
Restaurant and custodial work.
Visible Indicators of Trafficking
Visible Indicators May Include:
•
Heavy security at the commercial establishment including barred windows, locked doors,
isolated location, electronic surveillance. Women are never seen leaving the premises unless
escorted.
•
Victims live at the same premises as the brothel or work site or are driven between
quarters and "work" by a guard. For labor trafficking, victims are often prohibited from leaving
the work site, which may look like a guarded compound from the outside.
•
Victims are kept under surveillance when taken to a doctor, hospital or clinic for
treatment; trafficker may act as a translator.
•
High foot traffic especially for brothels where there may be trafficked women indicated
often by a stream of men arriving and leaving the premises.
Trafficking victims are kept in bondage through a combination of fear, intimidation, abuse, and
psychological controls. While each victim will have a different experience, they share common
threads that may signify a life of indentured servitude.
Trafficking victims live a life marked by abuse, betrayal of their basic human rights, and control
under their trafficker. The following indicators in and of themselves may not be enough to meet
the legal standard for trafficking, but they indicate that a victim is controlled by someone else
and, accordingly, the situation should be further investigated.
Exploitation of Children
Exploitation of children is a part of human trafficking. Article 24 of the Constitution of India
prohibits employment of children below 14 years of age in factories and hazardous employment.
This provision is certainly in the interest of public health and safety of life of children. Children
are the assets of nation. That is why Article 39 of the Constitution imposes upon the State an
obligation to ensure that the health and strength of workers, men and women, and the tender age
of the children are not abused and that citizens are not forced by economic necessary to enter
avocations unsuited to their age or strength. The Employment of Children Act, 1938, prohibits
employment of children below 14 years of age in the railways and other means of transport. The
Indian Factories Act and Mines Act, 1952, the Merchant Shipping Act, 1958, the Motor
LAW MANTRA
THINK BEYOND OTHERS
Transport Workers Act, 1961, the Plantation Labor Act, 1951, the Bidi and Cigar Workers
(Condition of Employment) Act, 1966 and the Apprentices Act, 1961, prohibit employment of
child below a certain age.
Human Rights violations associated with Human Trafficking
Trafficking in persons - the illegal and highly profitable recruitment, transport, and sale of
human beings for exploitative purposes such as forced labour or services, slavery or slavery like
conditions, prostitution, sexual exploitation or servitude - needs to be addressed as a severe and
multi-faceted human rights issue. Various human rights violations occur at different stages of the
trafficking cycle.
Firstly, trafficking often emerges where already many human rights deprivations are prevalent.
Root causes for trafficking include poverty, discrimination, violence and the general insecurity
often related to armed conflict. Hence, anyone may fall victim to human traffickers. However,
around 80 per cent of victims are women and children since they are often marginalized and
disproportionably affected by these root causes. Secondly, the phenomenon of trafficking in
persons comprises a range of human rights violations. The most common ones are the right to
personal autonomy, the right not to be held in slavery or servitude, the right to liberty and
security of person, the right to be free from cruel or inhumane treatment, the right to safe and
healthy working conditions and the freedom of movement. Thirdly, trafficked persons who
escape their situation are subject to serious human rights violations at the hands of governments.
Most governments’ traditional policies give priority to detention, prosecution and expulsion of
trafficked persons for offences related to their status, including violation of immigration laws,
prostitution or begging. Often victims are treated as “disposable witnesses” whose sole value is
their ability to assist in trafficking prosecutions.
Human Rights based approach to anti-trafficking work
All people working with trafficked persons need to be concerned with the basic rights of victims
of trafficking. It is vital to shift the working paradigm from one of criminal sanction to human
rights promotion. Further, the consequences of trafficking have to be addressed by promoting
the human rights of trafficked persons. The use of trafficked persons solely as an instrument for
the prosecution of the crime is neither just nor lawful.
Rights become real only when people are able to secure or realize them. The best strategies are
those which enable the affected people - the victims of trafficking - to express their own
grievances and to act on their own behalf. Empowerment, self-representation and participation of
those affected by trafficking are fundamental principles for a human rights based approach. To
uphold these principles, mechanisms to reduce secondary victimization of trafficked persons
through public institutions and law enforcement agencies must be in place. Assistance and
support for trafficked persons enable them to regain control over their lives and reduce the risk of
re-trafficking. It also contributes to an effective prosecution of traffickers, as the recognition and
protection of the rights of trafficked persons are an important incentive for victims of trafficking
to report to the authorities and give testimony. However, the absence of adequate and targeted
group specific assistance and support in combination with discriminatory practices, which
LAW MANTRA
THINK BEYOND OTHERS
especially affect women, often prevents trafficked persons from reporting to the authorities and
may subject them to further trauma and re-victimization. Finally, a human rights-based approach
opposes anti-trafficking measures that adversely affect or infringe upon the human rights of
trafficked persons or other affected groups. These approach requires that human rights are at
the core of any anti-trafficking strategy. It integrates the principles of universality, indivisibility
and non-discrimination of human rights into legislation, policies and programs.
Prostitution: A Reason for Human Trafficking
Prostitution is widely socially tolerated, with the buyers socially invisible. Even today, many
mistakenly assume that prostitution is sex, rather than sexual violence, and a vocational choice,
rather than a human rights abuse. Although clinicians are beginning to recognize the
overwhelming physical violence in prostitution, its internal ravages are still not well understood.
There has been far more clinical attention paid to sexually transmitted diseases among those
prostituted than to their depressions, lethal suicidality, mood disorders, anxiety disorders
(including post-traumatic stress disorder) dissociative disorders, substance abuse, and traumatic
brain injury. Regardless of its legal status or its physical location, prostitution is extremely
dangerous for women. Trafficking for sexual exploitation was formerly thought of as the
organized movement of people, usually women, between countries and within countries for sex
work with the use of physical coercion, deception and bondage through forced debt. However,
the Trafficking Victims Protection Act of 2000 (USA), does not require movement for the
offence. The issue becomes contentious when the element of coercion is removed from the
definition to incorporate facilitating the willing involvement in prostitution. For example, in the
United Kingdom, The Sexual Offenses Act 2003 incorporated trafficking for sexual exploitation
but did not require those committing the offence to use coercion, deception or force, so that it
also includes any person who enters the UK to carry out sex work with consent as having been
trafficked. In addition, any minor involved in a commercial sex act in the United States while
under the age of 18 qualifies as a trafficking victim, even if no force, fraud or coercion is
involved, under the definition of Severe Forms of Trafficking in Persons, in the U.S. Trafficking
Victims Protection Act of 2000. Sexual trafficking includes coercing a migrant into a sexual act
as a condition of allowing or arranging the migration. Sexual trafficking uses physical or sexual
coercion, deception, abuse of power and bondage incurred through forced debt.
Sex trafficking victims are generally found in dire circumstances and easily targeted by
traffickers. Individuals, circumstances, and situations vulnerable to traffickers include homeless
individuals, runaway teens, displaced homemakers, refugees, job seekers, tourists, kidnap
victims and drug addicts. While it may seem like trafficked people are the most vulnerable and
powerless minorities in a region, victims are consistently exploited from any ethnic and social
background.
Human trafficking does not require travel or transport from one location to another, but one form
of sex trafficking involves international agents and brokers who arrange travel and job
placements for women from one country. Women are lured to accompany traffickers based on
promises of lucrative opportunities unachievable in their native country. However, once they
LAW MANTRA
THINK BEYOND OTHERS
reach their destination, the women discover that they have been deceived and learn the true
nature of the work that they will be expected to do.
Organ trade and Human Trafficking
Trafficking in organs is a form of human trafficking. It can take different forms. In some cases,
the victim is compelled into giving up an organ. In other cases, the victim agrees to sell an organ
in exchange of money/goods, but is not paid (or paid less). Finally, the victim may have the
organ removed without the victim's knowledge (usually when the victim is treated for another
medical problem/illness - real or orchestrated problem/illness). Migrant workers, homeless
persons, and illiterate persons are particularly vulnerable to this form of exploitation. Trafficking
of organs is an organized crime, involving several offenders:
•
the recruiter
•
the transporter
•
the medical staff
•
the middlemen/contractors
•
the buyers
Trafficking for organ trade often seeks kidneys. Trafficking in organs is a lucrative trade because
in many countries the waiting lists for patients who need transplants are very long.
Immigration Remedies for Trafficking Victims
Human Trafficking is a heinous criminal activity that violates federal law and the laws of most
states. Also known as trafficking in persons, human trafficking is a form of modern-day slavery
in which traffickers often lure individuals with false promises of employment and a better life.
Under federal law, there are two categories of severe forms of trafficking: sex trafficking and
labor trafficking. Severe forms of trafficking involve force, fraud, or coercion (with the
exception of cases involving sex trafficking victims who are less than 18 years of age, which do
not require force, fraud, or coercion).
There are three forms of immigration relief available to victims of human trafficking –
Continued Presence, T visas, and U visas. Continued Presence (CP).The CP provides temporary
immigration relief to individuals who are identified by Federal, State, local, tribal, or territorial
law enforcement as victims of human trafficking. This allows victims of human trafficking to
remain in the United States temporarily during the ongoing human trafficking investigation and
prosecution. This can lead to more successful prosecutions and the potential to identify and
rescue more victims. The T visa provides immigration protection to victims of severe forms of
trafficking who assist Federal, State, local, tribal or territorial law enforcement in the
investigation or prosecution of human trafficking cases. The U visa provides immigration
protection to victims of certain qualifying crimes who assist Federal, State, local, tribal, or
territorial law enforcement in the investigation or prosecution of the crime.
LAW MANTRA
THINK BEYOND OTHERS
An applicant for a T or a U visa must demonstrate assistance to Federal, State, local, tribal, or
territorial law enforcement (although there are limited circumstances under which such
assistance is not required for purposes of T visa eligibility).
Legal Frame work against Human Trafficking
A national framework set up to prevent and combat trafficking in human beings should provide a
forum for coordination and cooperation among relevant state authorities and non-governmental
organizations (National Referral Mechanism). One successful model for such a coordination
structure comprises the following institutions: National Coordinator and National Task Force,
who continuously shape and review their anti-trafficking strategy through a National Action Plan
on both, the legislative and operative level. The main aims of an institutional framework are to:
- coordinate anti-trafficking work on the national level,
- monitor the implementation of the national anti-trafficking strategy, and
- review and adapt the national anti-trafficking strategy.
All partners in such a multi-disciplinary and cross-sector forum take on tasks and responsibilities
according to their mandates and meet on a regular basis.
Prevention of Human Trafficking
The phenomenon of trafficking in human beings is most often tackled through reactive means
such as support and protection measures addressed at presumed trafficked persons as well as law
enforcement actions responding to a crime that has already been committed. Any comprehensive,
forward-looking and sustainable anti-trafficking strategy, however, also calls for effective
preventive measures that tackle root causes and empower at-risk groups. Such measures should
incorporate a broader socio-economic perspective linking anti-trafficking strategies with
schemes that promote good governance, poverty reduction, gender equality and antidiscrimination in countries of origin and countries of destination alike. Prevention also plays a
vital role in the context of social inclusion of trafficked persons in their home country since the
risk of being again caught in the trafficking cycle is bigger if the social environment that the
victim has left in the first place remains unchanged.
Activities in the field of prevention inter alia include research and awareness raising, education
and empowerment, community-based initiatives and information on safe migration.
Role of non-governmental organization in preventing Trafficking
In particular NGOs should play a watch dog role. NGOs should monitor the process of
development and implementation of international legislation and national policies. NGO should
check the impact of measures and actions taken (do no harm) and NGOs should be as critical
towards them and partner NGOs as towards authorities.
LAW MANTRA
THINK BEYOND OTHERS
In cooperation (agreements) it is vital to recognize and respect the different interests, to define
the different tasks and responsibilities and to safeguard autonomy of NGOs/civil society. This
ensures that the various aspects of the complex phenomenon of human trafficking are all dealt
with and that all actors can concentrate on their primary tasks and responsibilities. NGOs should
not be expected to; provide information or refer trafficked persons to the law enforcement
without the consent of the person involved; get involved in criminal investigations neither file or
provide information on criminal aspects of a case, or take over the role of the government/other
actors – but rather offer alternative services. The independency of NGOs is vital and should be
respected. NGOs should be able to raise a critical voice – regardless their funding - and be
supported to implement activities based on the grass roots experience (field work) and not
dictated from above. NGO should not just follow instructions of donors and governments.
Role of Government & Courts in rescue, care, support, protection, prevention and rehabilitation
of victims
1.
Develop an Anti-Trafficking Policy specifying victim’s friendly provisions and
structures.
2.
Create an Anti-Trafficking Cell at the State and District level to co-ordinate with other
relevant Departments and NGOs on the issues pertaining to trafficking, especially on the rescue
and rehabilitation of child victims of trafficking for commercial sexual exploitation.
3.
Create a Database on traffickers, brothel owners, informants, decoy customers, number of
cases registered, status of each case, source and destination areas in the State/District and any
other relevant information. The information in the Database should be kept confidential and
should be parted only to genuine information seekers.
4.
Form Community Vigilant Groups (CVGs) at the Community Level. The CVGs can help
in rescue and rehabilitation of victims at the community level.
5.
Repatriate the victim from the Destination State to the Home State. The State would be
responsible for transportation and the State Government would meet all expenses towards travel
for the victim and escort, food and incidental. The State Government should provide a separate
budget for repatriation of the victims.
6.
Give adequate publicity, through both print and electronic media, on child-lines and
women help-lines over a sustained period of time.
7.
Declare fit institutions where mentally challenged or ill child victims and women can be
kept in safe custody and proper medical treatment can be provided.
Conclusion
Trafficking in human beings touches upon a broad variety of issues from organized crime to
labour migration and discrimination, and so do the measures to counter the phenomenon ranging
from law enforcement operations to the improvement of general working conditions. Trafficking
LAW MANTRA
THINK BEYOND OTHERS
of women and children has to be addressed in the specific context of the push factors in the
concerned community. Since the exploiters take advantage of the helplessness of poor rural
families, preventive action must necessarily involve empowering the powerless, especially in
rural areas. Concerted efforts by the government, in cooperation with credible NGOs can be
helpful in achieving this The human trafficking issues is a humanities issue which usually occurs
in backward countries where it involves the poor exploited by those who initially promised
income if they been accepted for work place and in accordance with the sector and where they
live and narrowness needed. The poor usually have complex financial problems, and this makes
them willing to place themselves in anywhere without investigating the background and basic
information that what will be their job. Furthermore, they are also lack of knowledge because
ignorance about their rights and the importance of understanding how to defend themselves from
deceived cause they are unable to get out when hit by this problem. At the same time also, they
are lack of exposure, and they are more easily cheated. Thus, measures the best solution is
comprehensive, especially the involvement of government in formulating and drafting laws that
can protect people from falling prey to problems. Moreover, the involvement of NGOs’ in
helping the government solve this problem is appropriate and timely because the NGO’s can
carry out the duties that cannot be carried out by Government. This issue will only be done if all
the emphasis and direct assistance whether in terms of moral and financial, and suggestions with
combating this commercial crimes.
LAW MANTRA
THINK BEYOND OTHERS
“THE ROLE OF THE CIVIL SOCIETY
ORGANIZATIONS
IN
COMBATING
TRAFFICKING IN TRANSGENDER” MS.
LEEPIKA SHARMA AND MR. SARVESH
KUMAR SHAHI
“The Role of the civil society organizations in Combating Trafficking in Transgender”
“My notion of democracy is that under it the weakest should have the same opportunity as the
strongest.”
- Mahatma Gandhi (1869-1948).
Introduction
Human trafficking is generally understood to refer to the process through which individuals
are placed or maintained in an exploitative situation for economic gain.
The constitution of India guarantees every human being equal rights in the country. Here, first
of all the word ‘Human Being’ needs to be interpreted. It means “A man, woman, or child of the
species Homo sapiens, distinguished from other animals by superior mental development, power
of articulate speech, and upright stance152. Although by this definition it is not clear that whether
third gender sex is included in this definition or not but the word ‘Homo Sapiens’ here can be
interpreted as “all persons who have taken birth as humans irrespective of their sex”.
People who identify as transgender or transsexual are facing lot of discrimination in the
society. They, like other human beings are the creature of God and should deserve equality like
other people living and enjoying their rights on earth. As far as legal protection is concerned,
they deserve equal protection under Art. 14 - 19 and Art. 21 of the Constitution of India, without
having any kind of discrimination existing against them. Article 21 ensures right to privacy and
personal dignity to all the citizens. Article 23 prohibits trafficking in human beings as beggars
and other similar forms of forced labor and any contravention of these provisions shall be an
offence punishable in accordance with law. The Constitution provides for the fundamental right
to equality, The Constitution affirms equality in all spheres but the moot question is whether it is
being applied. This phenomenon can be observed at the international level also.
The increasing crime of human trafficking arouses a global concern. The victims included are
man, woman, children and transgender. This long-standing problem has recently become more

Assistant Professor (Law), Amity Law School, Centre II, Noida, Amity University. Email id [email protected] and Lecturer (Law), Amity Law School, Centre II, Noida, Amity University. Email id –
[email protected]
152
available at: www.Oxforddictionaries.Com/Definition/English/Human-Being
LAW MANTRA
THINK BEYOND OTHERS
broadly recognized as a result of increased awareness among law enforcement, legislators, child
welfare, and the public in general. So, it is pertinent to discuss the issue relating trafficking with
special reference to transgender in the area of commercial sex and the efforts made by
government, judiciary and civil societies in order to curb this menace.
A person (as a transsexual or a transvestite) who identifies with or expresses a gender identity
that differs from the one which corresponds to the person's sex at birth. 153 Another meaning
given by Oxford dictionary154 is denoting or relating to a person whose self-identity does not
conform unambiguously to conventional notions of male or female gender.
The term ‘transgender’ has been derived from the Latin word ‘trans’ and the English word
‘gender’. Different sorts of individuals come under this category. No particular form of sexual
orientation is meant through the term transgender. The way they behave and act differs from the
‘normative’ gender role of men and women. Leading a life as a transgender is far from easy
because such people can be neither categorized as male nor female and this deviation is
“unacceptable” to society’s vast majority. Trying to eke out a dignified living is even worse.155
Civil Society
Civil society is seen as a social sphere separate from both the state and the market. The
increasingly accepted understanding of the term civil society organizations (CSOs) is that of
non-state, not-for-profit, voluntary organizations formed by people in that social sphere. This
term is used to describe a wide range of organizations, networks, associations, groups and
movements that are independent from government and that sometimes come together to advance
their common interests through collective action. Traditionally, civil society includes all
organizations that occupy the 'social space' between the family and the state, excluding political
parties and firms. Some definitions of civil society also include certain businesses, such as the
media, private schools, and for-profit associations, while others exclude them. 156 However, in
practice, the term “NGOs” is used to describe non-profit making, non-violent organizations,
which seek to influence the policy of governments and international organizations and/or to
complement government services (such as health and education).
International Report
According to the Report, the most common form of human trafficking (79%) is sexual
exploitation. The victims of sexual exploitation are predominantly women and girls.
Surprisingly, in 30% of the countries which provided information on the gender (man, woman
and Transgender) of traffickers, women make up the largest proportion of traffickers. In some
parts of the world, women trafficking women is the norm.
The second most common form of human trafficking is forced labor (18%), although this may
be a misrepresentation because forced labor is less frequently detected and reported than
153
available at: http://www.Merriam-Webster.Com/Dictionary/Transgender (Last Accessed: 05/12/2014)
available at: www.Oxforddictionaries.Com/Definition/English/Transgender (Last Accessed: 05/12/2014).
155
available at: Http://www.Hcmadras.Tn.Nic.In/Cji-Speeches.Pdf (Last Accessed: 05/12/2014)
156
available at: Http://www.WHO.Int/Trade/Glossary/Story006/En/ (Last Accessed: 05/12/2014)
154
LAW MANTRA
THINK BEYOND OTHERS
trafficking for sexual exploitation. Worldwide, almost 20% of all trafficking victims are children.
However, in some parts of Africa and the Mekong region, children are the majority (up to 100%
in parts of West Africa).157
The Report shows that in the past few years the number of Member States seriously
implementing the Protocol has more than doubled (from 54 to 125 out of the 155 States
covered). However, there are still many countries that lack the necessary legal instruments or
political will.
Status of Transgender in the Eyes of Law
As regards to constitutional identity of Transgender it is important to note that Preamble to
the Constitution mandates Justice - social, economic, and political equality of status. Thus the
first and foremost right that they are deserving of is the right to equality under Article 14. Article
15 speaks about the prohibition of discrimination on the ground of religion, race, caste, sex or
place of birth. Article 21 ensures right to privacy and personal dignity to all the citizens. Article
23 prohibits trafficking in human beings as beggars and other similar forms of forced labour and
any contravention of these provisions shall be an offence punishable in accordance with law.
Hence herein Transgender also get protection under Constitution of India as they are part of
human creed as per the definitions of human beings mentioned above. The Constitution provides
for the fundamental right to equality, The Constitution affirms equality in all spheres but the
moot question is whether it is being applied.
The Constitution provides for the fundamental right to equality, and tolerates no
discrimination on the grounds of sex, caste, creed or religion. But the third community
(Transgender) continues to be ostracized. The Constitution affirms equality in all spheres but the
moot question is whether it is being applied.
Official identity papers provide civil personhood. Among the instruments by which the Indian
state defines civil personhood, sexual (gender) identity is a crucial and unavoidable category.
Identification on the basis of sex within male and female is a crucial component of civil identity
as required by-the Indian state. The Indian state’s policy of recognizing only two sexes and
refusing to recognize hijras as women, or as a third sex has deprived them at a stroke of several
rights that Indian citizens take for granted. These rights include the right to vote, the right to own
property, the right to marry, the right to claim a formal identity through a passport and a ration
card, a driver’s license, the right to education, employment, health so on. Such deprivation
secludes Transgender from the very fabric of Indian civil society.
The laws that, in today’s date, terrorize the transgender community are Section 377 of the
Indian Penal Code, 1870 and the Immoral Traffic Prevention Act, 1986. Immoral Traffic
Prevention Act of 1956 (amended in 1986) is the chief instrument of the Indian state’s regulation
of prostitution which mandates to prevent the traffic of women and children into prostitution.
With the 1986 amendment, the title was modified to “Immoral Traffic Prevention Act,” and it
became gender neutral. The ambit of the Act now applied to both male and female sex workers
157
A Global Report on Trafficking In Persons, 2014 Published By United Nation Office On Drugs And Crimes. also
available at: http://www.Unodc.Org/Documents/Global_Report_On_Tip.Pdf. (Last Accessed: 06/12/2014)
LAW MANTRA
THINK BEYOND OTHERS
and possibly also to those whose gender identity was indeterminate. It is with the 1986
amendment that both male and hijra sex workers became criminal subjects of the ITPA. This
provided the legal basis for arrest and intimidation of the transgender sex workers population.
Sec 377 of the 1860 Code was drafted by Lord Macaulay. 158 It comes under the Section titled
‘Offences Affecting the Human Body’ and provision provides the sanction’ for the prosecution
of certain kinds of sexual acts deemed to be unnatural. Section 377 has been extensively used by
the law enforcers to harass and exploit homosexuals and transgender persons. Various such
incidents· have come to light in the recent past. In Jayalakshmi v. State of Tamil Nadu,
Pandian159, a transgender, was arrested by the police on charges of theft. He was sexually abused
in the police station which ultimately led him to immolate himself in the premises of the police
station.
India being a orthodox society took a major leap forward by including transsexuals as ‘others’,
distinct from males and females, on electoral rolls and voter identity cards since 2009. This
identity of a third gender was a major step ahead in their struggle for political rights. Another
area of law which has to be seen with the glasses of welfare.
Role of International conventions and law in shaping the rights of Transgender
The 1926 Convention to Suppress the Slave Trade and Slavery is among the earliest human
rights conventions. 160 The spirit and substance of human rights law have, from their earliest days,
rejected the practices that are part of the human-trafficking process. Human rights law
condemns161 the fundamental immorality and unlawfulness of one person appropriating the legal
personality, labor, or humanity of another. It also prohibits discrimination on the basis of race
and sex. 162
Over the past decade, a general agreement has emerged within the international community
that trafficking is a serious violation of human rights. For example, both the European
Trafficking Convention and the EU Trafficking Directive identify trafficking as a violation of
human rights.5 The UN General Assembly and Human Rights Council have repeatedly affirmed
that trafficking violates and impairs fundamental human rights, as have many of the international
human rights mechanisms.
Major crime control treaties, such as the UN Convention against Transnational Organized Crime
and the UN Convention against Corruption, are also relevant to trafficking, as is the Statute of
the International Criminal Court. There are now also several treaties dealing specifically and
exclusively with the issue of trafficking.
158
available at: Indiankanoon.Org/Search/?Forminput=Section%20377%20of%20ipc..
2007 4 Mlj 849
160
available at: En.Wikipedia.Org/Wiki/1926_Slavery_Convention (Last Accessed: 06/12/2014)
161
available at:
www.Ishr.Ch/.../Top-Un-Human-Rights-Body-Condemns-Violence-And-Discrimination (Last
Accessed: 06/12/2014).
162
available
at:
http://Www.Americanbar.Org/Publications/Judges_Journal/2013/Winter/Human_Rightsbased_Approach_To_Traffi
cking_The_Work_Of_The_United_Nations_Office_Of_The_High_Commissioner_For_Human_Rights.html (Last
Accessed: 06/12/2014).
159
LAW MANTRA
THINK BEYOND OTHERS
Treaties Particularly Relevant to Trafficking163 are Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, 2000 (Trafficking Protocol), Convention on
the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW), Convention on
the Rights of the Child, 1989 (CRC) 164,Optional Protocol to the Convention on the Rights of the
Child on the sale of children, child prostitution, and child pornography, 2000 (Optional Protocol
on the sale of children),UN Convention Against Transnational Organized Crime, 2000
(Organized Crime Convention), International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, 1990 (Migrant Workers Convention),
International Covenant on Civil and Political Rights, 1966 (ICCPR),International Covenant on
Economic, Social and Cultural Rights, 1966 (ICESCR)165,Council of Europe Convention on
Action against Trafficking in Persons, 2005 (European Trafficking Convention),Directive
2011/36/EU of the European Parliament and Council on preventing and combating trafficking in
human beings and protecting its victims, 2011 (EU Directive on Trafficking),South Asian
Association for Regional Cooperation, Convention on Preventing and Combating Trafficking in
Women and Children for Prostitution (SAARC Convention) 166.
Efforts Made by Civil Societies
To curb the menace of trafficking of Transgender, our society need to come forward together
to help them in their upliftment through sincere efforts. There are some efforts made by several
individual, government and non- government groups who came forward to work for third gender
group in the latest pasts which are mentioned as follows:
1.
Class 8 students of Chennai while travelling in a train to charted out the course of action
of transgender community. They identified the struggles of the community, discussed the
resources the school had to help them and how they could reach out to them. Finally consensus
was made and school authorities decided to give computer tips to Transgender 167.
Over 10 days, the students taught them how to create a word document, to make a PowerPoint
presentation and helped them create email ids. "We realized we take so many things for granted.
It was hard for us to believe that there are young people out there who still don't know how to
use a computer," said Faiza Fathima, who was among those who trained the Trans people.
Participants of the programme said that although the community is being assured of a quota for
jobs, many of them are ill-equipped. "They ask us not to engage in sex work or begging. They
ask us to find alternate jobs, but the government does nothing to train us for these jobs," said
163
Available
at
:Http://Www.Americanbar.Org/Publications/Judges_Journal/2013/Winter/Human_Rightsbased_Approach_To_Traff
icking_The_Work_Of_The_United_Nations_Office_Of_The_High_Commissioner_For_Human_Rights.Html#6
(Visited On 06/12/2014).
164
available at: En.Wikipedia.Org/Wiki/Convention_On_The_Rights_Of_The_Child (Visited On 06/12/2014).
165
available at: Www.Ohchr.Org › Ohchr › English › Professional Interest (Visited On 06/12/2014).
166
available at: Www.Jus.Uio.No › ... › 2-04 Women's Rights
167
Farhadh Sha , “Schoolkids Give Transgender Computer Tips” , Times Of India, Chennai Tnn | Nov 19, 2014.
LAW MANTRA
THINK BEYOND OTHERS
Meera Jasmine, a transgender. It would be nice if at least private companies come forward and
train us as part of their social responsibility programmes just like these students did.
2.
In Thiruvananthapuram 168, Olga B. Aaron, a transgender activist, has stressed the need to
provide counselling to parents of children with gender non-conformity.
“Nurturing plays a key role in parenting a child with gender non-conformity. It is important to
provide emotional support to such children. Lack of emotional support could put them in undue
stress and lead to mental problems,” she said.
Parents should nurture them and allow the child to grow like any other child. It is unfair to
discriminate once they express their different sexual orientation,” Ms. Aaron, founder of the
Bravo Movement, a Chennai-based non-governmental organisation, said.
Transgender were pushed into prostitution and begging as they could find no other means of
livelihood. The government should evolve a separate policy to rehabilitate them. She said her
NGO was trying to exert pressure on the government to include children with gender nonconformity in the category of children with special needs.
Esther Bharathi, a transgender, who has completed her Bachelor’s in Divinity, said the
government should frame a law to prevent discrimination and atrocities against Transgender.
3.
Panmai Theatre Group in kerala will stage ‘Colour of Trans’ in Kozhikode. ‘Colour of
Trans’ is the first play to come out of the stable of the Chennai-based Panmai Theatre Group, the
first transgender theatre group in the country169.
The play has already been staged in Chennai and Bangalore, where the response was quite
different. The theatre group was formed by transpeople Living Smile Vidya, Angel Glady, and
Gee Imman Semmalar with the aim of focussing on gender diversity and spread of equality
through theatre.
‘Colour of Trans,’ a multilingual play, features stories about transpeople and the nuances in
their lives through seven episodes that mostly consist of monologues.
4.
Medical institutions have an important role to play in mainstreaming the transgender
population, says Laxmi Narayan Tripathi, actor and transgender rights activist while
participating in a World AIDS Day related programme at the Scientific and Academic Forum of
Mahatma Gandhi Medical College and Research Institute, administrated by Sri Balaji
Vidyapeeth170.
168
The Hindu, Thiruvananthapuram, December 5, 2014
169
Aabha Anoop, “Mainstreaming Stories Of Transpeople”, The Hindu, Kozhikode, December 6, 2014
170
M. Dinesh Varma, “Hospitals Play Vital Part In Mainstreaming Third Gender”, The Hindu, Puducherry,
December 3, 2014.
LAW MANTRA
THINK BEYOND OTHERS
Sharing her journey through trials and tribulations as a transgender growing up in Thane,
Maharashtra, with a gathering of doctors, medical and nursing students, Laxmi pointed out that
along with an increasing public awareness and empathy, the scenario of access to medical
facilities by Transgender was also changing. Where previously, Transgender depended on
physicians facilitated by the AIDS Control Societies, now they were able to consult qualified
physicians of their choice.
Referring to the Supreme Court judgement earlier this year directing the Centre to officially
recognise Transgender as the third gender, Laxmi said it was a landmark judgement for an
estimated three million Transgender in India.
The apex court judgement also paves the way for a quota for Transgender to be enrolled in
education institutions and appointed in Government jobs on the lines of the rights of minority
groups, said the activist who was the first transgender person to represent Asia Pacific in the UN
in 2008 and is founder trustee of Astitva, an organisation which works for the support and
development of Sexual Minorities. Laxmi also volunteered to bring from abroad specialists in
sex reassigning surgery for training doctors in India. Laxmi was also all praise for the Sri Balaji
Vidyapeeth for employing transgender at supervisory levels in its constituent colleges and also
opening an exclusive transgender clinic at its hospital.
5.
The Department of Civil Supplies and Consumer Affairs recently distributed ration cards
to 10 people of the transgender community.
In 2010, the transgender community was given ration cards for the first time. At the time, 28
people had received their cards and another 10 people had applied for it. The community is
planning to apply for voter identity cards171.
6.
If all goes as per the Department of Public Instruction’s (DPI) plan, from the next
academic year, transgender persons can avail themselves of seats under the RTE reservation
quota in private schools. The DPI will send a proposal to the government to include transgender
persons under the disadvantaged group so that they can be granted admission under the 25 per
cent reservation quota at the first instance. At present, only orphans, children living with HIV,
special-needs children, and migrant or street children can avail themselves of the benefit 172.
The move has been mooted by the department after the Supreme Court judgment in April
2014 recognized transgender as the third gender and directed the Centre and States to initiate
steps to treat transgender persons as socially and educationally backward classes, and extend
reservation for admission in educational institutions and for public appointments.
Commissioner for Public Instruction Mohammad Mohsin said the department would also
amend the Karnataka Right of Children to Free and Compulsory Education Rules to make sure
that transgender person between the ages of 6 and 14 can avail themselves of education in all
171
“Getting An Identity”, The Hindu, Puducherry, November 6, 2014
172
Tanu Kulkarni, Rte Quota Mooted For Transgender Persons, Bengaluru, The Hindu, November 3, 2014.
LAW MANTRA
THINK BEYOND OTHERS
schools. “We do not want to restrict the rights of Transgender to just the 25 per cent reservation
quota. We want to extend it in all schools,” Mr. Mohsin said.
However, sources in the department said that as the amendment of rules may take time, the
department was planning to modify the Government Order which specifies who are eligible to
avail themselves of reservation under the quota.
7.
The sexual minority community of Karnataka is launching a quarterly dedicated to issues
faced by the Lesbian, Gay, Bisexual and Transgender (LGBT) community, which is the first
effort of its kind in the State173.
The magazine, titled ‘Ananya’ and to be launched on Thursday, will carry “news and views of
the sexual minorities” in and around Karnataka. It will also comprise poems and stories by
community members, narratives of their experiences, information on their struggles and
campaigns, legal awareness articles and updates on government welfare programmes.
Mr. Umesh, editor of the magazine, pointed out that while there are some online platforms for
debates involving the LGBT community, print publications, especially in local languages, are
few.
The organisation Jeeva, which will host the magazine, has also brought out Jeeva Video
Magazine. Under this, they have already released a documentary called ‘Shruti and Sharanya: a
Love Story’, which is the true story of a lesbian couple from Kerala falling in love and fighting
for their rights.
8.
A learning resource centre exclusively for the Transgender set up under the Saakshar
Bharat Programme, a Central adult literacy and continuing education programme, was
inaugurated at Salem, Tamil Nadu recently174.
The objective of the learning centre is to cater to the learning and skill development needs of
the Transgender for their overall personality development. Already 385 Saakshar Bharat learning
centres are successfully functioning in the district and this is the first centre for the benefit of the
Transgender.
Salem is one among the four districts in the state selected by the State Resource Centre for the
setting up of an exclusive learning centre for Transgender.
The illiterate Transgender residing in the village panchayats where Saakshar Bharat centres
are functioning could attend the literacy programmes in these centres. If a group of Transgender
gather at a place, some volunteer from the learning centre will come to their place to teach them.
Apart from imparting literacy, skill training is also being given.
The salient features of various government schemes are also being explained at these centres.
173
“A Magazine For And By Lgbt Community”, The Hindu, Bengaluru, November 6, 2014
174
“An Exclusive Learning Centre For Transgender”, The Hindu, Salem, November 15, 2014
LAW MANTRA
THINK BEYOND OTHERS
9.
Actor Jackie Shroff’s first-born Tiger Shroff made his Bollywood debut this year, and
now his daughter Krishna has decided to make her presence felt from behind the scenes with a
documentary on the transgender community175.
The documentary, titled “Black Sheep”, takes a dispassionate look at the transgender
community. It focuses on the transgender community’s hopes and dreams as opposed to the
sordid side of their lives that keeps recurring in all discussions on the community.”
10.
Members of Rotary Club of Nanganallur and transgender community joined hands with
the Rotary International District-3230 to raise awareness among the public on road safety and the
initiative ‘RASTA’. Around 100 Transgender, headed by Priya Babu, held placards that read
messages on road safety176.
They manned the busy signals and raised road safety slogans during rush hour in the presence
of Rtn.V.S. Ravindran, additional chairman, Community Service Development, Dist. 3230, along
with president Rtn. Selvamurugan and rotaractors of Chellammal College. Also, more than 500
Rotarians joined the Transgender in spreading awareness at about 50 locations across the city.
11.
Gujarat Government plans to carry out a state-wide survey to find out the number and
socio-economic status of the transgender community.
"The survey will focus on getting district-wise exact numbers of the community. The survey
will also try to find out various aspects like their social, economic and other issues.
On the basis of the survey, the department will chalk out various welfare schemes. The main
focus of the proposed scheme will be to bring them out of the begging and involve them in
mainstream economic activity by giving vocational and educational trainings 177.
12. According to the fresh electoral rolls of the COIMBATORE, there are 81 people
registered as voters in 'others' category.
There were 20 voters who had registered in the 'others' category, mostly Transgender, during
the electoral roll revision last year. Though there has been a four fold increase in this category
this year, transgender activists say this number is far from the actual transgender population in
the district which includes Pollachi and Valparai. They say the lower registration by Transgender
exposes lack of awareness and difficulty in accessing government machinery178.
Action Plan against Human Trafficking
175
“Jackie Shroff’s Daughter Makes Documentary On Transgender”, The Hindu, November 16, 2014
176
“Transgender Create Road Safety Awareness”, The Hindu, November 23, 2014.
177
“New Policy For Transgender On Anvil”, Times of India, Gandhinagar, Nov 26, 2014.
178
'Transgender Not Reflected In Rolls'pratiksha Ramkumar, Times of India, Oct 16, 2014.
LAW MANTRA
THINK BEYOND OTHERS
In 2009 the Indian government approved its first Action Plan against Human Trafficking. The
objective of the Action Plan is to enhance the coordination of actions that are necessary in order
to prevent human trafficking in Iceland, and to further study trafficking in human beings.
Furthermore, it specifies actions that are aimed at prevention and education regarding this matter,
as well as securing that aid and protection to victims is provided. The second Action Plan is now
in place.
The lack of awareness on the importance of a voter id card among the transgender community
and the difficulty in procuring one, contribute to the low registration, say activists. Obtaining
documents to legalize this new identity and getting a voter id card is difficult. They often have
absolutely no documents, said Solomon Ray, managing trustee at Power of Youth Hands trust.
Recommendations and Suggestions
To bring about a change in the societal aspect it is necessary that we implement the seeds of
equal treatment for Transgender in the minds of the new generation. A comprehensive gender
and sexuality education should be provided to all children and youth, within and outside formal
education systems, which includes discussions on sexual and gender diversity and sexual rights.
This will not only ensure a better future outlook for the Transgender but also they will be able to
earn self esteem and self respect which they deserve for the mere fact of being a human being.
To get any reform in any law that would affect the transgender community it is proposed that a
few members of the transgender community be made a part of such commission so that the law
does not remain a toothless piece of legislation and serves the purpose it was enacted or amended
for.
Discrimination against Transgender is embedded in both state and civil society. The violence
that this community faces is not only due to the state but also has deep societal roots. Apart from
shifts in class relations, change would also crucially hinge upon overturning the existing regime
of both gender and sexuality that enforces its own hierarchies, (e.g. heterosexuality over
homosexuality), exclusions (e.g, hijras as the excluded category) and oppressions. While keeping
in mind this wider context, a human rights approach has to deal with the various institutional
contexts and think through ways in which change can be brought about Legal Measures
It is of utmost importance that the transgender community is made free from violence and
discrimination at all levels of the society. It is due to the discrimination they face since school
that they never have enough confidence to continue studying and become eligible for all the
white collar jobs. This mindset has to change if India truly wants to be the champion of human
rights in the world. The surgery of sex reassignment should be given a legal status so that the
Transgender do not risk their lives going through it in a secret unlawful manner. This record will
also be helpful in accurately determining their census. There should also be a separate column in
the sex determinant portion in all government and non-government forms.
There is need for their social acceptance. They should be provided separate wards in all
government hospitals. The authorities do not admit them in women’s ward because women do
not feel comfortable or free in their presence and in men’s ward they face sexual abuse. Besides,
there are no separate toilet facilities for them. Some progressive measures are:
LAW MANTRA
THINK BEYOND OTHERS
a) To sensitize the society with regard to their identity.
b) Support of civil society organization to advocate for their cause and efforts. For example,
advocate for land/ shelter, creation of separate public toilets, hospital wards, recognition of their
right to vote as citizens, reservation seats in election, etc.
c) Support of Media - both print and electronic, to highlight their status and plight rather than
portraying them in Transgender light.
d) Extend financial support for community based organizations run by transgender communities.
e) To generate awareness, so that the transgender is viewed and understood as a culture,
community and a movement.
1. Every person must have the right to decide their gender expression and identity, including
transsexuals, Transgender, transvestites and hijras. They should also have the right to freely express their gender identity. This includes the demand for hijras to be considered female as well as
a third sex.
2. Comprehensive civil rights legislation should be enacted to offer hijras and kothis the same
protection and rights now guaranteed to others on the basis of sex, caste, creed and colour. The
Constitution should be amended to include sexual orientation/ gender identity as a ground of
non-discrimination.
3. There should be a special legal protection against this form of discrimination inflicted by both
state and civil society which is very akin to the offence of practicing un-touchability.
4. The Immoral Trafficking Prevention Act, 1956, as has been pointed out earlier, is used less for
preventing trafficking than for intimidating those who are the most vulnerable i.e., the individual
sex worker as opposed to brothel keepers or pimps. This law needs to be reformed with a clear
understanding of how the state is to deal with those engaged in sex work.
Section 375 of the IPC should be amended to punish all kinds of sexual violence, including
sexual abuse of children. A comprehensive sexual assault law should be enacted applying to all
persons irrespective of their sexual orientation and marital status.
6. Civil rights under law such as the right to get a passport, ration card, make a will, inherit
property and adopt children must be available to all regardless of change in gender / sex
identities. To put in a nutshell the following solutions are needed:
The transgender persons must be properly documented in census. They need to be considered
for statutory reservation in educational institutions and job opportunities in public and private
sectors. They need to be empowered with high degree of educational and vocational trainings to
up-grade their earning and status in the society.
Since they are prone to heath setbacks, they need proper medical facilities including insurance
in the health sector. There has to be togetherness. They should be brought under one umbrella,
where people from mainstream society enjoy certain rights and benefits. They could be accorded
LAW MANTRA
THINK BEYOND OTHERS
security and further benefits through social, political and legislative intervention. Separate law is
needed to ameliorate the condition of eunuchs, and ensure that they enjoy the rights granted to
every citizen.
In western countries, the Transgender are very much part of the society, then why not in India
they will be given recognition and respect like others. We need to take a look either into their
past or into the future to stop vast discrimination against such a large portion of the population
and to help them to divert their way from sex workers to good Citizens.
Conclusion
The human trafficking issues is a humanities issue which usually occurs in backward
countries where it involves the ‘Transgender’ exploited by those who initially promised income
if they been accepted for work place and in accordance with the sector and where they live and
narrowness needed. The Transgender usually have complex financial problems, and this makes
them willing to place themselves in anywhere without investigating the background and basic
information that what will be their job. Furthermore, they are also lack of knowledge because
ignorance about their rights and the importance of understanding how to defend themselves from
deceived cause they are unable to get out when hit by this problem. At the same time also, they
are lack of exposure, and they are more easily cheated. Thus, measures the best solution is
comprehensive, especially the involvement of government in formulating and drafting laws that
can protect people from falling prey to problems. Moreover, the involvement of NGOs’ in
helping the government solve this problem is appropriate and timely because the NGO’s can
carry out the duties that cannot be carried out by Government. This issue will only be done if all
the emphasis and direct assistance whether in terms of moral and financial, and suggestions with
combating this commercial crimes.
To guarantee the rights of trafficking victims, States must rely on organisms that have the
expertise to develop the legal framework and comprehensive policies against trafficking.
“The care of human life and happiness and not their destruction is the only object of good
government”.
–Thomas Jefferson (1743-1826), author of the Declaration of Independence, 3rd President of the
United States of America.
LAW MANTRA
THINK BEYOND OTHERS
HUMAN TRAFFICKING (FOCUSED ON
TRAFFICKING IN CHILD) BY SHRADDHA
UPADHYAY AND SHWETANK SHARMA
INTRODUCTION
"Children are the only future of any people. If the children's lives are squandered, and if the
children…are not fully developed at whatever cost and sacrifice, the people will have
consigned themselves to certain death"
-
Frances cress welsing
Human trafficking is the illegal recruitment, transportation, transfer, harbouring and receipt
of a person especially one from another country with the intent to hold the person captive
or exploit the person for labour, services, and body parts.179 “The recruitment, transfer,
transportation, harbouring, and receipt of a person by means of threat or the use of force or
other forms of coercion, abduction, of fraud, of deception of abuse of power or
vulnerability or of the giving of or receiving of payments or benefits to achieve the consent
of the person having control over another person for the purpose of exploitation.”180 Child
trafficking means “any person under 18 who is recruited, transported, transferred,
harboured or received for the purpose of exploitation, either within or outside a country” 181
BACKGROUND
Child trafficking is not a new crime emerged it is existing in society from the medieval
period. Child trafficking has put its seed during the fall of soviet Russia, due to mounting
poverty this offence began to grow up, In 1904 an international agreement for the
suppression of “white slave traffic” was made but it failed because of the first world war
and this crime spread its roots again, but for a second time efforts were made on June 21,
1921,league of nations held a meeting on “trafficking of women and children” and to
watch out all the countries to be dealt with this problem. 182 During the time of World War
2 in Japan Asian women were forced into sexual slavery and were kept into stations known
as “comfort stations” and men gained access to them while paying a fee. In the year of
1956 an initiative was taken by India, it passed the Immoral Traffic Prevention


B.B.A. L.L.B., 2nd Year, Chanakya National Law University, Patna, Bihar.
B.A. L.L.B., 1st Year, Chanakya National Law University, Patna, Bihar.
179
Black’s law dictionary, 9th edition, 2009.
180
Article 3 of United Nations Protocol against Trafficking in persons.
181
United Nations International Children Educational Fund.
182
History
of
Child
Trafficking,
By
Leo
Tang,
Child
Trafficking
101,
http://childtrafficking101.wikispaces.com/History+of+Child+Trafficking accessed on: 6th December, 2014 at
12:30 p.m. IST.
LAW MANTRA
THINK BEYOND OTHERS
Act,1956.183 Trafficking in India of women and children is a frequently happening event
and all the happenings seem to be associated with the natural, demographic economic and
social factor.184
The basic issue for concern and the motive for going on with this paper is to research that
why this crime of trafficking is flourishing inspite of preventive measures taken by the
bodies of Government and even by non governmental bodies. This issue has crop up
because of growing crimes in society of this trafficking. According to estimation around 6,
00,000 to 8, 00,000 people are trapped in the web of trafficking across the international
borders and out of it half of the victims are children worldwide!185 Available records of
National crime records Bureau show a total of 3,554 crimes related to human trafficking as
compared to 3,517 previous and around 2,080 some more years back. 186Also a minister
Jitendra singh, former minister of state home affairs said that almost 60,000 children are
missing in 2011.
National crime records bureau data demonstrates an augment in instances of child
trafficking for the felony of ‘procuration of minor girls’, ‘importation of girls from
overseas country’, ‘selling of girls for prostitution’ and ‘trading of girls for prostitution’.
Cases have increased of these crimes from 214 to 991.187
RAISON D'ÊTRE OF CHILD TRAFFICKING
Millions of women and children are trafficked each year in India which has been declared
as, India is “a source, destination and transit” country for “men women and children
subjected to forced labour and sex trafficking”. 188 The innocent and trapped children are a
source of profit for a long chain of people taking an active part in their trafficking. This
could be going through a long sequence but with the help of mediators it could performed
easily which would include recruiters, transporters, brothel owners and pimps. This
complex networking of criminals aid them in flourishing in their trade this network could
183
Timeline of Human Trafficking, By Patricia Yong, Campus Coalition against trafficking,
http://www.eden.rutgers.edu/~yongpatr/425/final/timeline.htm accessed on: 6th December, 2014 at 12:54
p.m. IST.
184
Women Trafficking in India, By Archana Singh, IUAES 2013, Panel code- MMM02,
file:///C:/Users/sony/Downloads/Women_Trafficking_In_India_An_Anthropological_View.pdf accessed on:
4th December 2014, at 4:36 p.m. IST.
185
Child victims of human trafficking, Department of health and human services USA, Child Protection and
Child rights, Vulnerable children, Children issues, Child Trafficking, http://www.childlineindia.org.in/childtrafficking-india.htm accessed on 4th December 2014, at 4:50 p.m. IST.
186
National Crime records bureau, Child Trafficking Rampant in under developed Indian villages, Edited by
Kanya D’ Almeida, http://www.ipsnews.net/2014/09/child-trafficking-rampant-in-underdeveloped-indianvillages/ accessed on: 5th December 2014, at 2:25 p.m. IST.
187
India’s child trafficking epidemic, By Biswajit Ghosh, of University of Burdwan, West Bengal India,
published on 6th march, 2014, http://www.eastasiaforum.org/2014/03/06/indias-child-trafficking-epidemic/
accessed on: 6th December 2014, at 5:32 p.m. IST.
188
United States Department of state, Trafficking of women and children in India, By Graham Peebles ,
Redress online , report, 15th September, 2013, http://truth-out.org/news/item/18850-trafficking-of-childrenand-women-in-india accessed on : 3rd December 2014 at 4: 32 p.m. IST.
LAW MANTRA
THINK BEYOND OTHERS
include police officers, government officials, even father and mother. 189Trafficking of
women has also been started for coerced marriages, as due to infanticide and female
foeticide there has been acute shortage of girls in states of Punjab and Haryana which has
led to the demand of brides from other states.190 There are a lot of grounds existing which
are the cause of human trafficking as well as child trafficking.
The two aspects which emerge automatically in psyche are that (i) What are the
circumstances leading to trafficking and (ii) Why is this done? The first facet is that
trafficking in India is basically done in poor localities where poor being most vulnerable
section of society are lured and attracted by the people to provide work and even better
standards of life, so by being under this influence people sell their children to the
traffickers’ mob while they get trapped and are forced to beg or sell their organs or work as
a slave and minor girls are subjected to sex trades.191 Socio-economic backwardness is a
key factor in child trafficking, “Many families are unable to afford the basic necessities of life,
which forces parents to sell their children. Some children are abandoned by families who can’t take
care of them. Some run away to escape abuse or unhappy homes. Gangsters and middlemen
approach these vulnerable children."192 It is also asserted that this crime of human trafficking is
basically fuelled by poverty, lack of proper education, and demand for labour and sex, also social
inequity between man and woman is part of it.193 Secondly, it could be seen thatTrafficking is basically done for exploitation194




Sexual Exploitation
Forced Labour (Slavery)
Organ Trade
Begging
 TRAFFICKING FOR SEXUAL EXPLOITATION
189
Profiting from Abuse, An investigation into sexual exploitation of our children, ISBN-92-806-3733-9,
Sales
no:
E.01.XX.14,
UNICEF
,Division
of
Communication,
New
York,
2001,
http://www.unicef.org/publications/files/pub_profiting_en.pdf accessed on :7th December 2014, at 9:60 p.m.
IST.
190
Whither Childhood, By Ibrahim Mohamed Abdelfattah Abdelaziz, Child Trafficking in India, 2007,
International
Consortium
for
social
development,
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=humtrafcon5
accessed on 4th
December 2014, at 2:38 p.m. IST.
191
National Crime records Bureau; a report by National Human Rights Commission, Child Trafficking
Rampant
in
under
developed
Indian
villages,
Edited
by
Kanya
D’
Almeida,
http://www.ipsnews.net/2014/09/child-trafficking-rampant-in-underdeveloped-indian-villages/ accessed on :
5th December 2014, at 2:25 p.m. IST.
192
Justice J B Koshy, who is a former chief justice of the Patna High Court and chairperson of the Kerala
Human Rights Commission.
193
What is human trafficking, http://www.unitedmethodistwomen.org/ht/packet.aspx accessed on 2nd
December, 2014 at 5:30 p.m. IST.
194
What is Human Trafficking,
LAW MANTRA
THINK BEYOND OTHERS
Child sexual exploitation occurs where:

A child is compelled by force, the threat of force, intimidation or the abuse of power
or a position of trust to engage in sexual conduct; or

There is an exchange of a controlled substance (ex: drugs/inhalants/alcohol) for
sexual conduct.195
Globalization has increased the cross border trade and women and children are trafficked
to the other countries too for commercial sexual exploitation, approximately 80 per cent of
children globally are trafficked for sexual exploitation, according to an estimate 1.2 million
children are being bought and sold for sexual slavery every year, and India has become a
poisonous hub, for this sexual trade.196
Child sexual exploitation can happen through the utilization of various technologies by the
sex traffickers without the consent of child as like persuading them to post sexual images
on the Internet/mobile phones for their gain. Child sexual exploitation doesn't always
involve physical contact and can happen online.197 Girls and young women are often
trafficked by being allured, Beguiled and kidnapped and after that are presented to their
clients and customers to have pleasure of sex with them and is they try to avoid and resist
them they get the beatings as end result.198 Studies which have been done currently show
us that more than 40 per cent of women sex workers are completely drowned into
prostitution before the age of 18 years. Furthermore, there are very less chances of
rehabilitation of the children who have been trafficked. 199 Prostitution of child, their sale
and trafficking and also child pornography involving girls and boys are interlinked.
Affect of the cult
As inestimable forms of ceremonies, rituals, rites, worships, exist in India which has shaped the
society and laws in its forms, customs even are regarded above laws, and religion and customs
give a proper contour of society and social standards of people are framed out of religion and
religious values, the reference here is to the sect which favoured to the system of ‘Devadasi’
which literally means the ‘female slave of the God’, and this exist even today which makes women
195
The Child Sexual Exploitation and Human Trafficking Act, Manitoba Laws, Part I, Interpretation,
Definitions, 1(1). http://web2.gov.mb.ca/laws/statutes/ccsm/c094e.php accessed on : 7th December 2014 at
6:45 p.m. IST.
196
Supra10.
197
Child Sexual Exploitation, by the UK National Working Group for Sexually Exploited Children and
Young People (NWG), http://www.nspcc.org.uk/preventing-abuse/child-abuse-and-neglect/child-sexualexploitation/what-is-child-sexual-exploitation/ accessed on 7th December ,2014 at 7: 20 p.m. IST.
198
Human Trafficking, Sex Trafficking, http://www.dfn.org.uk/info/slavery/42-information/slavery/92-sextrafficking accessed on :3rd December, 2014 at 8: 40 p.m. IST.
199
Child Trafficking, records from website of Unicef, http://www.unicef.org/india/children.html accessed on
3rd December, 2014 at 8:45 p.m. IST.
LAW MANTRA
THINK BEYOND OTHERS
as slave, this leads to the trafficking of women for the fulfilment of their purpose, also known as a
form of temple prostitution. 200
Children who are primarily at risk of sexual exploitation incorporate street children, children of
sex workers, refugee children and children staying in communities where tradition or custom
thrust them into sexual exploitation, also children residing in institutional care, or in work places,
particularly in domestic labour.201 The widely held faction of trafficked children for sex are Dalits
or Tribals (from India’s aboriginal tribes), who fall beneath the caste system.
According to a girl named Elaina Kujar who was 14, when she was trafficked to Delhi
from the Lakhimpur district of Assam and spent four years there as a sex slave. Reporting
based on the Guardian newspaper the condition of that girl was that her owner “would sit
next to her watching porn in the living room of his Delhi house, while she waited to sleep
on the floor. “Then he raped me,” she said It is estimated that around thousands of girl like
her
are
sold
into
slavery
of
this
kind.202
Though for the most part sex-trafficking is done to supply girls for brothels and other
agencies, progressively more trafficking is taking place for pornography, including filming
and live feeds for the internet, and to fulfil the demand of people for sex-tourism. Existence
of trade in boys for sexual exploitation could also be seen. Girls tend to be exploited in
organized clubs, bordellos or houses, boys spend their time on their own or in small groups
and are targeted in streets, parks, plazas and beaches. 203 A research was conducted in 2003
by ECPAT International and Equations and by its associate group in India, brought into
light the augment of child sex tourism in India.204 A recent study done by the NHRC bring
into being that traffickers are using women and children for pornography and they have a
preference of teenage girls for this purpose. The report in supplementary found that
trafficking for the production of pornography takes place in Kerala, Tamil Nadu,
Karnataka, Andhra Pradesh, Maharashtra and Bihar. Children from these states are also
trafficked to other countries, such as the United Kingdom, and to other States for
pornographic purposes and the data collected from Kolkata also supports the fact that the
number of women and children trafficked from Bangladesh and Nepal is increasing every
year. 205
TRAFFICKING FOR BONDED LABOUR (SLAVERY)
200
Supra6.
Commercial Sexual Exploitation and child sexual abuse 2nd World Congress against commercial sexual
exploitation
of
children,
Yokohama
Japan,
17-20
December
2001,
Unicef,
http://www.unicef.org/rosa/commercial.pdf accessed on 7th december 2014, at 9:41 p.m. IST.
202
Supra10.
203
Supra20.
204
A Global Monitoring report on the status of action against Commercial sexual exploitation of children,
ECPAT http://www.ecpat.net/sites/default/files/India%201st.pdf accessed on: 8th December ,2014 at 12:11
p.m IST.; Equations and ECPAT International. A Situational Analysis of Child Sex Tourism in India (Kerala
and Goa). December 2003.
205
A report on Trafficking in women and children in India, By Sankar Sen (coordinator), By P.M. Nair
IPS (Principal investigator- researcher) , NHRC- UNIFEM ISS PROJECT, Volume -1, 2002-2003,
http://nhrc.nic.in/Documents/ReportonTrafficking.pdf accessed on : 8th December 2014, at 12:43 p.m. IST.
201
LAW MANTRA
THINK BEYOND OTHERS
“The trafficking of human beings is unacceptable under any circumstances, but the
trafficking of vulnerable children and young people is a violation of their rights to
protection from exploitation, to play, to an education, and to health, and to family life.”
- Frans Röselaers206
Debt or bonded labor, which according to Anti-Slavery, a Non Governmental Based
Organization, “it is the most widely used method of enslaving people”. 207 Trafficking in
children is a result of demand of cheap labour in intra and extra territory which violates the
human rights of children, and put them to slavery. Child trafficking is topic of concern as it
makes the children vulnerable and they lose their protective shield of homes and are
exposed to various threats. Though no exact figures exist, the International Labour
Organisation (in 2005) estimated that 980,000 to 1,225,000 children including boys and
girls both are in a forced labour situation due to trafficking.208 The 2013 Global Slavery
Index, published by the Australia-based Walk Free Foundation, which is an organization
working to end up slavery has through its research brought the data that most of the
“modern slave” workers are from India.209 Several traffickers entice children to move long
distances from their home for work, most often they make promises of jobs and good pay
that fail to turn up. Representatives who are appointed by traffickers also propose advances
to the family of children’s serving this as a loan, and indebt the members of family and
then they are bound up by this bonded labour secret arrangements done by them to trap the
innocent children and give their children as a slave.210
After the passing of South Asian March which was against Child Trafficking and in which
the issue of forced labour, child labour and bonded labour was linked with trafficking. In
year 2007, in the month of March the agency of UNODC with other United Nations
agencies and the NGOs launched a Global Initiative which was meant to Fight Human
Trafficking with a very strong stress on forced and bonded labour. Likewise, also the
Unites States Department of States presented a Trafficking in Persons Report 2007 which
has notably defined and elaborated the interlinking between bonded and forced labour and
trafficking of human beings.211
The plight of Indian tea workers primarily is very pathetic when talked about the states like
Assam and West Bengal which have become the focal point of a major international
campaign that argue that the trafficked children are poorly paid when taken by the
206
Director, ILO, International Programme on the Elimination of Child Labour (IPEC)
Supra11.
208
Trafficking in Children, International Programme on the elimination of child labour, International Labour
Organisation, http://ilo.org/ipec/areas/Traffickingofchildren/lang--en/index.htm accessed on : 8th December
2014, 1:10 pm., IST.
209
Women
under
silence,
By
Michael
Douglas
Bramwell,
http://www.womenundersiegeproject.org/blog/entry/silent-slaves-stories-of-human-trafficking-in-india
accessed on: 1st December 2014, at 8:45 p.m. IST.
210
Supra21.
211
Child Trafficking, Global March against child Labour,(South Asian March against Child Trafficking),
http://www.globalmarch.org/campaign/child-trafficking accessed on : 8th December 2014, at 1:43 p.m. IST.
207
LAW MANTRA
THINK BEYOND OTHERS
traffickers, often children are lured for money and they end up enslaved in factories where
they are brutally beaten up and no wages is provided to them. 212
Vulnerability of these children was brought into discussion, which were being exploited by
merciless labour agencies, in October when the Nobel Peace Price was awarded to
children's rights activist Kailash Satyarthi for his work highlighting child labour conditions
in India (Bachpan Bachao Andolan) 213
According to a news bulletin it was seen that Delhi crime branch arrested a couple from
Jharkhand involved in trafficking the article lines read as “The accused, identified as Panna
Lal and his wife Sunita Kumari, were wanted in a case of human trafficking, they
trafficked children from Jharkhand to be employed as domestic helps in Delhi-NCR
through their placement agencies.”214
TRAFFICKING FOR ORGAN TRADE
According to United Nations protocol, “Organ trafficking consists of recruitment,
transportation, transfer, harboring or detaining of people for the purpose of organ removal
and exploitation”. 215 It was affirmed at the Second Global Consultation on Human
Transplantation of the World Health Organization (WHO) in March 2007, the organ sales
from commercial living donors has now become too palpable as according to the estimate
around 5-10% of the annual kidney transplants were performed around the world. 216
According to the report of the United Nations child trafficking for organ harvesting is
occurring on a large scale and that “many abducted or lost children are consequently found
dead, their bodies mutilated and various organs removed”. Persons can be kidnapped, sold
or killed for their organs. Organ donors have been coerced into selling body parts. Also
after leaving their homes, itinerant workers who have been promised jobs that fail to
materialize, are locked in safe houses until they are a match for a kidney recipient. The
donor is then forced to relinquish an organ if he or she hopes to return home. 217
212
Tea workers India falling prey to human traffickers, http://www.smh.com.au/world/tea-workers-in-indiafalling-prey-to-human-traffickers-20141205-120eql.html accessed on :5th December 2014, at 7:42 p.m. IST.
213
Bachpan Bachao Andolan, Save the childhood movement, http://www.bba.org.in/ accessed on : 4th
December 2014, at 3:54 p.m.IST.
214
Jharkhand couple held for trafficking almost 5,000 children, Mail Today Bureau , New Delhi, October 20,
2014,
http://indiatoday.intoday.in/story/delhi-police-human-trafficking-child-trafficking-jharkhandyogendra-sao/1/396671.html accessed on :6th December, 2014 at 10:25 a.m. ,IST.
215
Organ
Trafficking,
By
Theepa,
World
pulse,
December
6,2012
4:00
p.m.,
https://worldpulse.com/node/62193 accessed on : 8th December, 2014, 2:44 p.m. IST.
216
“Organ Trafficking and Transplant Tourism: A Commentary on the Global Realities”, By D. A. and
Delmonico, American Journal of Transplantation, vol. 8, ed. 5, 2008, pg. 925-929.
217
Trafficking of Human Beings for the Purpose of Organ Removal: Are (International) Legal
Instruments Effective Measures to Eradicate the Practice?,By Alexis A. Aronowitz1
Elif Isitman, Groningen Journal of International Law. Vol. 1, No. 2: Human
LAW MANTRA
THINK BEYOND OTHERS
India has been regarded as a major supplier for illegal and immoral body organ harvesting.
It is obvious, that instantaneously after the 2004 Indian tsunami, several foreign squads
landed under the cover of "human aid" in chartered planes, but their actual work was of
harvesting of the organs of the orphans left after the disaster.218Also according to one
secretary of Patna, state home department, named Alok Raj, who said that children below
six years of age are most vulnerable group oof organ trade, by quoting his words “since the
kids in this age group have little monetary value, the traffickers prefer to sell their internal
body parts for hefty sums.”219 Thus it could be seen that India is emerging as a poisonous
hub of trafficking in many fields.
TRAFFICKING FOR BEGGING
Hundreds of children are forced in India to beg by Mafia gangs, who get these children
transferred from their native places. Children who are trapped in the net of traffickers are
mostly dalits and tribal children who pay a heavy price of their poverty. It was very well
portrayed in the Oscar winning movie Slumdog millionaire, which depicted the true picture
of society where these trafficked children are maimed, and their body parts are mutilated
and then they are forced to beg in order to get sympathy from the people , children are
tormented and tortured and often kidnapped by these people in gangs. 220
Domestic servitude is also a part of Child trafficking, according to the estimates around
3/4th of domestic workers in India are believed to be between the ages of 12 and 16, and
90% constituted of girls. 221
PREVENTIVE MEASURES TAKEN TILL DATE
Various actions have been taken against this rampantly growing evil Human Trafficking
involving Child Trafficking, by the various bodies of society and also their loopholes have
been discussed in this section of paper too which would help us to understand the problem
better and we would be acknowledged that why inspite of lot of measures taking place,
trafficking is still flourishing in India.
 Role of Government in eradicating problems related to trafficking.
 Role of Judiciary
 Role of Non Governmental Organizations.
Trafficking , http://grojil.org/03-AronowitzIsitman.pdf accessed on : 8th December 2014, at 3:15 p.m., IST.
218
Kidney sale tourism and body organs harvesting in India, By Ajit Vadakayil, Published on October 30,
2012, http://ajitvadakayil.blogspot.in/2012/10/kidney-sale-tourism-and-body-organ.html accessed on : 8th
December 2014, 3:37 p.m., IST.
219
‘Children below six years vulnerable to organ trade’, By Aditya Vaibhav, Published on September
25,2014,
http://timesofindia.indiatimes.com/city/patna/Children-below-six-years-vulnerable-to-organtrade/articleshow/43450591.cms accessed on :8th December 2014, at 2:15 p.m. IST.
220
Child
Beggars,
Dalit
freedom
Network
UK,
http://www.dfn.org.uk/info/slavery/42information/slavery/93-beggary accessed on :8th December ,2014, at 4:24 p.m. IST.
221
Domestic Servitude, Dalit freedom Network UK, http://www.dfn.org.uk/info/slavery/42information/slavery/181-domestic-servitude accessed on :8th December 2014, at 4:30 p.m. IST.
LAW MANTRA
THINK BEYOND OTHERS
Role of Government
The very first step taken by Indian Legislature was to pass the Immoral Traffic Prevention
Act, 1956. The Immoral Traffic (Prevention) Act, 1956 (ITPA), initially enacted as the
‘Suppression of Immoral Traffic in Women and Girls Act, 1956, is the main legislative
tool for preventing and combating trafficking in human beings in India.
The other relevant Acts which address the issue of trafficking in India are the Karnataka
Devadasi (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 and the Transplantation of
Human Organs Act, 1994.222 The Goa Children’s Act (2003) is considered a model
because for the first time in the legal history of the country, the offense of trafficking is
defined.
Constitutional provisions
Under Article 23, all forms of trafficking is prohibited, “traffic in human beings and beggar
and other similar forms of forced labour”.223
IPC Provisions
Punishment is given to any person who is engaged in buying or disposing of any person
as a slave, who is habitually dealing in slave, who is selling minor for prostitution, a person
engaged in buying a minor for prostitution.224
2. Role of Judiciary
The judiciary too has played an active role in preventing and combating trafficking by
pronouncing some landmark judgments. Outstanding judgments among them are the 1990
case of Vishal Jeet v. Union of India and the 1997 case of Gaurav Jain v. Union of India. In
the former case, as per the directions given by the Supreme Court, the then Government
constituted a Central Advisory Committee dealing with Child Prostitution in 1994. 225
3. Role of NGO’s
NGOs provide protection to victims and try to prevent the crimes against them, SANLAAP
is an Ngo which facilitates children especially women in brothels in Kolkata, it provide
222
Human Trafficking, Standard Operating Procedure(Raid & Rescue of Trafficked victims), By Government
of
Bihar,
Department
of
Social
welfare,
http://socialwelfare.icdsbih.gov.in/upload/LatestUpdates/LatestUpdates_135356207344.pdf accessed on : 8th
December 2014, 8:21 p.m. IST.
223
Article 23, Indian Constitution Act, 1950.
224
Section 370,371,372,373, Indian Penal Code, 1860.
225
Supra46.
LAW MANTRA
THINK BEYOND OTHERS
counseling to victims, and help the children who are at risk. JABALA is one more NGO in
Kolkata which helps in rehabilitation of victims of trafficking. PRERANA is an Ngo which
helps the victims of trafficking and prostitution in Mumbai. ARZ is an Ngo in Goa which
better utilizes its community people in identifying the trafficked children, contact them and
also helps in identification of traffickers. PRAJWALA in Andhra Pradesh provides secondgeneration prevention services for children of trafficked victims, participates in rescue
operations, and facilitates social reintegration of victims of trafficking.226
LOOPHOLES
The loopholes through which I have been encountered seem not to be very grave but they
are the very root cause of the problem of trafficking. When talking about Government
official they sometimes themselves are engaged in the trafficking rather arresting the
traffickers they help them, take bribes from them and get their work done at the cost of the
lives of thousands innocent children. Stringent laws do not exist, according to one article
which the researcher has gone through discussed about an Ngo itself involved in the
trafficking rather, the community people of Ngo take the child in adoption from the
orphanage and sell them to traffickers, thus if such things exist them how can be the
problem of trafficking get solved? Lack of training on the part of police officers along with
the ignorance of provisions of the law lead to inadequate acknowledgment of victims and
futile prosecution of traffickers. 227
CONCLUSION AND SUGGESTION
By this study on Child Trafficking many things have been brought into focus, many hidden
issues and causes for trafficking have been noticeably emerged, and the problem which
was the sole motive for research was distinct in the whole of the study, and the end result
of it or the rationale on which that problem is based is the loopholes existing, the crisis
caused due to trafficking is increasing rampantly without any split, because of existing
corruption in the present bodies of society itself who boast themselves as protector of
citizens of society, who claim to eradicate the problem of trafficking. Also poverty is seen
as the major cause of the trafficking too. Thus researcher would like to suggest that the
Immoral Trafficking Bill which still has not been passed should be passed by the
government, more strict laws should be made, judiciary and Ngo should be more active
and corruption free. Measures should be taken by government to provide employment so
that the poorer section of society do not get diverted and get into the trap of “Trafficking”.
“Children are the gift of creator; they should never be put to sale.
226
Supra14.
Whither Childhood, By Ibrahim Mohamed Abdelfattah Abdelaziz, Child Trafficking in India, 2007,
International
Consortium
for
social
development,
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=humtrafcon5 accessed on : 9th
December 2014, at 4:15 p.m. IST.
227
LAW MANTRA
THINK BEYOND OTHERS
HOW MUCH ARE YOU WORTH?BY KRUSHA
BHATT AND RAVI SHAH
INTRODUCTION
The concept of trafficking denotes a trade in something that should not be traded in. Thus, we have
terms like drug trafficking, arms trafficking and human trafficking. The concept of trafficking in
people refers to the criminal practice of exploitation of human beings where they are treated as
commodities for profit and after being trafficked, are subjected to long- term exploitation. 228 For the
purpose of study, the working definition of trafficking which was adopted has been stated in the
U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and
children, supplementing the United Nations Convention against Transnational Organized Crime,
2000, to which India is a signatory. It 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 giving
or receiving of payments or benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation.229 Exploitation shall include, at a minimum, the exploitation
of the prostitution of others or other forms of sexual exploitation, forced labor or service, slavery or
practices similar to slavery, servitude or the removal of organs.
A study by the National Human Rights Commission in 2003-04 reveals that Uttar Pradesh is the
main state through which victims are sourced from across the border. The combined estimates
for Nepal and Bangladesh by various agencies range from 500 a year, to around 7,000 a year to
10,000 girls.230 A study by UNDP (2002) shows that the average age of trafficked girls from
Nepal to India fell from 14–16 years in the 1980s to 10–14 years in 1994. There are 100,000 to
160,000 Nepali girls in Indian brothels, with about 5,000 to 7,000 being sold every year. Other
estimates put the figure at 200,000 Nepalese women in Indian brothels. Following this, on 15
October 2001, MSS-SEVA organized a Workshop in Sonauli at the Indo-Nepal Border to
highlight the issue.
CAUSES OF TRAFFICKING
1. Push and pull factors.
2. Poverty.

AURO University, School of Law, Surat, Gujarat
A report on Trafficking on women and children in India. http://nhrc.nic.in/Documents/ReportonTrafficking.pdf.
229
Human Trafficking. https://www.scribd.com/doc/508405/Human-Trafficking.
230
A
study
by
UNDP,
2002
http://www.unodc.org/documents/humantrafficking/2011/Responses_to_Human_Trafficking_in_Bangladesh_India_Nepal_and_Sri_Lanka.pdf.
228
LAW MANTRA
THINK BEYOND OTHERS
3. Lack of education.
4. Discrimination against women and girls.
5. Rare birth registration.
1. PUSH AND PULL FACTORS:
Human trafficking is often conceptualized using the economic model of supply and
demand, where those who are trafficked constitute the 'supply', while the traffickers and
those who from profit from the exploitation such as sweatshop or brothel owners and
clients of sex workers provide the 'demand'. 231 Nepal constitutes such a high proportion
of trafficking world wide because of the ease at which victims, especially children, can be
recruited because of the extensive push and pull factors that drive the supply side of child
trafficking.
2. POVERTY:
Poverty in Nepal is extremely high with 25.2% living below the national poverty line in
2011 and a per capita income of only $605 in 2011.232 Debt bondage is also common in
Nepal (despite its illegality) and so families are forced to send their child away for work
to repay a debt. More than half of commercial sex workers in Nepal and a quarter in India
said their families were indebted when they were children, which is why they were
working in the sex industry. Families may also send children to work in the hope that
they will at least be properly fed and provided with the basic necessities which they may
not be able to receive back at home. The majority of the time parents are misled about the
type of work their child will be involved in.
3. LACK OF EDUCATION:
The school dropout rate in Nepal is extremely high. In 2007, the male dropout rate from
primary school was 40.17% and 36.26% for females. From 2005 to 2011 the female
attendance rate for early childhood education was 31% for females and 29% for males.233
This will most likely result in increased vulnerability to labor exploitation. Keeping girls
and boys in education is therefore critical in preventing child trafficking.
4. DISCRIMINATION AGAINST WOMEN AND GIRLS:
Nepal is largely considered to be a patriarchal society, with discrimination against
women and girls being highly institutionalized. . A survey carried out by ILO-IPEC into
231
Trafficking in Nepal, https://www.childreach.org.uk/sites/default/files/imce/Child Trafficking Nepal-Causes and
Consequences.pdf
232
Report by UNDP, 2011. https://www.unodc.org/unodc/human-trafficking/.
Causes
of
child
trafficking
in
Nepal,
Child
Reach
International
https://www.childreach.org.uk/sites/default/files/imce/Child%20Trafficking%20NepalCauses%20and%20Consequences.pdf.
233
October
2013.
LAW MANTRA
THINK BEYOND OTHERS
trafficking and sexual abuse among street children in Kathmandu revealed that most of
the children (49%) had run away from home because of ill treatment by their family,
including physical abuse. 23% of Nepalese women aged between 15 to 49 years old
would consider their husband justified in beating or hitting them if she argued with him,
burnt the dinner or neglected their children.234
5. RARE BIRTH REGISTRATION:
Birth registration in Nepal is extremely rare, which means that a number of Nepalese
children are born without officially being acknowledged on record. According to
UNICEF, only 35% of children under the age of five have been registered at birth. When
trafficked between countries absence of legal individuality also impacts on the
repatriation process as it complicates country of origin identification and family tracing
and establishes the complicity of some Nepalese officials. 235
RECENT CENTRAL GOVERNMENT INITIATIVES TO COMBAT TIP
1. Integrated Anti Human Trafficking Units (IAHTUs):
 In 2008/2009 the government 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. 236
 Originally a UNODC pilot program launched in 2007, IAHTUs are tasked with
(not exhaustive):
1. Providing a multi-disciplinary approach and a join response by all stake holders,
such as police, prosecutors, NGOs, civil society and media;
2. Bringing about inter-departmental collaboration among the police and all other
government agencies and departments, such as women and child, labor, health,
etc;
3. Ensuring a victim-centric approach which ensures the ‘the best interest of
victim/survivor’ and prevents ‘secondary victimization/ re-victimization’ of the
victim;
4. Ensuring an ‘organized Crime’ perspective in dealing with trafficking Crimes.237
 More than 10,500 individuals/ police officers have been trained thus far.238
2. Anti Trafficking Nodal Cell State Program:
234
World’s Children report, 2011.
Record by UNICEF, Child reach international.
236
US Department of state. (2009). Trafficking in persons report: India. Retrieved February 4, 2010, from
http://www.unhcr.org/refworld/publisher, USDOS, IND, 4a4214b4c, 0.html.
237
UNODC. (2007). Synergy in Action: IAHTUs Report. Retrieved January 28, 2010 from
http://www.unodec.org/pdf/india/iahtu_241207.pdf
238
U.S. Department of State. (2009). Trafficking in Person Report: India. Retrieved February 4, 2010, from
http://www.unhcr.org/refworld/publisher ,USDOS,,IND,4a4214b4c,0.html..
235
LAW MANTRA
THINK BEYOND OTHERS


While its Central Government Operation remains under resourced (2 person’s
department), the Ministry of Home Affairs has gained National Support for the
initiative- all states has appointed Anti-Trafficking Nodal officer.
These officers will collaborate with Central Government, share best practices,
discuss issues, and share data.
3. Integrated National Plan of Action:
 Several ministries are currently working on a joint revision to the 1998 Plan of
Action for Combatting Trafficking. It includes IAHTUs as a part of its framework
 The Ministry Of Home Affairs, National Human Rights Commission, National
Commission for Women and the Ministry of Women and Child Development are
involved in this project.
4. Swadhar Program:
 “Under its Swadhar Program the Government supports over 200 shelters with an
annual budget of more than $1 million to provide care for more than 13000
women and girls rescued from a range of difficult circumstances, including
trafficking.”
 According to the Minister of Women and Child Development, “there will be
national protocols, guidelines and handbook of shelter services soon. Nonconfirming centers will be penalized and de-barred to act as rehabilitation
centers.”239
5. Ujjawala Program:
 Led by Ministry of Women and Child Development.
 Offers grants to state government projects in Anti-Trafficking.
 “The Ministry approved funding for at least 53 state Projects under this program,
benefitting more than 1700 victims. Since August 2008, the Ministry of the
states of Karnataka, Maharashtra, Manipur and Nagaland almost $243000 for 18
projects at 12 rehabilitation centers.”240
KEY STRENGTHS AND WEAKNESSES OF INDIA'S LEGAL FRAMEWORK
1. Strengths:
 New Government programs to address the issues of legal framework.
 Sufficient legal basis to prosecute traffickers harshly and protect/compensate
victims.
2. Weaknesses:
a) Statues:
239
The Times of India, (2010). Dignified living for every girl. Retrieved January 29, 2010, from
http://timesofindia.indiatimes.com/india/Dignified "living"for"every"girl/articleshow/5493692.cms
240
6 US Department of State. (2009). Trafficking in Persons Report: India. Retrieved February 4, 2010, from
http://www.unhcr.org/refworld/publisher, USDOS,IND,4a4214b4c,0.html.
LAW MANTRA
THINK BEYOND OTHERS

The high number of statutes pertaining to trafficking makes it difficult for
law enforcement to master the framework.
b) Rehabilitation services:
 Shelters are under resource and “feel like jails” to the victims.
 Compensation programs for victims have not been adopted by states
except Andhra Pradesh and Tamil Nadu.
c) Judiciary:
 Corrupt judges/judicial officers.
 Insensitive to victim’s need/mental state.
 Overburden courts/prosecutors.
d) Law Enforcement:
 Trafficking is a low priority.
 High level of corruption.
 Improper use of statutes to further victimizes the victims of Trafficking.
 Low knowledge and awareness of statutes.
BOLLYWOOD JOINS IN THE ANTI HUMAN TRAFFICKING INITIATIVE
Through the various project activities being carried out across India, UNODC has been able to
enlist the support of various film personalities from Bollywood to endorse and promote the Anti
Human Trafficking activities being undertaken by UNODC. Various well-known film
personalities such as Mr. Amitabh Bachchan, Ms. Preity Zinta, Mr. Dino Morea, Mr. Suniel
Shetty, Ms. Amisha Patel, Ms. Meeta Vashisht, Ms. Kirron Kher, Mr. Firoz Nadiadwala and Mr.
John Abraham offered full support and cooperation to UNODC for the Anti Human Trafficking
(AHT) cause. Some of the leading personalities in Bollywood have decided to partner with
UNODC in supporting AHT activities. They have even offered to undertake premier shows of
important films and involve major actors and actresses to support the cause of anti human
trafficking by working together with UNODC. To further raise awareness of this issue, a short
film on AHT, titled ‘One Life, No Price’ was commissioned by UNODC and developed in
partnership with Prajwala and Touch River Pictures Pvt. Ltd. This film was released at the
inauguration of the United Nations Global Initiative to Fight Human Trafficking (UN.GIFT)
Conference on 10 October 2007 in Vigyan Bhavan, New Delhi in the presence of national and
international audience. 241 The film highlights the dimensions of human trafficking, the process of
trafficking and the response systems in practice in South Asia. The film lays emphasis on an
integrated method of addressing human trafficking, with attention to all the three P’s of antitrafficking that is Prevention, Prosecution and Protection. The celebrities, who have lent their
support for the cause, with their endorsements in the film, include Mr. Amitabh Bachchan, Ms.
Preity Zinta and Mr. John Abraham, whose powerful messages can indeed spread awareness on
the issue far and wide. When the Project Coordinator, UNODC approached these celebrities,
they extended full support for the cause of anti human trafficking and readily agreed to join the
documentary film being made by UNODC. The effectiveness and uniqueness of ‘One Life, No
Price’ lies in the fact that it not only explains the problem with several visual examples from
241
http://www.unodc.org/documents/human-trafficking/2008/BP016ProfilingtheTraffickers.pdf.
LAW MANTRA
THINK BEYOND OTHERS
different parts of India, but also opens up the possible solutions and brings to focus the core point
that “anti human trafficking is everybody’s business.”
STEPS TO BE TAKEN TO COMBAT HUMAN TRAFFICKING
1. Prevention:
 The bulk of India’s program in the prevention category deal with erecting
awareness about Human Trafficking. Many inventive methodologies have been
taken. To engage the community with a captivating medium, live theater
performances are directed by different NGOs.
 The media are an obvious pathway for advertising the evils of the Human
Trafficking. NGOs have learnt that it is significant to enlist media not simply as a
conduit, but as a partner, since the media will be much more engaged if they
participated in solving the problem.
 Various innovative approaches have been used to monitor in order to prevent it.
2. Protection:
 The first place that a trafficked person can turn to for help is one of the toll free
numbers established by groups including CHILDLINE India.
 Once a victim has been freed, the most widely accepted approach is to send
him/her to one of the many shelter homes by NGOs and Government of India.
 There are welfare committees, juvenile justice boards, NGOs, Anti-trafficking
networks and others. For the victims that they are no longer children, vocational
training is critical element of recovering path. A certificate from the training
institute is often crucial component to get a survivor a job.
3. Prosecution:
 Prosecution is the primarily responsibility of the law enforcement and the
judiciary, but it can be supplemented by NGOs and international organizations.
 Several NGOs have worked with police to intervene in the transit areas to halt
trafficking. Manav seva sansthan runs “life guard centers” at cross border transit
points along with Nepal border.
 Raids on brothels are greater challenge for NGOs because the danger; however
the ITPA requires them to be present during these rescue operation.242
4. Capacity Building:
 A variety of activities fall under capacity building. Because of the significance of
bringing many stakeholders and groups with different skills to the table in
242
ECPAT International. (2006). Global Monitoring Report on the status of action against commercial sexual
exploitation of children: India. ECPAT International: Bangkok.
LAW MANTRA
THINK BEYOND OTHERS

tackling a problem as difficult as trafficking, anti-trafficking networks are critical
to improve usefulness if all anti-trafficking groups.
Strengthening law enforcement is another key push of NGOs. UNODC has
provided most support for this purpose. Software programs that provide
intelligence on Traffickers can also aid Law enforcement. Microsoft similarly
helped to develop its child exploitation tracking system to India.
RECOMMENDATION
The US Department of State released its 2012 report on Trafficking in Persons (TIP), placing
India on "tier-2' while observing that, "the Government of India does not fully comply with the
minimum standards for the elimination of trafficking; however, it is making significant efforts to
do so." This ranking is no further improvement from last year's ranking of India. 243
To address the needs and gaps identified in the Key Findings, there are recommendations to
improve legal outcomes for victims of human trafficking in India. These are listed as under:
1. Centralized legal support initiatives:
 Connect with relevant NGOs in the region and provide assistance with individual
cases;
 Connect to existing anti-trafficking legal networks and develop a pool of lawyers
willing to undertake trafficking cases when referred by the state hub;
 Undertake strategic litigation in collaboration with relevant national, state and
district level actors;
 Provide assistance with High Court matters;
 Take action to ensure enforcement of High and Supreme Court judgments on
trafficking.
2. Knowledge and training:
a) “How-to” handbooks:
 Handbooks that provide step-by-step guidance on how to undertake
different stages of trafficking cases, from filing the FIR through to the
prosecution and appeals process. Handbooks would be developed for
different trafficking case profiles (e.g. sex trafficking, bonded/forced
labor, child labor).
b) Procedural flowcharts and checklists:
 Flowcharts to illustrate the legal procedural steps undertaken for different
types of trafficking cases with short checklists for easy reference.
c) “Best practice” case studies:
243
NEW DELHI http://timesofindia.indiatimes.com/city/delhi/India-needs-to-achieve-minimum-standardsfor-eliminating-trafficking-US-report/articleshow/16772797.cms
LAW MANTRA
THINK BEYOND OTHERS

Best practice and innovative case examples undertaken by NGOs and
lawyers, explaining how each stage of the case was approached and how
the outcome was achieved.
3. Strategic litigation and procedural reform:
 Assist NGOs and lawyers wanting to pursue high-potential cases that require
funding (this could include cases that have already begun but require funding);
 Conduct a review of important court orders (e.g. Supreme Court Directives) that
have not been enforced where legal advocacy and further court action is required
by NGOs and lawyers.
4. Data and technology:
 Organize a Legal Tech Camp — a small working group of NGOs, lawyers and
information solution providers, including mobile phone companies and tech
specialists, to develop an online case management and data collection system that
could be tailored for individual NGOs according to their requirements.
 As part of this initiative, the working group should liaise with law enforcement to
understand how NGOs and lawyers can best share information with police and
other law enforcement officials about traffickers, repeat offenders and businesses
engaged in exploitative labor practices.
5. Media:
a) NGOs should be trained on how to use the national and regional media to push for
outcomes and raise awareness, including the sensitive and timely coverage of
cases and legal developments.
b) Journalists (both national and regional journalists interested in trafficking) should
be trained on:
 The effects of trafficking on victims and the region, and the need for better
responses from local and national authorities;
 The latest legal developments and cases relevant to trafficking; and
 How to report on trafficking trials in a manner that is impartial, stays clear
of “trial by media” and is sensitive to the victims.
6. Strengthening collaboration and building partnerships:
 Finding and intercepting victims that have been trafficked interstate;
 Aftercare and rehabilitation of victims once repatriated to their home state;
 Assistance with legal cases when a victim has been repatriated to their home state,
such as through regularly updating the victim on the status of their case and
assistance with preparing the victim for statements and trial;
 Actively referring victims to organizations able to provide specialized care. For
example, an NGO that primarily assists with rescue or release victims could refer
LAW MANTRA
THINK BEYOND OTHERS
the later criminal case and provision of ongoing care and support to another vetted
NGO.
CONCLUSION
The topic of human trafficking is rebellious. Trafficking has reached widespread proportions and
no country is immune. Impoverished children and women are the major victims of the
worthwhile trafficking industry, which turned out as a tentative block for women empowerment.
Women empowerment and reducing of female trafficking are impossible with the lack of proper
health, education, nutrition and nourishment and security of the female in the society. Education
is crucial in uncertain the flow of women, children and men into forced bondage. It is through
education that we can elicit the most direct influence in the fight against human trafficking.
However, anticipation through public awareness and education of professionals is not enough to
fight human trafficking. Interventions by competent social work practitioners need to include not
only case management and advocacy skills, but also an understanding of the ecological
perspective in assessment and treatment techniques to work with the multidimensional and
comprehensive needs of the survivor.
LAW MANTRA
THINK BEYOND OTHERS
HUMAN TRAFFICKING: A SOCIO – LEGAL
FACET OF MODERN WORLD CHILD
TRAFFICKING BY AISHWARY BAJPAI 
INTRODUCTION
Trafficking in people is carried out, essentially, to satisfy the reasons of forced labour, bonded
labour, sex work and organs trafficking. A great many women and children are trafficked
consistently. Inside the general profile of trafficking in South Asia, India is a nation of both
transit and destination. There is an extensive level of inward trafficking and some trafficking
from India to Gulf States and to South East Asia. Offer of children and their development over
the state fringes happens inside the nation as well. As such, while there is development of
youngsters through acquisition and deal starting with one nation then onto the next, with India
being both a supplier and a "purchaser", there is inside "development" of children inside the
nation itself - one town to an alternate, one area to an alternate and one state to an alternate. It is
attempted in a composed way, by sorted out syndicates or by people, and off and on again casual
gatherings.
Individual countries - both common society and government have been attempting to adapt to
this infringement of human rights. Laws have been ordered and universal and national activities
have been launched.
This paper looks to give a diagnostic structure to outlining more successful laws against human
trafficking. The paper in the first place, inspects human trafficking operations in India, the
deliberations of the Indian government, non-legislative associations, and different global
associations to quit trafficking by prosecution of traffickers and giving help to survivors of
trafficking. The second part explores the reason for human trafficking which makes India both a
source and an end of trafficking in persons. In the last area of the paper practical answers for
successfully decrease India's tolerance to human trafficking and to secure individuals from being
trafficked inside are worked out. This paper is a bit of unadulterated hypothetical work and
comprises of an examination went for discovering a specific explanation of law or a more
perplexing and inside and out dissection of legal reasoning.
1. CONCEPT OF TRAFFICKING
Trafficking in persons is a serious crime and a grave violation of human rights. Every year,
thousands of men, women and children fall into the hands of traffickers, in their own countries
and abroad. Almost every country in the world is affected by trafficking, whether as a country of
origin, transit or destination for victims.
The Oxford Dictionary defines Trafficking as “the illegal movement of people, typically for the
purposes of forced labour or commercial sexual exploitation.” It has also been described as ‘the

B.A.LL.B. (Hons.),Semester – III, College of Legal Studies, University of Petroleum and Energy Studies,
Dehradun
LAW MANTRA
THINK BEYOND OTHERS
transportation of goods, the coming and going of people or goods by road, rail, air, sea, etc. The
word trafficked or trafficking is described as dealing in something, especially illegally (as in the
case of trafficking narcotics).’
The most comprehensive and inclusive definition of Trafficking has been adopted by UN Office
of Drugs and Crime in 2000. UNODC, as guardian of the United Nations Convention against
Transnational Organized Crime (UNTOC) and the Protocols thereto, assists States in their efforts
to implement the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking in
Persons Protocol).
Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons
defines Trafficking in Persons as “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
receiving of payments or benefits to achieve the consent of a person having control over another
person, 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 or services,
slavery or practices similar to slavery, servitude or the removal of organs.”244
On the basis of the definition given in the Trafficking in Persons Protocol, it is evident that
trafficking in persons has three constituent elements;
The Act (What is done)
Recruitment, transportation, transfer, harbouring or receipt of persons;
The Means (How it is done)
Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or
giving payments or benefits to a person in control of the victim;
The Purpose (Why it is done)
For the purpose of exploitation, which include exploiting the prostitution of others, sexual
exploitation, forced labour, slavery or similar practices and the removal of organs.
The definition of trafficking can be found in the various sections of Immoral Traffic (Prevention)
Act, 1956. Section 5 speaks about procuring, taking and even inducing a person for the sake of
prostitution. According to this section, even attempt to procure and attempt to take or cause a
244
What is Human Trafficking, available at : http://www.unodc.org/unodc/en/human-trafficking/what-is-human-
trafficking.html (Visited on September 1, 2014).
LAW MANTRA
THINK BEYOND OTHERS
person to carry on prostitution amounts to trafficking. 245 Therefore ‘trafficking’ has been given a
broad scope.
Under the Immoral Traffic (Prevention) Act, 1956 (ITPA), prostitution is legal. Women can use
their bodies for materialistic gains but a broker is not allowed to take advantage of her. In a
recent case of Bachpan Bachao Andolan v. Union of India 246, the Supreme Court asked the
Central Government as to why prostitution should not be legalised. Legalisation gives the
government and police authorities more control over the brothels activities; it may be possible to
ensure that unwilling women are not forced into prostitution, and they receive payment without
being exploited or physically abused. Also, women who have been forced into the trade need to
be rescued and rehabilitated.
Human trafficking for the sexual purposes and child trafficking are the largest subsets.
Trafficking in persons, a worldwide sensation flourishes with the shortcoming and vulnerability
of persons. Vulnerability emerges because of poor economic condition, presence of sexual
orientation based brutality and political unsteadiness. Clash ridden territories which have real
war or the simple vicinity of army installations create demand. These zones are portrayed by the
vicinity of sex workers and child soldiers.247 More vulnerable are those who migrate from rural
areas, where opportunities are even rarer, to urban areas in search of employment and other
opportunities.248
Child trafficking, according to UNICEF is defined as “any person under 18 who is recruited,
transported, transferred, harboured or received for the purpose of exploitation, either within or
outside a country.” There have been many cases where children just disappear overnight, as
many as one every eight minutes, according to the National Crime Records Bureau.249
In India, there is a substantial number of children trafficked for different reasons, for example,
labour, begging, and sexual exploitation. Due to the nature of this crime; it is hard to track;
subsequently making it difficult to have accurate figures with respect to this issue. India is a
prime zone for child trafficking to happen, as a considerable lot of those trafficked are from,
venture out through or bound to go to India.
The Supreme Court in the case of Bachpan Bachao Andolan v. Union of India stated that there is
no labour or any welfare laws, which protect the rights of these children. Children are frequently
physically, emotionally and sexually abused in these places. The most appalling aspect is that
there is no direct legislation, which is vested with powers to deal with the problems of the
children who are trafficked into these circuses. The Police, Labour Department or any other State
Agency is not prepared to deal with the issue of trafficking of girls from Nepal holding them in
bondage and unlawful confinement. There is perpetual sexual harassment, violation of the
245
Immoral Traffic (Prevention) Act, 1956, available at : http://www.protectionproject.org/wpcontent/uploads/2010/09/India_Acts_1986.pdf (Last Modified July, 2006).
246
(2011) 5 SCC 1
247
M. Getu, Human Trafficking and Development: The Role of Microfinance (2006) (Unpublished).
248
Ibid.
249
Report of National Crime Records Bureau, available at : http://blogs.wsj.com/indiarealtime/2012/10/16/indiasmissing-children-by-the-numbers/ ( Visited on September 1, 2014).
LAW MANTRA
THINK BEYOND OTHERS
Juvenile Justice Act and all International treaties and Conventions related to Human Rights and
Child Rights where India is a signatory. 250
In Vishal Jeet v. Union of India251, the Supreme Court issued directions to the State
Governments, and Union Territories for eradicating the evil of child prostitution and for evolving
programmes for the care, protection, treatment, development and rehabilitation of the young
fallen vctims.
2. PURPOSE OF TRAFFICKING
Trafficking for Labour
Bonded labour, domestic work, hotels and small shops etc.: This is a highly unorganised sector
and also an invisible one. Children are often brought into employment by family, relatives and
friends. While some of them are brought to work as “friendly gesture”, there are times when
these children are sold and trafficked. Very often it is the parents themselves who send their
children for work, sometimes in exchange for debt, thereby putting the child into bondage. Many
children from poor, low caste families engaged in agricultural labour, work in bondage.
Since domestic labour or labour in hotels and small shops do not fall under the category of
hazardous occupations, very little attention gets focussed on this sector. However, incidents of
abuse and torture, even death of child domestic workers have been appearing in the news with
increasing frequency and drawing attention to the fact that it is as “hazardous” as all those listed
in the schedule of the Child Labour (Prohibition and Regulation) Act, 1986.
“For the destitute children of Bodh Gaya villages, it is a case of deprived childhood. Their
hapless parents reeling under abject poverty find it convenient to sell them off for a paltry sum to
ready ‘buyers’. And the buyers happen to be none other than the Tibetan Buddhists now settled
in Bangalore, who take the young ones for doing household chores.”252
Labour in Industry: Cross-border trafficking of children for labour, especially from Nepal and
Bangladesh is very common. Even within the country, children are trafficked from one State to
another to be employed in industries like carpet- weaving, silk-reeling, fishing etc.
Children working in the carpet weaving looms of Mirzapur come from adjoining areas of
Madhya Pradesh and Bihar or other backward districts of Uttar Pradesh. Young girls are
trafficked in Kerala to the shrimp factories. Here they work for long hours cleaning shrimps
mostly for the export market. They work in inhuman and hazardous conditions leading to
severe skin infections. Similarly, children in Tamil Nadu are being trafficked to Shimoga for
fishing.
Sexual Exploitation
250
Bachpan Bachao Andolan v. Union of India (2011) 5 SCC 1
AIR 1990SC 1412
252
“Where parents sell their children for paltry Rs.1000 to earn Rs.50 a month” The Hindustan Times, Feb. 19, 1999
251
LAW MANTRA
THINK BEYOND OTHERS
Forced Prostitution: Prostitution is the most documented and visible form of trafficking. In the
case of children, it is always forced prostitution and therefore must not be used interchangeably
with ‘sex-work’, which may be undertaken voluntarily also. A large number of child prostitutes
in India are girls from Nepal and Bangladesh. Almost 15 percent of the prostitutes enter the
profession before the age of 15 and 25 percent enter between 15 and 18 years.
Religious Prostitution: Religious prostitution is practised in various parts of India and Nepal.
Devadasi cults are found in Southern India and there are reports of temple prostitution being also
practised in other parts of the country such as Uttar Pradesh and Orissa. Pre-pubertal girls, aged
between five and nine years, from poor, low caste homes go through an initiation rite at the local
temple during full moon where they are dedicated to the diety. After a girl is married to the deity
by the tali rite, she is branded with a hot iron on both shoulders and her breast. The temple priest
then employs her. Sometimes, even before menarche, she is auctioned for her virginity; the
deflowering ceremony known as udilumbuvadu becomes the privilege of the highest bidder. The
market value of a girl falls after she attains puberty, when she is said to have no recourse other
than prostitution. 253
Sex-tourism: Any child without a physical handicap, irrespective of caste or class can be pushed
into satisfying the sexual needs of the tourists. Conversations with groups working on sex
tourism reveal that the tourists lure children with small toys, trinkets and fancy gifts.
Illegal Activities
Begging: The children with a handicap are more vulnerable in a situation where trafficking is for
the purpose of begging. Poverty and handicap is the ideal combination for the children to be
trafficked in the belief that the handicap will induce sympathy in the giver. That belief puts the
child beggar at serious risk of being deliberately maimed in order to increase his or her earning
potential. Street children, who are easily available to be picked up, are another vulnerable
category.
Organ Trading: Although very little information is available on this aspect of trafficking,
newspaper reports and anecdotal reports from persons working on trafficking issues clearly
indicate that trafficking of children for organ replacements for persons who can afford to buy
them is a “lucrative business” for the traffickers.
3. MAGNITUDE OF THE PROBLEM
There is no comprehensive statistical data available on child trafficking in all its forms and
purposes as such. All available statistical data is related to women and children in prostitution.
Here again, the figures vary from one source to another. Most of them are based on micro studies
and to a large extent are projections and estimates. Dr. Ishwar Prasad Gilada reports that:

253
Ibid.
Incidence of child prostitution through abduction is estimated to be 40 percent.
LAW MANTRA
THINK BEYOND OTHERS




The percentage of Devadasis amongst the Bombay Prostitution is 15-20 percent; in
Nagpur, Delhi and Hyderabad – 10 percent; in Pune it is 50 percent and in the urban
centres bordering Belgaum District (Kolhapur, Sangli, Satara, Miraj etc.) it is up to 80
percent of the total number in prostitution.
About 5 percent of the children coming to prostitution come after the incidence of Rape.
About 8 percent of children come to prostitution because of the incidence of Incest.
About 10 percent of child prostitutes are children of prostitutes.254
Based on the National Crime Records Bureau data, one finds that Bihar, Maharashtra and
Madhya Pradesh are the three states from where the largest number of minor girls is procured.
As regards selling of girls into prostitution, West Bengal and Karnataka are the two main States
contributing to this crime. In the case of buying of girls for prostitution, West Bengal again
stands as the major “contributor”, followed by Maharashtra. It must however be remembered that
the NCRB only produces information on the basis of crimes reported to the police. In other
words all those incidences of procurement, buying or selling that go unreported to the police are
not included in the above table. As a result, although a definite reflection of the trend, it is not a
complete reflection of the exact magnitude of the problem, much of which goes unreported.
4. REASONS FOR TRAFFICKING
The root causes of trafficking in children are multiple and complex. However, some of the more
frequently cited are poverty, lack of employment opportunities, low social status of the girl child,
a general lack of education and awareness, inadequate legislation in the countries concerned, and
weak law enforcement machinery. Political uprisings are now emerging as a factor responsible
for trafficking for prostitution, labour and also as child soldiers to fight for the “cause”. There are
also certain cultural factors that are responsible. Sometimes it becomes difficult to distinguish
between the cause and the purpose, as is with the case of prostitution which has religious
sanction.
Some of the causes for child trafficking and vulnerable groups identified by various persons
working on this issue are:



254
Lower socio - economic status: The lower socio-economic status of certain groups makes
them easy targets for traffickers from outside as well as from within the family and
community.
Traditional religious and cultural practices: Prostitution is traditionally and culturally
sanctioned in some parts of the region and is a contributing factor to the phenomenon of
trafficking. It derives customary sanction from oppressive upper-caste temple traditions.
The status of women, the discriminatory laws against women and children, denial of
property rights have created a condition wherein women are seen as a burden on the
family, thereby making them more vulnerable as a prey to the flesh traders. The current
laws in South Asian countries ignore exploitation of children by their own family.
Dr. Ishwar Prasad Gilada, Hon. Secy., Indian Health Association, Bombay, “Child Prostitution: A Blot on
Humanity” (2004) (Unpublished).
LAW MANTRA
THINK BEYOND OTHERS



Trafficking is a lucrative trade: Trafficking of humans, especially for labour, is not new.
People have been taken as indentured labour from India from the colonial times. Now,
trafficking for other purposes too is becoming profitable. As with countries such as
Thailand, sex–work is being recognised as an industry and therefore trafficking of
children for prostitution is increasing.
Growth of tourism: Tourism is a fast growing industry in India, especially since India
became a part of the global market economy. Rise in demand for children for
pornography seems to be linked with tourism. The growth of tourism has led to an
increase in demand for children as sex objects. Tourists come to the developing countries
from different parts of the world for easy and cheap sexual gratification.
Trafficking tends to worsen in conflict or post-conflict and other emergency situations:
Any situation of calamity or disaster (natural calamities like earthquakes, floods,
cyclones or conflict situations and wars) makes women and children more vulnerable to
being trafficked. In a situation of economic distress caused by the disaster, parents too
have been found to be parties to the trafficking. Loss of family and ideological
brainwashing also results in the trafficking of children as “child soldiers”. In situations
of conflict children are recruited as child-soldiers and used in armed conflict.
5. NGO INITIATIVES
More than 80 NGOs in 10 states of India work energetically among sex labourers, and assume a
real part in support to impact strategy changes (UNIFEM. 1998). There are different NGOs that
are dealing with trafficking of children for work, against children being utilized for smut and sex
tourism. They are included in investigative exploration, documentation, promotion, running
wellbeing and training projects and restoration exertions. The vast majority of the studies,
information and action in the field of against trafficking work in the nation have focussed on
trafficking into the sex industry.
The National Human Rights Commission (NHRC) has also constituted a core group only to
study the problem of child prostitution in Delhi and Karnataka in order to formulate preventive
and rehabilitative strategies.
A lot of research and documentation as well as interventions are being undertaken on child
labour, but not within the framework of trafficking.
The UNIFEM regional office in Delhi has initiated a regional campaign on trafficking of women
and children.
UNIFEM will assist NGOs to design and evaluate models of successful prevention efforts. A
South Asia Anti-Trafficking Information Center is being established in the region to promote
stronger collaboration among NGOs working on anti-trafficking projects and greater exchange of
information on prevention and prosecution programs.
With UNIFEM taking the initiative, it is likely that there may be more networking that will
emerge between the various groups because they are also creating a database on the various
groups and agencies working on this issue.
LAW MANTRA
THINK BEYOND OTHERS
But, to reiterate, these efforts do not touch all forms and purposes of child trafficking and are
rather limited to child prostitution or trafficking of children for sexual exploitation.
6. LEGAL FRAMEWORK
The laws and legislations don't appear to be sufficient or exhaustive in managing the different
types of trafficking and frequently liberates the guilty party and punishes the victimized person.
India is a signatory to several international covenants, conventions and treaties dealing with
exploitation of women and children. The most important amongst these, in the case of children is
the UN Convention on the Rights of the Child (CRC), 1989, ratified by India in 1992 (Articles 3,
11, 21, 34, 35, 36, 39 and 44 of the CRC). The CRC provides a platform for NGOs to bring their
child rights concerns to notice in the form of alternate reports that can be sent to the UN
Committee on the Rights of the Child for consideration. Besides, it also clearly provides for the
State Parties to consult NGOs in the preparation of the Country Report to be presented before the
Committee so that issues concerning children get adequately addressed.
As regards the national scene, it must be pointed out that we have a Constitution that is
applauded all over the world, but, while Article 51 A in the Constitution of India makes it a
fundamental obligation on all citizens to renounce practices derogatory to the dignity of women,
it does not lay down the same in the case of children. Neither has one known of any trafficking
case coming up before the court of law on grounds of violation of the fundamental duty laid
down in the Constitution. It guarantees equality and freedom to all citizens by virtue of
fundamental rights vested in them. Trafficking is explicitly forbidden as it is opposed to these
basic tenants of the Constitution. Article 23 (1) of the Indian Constitution explicitly forbids
traffic in human beings, begar (a form of forced labour) and all other forms of forced labour.
Also, Article 24 prohibits employment of children below 14 years of age in factories, mines or
other hazardous jobs. These constitutional safeguards have been implemented by way of several
central as well as state legislations. In Kahason Thangkul v. Simrei Shailei255, a custom, though
immemorial, according to which the Headman of the village, for being the Headman and the first
settlement in the village, was entitled to one day’s free labour of one person from each household
every month, was struck down as amounting to begar, prohibited by Article 23(1).
As women and children are considered a weaker section of the society, the Constitution,
following the principle of protective discrimination, allows for making and implementing laws
specific to them, for their protection and wellbeing. The Immoral Traffic (Prevention) Act of
1956 (ITPA)256 is in line with this principle. It is the most important legislative instrument for the
prevention and combat of human trafficking in India. Unfortunately, this Act deals only with
trafficking of girls and women for prostitution. It does not cover trafficking of boys for sexual
purposes. The Act has been criticised on various accounts. It provides a measly amount of Rs.
20,000 ($320) as compensation to victim. Such amount is not enough to rehabilitate the victim or
to provide such a person with alternate means of livelihood. There is a grave danger of the
rescued persons falling back into the traps of the traffickers. Also, the punishment provided to
255
AIR 1961 Manipur 1.
Immoral Traffic (Prevention) Act, 1956, available at:
content/uploads/2010/0 9/India_Acts_1986.pdf (Last Modified July,2006).
256
http://www.protectionproject.org/wp-
LAW MANTRA
THINK BEYOND OTHERS
the trafficker under Section 3 of the Act is only three years. Such punishment does not act as a
deterrent to offenders. There have been very few instances of conviction under the Act indicating
its failure in curbing trafficking. The Justice Verma Committee (2013) was formed to
recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced
punishment for criminals accused of committing sexual assault against women. The Report257,
submitted in January 2013, pointed out the shortcomings of ITPA. It says that the act only
criminalizes trafficking with the objective of prostitution but ignores other aspects of trafficking.
In the case of Gaurav Jain v. Union of India 258, the Supreme Court exercised its extraordinary
writ jurisdiction making power under Article 145 and 142 of the Constitution and laid down a
comprehensive scheme to rescue and rehabilitate victims of sexual exploitation.
The Criminal Law (Amendment) Bill 2013 259, was passed by both houses of Parliament in
March, 2013. It provides for amendment of Indian Penal Code, Indian Evidence Act, and Code
of Criminal Procedure on laws related to sexual offences. It adds Section 370A to the Indian
Penal Code which criminalizes human trafficking. The definition provided under the new section
is not restricted to prostitution but also includes other forms of trafficking. This is evident from
the use of the word "exploitation" instead of "prostitution" in the section. Thus, the scope of the
section had been brodened. Stricter punishment has been given under the amendment. An
offence of trafficking shall be punished with rigorous imprisonment for a term of at least seven
years, but which may extend to ten years, and shall also be liable to fine. Where the offence
involves the trafficking of more than one person, it shall be punishable with rigorous
imprisonment for a term which shall not be less than ten years but which may extend to
imprisonment for life, and shall also be liable to fine. Similar provisions show enhanced
punishments for the perpetrators of human trafficking and exploitation. The amendment further
excludes consent of victim, obtained by inducement, etc., as a factor to absolve the trafficker of
liability under the new section.
Buying and selling of minors for the purposes of prostitution i.e. trafficking, is a grave offence,
under the Indian Penal Code (IPC), sections 372 (Selling of minors for prostitution, etc.) and 373
(buying of minors for prostitution), and merits maximum punishment of 10 years. The same
quantum of punishment is awarded under Section 366 which deals with kidnapping a woman to
compel her to marry or is forced to illicit intercourse. Sections 342, 352, 360, 362, 365 368 and
506 deal with punishment for wrongful confinement, punishment for assault or criminal force
otherwise than on grave provocation, kidnapping from India, kidnapping from lawful
guardianship, abduction, kidnapping or abducting with intent secretly and wrongfully to confine
person, wrongfully hiding or keeping in confinement, kidnapped or abducted person and
punishment for criminal intimidation respectively and can be invoked in cases of trafficking in
persons. The 2013 Amendment provides for increased punishment in case of minors. When a
257
Verma Committee Report, available at: http://www.thehindu.com/multimedia/archive/01340/Justice
_Verma_Comm_1340438a.pdf ( Visited on September 1,2014).
258
AIR 1997 SC 3021
259
The Criminal Law (Amendment) Bill 2013, available at: http://mha.nic.in/pdfs/TheCrimnalLaw030413.pdf
(Visited on September 1,2014).
LAW MANTRA
THINK BEYOND OTHERS
minor is a victim, the trafficker shall face of rigorous imprisonment of at least ten years to life
imprisonment. If there were more victims than one, the punishment shall be rigorous
imprisonment which is not less than fourteen years and may extend for life.
As the laws stand, the only legal provision that can be invoked to combat trafficking of boys is
Section 377 of the IPC, which deals with “unnatural offences”, and covers sodomy. The
Karnataka Devadasi Prohibition Act deals with trafficking of girls for religious purposes.
The other relevant Acts which address the issue of trafficking in India are; the Juvenile Justice
(Care and Protection of Children) Amendment Act, 2006; Andhra Pradesh Devdasi (Prohibiting
Dedication) Act, 1989; the Karnataka Devdasi (Prohibition of Dedication) Act, 1982; the Child
Labour (Prohibition and Regulation) Act, 1986; Information Technology Act, 2000; and the Goa
Children’s Act, 2003. Beside these, there are some other collateral laws which are relevant to
trafficking. These are the Indian Evidence Act, 1872; Young Persons (Harmful Publications)
Act, 1956; Bonded Labour System (Abolition) Act, 1976; Child Marriage Restraint Act, 1929;
Probation of Offenders Act, 1958; Criminal Procedure Code, 1973; Indecent Representation of
Women (Prohibition) Act, 1986; and the Transplantation of Human Organs Act, 1994.
The state, NGOs and the society in general needs to make an effort to combat the menace of
trafficking in the country. The possible solutions can be summarised as under:












Effective policy implementation.
Sensitisation and awareness programmes for law enforcing agencies.
Frequent raids to track trafficked persons.
Alert border security forces to prevent trafficking out of the country.
Public awareness programmes to alert people and to help them identify any such activity
around them.
Post-rescue rehabilitation programmes to ensure that victims are not forced to revert to
sex work due to lack of reasonable alternatives.
Training programmes to make rescued persons economically independent.
Provide for protective homes for homeless persons and orphaned children as they are
most vulnerable.
Separate institutions to be set up for minors, women and persons above 18 years of age
(major).
Collective effort must be made by the Police and NGOs to locate addresses for
repatriation of the victims.
Counselling should be given to the families of survivours, for sensitisation, to facilitate
easy acceptance of the repatriated survivors.
Legal mechanisms should be clear and uncomplicated to guarantee prompt repatriation of
survivors.
Conclusion
Avoidance of trafficking includes mediations at different levels to battle the start of trafficking.
Avoidance must be a joined exertion of both legislative and non-administrative offices. It must
be a system to make people in general mindful of trafficking in persons as a mode of cutting
LAW MANTRA
THINK BEYOND OTHERS
edge subjugation and to sharpen them about it. The approaches must be coordinated, especially,
to those segments of populace who structure the source and are most helpless against trafficking.
The Government must make sure that great quality instruction, chances of business and salary
era projects are put into operation to give great quality life to exceedingly vulnerable persons. It
ought to complete routine projects to instruct and sharpen folks, educators, and group laborers
about trafficking. Government ought to incorporate sexual orientation focused training curricula
in schools and present subjects of youngster sexual misuse and trafficking. Police backing is a
vital intercession that must be adjusted. Mindfulness is the unselfishness and commonness of the
issue must be carried out at the level of National Planning Commission, government officials and
functionaries as well. Their consideration is to be attracted to this relevant issue to welcome
approach changes. More stringent laws and better execution are obliged to check the issue.
Stricter disciplines should go about as an obstacle to different traffickers. Approaches are obliged
to be surrounded toward production of restoration offices for victimized people protected.
Victimized people need exceptional restorative and mental consideration to move past the
physical pitilessness delivered and trauma endured.
NGOs can help by spreading mindfulness in group parts about the commonness of trafficking in
people. Mindfulness at the neighborhood level, in the group through workshops, tunes, show,
gatherings, flyers and notices particularly in the provincial territories is likewise needed. They
ought to likewise stay vigilant and report missing persons who may be casualties of trafficking.
The use of media helps garner attention of several hundred thousand viewers. This is an excellent
medium of sensitization of people. Media and be used to transmit appropriate message to victims
that legal and social help is available to them to get out of the slavery they are subjected to.
Victims can be made aware of places and institutions where they can seek help. Media can help
provide information to widespread viewer base about penal provisions against trafficking the
modus operandi of the traffickers through radio, television etc. Media campaigns have proven to
be a powerful tool to draw attention of both the government and the people to specific issues in
the past. This power can be harnessed to create awareness about the inappropriate and illegal
nature of the act and the cruel consequences thereof.
The sensation of trafficking in people is across the board the nation over. It is a financial offense
and enormously influences the general public. It makes individuals address their security and the
adequacy of the state apparatus. It is the joined obligation of the state and society to battle
trafficking and ensure the helpless gatherings. Attention to event of such law violations, viable
criminal equity framework and vigilant residents can help check trafficking.
LAW MANTRA
THINK BEYOND OTHERS
HUMAN TRAFFICKING: AN ISSUE OF
CONCERN BY ARGHA GOSWAMI
INTRODUCTION
Today, we find that the fundamental socio-economic problems such as poverty, hunger, war that
grip a country’s struggle for development are smeared with even greater risking dangers like
trading people for commercial gain. The trade in human beings had existed since the beginning
of civilisations in the form of slavery but can we say that with the rise of the democracies slavery
has ended? Absolutely not, today we find the existence of so called “Modern – day slavery” with
the collateral increase in the magnitude of poverty, corruption and high profit making
opportunities in “Flesh trade”. Millions of victims are forced into some sweat shops or mines or
brothels on a daily basis while they should have been in schools and colleges cracking laughter
and building themselves. Most of them are duped into the trap by luring them of attractive job
opportunities and better lifestyle. The victims enter into a condition of living hell with constant
violence or fear, completely left at the mercy of the pimps and the traffickers with no money,
shelter and no one to turn to for their help. It’s like they enter into a swamp from where they are
unable to get out digging deeper and deeper into it left hopeless, demoralised and broken. Many
of them are never able to turn normal after living in a period of constant psychological trauma
stripped of their self- worth – worst case being children dragged into it.
Human Trafficking Defined
United Nations “Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, Supplementing the United Nations Convention against
Transnational Organized Crime” (otherwise known as the Palermo Protocol) defines “trafficking
in persons” as “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 receiving of
payments or benefits to achieve the consent of a person having control over another person, for
the purpose of exploitation.”260
The definition on trafficking consists of three core elements:
1) The action of trafficking which means the recruitment, transportation, transfer, harbouring or
receipt of persons
2) The means of trafficking which includes threat of or use of force, deception, coercion, abuse
of power or position of vulnerability
260
United Nations, “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime,” article 3(a),
2000, http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf.
LAW MANTRA
THINK BEYOND OTHERS
3) The purpose of trafficking which is always exploitation. In the words of the Trafficking
Protocol, article 3 "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 organs261.
However there is a line of difference between Human smuggling and Human Trafficking.
Protocol against the smuggling of migrants by land, sea and air, supplementing the United
Nations convention against transnational organized crime clarifies that “smuggling of migrants”
is “the procurement . . . of the illegal entry of a person into a State Party of which the
person is not a national or a permanent resident.”262

The International Labour Organization estimates that there are 20.9 million victims of human
trafficking globally, including 5.5 million children. 55% are women and girls. 263
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and
Children, was adopted by the United Nations General Assembly in 2000 and entered into force
on 25 December 2003.
The Trafficking Protocol, which supplements the United Nations Convention against
Transnational Organized Crime, is the only international legal instrument addressing human
trafficking as a crime and falls under the jurisdiction of the United Nations Office on Drugs and
Crime (UNODC).
The purposes of the Trafficking Protocol are:
To prevent and combat trafficking in persons
To protect and assist victims of trafficking, and
To promote cooperation among States Parties in order to meet these objectives.
The Trafficking Protocol advances international law by providing, for the first time, a working
definition of trafficking in persons and requires ratifying States to criminalize such practices. 264
Forms of Trafficking
Major Forms of Human Trafficking Include:
Child Labour: Globally 218 million children ages 5-17 are being exploited for the benefit of
others. As children are more easily manipulated and require fewer resources to survive, the use
of child labor has increased at the same time as poverty, globalization, and the demand for cheap
labor. Children may be abducted, sacrificed for the betterment of the family as a whole, or
promised an education by their trafficker. They are trafficked into domestic work, sexual
261
See UNODC(UNODC – United Nations Office On Drugs And Crime) article on Human Trafficking, for further
details visit https://www.unodc.org/unodc/en/human-trafficking/faqs.html
262
United
Nations,
“Protocol
against
the
Smuggling
of
Migrants
by
Land,
Sea,
and Air, Supplementing the United Nations Convention against Transnational OrganizedCrime,” article 3(a), 2000,
http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_smug_eng.pdf.
263
264
Read the article on Polaris Project, visit http://www.polarisproject.org/human-trafficking/overview
https://www.unodc.org/unodc/en/human-trafficking/faqs.html
LAW MANTRA
THINK BEYOND OTHERS
exploitation, hazardous child labor, begging and other illegal activities such as stealing, illegal
adoption or early marriage.265
Child Sex Trafficking
As many as two million children are lured, sold, or kidnapped for the purpose of sexual
exploitation in hotels, night clubs, brothels, massage parlors, private residences, on sex tours, and
online services*. Sex trafficking has devastating consequences for minors, including long-lasting
physical and psychological trauma, disease (including HIV/AIDS), drug addiction, unwanted
pregnancy, malnutrition, social ostracism, and possible death. 266
Child Soldiers
It is illegal to recruit through force, fraud, or coercion children under the age of 18 as combatants
or in other roles associated with a conflict, such as messengers, sex slaves/'wives', servants, or
cooks*. Despite this, 300,000 children under the age of 15 are associated with fighting forces.
Perpetrators not only include rebel groups, but also government forces and paramilitary
organizations. Reintegration into their communities can be extremely difficult due to
psychological and physiological damage. 267
Debt Bondage
Bonded labor is identified as a practice similar to slavery, because it involves a debt that cannot
be paid off in a reasonable time. The employer/enforcer artificially inflates the amount of debt,
often adding exorbitant interest or charges for living expenses, deducting little or nothing from
265
This para is quoted from the website http://www.humantraffickingsearch.net/typesoftrafficking.html, however for
further learning on child labor, you can refer to http://www.ilo.org/public/english/standards/relm/ilc/ilc95/pdf/rep-ib.pdf
266
Ibid,
267
Ibid,
LAW MANTRA
THINK BEYOND OTHERS
the debt and increasing the amount of time the individual must work. It is a cycle of debt where
there is no hope for freedom.268
Forced Labor
Labor exploitation is work obtained from a person under threat, real or perceived, and for which
the person has not offered themselves voluntarily. Factors of vulnerability increase in
conjunction with high rates of unemployment, poverty, crime, discrimination, corruption,
political conflict, or cultural practice.269
Involuntary Domestic Servitude
Involuntary servitude occurs when a domestic worker becomes ensnared in an exploitative
situation they are unable to escape. Typically in private homes, the individual is forced to work
for little or no pay while confined to the boundaries of their employer’s property. This isolation
keeps them from communicating with family or any other type of support network, increasing
the subjection to psychological, physical, and sexual abuse. 270
Sex Trafficking
According to the International Labor Organization (ILO), at least 1.39 million victims of human
trafficking are used for commercial sexual exploitation. This includes movement across borders,
as well as within the victim’s own country. The perceived inferior status of women in many parts
of the world has contributed to the expansion of the trafficking industry. Sex trafficking is
accomplished by means of fraud, deception, threat of or use of force, abuse of a position of
vulnerability, and other forms of coercion. Each year, there is an estimated global profit of $27.8
billion for forced commercial sexual exploitation. 271
Modern Slavery – A Global Phenomenon
Steve McQueen, director of this year’s Oscar winner for best film “12 Years A Slave,”
mentioned in his acceptance speech last month that 21 million people are living in slavery today.
That quoted figure comes from the 2012 report issued by the United Nation’s International Labor
Organization (ILO) that has been attempting to gather international data for over a decade now.
In the Asia-Pacific region where most of the world’s forced laborers come from at 56%, an
estimated 11.7 million people, followed by Africa at 18% or 3.7 million people live in bondage.
Considering that at the peak of America’s slavery prior to the Civil War that ultimately declared
it illegal, the total was four million people, fathoming that over five times that number are
268
Ibid, however for further understanding of debt bondage refer to Summary Report—Help Wanted: Hiring,
Human
Trafficking
and
Modern-Day
Slavery
in
Global
Economy
at
http://www.verite.org/sites/default/files/images/Help_Wanted_2010.pdf
269
Ibid, for more information refer to Trafficking for the purposes of labour exploitation: a Literature Review,
Home Office; visit http://www.childtrafficking.com/Docs/dowling_2007_0807.pdf
270
Ibid, for more information log on to http://www.state.gov/documents/organization/144601.pdf
271
Ibid
LAW MANTRA
THINK BEYOND OTHERS
currently suffering in slavery here in the twenty-first century, casts some serious doubts on
whether us humans are evolving as a species at all.
The following statistics come from the 2012 ILF report. The global economic meltdown in
recent years has only given rise to conditions ripe for escalation of modern slavery. A total of
18.7 million people or 90% become forced laborers in the private sector of individual homes or
private enterprise as opposed to the 10% or 2.2 million people that suffer state-imposed forms of
forced labor. Of those 18.7 million forced to work in private settings, 4.5 million (or 22%) are
forced into sexual exploitation while 14.2 million (or 68%) are victims of forced labor such as in
agriculture, domestic work, construction or manufacturing.272
An appalling 26% of all modern slaves or 5.5 million are children under 18, the majority
underage girls forced into child prostitution and pornography. Other children are forced into
working in sweat shops while young boys 12 and older are frequently recruited and forced to
become child soldiers. The majority at 56% (11.8 million) of the world‘s forced labourers remain
in their home country. As an example India has been identified as a nation where many of its
own poor citizens are forced into slave labour. However, of the 44% (9.1 million) that are forced
into labour across borders, the vast majority being women and children are sold into the highly
profitable sex trafficking trade often operated by organized crime rings. 273
Human Trafficking in India: An overview
To be born poor in our world is to be born vulnerable and in danger of exploitation. To be born
female and poor is to greatly intensify the risks.
If you are born a girl to parents of tea-pickers in Assam in northeastern India (earning as little as
1.50 US dollars a day) there is a good chance you will be sold to a local “recruitment agent” by
your loved ones for around 50 dollars, and the agent will sell you on to a city “employer” for up
to 800 dollars and into a life of abuse and suffering.
272
273
Cited from http://www.globalresearch.ca/global-human-trafficking-a-modern-form-of-slavery/5377853
Ibid
LAW MANTRA
THINK BEYOND OTHERS
Human trafficking is one of the major problems in India. Till date no concrete study has been
conducted so far to know the exact number of trafficked kids in India. The New York Times has
reported on the widespread problem of human trafficking in India especially in the state of
Jharkhand. Also in the report it is stated that young girls are trafficked from neighboring Nepal
to India. Cops sometimes conspire with traffickers in return for free sexual favors. This
hypocrisy among the upholders of justice deters victims from seeking assistance. In another
article published in The Times of India – Karnataka is the third state in India for human
trafficking. Other South Indian states are also the most sought after destinations for human
trafficking. Every year more than 300 such cases are reported in each of the four south Indian
states. Whereas West Bengal and Bihar, on an average have 100 such cases each year. As per the
data, more than half of the human trafficking cases are from these states. According to the latest
report on human trafficking by the United Nations Office on Drugs and Crime reveals that Tamil
Nadu has 528 such cases of human trafficking in 2012. The number is really high and more than
any other state except for West Bengal (549). As per the data from Home Ministry, 1379 cases of
human trafficking were reported from Karnataka in the period of four years, in Tamil Nadu the
number is 2,244 whereas Andhra Pradesh has 2,157 cases of human trafficking. Recently 300
bonded labourers in Bangalore have been rescued. According to an article in Firstpost, Delhi is
the hub of human trafficking trade in India and half of the world’s slaves live in India. Delhi is
the hotspot for illegal trade of young girls for domestic labour, forced marriage and prostitution.
Delhi is also the transit point for human trafficking. Kids especially girl and young women,
mostly from Northeast are taken from their homes and sold in faraway states of India for sexual
exploitation and to work as bonded labour by the agents who lure their parents with education,
better life, and money for these kids . Agents do not send these kids to school but sell them to
work in brick kilns, carpentry units, as domestic servants, beggars etc. Whereas girls are
trafficked for the purpose of sexual exploitation. Even these girls are forced to marry in certain
regions where female to male sex ratio is highly disturbed. Children from tribal areas are at
greater risk of human trafficking. Recently there were cases of human trafficking in which most
of the children were from the Kuki tribe in Manipur’s Tamenglong district. Reason for this was
the tribal clashes that let the human trafficking to prosper. Conflict between the Kukis and Nagas
tribe in Northeast region between 1992 and 1997 left many kids homeless. These kids were taken
by agents to the other parts of the country.274
The Indian Penal Code contains more than 20 provisions dealing with trafficking issues and
imposes criminal penalties for offenders. The Constitution of India forbids trafficking in persons
and reflects in various law/legislation and policy documents of the Government of India. 275 The
Immoral Traffic Prevention Act (ITPA) acts as the main legislative tool for prevention and
combating trafficking in India.
Besides, provisions such as Bonded Labour (Abolition) Act of 1976, The Child Labour
(Prohibition and Regulation) Act of 1986, The Scheduled Castes and Scheduled Tribes
274
Visit http://www.mapsofindia.com/my-india/society/human-trafficking-in-india-must-end
(
This
except
is
originally
taken
from
http://asiafoundation.org/resources/pdfs/StanfordHumanTraffickingIndiaBackground.pdf) Episcopal Life. (2009).
Human Trafficking: India in Focus. Retrieved February 3, 2010, from http://www.episcopal"
life.org/documents/Country_Report_India.pdf.
275
LAW MANTRA
THINK BEYOND OTHERS
(Prevention of Atrocities) Act of 1989, the Provisions of the Juvenile Justice Act of 2000, the
Transplantation of Human Organs Act of 1994, Immigration (Carrier’s Liability) Act of 2000,
and the prohibition of Child Marriage Act 2006 also handles relevant matters in human
trafficking.276
“Despite several steps being taken by the State Governments, the picture still is very grim and
disappointing. Complaints are still being received regarding non – registration of FIRs and
unsympathetic attitude of police personnel towards rape victims and victims of violence. The
reports of the inquiries conducted by the (National) Commission (for Women) in specific
incidents indicate that the level of sensitiveness and care with which crime against women
should be handled is not up to the desired level.” 277
Conclusion
The world is battling today with this plague that has eaten into the very roots of the society and
has continued thriving on the weaknesses of the law enforcement mechanisms of the various
legal systems of the world. The crux of this problem is poverty and lack of opportunities; the
victims fall into taking the bait set up to trap them for indefinite periods of time. Lured by false
hopes of turning a new page of their lives filled with promises of happiness they take that path
which is so uncertain risking away everything they have. More than half the trafficked victims
are young children below 18 years who lose everything and some suffer such irreparable
damages that they never are able to grow up as proper individuals. The loss of these individuals
are a greater loss to the nation itself. A country’s youth are its strength and treasure. Today’s
child maybe tomorrows diplomat – If we want our nation to be defended, developed and
outshining others, we must see to it that our human resources are fully trained. For this there
cannot be an inch of violation of their basic fundamental rights let alone making them work in
factories or mines. This calls for the need to mass awakening, filling up the gaps in the legal
enforcement process and maintaining a check on corruption. It is also seen that there are
circumstances when the victims who are rescued due to lack in scope of rehabilitation are
compelled to once again shun the society and turn back to the pimps. But, this has to stop and
stringent measures should be taken against the traffickers so that there is justice ensured to the
victims and they do not feel the burden of carrying the guilt thrust upon them by these criminals
who trade them for commercial profits and lead a life of luxury ruining someone else’s life. This
being the motif of this research topic, human trafficking is an issue that has to deal with an aim
of uprooting this evil from its very foundation. However a complete end to this problem may not
be practically and immediately possible, hence forth steps have to be taken that will end the
system of pricing a life. For this everybody who shares a sense of care for others can come
forward and participate by being vigilant of any suspicious activity and reporting it then and
276
Ibid
Press Information Bureau: Government of India. (2009). Drive against Human Trafficking and Crime against
Women to be
intensified: Ajay Maken/ MHA issues Advisories in this regard to States/UTs
18 Press Information Bureau: Government of India. (2009). Drive against Human Trafficking and Crime against
Women to be
intensified: Ajay Maken/ MHA issues Advisories in this regard to States/UTs
18
LAW MANTRA
THINK BEYOND OTHERS
there. Many NGOs have also come forward with the agenda of rehabilitating these rescued
victims but the society has to accept them upholding their cause so that they could once again
live with renewed self – worth and reassuring support from all around them and the first step in
doing this would be the responsibility of the intelligentsia who has to take active measures by
organising seminars and presentations hoping to bring smiles to all those who might not be
fortunate enough like us so to say.
LAW MANTRA
THINK BEYOND OTHERS
TRAFFICKING IN HUMAN BEINGS –
MAGNITUDE,
CHALLENGES
AND
SOLUTIONS BY NASEEMA P.K
Introduction
Today 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 unbelievable vulnerabilities. Commercial exploitation of these vulnerabilities has become a
massive organized crime and a multi dollar business. Human trafficking is the third largest
organized crime after drugs and the arms trade Close to 80% of the human trafficking across
the world is done for sexual exploitation and the rest is for bonded labor. Human trafficking or
trafficking in persons is a grave crime and most countries of the world has been trying to curb it.
Nations are attempting to combat this trade in human misery through legislative, executive,
judicial and social action. And yet the everyday reports in the newspapers shows that the
number of victims keeps increasing every year.
Trafficking of persons occurs for three main purposes – to feed the prostitution industry
or for sexual exploitation, to sell into slavery or forced labor, and to harvest human organs for
sale .Reasons behind the increase of trafficking leads us to the fundamental theory of demand
and supply that men for work generally migrate to major commercial cities and from here the
demand for commercial sex is created and to fulfill the supply all efforts are made by the
suppliers. The country of source have high levels of poverty and low levels of opportunity
available to citizens. Supply factors include poverty, lure of employment, sham marriages,
displacement due to natural disasters, political disturbances such as civil war278,culturally
subordinate position of women, migration, etc. Thus the economic injustice , poverty,Social
inequality, regional gender preference, imbalance and corruption etc are the leading causes of
human trafficking.Forced marriage is another reason because girls and women are not only
trafficked for prostitution but also bought and sold like commodity in many regions of India
where female ratio is less as compared to male due to female infanticide and they are then
forced to marry. Even though bonded labour is illegal there are more than 11.7 million people
working as a forced labour in the Asia-Pacific region.
This paper seeks to show the magnitude of the issue and suggest the creative role of
state as well as other agencies in this regard. We can say that trafficking is a modern-day
equivalent to slavery. It is a phenomenon which is gaining momentum and is now the third

Research scholar at NUALS, Kalamasseri
278
Jonathan Fowler, UNICEF: Human Trafficking in Africa Fueled by War, Economic Hardship, and Lack of Birth
Registration, Associated Press, 23 April 2004.(Octo. 11,2014), http://www.protectionproject.org/wpcontent/uploads/2010/09/Angola_Final_2012.pdf.
LAW MANTRA
THINK BEYOND OTHERS
largest form of organised crime after trafficking in arms and drugs. 279Even though the crime of
human trafficking for any purpose is both under-recorded and under-reported, the 2004
Trafficking in Persons (TIP) report estimated at least 600,000 to 800,000 women and children
are trafficked across international borders every year, the majority being trafficked into
commercial sexual exploitation280. Thus the topic under study is of utmost importance and needs
serious consideration .
TRAFFICKING-Meaning and Scope
The Oxford English Dictionary defines, traffic as ‘trade, especially Illegal281 (as in
drugs). It has also been described as ‘the transportation of goods, the coming and going
of people or goods by road, rail, air, sea, etc282. The word trafficked or trafficking is described
as ‘dealing in something, especially illegally (as in the case of trafficking narcotics)’. 283
The most comprehensive definition of trafficking is the one adopted by the UN Office
of Drugs and Crime in 2000 284, known as the “UN Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children,” 2000 under the UN
Convention against Transnational Organized Crime (UNTOC) as per article 3 which runs as
follows
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;
279
United Nations Office on Drugs and Crime, 2010, ISBN:978-92-1-130295-0, United Nations
pubublication,http://books.google.co.in/books.
280
US Department of Health and Human Services [US DHHS]. (2004). Human trafficking fact sheet: Trafficking
Victims Protection Act of 2000 available at http://www.acf.hhs.gov/trafficking/about/factsheets.html.
281
http://www.oxforddictionaries.com/definition/english/traffic
282
Ibid.
283
Intezar Khan, Child Trafficking in India: A Concern 4(Octo..2,2014), http://www.stoptrafficking.in/ArticleChild-Trafficking-in-India-A-Concern.aspx.
284
(Octo.3,2014), http//www.unodc.org/unodc/en/treaties/CTOC/index.html.
LAW MANTRA
THINK BEYOND OTHERS
d) Child shall mean any person under eighteen years of age.
Thus it covers 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. 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.It further clarifies that the consent of a victim of trafficking in persons, to the
intended exploitation, is irrelevant, where the means specified above have been used. A
separate definition of child trafficking is provided by the UN Convention against Transnational
Organised Crimes 285which states that child trafficking is the recruitment, transportation, transfer,
harbouring or receipt of a child for the purpose of exploitation. Children may be trafficked for
the purpose of labour or for sexual exploitation. Trafficking in persons for sex, however, forms
another category of trafficking.
According to the United States Trafficking Victims Protection Act (TVPA)286, sex trafficking
is a practice “in which a commercial sex act is induced by force, fraud, or coercion, or in which
the person induced to perform such an act has not attained 18 years of age”. Trafficking in
human beings is a crime where the exploitation of an individual is the central aspect. The other
form of trafficking is one for organ trade. Trafficking in human beings for the purpose of organ
removal can only be committed if organs are removed from living donors. Organ trafficking is
defined by the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children287 as: the recruitment, transport, transfer,harbouring, or receipt
of living or deceased persons or their organs 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 to, or the receiving by,a third party of payments or benefits to
achieve the transfer of control over the potential donor, for the purpose of exploitation by the
removal of organs for tranplantation. The Trafficking Victims Protection Act of 2000 (TVPA)
defines “severe forms of trafficking in persons” as follows:


285
Sex trafficking: the recruitment, harboring, transportation, provision, or obtaining of a
person for the purpose of a commercial sex act, in which the commercial sex act is
induced by force, fraud, or coercion. or in which the person induced to perform such act
has not attained 18 years of age; and
Labor Trafficking: the recruitment, harboring, transportation, provision, or obtaining of a
person for labor or services, through the use of force, fraud, or coercion for the purpose
of subjection to involuntary servitude, peonage, debt bondage, or slavery.
:http//www.unodc.org/unodc/en/treaties/CTOC/index.html
http://www.state.gov/documents/organization/10492.pdf
287
http://www.unodc.org/unodc/en/human-trafficking/2010/egm-vienna-organ-trafficking.html.
286
LAW MANTRA
THINK BEYOND OTHERS
In the TVPA, the term “commercial sex act” means any sex act on account of which anything of
value is given to or received by any person.
The SAARC Convention 288 adopted unanimously by Bangladesh, Bhutan,
India, Maldives, Nepal, Pakistan and Sri Lanka, which is relevant for cross border
trafficking in South Asia, also has defined trafficking. However, it is a limited definition
which only covers trafficking for commercial sexual exploitation. Trafficking 289 is defined as
the moving, selling or buying of women and children for prostitution within and outside a
country, for monetary or other considerations, with or without the consent of the person
subjected to trafficking.
International Laws
International laws lay down standards that have been agreed upon by all
countries. By ratifying an international law or convention or a covenant, a country agrees
to implement the same. The following are the most important International Conventions
regarding trafficking of children:
1. The Convention on the Rights of the Child, 1989.
2. The Optional Protocol to the Convention on the Rights of the Child on the
Sale of Children, Child Prostitution and Child Pornography, 2000.
3. The Convention on the Elimination of All forms of Discrimination against
Women, (CEDAW) 1979.
4. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children.
5. Declaration on Social and legal principles relating to the Protection and Welfare of
Children, with special reference to Foster placement and adoption
Nationally and
Internationally, 3 December, 1986.
6. SAARC Convention on Regional Arrangement for the Promotion of Child Welfare,
2002.
Indian scenario
Coming to India we can see the lack of a comprehensive definition of trafficking
at the Central level.
We have the ITPA provisions that provide penalty for immoral
trafficking, punish traffickers, punish persons keeping a brothel , punish persons who live off the
288
South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating
Trafficking in Women and Children forProstitution, 2002. http://www.saarc-sec.org/userfiles/conv-traffiking.pdf
289
Ibid Article I
LAW MANTRA
THINK BEYOND OTHERS
earnings of a woman and provides welfare measures for rehabilitation of sex workers290. The
Criminal Law (Amendment) Bill 2013 291 is passed by both houses of Parliament in March,
2013. It provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of
Criminal Procedure on laws related to sexual offences. It adds Section 370A to the Indian Penal
Code which criminalizes human trafficking. The definition provided under the new section is not
restricted to prostitution but also includes other forms of trafficking. This is evident from the use
of the word "exploitation" instead of "prostitution" in the section.
Magnitude of the problem of trafficking
Trafficking in persons is an activity of the informal sector and hence is not accounted
for. This makes it difficult to correctly estimate the magnitude of trafficking and identifying the
victims as these acts are sometimes not even seen as acts of gross violation of human rights.
Estimates show that 2.4 million of the 12.4 million forced labour victims were trafficked..Of
these, 6% are in Asia and the Pacific, 10% in Latin America and the Caribbean, 9.2% in the
Middle East and Northern Africa, 5.2% are in sub-Saharan countries, 10.8% are in Industrialized
countries, 8% are in countries facing political transition. 161 countries are reported to be
involved in trafficking by either participating as the country of source, of transit, or of
destination. People are reported to be sourced to be trafficked from 127 countries to be exploited
in 137countries.
Human Trafficking is a violation of human rights in the worst form, the impacts of
which are far-reaching. 95% of trafficking victims experience physical and sexual violence
.Many victims experience post-traumatic stress disorders, depression and disorientation.
Inadequate legislation and law enforcement, lack of knowledge and awareness about legislation
are challenging issues .Trafficking of girls for marriage is prevalent, particularly in the states of
Punjab and Haryana. Studies reveal a well-established market in Uttar Pradesh for ‘purchased’
Bangladeshi wives. 292 In India, a large number of children are trafficked not only for the sex
‘trade’ but also for other forms of non-sex based exploitation that includes servitude of
various kinds, as domestic labour, industrial labour, agricultural labour, begging, organ trade and
false marriage. Trafficking in children is on rise, and nearly 60% of the victims of trafficking are
below 18 years of age (NCRB, 2005).According to NHRC Report on Trafficking in Women and
Children, in India the population of women and children in sex work in India is stated to be
between 70,000 and 1 million of these, 30% are 20 years of age. Nearly 15% began sex
work when they were below 15 and 25% entered between 15 and 18 year.A rough
estimate prepared by an NGO called End children’s prostitution in Asian Tourism reveals
that there are around 2 million prostitutes in India. 20% among them are minors.A study
290
291
(Nov.11,2014), http://www.protectionproject.org/wp-ontent/uploads/2010/09/India_Acts_1986.pdf.
http://mha.nic.in/pdfs/TheCrimnalLaw030413.pdf.
15 Eira Mishra , Combating Human Trafficking: A Legal Perspective with Special Reference to India 1(4)
Sociology and Anthropology 172,(2013), (Octo.10,2014), http://www.hrpub.org.
LAW MANTRA
THINK BEYOND OTHERS
conducted in 1992 estimates that any one time 20,000 girls are being transported from one
part of the country to any other .293
Another area of trafficking is that of organ transplants which are a boon of modernscience. A very serious consequence here is the creation of an opportunity for the traffickers to
intervene and provide organs by forcing persons to donate. The immense scarcity distressing the
supply of organs and the mounting demand for organs and tissues produce circumstances in
which trafficking in human beings to obtain organs can flourish. This is sometimes referred to as
‘transplant tourism’ 294.
The severe economic disparities and desperate need for organs encourage rich to
shorten the wait for organs by exploiting the distressful economic condition of the poorest
classes. Several survivors of the December 2006 tsunami which hit the East-coast of India were
forced into organ trade to pay their families' debts295. The 2010 Trafficking in Persons Report
also points out that ninety percent of those trafficked 296 belong to the most disadvantaged
groups.
Suggessions
The state, NGOs and the society should join their hands to combat the menace of trafficking in
the country.
• Effective policy implementation shall be done after it is thoroughly revised
Conducting awareness programmes for law enforcing agencies.
• Ensure participatory roles of people to inform the authorities and thus to help in frequent
raids to track trafficked persons.
• Border security forces to be made more alert to prevent trafficking
• Public awareness programmes to alert people and to help them identify any such activity
around them.
• Rehabilitation programmes to ensure that victims are not forced to revert to sex work due to
lack of reasonable alternatives.
• Rescued persons must be trained to economically independent.
• Construction of protective homes for homeless persons as they are most vulnerable.
293
Supra note 6.
Nancy Scheper-Hughes, " The Ends of the Body--Commodity Fetishism and the Global Traffic in
Organs", SAIS Review 22.1 (2002) 61-80.
295
http://www.theguardian.com/world/2007/feb/18/india.theobserver.
296
Trafficking In Persons Report, 2010, United States Department of State, 14 June 2010 sourced from
http://www.unhcr.org/refworld/docid/4c1883c52d.html .
294
LAW MANTRA
THINK BEYOND OTHERS
creating compulsory high quality education, employment opportunities and income
generation programme
Inclusion of gender centered education curricula
awareness aboutchild sexual abuse and trafficking.
in schools will give the children an
NGOs working in the rural areas can do a lot to educate parents of safe migration practices and
the risks involved in sending their children to unknown places.
Also media can be used to create awareness that human trafficking is inappropriate and illegal
and has negative consequences and wide publicity should be given regarding the legal,penal
provisions against trafficking .
Conclusion
Trafficking in human beings in whatever form it is ,equivalent tomodern slavery and
requires the consideration of the problem in multidimensions. It is a problem that violates the
rights and dignity of the victims and therefore requires serious concern. In the fight against
trafficking government organizations, non-governmental organizations, civil society,
pressure groups, international bodies etc must ensure their creative role. Legal machineries
alone cannot bring a social change.. Unless a public opinion is built and laws are effectively
designed and implemented,the situation cannot be monitored . Coordinated efforts are required
to stop and prevent trafficking. The phenomenon of trafficking in humans is a socio-economic
offence. It makes people question their safety and the efficacy of the state machinery. It is the
combined duty of the state and society to fight trafficking and protect the vulnerable
groups.Making people aware of occurrence of such crimes , effective criminal justice system and
vigilant citizens can contribute successfully in this fight against trafficking.
LAW MANTRA
THINK BEYOND OTHERS
HUMAN TRAFFICKING: UNDERSTANDING
AND SOLVING THE ISSUE BY PIYUSH
GOYAL AND KHYATI SHREE 
Human trafficking is a problem which has been spreading virtually in every country at
endemic proportions. Bonded labour, child terrorism, sexual exploitation, etc., are genus of
this issue. Quantifying the number of victims and offenders in this case is difficult as no
concrete data can be derived. But we all know for a fact that human trafficking has now
become one of the most heinous forms of slavery of modern age.
While the awareness among the countries has increased and most of them are part of
several treatise and conventions, the challenges are still very high and the root problems
have still not been touched. Human trafficking is very dynamic in nature; it involves a lot
of abettors and conspirators who take advantage of the situational crisis of victims, for
example: poverty, gender, immigrants, victims of natural disaster, etc. Understanding the
patterns and trends of the victims and the convicts is an essential step towards dealing the
problem. The framework towards combating the situation should be based on three
objectives of United Nations Traffic Protocol namely Prevention, Protection and
Prosecution (the 3 P’s) 297 which will demand the national and international cooperation.
The victims of trafficking face a severe problem of remaining unidentified and thus being
devoid of their fundamental rights.
The research paper especially deals with the problems relating to sex trafficking which is
actually the most dreadful form of human trafficking as it affects the dignity and freedom
of a person in the worst possible way. Women and children are the majority of victims of
sex trafficking. Sex trafficking is an extreme form of violence where especially women go
through forced prostitution, trading their bodies, forced abortion, rape, bodily injury,
involuntary servitude, torture, unlawful confinement, kidnapping, and many other forms of
criminal activities which can be connected to it. It is not only a form of slavery but is
actually a booming business which involves low risk and high profit. Sex trafficking
remains the third largest form of organised crime in the whole world which is a very
alarming statistic for the society298. Most of the victims of sexual exploitation are women
and youth who take up prostitution either because they are runaways, poor or to satisfy
their devious needs like drugs, etc. Other victims fall prey to this business because of their
family pressure, religious order or fraudulent contracts. Once they get involved it is
difficult for them to get out. They get isolated from friends, family and society. They are
usually sent far away from their home and their daily life revolves around drugs, violence,

Chanakya National Law University, Patna
UNODC, International Framework for Action To Implement the Trafficking in Persons Protocol, Available at
http://www.unodc.org/documents/human-trafficking/Framework_for_Action_TIP.pdf
298
What is Human Trafficking, UNODC, Available at
https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html
297
LAW MANTRA
THINK BEYOND OTHERS
health issues, extortion, forced labour and sex. The paper aims at providing the
background of sex trafficking, what has been done to deal with it and what hurdles lie
ahead. The objective is also to fill the gap between what the law has to offer for the victims
and what lacks in the implementation of such legal rights and provisions. Where the
loophole is and where our society has failed to understand the psychology of the victims
and the criminal.
All of us have a role to play in combating this crime. Awareness, tracking down patterns
and behaviour, forming partnerships, building legal frameworks, being more considerate
towards the victims and bringing the criminals under the light of justice will help us all to
save our fellow citizens from being put up for sale.
Legal Provisions
The Constitution of India which is the Supreme law of India, clearly provides right to
f reedom and right to equality, it also especially prohibits any sort of trafficking be it
trafficking of human beings, beggary or forced labour299300301. Apart from this, our
lawmakers gave us The Suppression of Immoral Traffic in Women and Girls Act, 1956
which is now Immoral Traffic (Prevention) Act, 1986 in furtherance of the of the
International Convention for the Suppression of the Traffic of Persons and of the
Exploitation of the Prostitution of others 302 (signed at New York on 9th May, 1950) to
which India had ratified. ITPA, 1986 exhaustively deals with the offence of trafficking.
The ITPA along with the aid of provisions of Indian
Penal Code, 1860 and Procedural Laws of India like Criminal Procedure Code and Indian
Evidence Act help a long way to punish and provide justice to the victims of trafficking.
But it happens more than often that trafficking and prostitution are confused. What needs
to be understood is that prostitution is the outcome of the offence of trafficking.
Trafficking is the actual offence which needs to be dealt with seriousness. An offence of
trafficking involves more than just procuring the victim, once the victim is facilitated and
encouraged to speak up a huge list of the dirty hands involved will come up. Thus it is very
important for the law makers to understand the predicament of the victim.
The offences laid down under ITPA are as follows:
299
Article 14 provides equality before the law or equal protection of the laws within the territory of India.
Article 23 prohibits traffic in human beings and forced labour.
301
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.
302
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
300
LAW MANTRA
THINK BEYOND OTHERS
S.3 ITPA: Keeping or managing (or assisting in keeping or managing) a brothel or
allowing premises including vehicles to be used as a brothel.
S .4 ITPA: Living on the earnings of prostitution (even partly).
S. 5 ITPA: Procuring, inducing, trafficking or taking persons for the sake of
prostitution. Even attempt to procure or take would constitute this offence.
S.6 ITPA: Detaining a person in any premises (brothel or any other) where prostitution
is carried out.
S.7 ITPA: Anybody who carries on prostitution, or anybody with whom such prostitution
is carried on, in the vicinity of public places (which includes hotel, vehicles, etc).
S.8 ITPA: Seducing or soliciting for the purpose of prostitution in any public place or
within sight of a public place.
S.9 ITPA: Seduction of a person in custody (including causing or abetting seduction
for prostitution of a person in custody).
These provisions can also be coupled with The Juvenile Justice (Care and Protection of
Children) Act, 2000 (JJ Act 2000). It’s penal provisions says that anybody in control of a
child who assaults, abandons, exposes or wilfully neglects the child or procures him to be
assaulted, abandoned or exposed causing the child unnecessary mental or physical
suffering, is liable under S. 23 JJ Act.
What needs to be understood here is the domain of trafficking is too huge to fit it into
one single definition. Trafficking is a multi dimensional offence; different perspectives and
forms lead to the multiplicity of variables and attributes of it. In constituting the
offence of trafficking even the clients or customers are liable u/s 5(1) (d) which says
any person who ‘causes’ or ‘induces’ another person to carry on prostitution will be
held liable too. The concept of trafficking should be flexible. It should be easily
expanded, limited or shifted according to the facts, objectives and context of the issue at
hand. Another important thing to note is that none of the statutes should promote in any
sense the criminalization of the victims involved in the trafficking nor should there be any
ambiguity regarding the same.
Organisation of trafficking
The people who are the centre of trafficking are the ones who become “highly profitable,
LAW MANTRA
THINK BEYOND OTHERS
low risk, expendable, reusable and resalable commodities” 303 the whole process is such
that sucks personhood and dignity out of the human body. As soon as the body is linked
with money, the value of human body is degraded to such a level that it becomes a mere
instrument for
personal gains. There are various levels involved in the process of trafficking. It starts with
the recruitment of the victim, and then they are transported to places far away from their
families. There are shifted several times in between before a permanent place for sale is
decided for them. Each case of trafficking involves different stages f crime some may
include and some may exclude various processes. To understand this never ending
permutation and combinations, case studies should be done. The first step usually is the
recruitment/procurement process. The spotters, the recruiter, the seller, the purchaser, the
contractor, the agent all are liable as conspirators and abettors for the crime. The brothel
owners who act as exploiter, the hoteliers or the keepers of vehicles/places, the people who
allow premises or people who allow public places to be used as place for exploitation are
also liable. So are the customers and financers who finance stages recruitment,
transportation, stay, accommodation and even those who indulge in money lending and
borrowing at the brothels are held as liable. Trafficking is said to involve a range of players
‘along the road from acquisition to exploitation304. They are generally found in the context
of organised
trafficking. Networks may involve the police, visa/passport officials, railway/bus
authorities and employees, taxi/auto rickshaw drivers or rickshaw pullers 305.
Effect of Trafficking
The impact of trafficking has not been analysed properly analysed properly is India and
its importance has been greatly undermined. Trafficking has severe adverse effect upon
the society, the individual, health, legal, economic and psychological effect.
Individuals
Trafficking leaves the victims traumatised. In many cases they become suicidal or fall in
deep depression. The mental and emotional state of the survivors may include
malevolence, helplessness and withdrawal; disassociation; self-blame and identification
with the aggressor; distraction; a foreshortened view of time; normalisation and shaping,
whereby the victims convince themselves that their experiences had to happen instead of
viewing them as traumatic 306. Besides being stigmatised as outcasts and facing moral and
303
Amy O’ Neil Richard, International Trafficking in Women to the United States: A Contemporary Manifestation
of Slavery and Organized Crime, Available at https://www.cia.gov/library/center-for-the-study-of-intelligence/csipublications/books-and-monographs/trafficking.pdf
304
90th
Session,
2002,
International
Labour
Conference,
Available
at
http://www.ilo.org/public/english/standards/relm/ilc/ilc90/pdf/rep-vi.pdf,
305
DWCD 1996
306
Orient
Longman,
Trafficking
in
Women
and
Children
in
India,
Available
at
https://books.google.co.in/books?id=1xFnEyqFupUC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=
onepage&q&f=false
LAW MANTRA
THINK BEYOND OTHERS
legal isolation307, trafficked people are vulnerable to HIV/AIDS infection; drug addiction
and high-risk abortions and teenage pregnancies, which may affect their reproductive
health for life. Psychological trauma permeates all aspects of their lives. Since it usually
remains unaddressed and unresolved, ‘the abused turn into abusers’ with a high probabilit y
of them
becoming criminals. The consequences of being in ‘child labour’ and its adverse impact
on the development of children are well documented.
Mapping the harm done to the victims:
This is an area usually neglected in the present day investigation process. Do map
and document the entire harm and damage done to the victims. This includes:
1. Injuries of physical assault (beating, cigarette burning,
etc). 2. Injuries of rape and other sexual assaults.
3. Injuries consequential to the various act of exploitation (e.g. abortion due to denial
of safe sex methods).
4. Injuries consequential to the denial of medical care and attention (e.g. UTI, which
arises due to lack of timely treatment of earlier injuries). The medical status
including STD, HIV etc. (HIV testing is possible only if the person consents).
5. The psychological harm (i.e. the mental torture, trauma, tension, etc on the person)
not only due to exploitation, intimidation, and denial of privacy and dignity but
also as a result of neglect of oneself, one’s children, and abuse of children) 308.
Society
The offence of trafficking involves the violation of a set of laws and human rights. It is a
threat to society because traffickers operate across borders with impunity, with the growing
involvement of organised criminals and by generally undermining the rule of law.
Trafficking ‘threatens the very fabric of society’ because it involves not only criminals but
also law enforcers 309.
It manifests and perpetuates patriarchal attitudes and behaviour, which undermine the
efforts to promote gender equality and eradicate discrimination against women and
children310. The cost of countering criminal trafficking activities puts additional strain on
the already limited government resources for law enforcement. A vast amount of potential
income from trafficked labour is lost in ‘hidden’ sectors’. Specific communities may
become known as potential sources for people if following each other’s example,
307
Volume I,
A report on Trafficking in women and children in India,2002-2003, Available at
http://nhrc.nic.in/Documents/Publications/ReportOnTrafficking.pdf
308
Dr.P.M.Nair, Trafficking Women & Children for Sexual Exploitiation, Available at
http://www.unodc.org/documents/humantrafficking/India_Training_material/Handbook_for_Law_Enforcement_Agencies_in_India.pdf
309
Sagarika Satapathi, Women Trafficking, Available at http://www.indiansocialstudy.com/2009/05/womentrafficking-in-india.html,
310
Supra 10
LAW MANTRA
THINK BEYOND OTHERS
communities start a trend of sending their children and women out.
The loss of future productivity and earning power through low educational levels, ill health
and potentially premature death is also felt at the country and regional level. Poor nations
can ill afford to lose their young people, whose present and future productive capacity is
essential to growth. The ravage of disease, including HIV/AIDS, is also an enormous
burden on such countries and causes further imbalances between the young and middleaged potential workforce (most likely to be affected) and older people dependent on
them311.
Economy
In terms of lost potential returns to human or social capital, economic losses for human
trafficking are enormous. The necessary cost of anti-trafficking initiatives puts added
strain on limited government resources. Huge amounts of income remain lost in hidden
sectors such as commercial sex work and escape the formal economy of income regeneration and productive uses i.e. income from the migration of people for employment.
Health impacts
There are obvious psychological effects of trauma and depression but there are direct
consequences too like low living standards, workers prone to STD’s , AIDS, tuberculosis,
etc. Certain myths like young girls are immune to the HIV AIDS or are they can cure
STD’s increase the demand for girls of tender age. There are conflicts often arising between
the people who carry out awareness programmes for HIV AIDS and those fighting against
trafficking, the earlier use the pimps and brothel owners to send their messages and the
latter are the ones fighting against the same. Some of these awareness programmes send a
negative message in the society that all the commercial sex workers are infected with AIDS,
so it makes to difficult for them to get rehabilitated in the society with such rumors.
Protection and care of victims
Protection and care of victims commence with proper rescue processes. They should not be
criminalised. FIR should be only against traffickers and abusers, but never against the
victims. All further steps in investigation and justice delivery should follow this principle.
Simultaneously, it should be seen that the victims are empowered and properly
rehabilitated. Often police officials think that they have nothing to do with the
rehabilitation of the victims. This is a mistaken notion. Prevention of crime is a mandate to
police under the Police Act. To prevent re-trafficking, it is essential to rehabilitate the
trafficked victim.
Prevention of Re-Trafficking
311
Women
and labour markets in India: Rebalancing for gender equality,
Available at
http://www.ilo.org/wcmsp5/groups/public/@asia/@ro-bangkok/documents/publication/wcms_154846.pdf
as
Accessed on.
LAW MANTRA
THINK BEYOND OTHERS
A large number of rescued persons are re-trafficked. The reasons are many. Victimization
of the victims, arrest of trafficked persons as accused and their criminalization are some of
the reasons. Improper /inadequate rehabilitation/empowerment lead to lack of livelihood
options which, in turn, make these persons highly vulnerable and subjects of prey by
traffickers.
Therefore the following can be done to prevent re-trafficking..
1. Provide proper counseling, right-based empowerment and appropriate livelihood
options, including adequate resources, skills and marketing facilities, to the
rescued persons.
2. Police should network with other departments of government (i.e. women’s
development, child development, social welfare, health care, etc.) as well as
with
NGOs and INGOs working in the related fields, in addition to Corporates who
would like to be associated, and involve them in the various processes of
empowerment..
3. Ensuring that the repatriated/ rehabilitated person is reintegrated properly by
taking regular feedback will also be helpful.
4. Accountability should be cast on the village-level functionaries to monitor the
same. Involvement of Panchayat Raj Institutions in this task can also help in a
long way.
It should be remembered that re-trafficking is more often done by known traffickers and
their coteries. Hence strict action/surveillance on such persons can be an effective tool to
prevent re-trafficking.
Victim Care And Protection During Trial
Victims are wary of the court ambience. Their orientation and counselling is essential.
They should be assured that their rights will not be violated and that their truthful version
of all facts is essential for delivery of justice which is in their interest and also in the larger
public interest. Victims require briefing on the facts of the case, especially to recall the
events in a logical way. This should be done before she is put in the witness box.
Prosecutors ought to ensure that the defense-side does not violate the rights of the victim.
Embarrassing questions should be avoided. Intervention of the court should be sought
immediately to prevent any such violations and all efforts should be made to ensure the
anonymity of the victim. Anonymity provides strength and confidence to the victim.
The use of in-camera trial should be encouraged and the court should be moved for the.
The Supreme Court of India has directed in many cases that in-camera trial should be
extended to all cases of sexual assault on children. A screen has to be provided in the trial
court so that the child victim is not exposed to the suspect and accused persons. A child
LAW MANTRA
THINK BEYOND OTHERS
counselor should be provided to assist in the court. Adequate recess should be allowed
during trial proceeding so that the child victim gets rest. The police and prosecutors should
move the trial courts for the same.
Video conferencing is an ideal mechanism to prevent victimization of the trafficked victim.
It should be done whenever possible. The Supreme Court, in its landmark decision, in
State of Maharashtra vs Dr. Praful B312, has underscored the validity of video conferencing
and enumerated the safeguards to be ensured during the trial of cases. Victim care and
protection also requires the fo llowing: Depute a sensitive liaison officer with the victim,
preferably a WPO. Brief the victim on the facts of the case before trial starts. Orient the
victim to the court scenes before the trial. Debrief the victim immediately thereafter.
Follow up on the debriefing and make required amendments. Ensure transportation of the
victim to and fro. Providing for contingency expenditures, and it must be also noted that
the court are granted funds for this.
Conclusion
The study has made an effort to demystify the world of trafficking and the existing
response scenario. It has identified and studied the issues of trafficking, segregating them
from that of commercial sexual exploitation. The common perception, that the rescued
survivors and those who are still in brothels are ‘prostitutes’ who indulge in soliciting and
make profits in this ‘trade’, has hapless women and children are victims of grave human
rights violations, having been trafficked by vested interests by lure, deceit, compulsion,
threat, coercion and, thereafter, pushed into the world of commercial sexual exploitation or
other types of bondage. According to the study, the exploitation of women and children
takes place not only before trafficking, but also during trafficking and after trafficking.
Vulnerability situations and gender discrimination, which prevail in society, have not only
been promoting and facilitating trafficking but have also been perpetuating it. The rights of
the trafficked persons are violated with impunity. They are subjected to physical and
emotional harm from sexual assault to economic deprivation, and violation of human
dignity. The post-trafficking scenario finds the victim at the end of the tunnel, with almost
no hope of survival. She is subjected to different types of conceivable and inconceivable
acts of perversion and exploitat ion. The strong nexus of vested interests ensures that the
victim is caught in spiraling debt bondage, which is one of the many strategies adopted by
them to keep the girl in constant servitude.
This study is unique in that the responses by several agencies, including the judiciary,
have been looked into. More often than not, the trafficked victims are the ones who are
convicted and fined. The study clearly brought out the fact that law enforcement, in most
places, violates the rights of victims. It is a common practice to arrest, chargesheet,
prosecute and convict the trafficked victims. Human rights violations are rampant during
the rescue and post-rescue efforts. Hence, there is a need for radical change in the law
enforcement practice and methods. The response by government departments and
agencies, and non-government agencies also emphasise the need for radical improvement
in many respects. The present approach, which victimises the victim further, has to be
312
State of Maharashtra v. Dr. Praful B. Desai 2003 (4), SCC601.
LAW MANTRA
THINK BEYOND OTHERS
immediately substituted by a firm commitment to protect the human rights of these
victims and, at the same time, ensure stringent action against the traffickers and other
exploiters.
This research has brought out the fact that poverty and illiteracy are the main elements
constituting the substratum for trafficking. Herein operates the demand factor. This demand
is fuelled by several other factors like the impunity with which the traffickers can operate,
thanks to the distortions in law enforcement. The low risk enjoyed by the exploiters,
coupled with the high profit in this world of crass commercialization, ensures perpetuation
of trafficking. Whereas the traffickers and his cohorts have no restriction on court
jurisdictions or the boundaries between police stations, districts, states, and even nations in
carrying out their ‘trade’, the enforcement agencies are bogged down by restrictions and
limitations of all sorts, which are effectively capitalized by the traffickers. The response by
the government agencies and even civil society has established that they have been able to
address only the tip of the iceberg. The trends and dimensions of the problem, which
emerge from this study has exposed the ultimate human rights violations that exist before,
during and after trafficking, and has accordingly brought out certain suggestions and
recommendations in addressing them.
LAW MANTRA
THINK BEYOND OTHERS
COMBATING
ISSUES AND
RANA*
HUMAN
TRAFFICKING:
CHALLENGES BY PRITI
INTRODUCTION:
The United Nations’ Palermo Protocol defines trafficking in persons as “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 receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of
exploitation”.313Trafficking of human beings is a global phenomenon which has gained
momentum in recent years.It is extremely difficult to assess the worldwide scale of human
trafficking because of the clandestine nature of the crime. The UN Office of Drugs and Crime
(UNODC) estimates that there are, at a minimum, approximately 2.5 million victims of human
trafficking at any given time. 314According to the UNODC, approximately 79 per cent of all
human trafficking is for the purpose of sexual exploitation, while the ILO estimates that 98 per
cent of the people trafficked for sexual exploitation are women and girls. 315Worldwide, estimates
range from 700,000 to an astounding 4,000,000 women and children trafficked annually. 316To
put this number into perspective, in the last decade of what is being called ‘Modern Slavery’,
Southeast Asia alone has produced three times as many victims of trafficking than the entire
history of slavery from Africa.317
Over the years, India has emerged as a source, destination, and transit countryfor trafficking for
varied purposes such as for commercial sexual exploitation and labour. While intra-country
trafficking forms the bulk of the trafficked victims, cross-border trafficking also takes place.
Each year, millions of persons are trafficked both domestically and internationally in India.318
Trafficking in persons, a 9 billion USD industry, is estimated to be the fastest growing enterprise
of the 21st century.319 Trafficking of human beingsis an organised crime that violates basic
human rights. This crime comes at an incalculable human cost and represents one of the most
shameful facets of the modern world. Unsurprisingly majority of victims of human trafficking
313
United Nations (2000).Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention Against Transnational Organized Crime.
314
UN Office on Drugs and Crimes, website, Human Trafficking FAQs, available at
http://www.unodc.org/unodc/en/human-trafficking/faqs.html.
315
International Labour Office, GIVE GIRLS A CHANCE: TACKLING CHILD LABOUR, A KEY TO THE
FUTURE, 39 (2009).
316
Available at: http://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html.
317
Available at: http://www.unicef.org/crc/files/Rights_overview.pdf.
318
Aronowitz, A.(2009).Human Trafficking, Human Misery:The Global Trade Human Beings. London:Library of
Congress.
319
International Labour Office, The Cost of Coercion: Global Report under the follow-up to the ILO Declaration on
Fundamental Principles and Rights at Work (International Labour Conference, 98th Session 2009, Report I(B)),
para. 145.
LAW MANTRA
THINK BEYOND OTHERS
are women and children, the most marginalised segments of society in developing countries. The
weak legal landscapes of developing countries, compounded by factors such as gender
discrimination, family violence and a lack of access to education and economic opportunities,
provide existing and potential traffickers with ample available victims.
ROOT CAUSES OF TRAFFICKING
Human trafficking has been identified as the third largest source of profitfor organized crime,
following arms and drug trafficking, generating billions of dollars annually at the global level. 320
Trafficking takes places for various purposes such as labour, prostitution, organ trade, drug
couriers, arms smuggling etc. However, these cannot be seen in isolation as they havea
crosscutting nexus and linkage, which compounds the constraints facedin tackling the problem. It
is also seen that while the methods used for trafficking such as coercion, duping, luring,
abducting, kidnapping etc. are commonly cited, it is the social and economic constraints of the
victims that make them most vulnerable.With growing globalization and liberalization, the
possibilities and potential for trafficking have also grown. People tend to migrate in search of
better opportunities. Though this is a positive trend, it has also led to the emergence of other
complex issues such as smuggling of people across borders and unsafe migration by
unscrupulous touts and agents.Although human trafficking has been the focus of world attention
since the first international counter-trafficking treaty was signed in 1904,321attention in the
international arena has increased dramatically since the 1990s. Regardless of the international
commitments to diminishing trafficking in humans, studies show that the phenomenon is
increasing as the disparity between wealth and poverty grows between and within countries. As
poverty disproportionately affects women and their children, 322it is not surprising that, following
trends in migration, women would be pushed to migrate in the hopes of acquiring economic
security for themselves and their families. Although the push and pull factors of migration are
similar for men and women, their migration experience can differ greatly. For millions ofwomen
this economic migration ends in sexual exploitation and debt bondage.
Study points that states with high levels of poverty are where the largest number of victims of
trafficking originate (Orissa, Bihar, Jharkhand, West Bengal). 323 It is often argued that the
‘feminization of poverty’ is driving the increasing trend of trafficking in women. Investment in
female workers is lower as compared to their male counterparts. Amplifying the problem, often,
female-headed households are forced to put their children to work for economic survival, which
then places their children at risk of being trafficked.324 While poverty is primary in its impact on
320
United Nations Children’s Fund/United Nations Office of the High Commissioner for Human
Rights/Organization for Security and Cooperation in Europe-Office for the Democratic Institutions and Human
Rights (UNICEF/UNOHCHR/OSCE-ODIHR). (2002). Trafficking in Human Beings in Southeastern Europe.
321
1904 International Agreement for the Suppression of White Slave Traffic, Amended by the 1949 Protocol. As per
Refugee Reports (2000). ‘Trafficking in Women and Children: a Contemporary Manifestation of Slavery’. Volume
21, No 5.
322
70% of the world’s poor are women and their dependent children, according to the American Federation of Labor
and
Congress of Industrial Organizations (AFL-CIO). Lantigua, J. (2000). ‘Globally, Women’s Condition not Sugar, Spice’, Contra
Costa Times, March 12, 2000
323
Asia Development Bank.(2003). Dynamics of Trafficking of Women &Children in South Asia.Retrieved January
24, 2014, from http://www.adb.org/Documents/Books/Combating_Trafficking/.
324
Ibid
LAW MANTRA
THINK BEYOND OTHERS
trafficking trends, social attitudes play a secondary but very large role as well. Marginalisation of
women is a major contributing factor to trafficking. The fact that many families and communities
perpetuate and institutionalise (often through traditional practices) the act of trafficking has
hindered anti- TIP efforts. Gender- biased social practices have led parents to be persuaded by
traffickers under false pretexts of marriage without dowry.325 With a backdrop of poor
governance and scarce government services, the absence of an effective legal framework
interacts with the exclusion of vulnerable groups from basic social and economic services to
enable an environment conducive to trafficking. 326 However, extensive efforts are underway to
empower women and communities that are socially and economically vulnerable.
LAWS TO COMBAT TRAFFICKING:
The UN General Assembly in its resolution 55/67 of December 4, 2000, urged governments to
devise, enforce and strengthen effective measures to combat and eliminate allforms of trafficking
in women and girls through a comprehensive anti-trafficking strategy consisting of: legislative
measures, reintegration of victims, and prosecution of offenders. 327In the last few years, India
has accepted this challenge and adopted, with the support of all stakeholders, a comprehensive
set of initiatives to combat trafficking in women for sexual exploitation. Initiatives to combat
trafficking in womenfall into the following categories:
o Initiatives aimed at prevention of trafficking in women for sexual exploitation.
o
Initiatives
aimed
at
protection/rehabilitation
of
victims,
and
o Initiatives aimed at prosecution of those who commit or facilitate trafficking in women.
On the regional level, India ratified SAARC (South Asian Association for Regional Cooperation)
Convention in 2002, which aim to instigate regional cooperation on the protection of the rights of
women and children in South Asia. At the national level, the Immoral Trafficking Prevention
Act, 1956 (ITPA) has severe penalties for those engaged in TIP and is India’s most
comprehensive anti- trafficking statute. However, in addition to calling for the prosecution of
traffickers it also allows for the arrest of the victims themselves. Buttressing the ITPA are the
Constitution of India and the Indian Penal Code, which coupled together, have more than 20
provisions that make trafficking illegal. Finally there are several other laws that deal with
particular types of trafficking (eg bonded labour, trafficking in organs, or particular vulnerable
groups- children, S.C’s and S.T’s). The amended Section 370 of the Indian Penal Code under the
Criminal Amendment Act, 2013 — has expanded the definition of trafficking, basing it on the
United Nations Palermo Protocol,328 which India ratified in May 2011. The law holds significant
potential to increase prosecutions and act as a strong deterrent. Inspite of the robust legal basis
for the prosecution of trafficking crimes many of the Indian government’s acts do not effectively
criminalise the clients and profiteers of the trade. This is because there is no established national
325
UNIFEM/UNIAP.!(2002).
Asia Development Bank.(2003).Dynamics of Trafficking of Women &Children in South Asia.Retrieved January
24,2014, from http://www.adb.org/Documents/Books/Combating_Trafficking/.
327
UNODC, (2000), Measures to Combat Trafficking in Human Beings in Benin, Nigeria and Togoî Final ReportNigeria.
328
UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November
2000
326
LAW MANTRA
THINK BEYOND OTHERS
guideline or standard for intervention or law enforcement in preventing human trafficking.
Moreover, many of the laws relating to trafficking and inconsistently enforced and some of their
prescribed penalties are not sufficiently stringent.329
EVALUATION OF THE INITIATIVES IN COMBATING HUMAN TRAFFICKING:
While, on paper, the legal process appears rather straight forward, well- designed and victim
friendly, a cursory look at the data indicates that something is awry. According to data from the
National Crime Records Bureau, arrests under the ITPA, 1956, averaged fewer than 13, 000 per
year from 2003-06, with a 7% drop from 2005-06.330 While prosecutions have been unceasing in
absolute terms, they have been growing at a diminishing rate of 1% less each year from 2003-06.
Additionally, trafficking is estimated to be increasing not decreasing, so the number of
prosecutions may be dropping as a percentage of total population of those trafficked. Finally
convictions, already considerably less than the number of prosecutions, fell a dramatic 31% from
2005-06. While not much can be gleaned from one data point, it is clear that there are several
gaps and challenges in the legal process that point towards why there is such low levels of
arrests, prosecutions and convictions. There are several concerns that these numbers raise. Based
on 2007 estimates from the Department of Women and Child Development, the number of
individuals trafficked specifically for commercial sexual exploitation in India is roughly 2.8
million, so the level of arrests and prosecutions is very low compared to the number of
individuals violating the law. 331 It is also important to note that most arrests under the ITPA in
the early 2000s were of victims themselves and not offenders. Therefore, in the event that this
trend has persisted, the drop in arrests and convictions may be a positive signal that police are
becoming more sensitised to the victims’ needs.
The police are the central point of accountability when it comes to prosecution of trafficking and
are often the first individuals that rescued victims come into contact with. They are obliged to
protect victims until the victims are sent to their family or shelters. However, police do not
prioritise trafficking as an offence and, typically, police officers do not utilise the many statutes
that traffickers can be charged under. According to UNODC, in 2005, “an NHRC study on
trafficking interviewed 852 police officers and found that over 80 per cent attach either ‘nil’ or
‘low’ priority the issue of trafficking. 40 per cent of officers surveyed had not even heard of the
concept of trafficking while only 7 per cent had received any kind of training on the subject.332
Even more egregiously, they lack sensitivity to the plight of trafficking and use the ITPA against
the victims, not the traffickers. Furthermore, while making some gains in protection and capacity
building, police are not doing an adequate job of registering cases and conducting thorough
investigations, making the judicial process very easy for the traffickers to evade or manipulate
329
US Department of State.(2009).Trafficking in Persons Report:India.Retrieved February4,2014,from
http://www.unhcr.org/refworld/publisher,USDOS,,IND,4a4214b4c,0.html.
330
UNODC.(2009).Global Report on Trafficking in Persons 2009.Retrieved February3,2014,from
http://www.unodc.org/documents/human"trafficking/Global_Report_on_TIP.pdf.
331
Mukherji KK,Mukherjee S.(2007).Girls and women in prostitution in India.Department of Women and Child
Development, New Delhi,India.
332
UNODC.(2005).“Project Summary:Strengthening the law enforcement response in India against trafficking in
persons and sex tourism in key states and cities through training and capacity building.” Retrieved on 6
February2014 from http://www.unodc.org/india/ind_s16.html.
LAW MANTRA
THINK BEYOND OTHERS
for the purpose of gaining an acquittal. Courts play a central role in the prosecution process and
are obliged to protect victims in collaboration with police during the trials. In reality, however,
courts are overwhelmed with cases, allowing some trafficking cases to linger on for years, even
decades. 333 According to a 2005 study, a Supreme Court judge felt that “six times more judges
are needed for expediting the pending cases and supporting the present system.”334 The same
study found an overwhelming presence of corrupt practices in the courts, which included the
delaying of hearings, the assignment of cases to corrupt judges, and the “misplacement” of court
documents. The state governments are responsible for ratifying national laws relating to the
human trafficking issues at the state level; moreover, they can make their own state laws to
prevent human trafficking in their states. Generally, state governments are engaged much more
in prevention and protection work than in improving the rates of prosecution. The state
governments have also failed to effectively utilise provisions under ITPA that allow them to
establish special courts for the sole purpose of hearing trafficking cases. State governments, with
the exception of Andhra Pradesh and Tamil Nadu, have also failed to establish compensation
schemes for victims of trafficking.
NGOs play a vital role in assisting victims of trafficking and slavery to engage withthe criminal
justice system to file claims, pursue prosecutions and obtain legal compensation in India. This
support is critical, not only in improving legal outcomes but also in improving the victims’
experience with the criminal justice system.While there are hundreds of NGOs across India that
work on combating trafficking,only a small portion pursue legal cases on behalf of victims.
Those that do providelegal support have limited capacity and are only able to support a small
percentage of cases through to the trial stage.335Some NGOs have spearheaded legal change
through strategic or public interest litigation (PIL) cases. A few legally-savvy NGOs have used
PIL to obtain landmark judgements in the higher courts that have lead to significant legislative
changes (such as the signing of the Palermo Protocol and the introduction of S370 and S370A)
and critical directions on the treatment of missing children by police.However, utilising this
jurisprudence in the lower courts and ensuring the directives and orders are followed in practice
remains challenging.Additionally, there are huge challenges involved in ensuring that court
orders and directives can and will be followed – whether by law enforcement and other public
officials or other courts. There is an opportunity for NGOs to take more action to ensure that
orders and directions of the court are implemented. To support implementation there is a need for
NGOs to collaborate with government agencies during a case to agree on appropriate and
realistic suggested outcomes that can be recommendedto the court. Once orders are made, NGOs
need to place pressure on the government when these orders are not implemented, including
through filing contempt of court petitions.This clear gap in enforcement of court rulings and
directives requires much stronger implementation by the Executive, greater resource allocation
and active monitoring by NGOs, media and other key stakeholders, including through the courts.
333
As per the information available [in December 2009],31,139,022 cases were pending in the courts in the country."
ThaIndian.com.(2009).31,139,022 cases pending in Indian courts.Retrieved January28,2014,from
http://www.thaindian.com/newsportal/uncategorized/31139022"cases"pending"in"indian"courts_100290788.html.!
334
Center for Media Studies.(2005). India Corruption Study 200 to Improve Governance. Transparency International
India. Retrieved February10, 2014 from www.cmsindia.org/cms/events/judiciary.pdf.
335
UNODC.(2008). Compendium of Best Practices on Anti Human Trafficking by Non Governmental
Organizations. UNODC: New Delhi.
LAW MANTRA
THINK BEYOND OTHERS
The legal fight against trafficking, a very dangerous and clandestine crime requires committed,
public- spirited and experienced lawyers. NGOs do not always have access to appropriate
lawyers to ensure optimum legal outcomes. Some NGOs that undertake rescues and lodge FIRs
for victims, would like to provide further legal support (e.g. pursuing prosecutions). However,
they lack access to legal expertise and other resources to support such work.Many NGOs
working at the community level have staff that are not trained as lawyers but have acquired
strong familiarity with anti-trafficking laws and procedures.Community based staff is required to
support lawyers and better community engagement to improve legal outcomes for victims. While
some NGOs have created community- based support mechanisms, there is a big unaddressed
need for legally trained staff, particularly female staff, to provide paralegal counselling support
at the community level. There is a stark gap in NGO collaboration and referrals, especially in
inter-state cases.336 This is likely a contributing factor to many cases going unreported, first not
being filed and trial cases not being pursued. Thus lowering the rate of prosecution and scope of
legal support provided to victims.The need for collaboration has been strongly underscored in the
literature, which indicates a need for NGO ‘grids’ and better ‘systems thinking’ on how to work
together.
RECOMMENDATIONS
(i)
To address the needs and gaps identified, there are some recommendations to improve
legal outcomes for victims of human trafficking in India.There are a limited number of
NGOs that provide legal support to trafficking victimsin India, and many only assist
during the initial stages of filing a complaint. The organisations that do assist with
prosecutions and pursue strategic litigation are limited by funding and legal capacity,
resulting in a small proportion of victims receiving legal assistance and having cases pursued
in the courts.To expand the legal capacity of NGOs, funding is required to engage:Senior
criminal and High Court lawyers to provide expert advice, mentor junior lawyers and
undertake strategic and difficult cases.The proposed funding could either be utilised to
employ full-time or part-time legal staff, or to pay for lawyers fees to assist on cases as
required (depending on the size and legal needs of the NGO). Funding should be conditional
on NGOs sharing information on legal developments and strategies.
(ii)
Many prosecutions do not succeed because of the strain placed on victims and witnesses,
including threats, harassment, intimidation and the need to travel long distances to appear in
court. These obstacles can result in the witness turning “hostile”, and hinder the required
cooperation necessary to prosecute the offender.While witness protection mechanisms through
the police and courts do exist, they are difficult to utilise in practice. Therefore, the burden often
falls on NGOs to protect witnesses in order to progress cases. In interstate cases, NGOs need to
travel to carry out rescues and to assist victims travelling from their home state to appear in
court.Funding to cover legal costs must also include funding for witness protection, and for
336
Nair, P.M.(2007). Handbook for Law Enforcement Agencies in India. Retrieved February 3, 2014, from
http://www.apneaap.org/policy"work/our"resources/best"practices/handbook"law"enforcement"agencies"india"drp
m"m"nair.
LAW MANTRA
THINK BEYOND OTHERS
transport, accommodation and expenses incurred to reach court - both crucial to the victim’s
safety and successful prosecutions.
(iii)
The creation of state-level “anti-trafficking” hubs, coordinated at the national level would
greatly improve legal capacity in the anti-trafficking space.If established as a separate entity, the
national hub should act as a ‘national resource centre’ and provide access to advice, up to date
resources and case law.
(iv)
Existing pro bono networks should be expanded and mobilised to enable NGOs to access
legal support for trafficking cases.
(v)
There is a huge need for legal assistance and support at the community level. The
research indicated that providing community-level legal support improved victim engagement
with the criminal justice system leading to better outcomes for victims.
CONCLUSION:
Prevention of trafficking involves interventions at various levels to combat the initiation of
trafficking. Prevention has to be a combined effort of both governmental and non-governmental
agencies. It has to be a strategy to make the public aware of trafficking in persons as a mode of
modern-day slavery and to sensitize them about it. The policies must be directed, particularly, to
those sections of population who form the source and are most vulnerable to trafficking.The
phenomenon of trafficking in humans is widespread across the country. It is a socio-economic
offence and greatly affects the society. It makes people question their safety and the efficacy of
the state machinery. It is the combined duty of the state and society to fight trafficking and
protect the vulnerable groups. Awareness of occurrence of such crimes, effective criminal justice
system and vigilant citizens can help check trafficking.
LAW MANTRA
THINK BEYOND OTHERS
“THE CRITICAL ROLE OF THE CIVIL
SOCIETY
ORGANIZATIONS
IN
COMBATING TRAFFICKING IN HUMAN
BEINGS” BY PRAMOD KUMAR DWIVEDI 
INTRODUCTION
We are in the 21st century and we think we are very modern but still human trafficking
is prevailing at a very accelerating speed. The Indian Constitution and Preamble talks about
equal treatment towards all citizens of the country but still why ill-treatment with the
particular citizens of the country. We use to wear the tees of “Being Human” but still we are
unaware of humanity. Human trafficking is the modern form of slavery. The meaning of human
trafficking is “the illegal movement of people, typically for the purposes of forced labour or
commercial sexual exploitation”. Trafficking in persons is a serious crime and births to violation
of human rights. Every year, thousands of men, women and children fall into the hands of
traffickers, in their own countries and abroad. Almost every country in the world is affected by
trafficking, whether as a country of origin, transit or destination for victims.
Human Trafficking is the recruitment, transportation, transfer, harbouring or receipt of persons:
by the threat or use of kidnapping, force, fraud, deception or coercion, or by the giving or
receiving of unlawful payments or benefits to achieve the consent of a person having control
over another person, and for the purpose of sexual exploitation or forced labour337 . The
crime of human trafficking is shame on humanity. It is an abuse of human life and its thinking.
Human trafficking is international crime and those who are involved in this activity are called as
traffickers.
The International Labour Organization (ILO)338, an agency of the United Nations, defines human
trafficking as 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 receiving of
payments or benefits to achieve the consent of a person having control over another person, 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 or services,
slavery or practices similar to slavery, servitude, or the removal of organs."

Lloyd Law College, Greater Noida, U.P.
International Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children.
338
ILO was established in 1946 to deal with labour issues, particularly international labour standards and decent
work for all. In 1969, the organization received the Nobel Peace Prize.
337
LAW MANTRA
THINK BEYOND OTHERS
One of the best quote regarding human trafficking Kailash Satyarthi 339 (Founder of
Bachpan Bachao Andolan) says:
"If not now, then when? If not you, then who? If we are able to answer these fundamental
questions, then perhaps we can wipe away the blot of human slavery."
-Kailash
Satyarthi
“Human beings are not property. On the International Day for the Abolition of Slavery, let us
reaffirm the inherent dignity of all men, women and children. And let us redouble our efforts so
that the words of the Universal Declaration of Human Rights — 'no one shall be held in slavery
or servitude' — ring true."
- Kofi Annan340
“People were created to be loved. Things were created to be used. The reason why the world is in
chaos is because things are being loved and people are being used.”
-Unknown
From some last years, civil society came to understand the intensity of crime of human
trafficking and it has played a pivotal role in the fight against trafficking in persons. A
multifaceted and complex phenomenon, trafficking in persons must be addressed at
various levels. Members of civil society have worked alone or by joining forces with law
enforcement groups, legislators, national governments, and international organizations
while designing strategies of prevention, protection, prosecution, advocacy, and research.
The Protection Project encourages the dissemination of information about the best ways
to combat trafficking in persons by recommending five main components of civil society: (a)
Non-governmental organizations (NGOs), (b) corporations, (c) academia, (d) media, and
(e) faith-based organizations.
I)
Immigration Remedies for Trafficking Victims
When any of the human trafficking victims get out of the clutches of traffickers feel a sigh of
relief. It feels like feeling of independence with all fundamental rights of the country.
Civil remedies can be a powerful tool for survivors of human trafficking seeking redress from
their traffickers. While survivors may have access to victim compensation funds or restitution,
often the amount authorized under these types of statutes is not enough to compensate the
339
Awarded with Nobel Peace Prize of 2014, which he shared with Malala Yousafzai, a female education activist
from Pakistan.
340 th
7 UN Secretary-General and Nobel Peace Prize Winner in 2001.
LAW MANTRA
THINK BEYOND OTHERS
survivor for all the harm they suffered. Depending on the state law, survivors may be able
to seek: compensatory damages, punitive damages, injunctive relief, and attorney's fees.
The immigration remedy is provided to the trafficking victims. The victims are to be made
forfeited any interest in real or personal property that was used or intended to be used to commit
or facilitate the commission of the offense; and any interest in real or personal property
constituting or derived from proceeds that the person obtained, directly or indirectly, as a result
of the offense.
The expenses incurred or reasonably certain to be incurred by the victim as a result of
the offense, including reasonable attorney’s fees and costs; and an amount equal to the greatest
of the following, with no reduction for expenses the defendant incurred to maintain the victim.
The victim is to be rehabilitated and take care of so much that it cannot further be
trapped in the hands of human traffickers.
It’s very hard to get immigrated from the clutches of traffickers. The society like NGO, Media
and social activist play a vital role in making free of victim after putting their life on risk. When
the victims get immigrated then it is the responsibility of the government to provide remedy. The
immigration remedy is empowered to the victims by the government. The remedy is provided by
the government so that the victims can rehabilitate and lead a normal life. The victims can enjoy
their Fundamental Rights with full freedom as provided by the Constitution of India.
II)
Human trafficking
Human trafficking is the third largest organized crime after drugs and the arms trade across the
globe. The root causes of trafficking are various and often differ from one country to another.
Trafficking is a complex phenomenon that is often driven or influenced by social,
economic, cultural and other factors. Many of these factors are specific to individual trafficking
patterns and to the States in which they occurs People are frequently illegally trafficked through
India for the purposes of commercial sexual exploitation and forced/bonded labour. Human
trafficking in India results in women suffering from both mental and physical issues. Mental
issues include disorders such as PTSD, depression and anxiety. The lack of control women have
in trafficking increases the risk of a victim’s likeness to suffer from mental disorders.
It’s hard to imagine that a world which talks about love, peace and brotherhood amongst fellow
human beings has a dark secret staring and mocking at its true reality. It is a really sad situation
which India is facing. In almost every city there are certain parts filled with brothels. Human
trafficking includes sexual exploitation, labour trafficking, etc. Nowadays even cross-border
human trafficking is prevalent. India has a huge population and because of that and our
dwindling economy many people live below the poverty line. The smugglers and
traffickers promise them a better life- a ray of hope, jobs as domestic servants, in the
film world or in factories
LAW MANTRA
THINK BEYOND OTHERS
The extreme poverty has a range of consequences in relation to modern slavery including:

Forcing individuals and families taking out loans. Such debt may trap them in bonded
labour.
 The offer of jobs with good wages duping desperate people so that they are
trafficked into brothels, abusive domestic servitude etc.
 Forcing families to sell their children to traffickers and brothel owners, child beggar
gangs, or as brides.
 Dedicating daughters into ritual sex slavery to avoid the expense of a dowry if they marry
a man.
 People are also engaged in the work like entertainment in circus and other activities and
also in rack picker activities.
III)
Exploitation of children
According to UNICEF, child trafficking can be defined as “any person under 18 who is
recruited, transported, transferred, harboured or received for the purpose of exploitation, either
within or outside a country”. There are many contributing factors to child trafficking, which
include economic deprivation, conditions, lack of employment opportunities, social status, and
political uprisings. Many of the families in India are unable to afford the basic necessities of life,
which forces the parents to sell their children off to gangs, and the gangs to exploit them. In India
Bachpan Bachao Aandolan341 is very active and till now it has now so far freed 80,000 children
from servitude, including bonded labourers, and helped in their successful re-integration,
rehabilitation and education.
The government of India is very strict regarding the future of children of country. As we all say
that the children are the future of the country and no one wants to play with its future.
The trafficking of the child is leading the dark fate of the country. We are very thankful to those
who are working towards the child trafficking and making the future of child brightened. The
NGO’s, social organizations, social activists, media etc are playing a vital role in preventing the
children from darkness of life. We say children are the gift of God and they are also the future of
the country but still child trafficking exists in the society as social abuse.
According to the newspaper report342, “60% of the girl child among traditional entertainer groups
in Madhya Pradesh, Rajasthan, Andhra Pradesh and Karnataka are ushered in the sex profession
by family members”. The relocation may be across borders or within a country. Exploitation may
occur at the beginning, middle or end of the trafficking process or indeed at several points. The
trafficked children are made engaged in these activities: Bonded labour, Domestic work
Agricultural labour, Construction work, Carpet industry, garment industry, fish / shrimp export
as well as other sites of work in the formal and informal economy.
341
It was started in 1980 by Nobel Laureate Kailash Satyarthi. Its focus has centred on ending bonded
labour, child labour and human trafficking, as well as demanding the right to education for all children.
342
The Times of India. 10 November, 1998.
LAW MANTRA
THINK BEYOND OTHERS
The children are also made to do illegal activities like Begging, Organ trade and Drug peddling
smuggling. They are also sexually exploited and forced in prostitution. The innocent children do
not understand what is going on with them and they are made continued exploited at every point
of time mercilessly. Child trafficking is the greatest social evil prevailing in the society.
IV)
Human rights violations associated with human trafficking
Human rights are based on the principle of respect for the individual. Their fundamental
assumption is that each person is a moral and rational being who deserves to be treated
with dignity. They are called human rights because they are universal. Whereas nations or
specialized groups enjoy specific rights that apply only to them, human rights are the
rights to which everyone is entitled—no matter who they are or where they live—simply
because they are alive.
“A human rights approach to [countering] trafficking requires an acknowledgement
that trafficking is, first and foremost, a violation of human rights. . . . [It] means that all
those involved in anti-trafficking efforts should integrate human rights into their analysis
of the problem and into their responses. This approach requires us to consider, at each and every
stage, the impact that a law, policy, practice or measure may have on persons who have been
trafficked and persons who are vulnerable to being trafficked. It means rejecting
responses that compromise rights and freedoms.”
-Navi Pillay343
The Constitution of India has provided some rights to every citizen of the country as
Fundamental Rights. No one has the authority to violate any citizen’s Fundamental Rights and in
case if anyone is caught in hindering fundamental rights of any citizen will be held as victim and
will be charged with imprisonment or fine or both. 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 beings344. Article 23(1) specifically prohibits traffic in human beings,
343
UN High Commissioner for Human Rights, Foreword to the Commentary on the Recommended Principles and
Guidelines on Human Rights and Human Trafficking.
344
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.
LAW MANTRA
THINK BEYOND OTHERS
beggar 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.
Sex trafficking violates women’s right to life, liberty and security of person. The fundamental
individual right to life, liberty and security of person is reflected in Article 3 of the Universal
Declaration of Human Rights (UDHR) and Article 6 of the International Covenant on Civil
and Political Rights (ICCPR). In case of infringement of Fundamental Rights one can go
directly to the Supreme Court under Article 32 of Constitution and under Article 226 of High
Court. The court provides justice to the victim in good faith, equity and good conscience.
V)
Victims of Trafficking
The Traffickers are those who are involved in the human trafficking. Those who are caught in
the hands of traffickers are called as victims of human trafficking. Victims are frequently lured
by false promises of a lucrative job, stability, education, or a loving relationship. In the
India victims can be men or women, adults or children, foreign nationals. While they share the
trait of vulnerability, victims have diverse ethnic and socio-economic backgrounds, varied
levels of education, and may be documented or undocumented.
The victims of human trafficking can be divided into three categories:
a) Children under age 18 induced into commercial sex.
b) Adults aged 18 or over induced into commercial sex through force, fraud, or coercion.
c) Children and adults induced to perform labour or services through force, fraud, or
coercion.
While human trafficking spans all demographics, there are some circumstances or vulnerabilities
that lead to a higher susceptibility to victimization and human trafficking. Foreign
Nationals, who have paid large recruitment and travel fees to labour recruiters, often become
highly indebted to the recruiters and traffickers. Victims face many challenges in accessing help.
Their traffickers may confiscate their identification and money. They may not speak English.
They may not know where they are, because they have been moved frequently. They are often
not allowed to communicate with family or friends. And they may have trouble trusting
others, due to their traffickers’ manipulation and control tactics.
Traffickers lure and ensnare people into forced labour and sex trafficking by
manipulating and exploiting their vulnerabilities. Human traffickers recruit, transport,
harbour, obtain, and exploit victims – often using force, threats, lies, or other
psychological coercion. Traffickers promise a high-paying job, a loving relationship, or new and
exciting opportunities. In other cases, they may kidnap victims or use physical violence to
control them.
The judiciary too has played an active role in preventing and combating
trafficking by pronouncing some landmark judgments in “Public Interest Litigations”.
LAW MANTRA
THINK BEYOND OTHERS
Prominent among them are the 1990 case of Vishal Jeet v. Union of India and the 1997 case of
Gaurav Jain v. Union of India. In the former case, on the directions given by the Supreme Court,
the Government constituted a Central Advisory Committee on Child Prostitution in 1994.
Subsequently, State Advisory Committees were also setup by State Governments.
VI)
Bride Trafficking
In India, Bride trafficking is a new phenomenon and is very popular nowadays. The countries
like Iraq, Iran, China and Korea are well aware of this phenomenon. Girls are trafficked
and married and then sell to one hand to another. The situation seems like marriage. The girls
from poor background are duped and brought to the area of demand. The main reason for bride
trafficking is Sex Ratio. The sex ratio means as the number of women per thousand men in a
given population at a given time. As of 2011, Kerala has the highest sex ratio while Haryana
has the lowest sex ratio among states and Daman & Diu has the lowest among all states and
territories.
The sates having lowest sex ratio leads in bribe trafficking. The main reasons of the state that
have low sex ratio are because they kill the girl baby at the time of birth. The girl baby is not
considered by those family and they always in demand for boy child. The situations created by
the states of low sex ratio leads to bribe trafficking. Everyone wants to get married one day or
the other but at the states having low sex ratio leads lack of bribe. This results into bribe
trafficking.
The young girls are deceived in the name of marriage by professional ‘agent’ and then they are
sold to buyers. This is actually known as bride trafficking. They are brought to regions like
Haryana, Punjab, western Uttar Pradesh and Rajasthan. As the gender imbalance persists in
India, so the lack of prospective wives creates a trade in bride trafficking. According to the most
recent survey there are 40 million more males than females. So the lacks of the women for
marriage leads to the social evil of bribe trafficking. We respect women as the goddess but on the
other side there is cruelty towards that goddess.
Bride trafficking can be the primary purpose of trafficking or it may be a by-product. Traffickers
who set out with the purpose of providing a bride for a client will use one of several methods, or
a combination. They may take a girl forcibly, or they may entice the girl with promises of a good
job or an attractive lifestyle. They may groom the girl by developing a relationship with them,
making them feel special, so that the offer to take them to a big city and where they
can be married is very attractive, but they are then sold on. Equally girls who have been
trafficked into the sex trade or domestic service, may find themselves being sold into
marriage against their will.
VII)
Role of Non-Government Organizations in preventing Trafficking
Protection is also an important part of the process of rehabilitation and reintegration of
the victim. There is a need to support the work of both national and international nongovernmental organizations that are working to provide shelters and rehabilitation services
for victims of trafficking. Governmental agencies alone cannot fill the protection needs of
LAW MANTRA
THINK BEYOND OTHERS
all trafficked persons. The NGOs are especially important to support the rescued victim
who is transported back to her home country for rehabilitation and reintegration.
India's effort to protect victims of trafficking varies from state to state, but remains inadequate in
many places. The NGOs are playing very vital role in combating human trafficking. The
firmness and activeness towards the human trafficking by NGOs leads to standing
ovation. Kailash Satyarthi is one of the founder of NGO and winner of Noble Prize for his work
towards human trafficking. Rescue Foundation is involved in multifarious activities for
rescuing, rehabilitating, reintegrating and repatriating the unfortunate, underprivileged girls
and children from hell to human society. Bachpan Bachao Andolan has so far freed
80,000 children from servitude, including bonded labourers, and helped in their successful reintegration, rehabilitation and education.
The NGOs who are playing very vital and resourceful for human trafficking are Ahwaan
Foundation New Delhi, Akota Samaj Kallyan Sangstha (ASKS) Assam, Apne Aap
Women World Wide Mumbai, Prerana Anti-Human Trafficking, Mumbai etc. NGOs report
that some Bengali victims of commercial sexual exploitation are pushed back across the
border without protection services. The government also does not repatriate Nepali victims;
NGOs primarily perform this function. Many victims decline to testify against their traffickers
due to the length of proceedings and fear of retribution by traffickers.
VIII) Rehabilitation of victims- Economic and Social security to victims.
Rehabilitation is the re-integration into society of a convicted person and the main objective of
modern penal policy, to counter habitual offending, also known as criminal recidivism. The
victims of the human trafficking should be rehabilitated in such way so that they must be socially
as well as economically secured. Socially secured means that there must not be any ill-treatment
or bad behaviour with the rehabilitated victims and social importance should be also
provided. There should not be any type of discrimination in the society and equal
opportunity and importance should be provided to the rehabilitated victims.
The victims not only socially rehabilitated but also economically. Economically means that the
victims should be provided any work so that they can work and earn their living wages
and maintain their standard of living. The victims must be self employed and so that
they cannot depend on others for their living and can lead their self-esteemed life. The victims
when they are rehabilitated should be socially as well as economically secured.
IX)
Legal frame work against human trafficking
Although India has a number of laws and provisions prohibiting activities associated with
trafficking, trafficking continues to fester year after year and be seemingly unabated. The Indian
legal framework with respect to trafficking is found to not be very effective in protecting victims
and punishing offenders, there have been several recent actions on the part of government, the
LAW MANTRA
THINK BEYOND OTHERS
NGO community, and the judiciary to rectify these outages. The legal framework will be treated
under as follows:









X)
The Constitution of India.
Prohibition of Child Marriage Act, 2006
Children (Pledging of Labour) Act, 1933
Bonded Labour System (Abolition) Act, 1976
Child Labour (Prohibition and Regulation) Act,1986
Juvenile Justice Act, 2000.
Scheduled Castes and Scheduled Tribes Act, 1989
Immoral Traffic Prevention Act, 1956
Indian Penal Code, 1860
Prostitution: A Reason for Human Trafficking.
Prostitution is the business or practice of engaging in sexual relations in exchange for payment
or some other benefit. Prostitution is sometimes described as commercial sex. A person who
works in this field is called a prostitute, and is a kind of sex worker. Prostitution is widely
socially tolerated, with the buyers socially invisible. Even today, many mistakenly assume that
prostitution is sex, rather than sexual violence, and a vocational choice, rather than a human
rights abuse. Although clinicians are beginning to recognize the overwhelming physical violence
in prostitution, its internal ravages are still not well understood.
Prostitution is an institution akin to slavery, one so intrinsically discriminatory and abusive that it
cannot be fixed--only abolished. At the same time, its root causes must be eradicated as well: sex
inequality, racism and colonialism, poverty, prostitution tourism, and economic development that
destroy traditional ways of living. It is important to address men’s demand for prostitution. So,
the prostitution is also the reason of human trafficking.
XI)
Organ trade and Human Trafficking
Organ trade is the trade involving inner human organs (heart, liver, kidneys, etc.) for organ
transplantation. Iran has been the only nation that allows the legal buying and selling of organs.
Trafficking in organ trade is organized crime involving a host of offenders. Organized
crime groups lure people abroad with false promises and convince or force them to sell their
organs for a low price. The recipients of the organs pay a much higher price than the donors
receive. This part benefits the traffickers who are part of an organized criminal network. The
trafficked organs can be acquired in many different and terrible ways.
People may be kidnapped, killed and sold, especially children, for their organs. Other ways for
the brokers to procure the organs are through deception or coercion. Organ trafficking can be
distinguished from other forms of trafficking, since the traffickers and organ ‘brokers’ involved
LAW MANTRA
THINK BEYOND OTHERS
are often from decent and respected industry sectors. Doctors and other health-care practitioners,
ambulance drivers and mortuary workers are often involved in organ trafficking in addition to
those involved in other human trafficking networks.
XII)
Role of Government, Courts & NGOs in rescue, care, Support, Protection Prevention
and Rehabilitation of Victim
Everyone has a role to play in combating human trafficking. The role of everyone whether
government or court or NGO’s are full of efforts in rescuing, caring, support, protection,
prevention & rehabilitation to victims. Due to the effects of trafficking, victims require
comprehensive assistance in both destination and transit countries. It is crucial that victim
protection and assistance continue when the victim is returned to his/her state of origin. Basic
assistance should include the provision of safe accommodation, medical care,
psychological counselling, legal counselling and, if needed, vocational training and education.
Although related, victim protection and witness protection may take different forms. All victims,
regardless of whether they serve as witnesses, are entitled to protection of their basic
human rights. At the same time, when victims of trafficking act as witnesses in court
proceedings, they require additional protections. So from releasing to rehabilitation of
victims the Government, NGO and Courts play their duties with all their efforts and also make
the victims to lead normal life with all Fundamental Rights of the country. We, as a citizen of the
country, have to pledge to come forward and act against human traffickers and make each and
every victim free from the clutches of human traffickers.
Conclusion
As we all know about the intensity of crime of human trafficking, the trade of human lives, it our
responsibility, as a citizen of the country to come forward and save the society from this heinous
crime. We have to help the government, non-government organizations and social activists who
are working over human trafficking by way of directly or directly. We, as a citizen of
the country, are very thankful to those who put their life on risk to save the victims of
human trafficking from the clutches of traffickers. It’s our also moral as well as social
responsibility to take active part in making victims free and rehabilitation of victims.
Every citizen is equal and so everyone has same Fundamental Right as privileged by the
Constitution of India. There must be more involvement of government in formulating and
drafting laws that can protect people from falling prey to problems. Moreover, the involvement
of NGOs’ in helping the government solve this problem is appropriate and timely because the
NGO’s can carry out the duties that cannot be carried out by Government. We feel very proud as
a citizen of India as Kailash Satyarthi, founder of Bachpan Bachao Andolan, awarded
with Nobel Prize 2014.
LAW MANTRA
THINK BEYOND OTHERS
LAW MANTRA
THINK BEYOND OTHERS
TRAFFICKING
OF
CHILDREN
FOR
SEXUAL EXPLOITATION BY PRIYA NAIR.
V
INTRODUCTION
The human trafficking is a global phenomenon which has increased significantly over the
past two decades both nationally and internationally. India is a source, destination, and transit
country for men, women, and children trafficked for the purposes of forced labour and
commercial sexual exploitation. Trafficking in persons, particularly in children for various
purposes, such as, commercial sexual exploitation, forced labour, domestic servitude, begging
etc. is a serious organized crime of the day which transcending cultures, geography, and time that
gravely violates the basic human rights. The vulnerable sections of the society have become
more prone to trafficking. Women and children are considered to be the most vulnerable sections
of the society.
Children are trafficked for several reasons including sexual exploitation, adoption, and
entertainment for example, acrobatics in circus, dance troupes, beer bars, marriage, forced
labour, begging, organ trade and smuggling. Of these human trafficking the most common and
one of the worst form is sexual exploitation. Trafficking of children for sexual exploitation
usually happens through a well-organized networks. Family, relatives, friends, community
leaders, brokers, the pimps and owners of brothels, the police, political connections and the
criminal nexus, all or any of these have been found to be involved in the process of child
trafficking.
CHILD TRAFFICKING
Human trafficking especially child trafficking is a serious offence against basic human
rights. Child sexual abuse is a wicked and greatest sin on the earth.345 The most vulnerable age
group for human trafficking is children below 18 years. As per the Immoral Traffic (Prevention)
Act, 1956 child “means a person who has not completed the age of sixteen years”.346
The United Nations in the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children (Trafficking Protocol), an international agreement
under the UN Convention against Transnational Organised Crime (CTOC), which was adopted
in the year 2000 and came into force in December 2003, defines trafficking under Article 3 as:-

2nd SEM LL.M (CRIMINAL LAW),GOVT. LAW COLLEGE,THIRUVANANTHAPURAM DISTRICT,
KERALA STATE
345
T.Srinivasa Rao, “The Protection of Children from Sexual Abuse and exploitation – An Analytical study”,
Supreme Court Journal (2014), p.11.
346
Sec.2(aa) of Immoral Traffic (Prevention) Act,1956.
LAW MANTRA
THINK BEYOND OTHERS
(a) The recruitment, transportation, transfer, harbouring 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 control over another person, for the purpose of
exploitation.
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (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, harbouring 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
this
article;
(d) “Child” shall mean any person under eighteen years of age.
The definition has three distinct elements, which must be fulfilled for a situation to be
included in trafficking - there must be an act, a means and a purpose. The act can be issues such
as the recruitment, transportation, transfer, harbouring or receipt of persons.
The detailed definition of Human Trafficking has been put up under the Goa Children
Act, 2003. As per the Article 2(z) of the Act, child trafficking “ means the procurement,
recruitment, transportation, transfer, harbouring or[ receipt of children], legally or illegally,
within or across borders, 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
giving or receiving payments or benefits to achieve the consent of a person having control over
another person, for monetary gain or otherwise”.
The World Health Organisation defines child sexual abuse is the involvement of a child
in sexual activity that he or she does not fully comprehend, is unable to give informed consent to,
or that violates the laws or social taboos of society. It can be seen that child sexual exploitation
threatens the vitality of our communities and also the nation.347
CAUSES OF CHILD TRAFFICKING
Trafficking of children is a phenomenon affecting children, both male and female,
worldwide. Poverty is the most common factor which pushes children into child labour and
makes them vulnerable to trafficking. Their weak economic backgrounds limit their options and
heighten the desire to find any work to sustain them. Hence, they are easily lured by traffickers
with the promise of a better and more prosperous life. Many children are kidnapped and sold.
All over the world, girls and women are particularly vulnerable to being trafficked into
the sex trade. This is because the sex industry worldwide is a profitable market and there is often
a demand for girls who are in some way ‘different’ or ‘exotic’ by clients of the sex trade and by
the brothel owners and pimps who provide services to them. The children involved in sex trade
face severe exploitation.
The fast growth of commercial sex industry is seen as a key factor for the increased
trafficking in children. The increased demand of children especially girls which forced them to
347
P.Sathasivam, “Protection of Children from Sexual Offences Act, 2012”, AIR (2014), p.1.
LAW MANTRA
THINK BEYOND OTHERS
work against their will and under terrible living and working conditions. Economic
backwardness is the main cause of such kind of exploitation. Some parents sell their children
either for adoption or for other purpose is, not just for the money, but also they are of the hope
that their children will escape a situation of chronic poverty and move to a place where they will
have a better life, education and more opportunities. Giving minor child especially girl child for
adoption is one of the factor which leads to sexual exploitation. Due to poverty, illiteracy or
helplessness of parents make the minor girl vulnerable to sexual exploitation. It is to be noted
here that a strong guidelines must be put up in order that the life of the child in adoption is not
exploited in any way.
In Laxmi Kant Pandey vs Union of India, 348 the Supreme Court while supporting intercountry adoption stated it is necessary to bear in mind that the primary object of giving the child
in adoption being the welfare of the child, great care has to be exercised in permitting the child to
be given in adoption to foreign parents, lest the child may be neglected or abandoned by the
adoptive parents in the foreign country or the adoptive parents may not be able to provide to the
child a life of moral or material security or the child may be subjected to moral or sexual abuse
or forced labour and may be placed in a worse situation than that in his own country. The court
has laid down procedures to check and monitor inter country adoptions so that the children don’t
end up trafficked.
Sexual exploitation is particularly damaging to the health of children. They are even more
likely than adults to lack accurate information about the transmission and prevention of sexuallytransmitted infections, including HIV/AIDS. In addition to the elevated risk of HIV and other
sexually transmitted infections, the traumatic sexualisation, betrayal, powerlessness and
stigmatization involved in sexual exploitation are damaging to child and adolescent
development. This can lead to an impaired ability to form attachments and succeed with
interpersonal relationships, or to various types of psychiatric morbidity. Children are likely to
experience the health and developmental effects of sexual exploitation well into adulthood.
CONVENTIONS FOR THE PROTECTION OF CHILDREN
There are so many international instruments specifically addressing the trafficking of
children. The ILO Convention No.182 concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour (1999) considered prostitution of children under
18 years of age is a worst forms of child labour and is generally referred to as ‘commercial
sexual exploitation of children and it must be prohibited and eliminated. The UN Convention on
the Rights of the Child (1989),349 under Article 34 states “States parties to protect children from
neglect, exploitation and abuse”. The Optional Protocol to the Convention on the Right of the
Child on the Sale of Children, Child Prostitution and Child Pornography (2000),350 criminalises
specific acts relating to the sale of children, child prostitution and pornography including attempt
and complicity.
The Convention on Preventing and Combating Trafficking in Women and Children for
Prostitution devised by the South Asian Association for Regional Cooperation (SAARC) in
2002, has also defined the term ‘trafficking’ as ‘the moving, selling or buying of women and
348
(1984) 2 SCC 244.
UNICEF (2008).
350
UNICEF (2009).
349
LAW MANTRA
THINK BEYOND OTHERS
children for prostitution within and outside a country for monetary or other considerations with
or without the consent of the person subjected to trafficking”. The Government of India has also
ratified this Convention.
In South Asian Association for Regional Cooperation (SAARC) Convention on Regional
Arrangements for the Promotion of Child Welfare in South Asia (2002),351 laid down the scope
of the convention. The scope of the convention is to strengthening of existing arrangements on
the protection of the right of women and children in South Asia and bringing to an end the illegal
trafficking of women and children for sexual exploitation. Also to deals with various aspects of
prevention, interdiction and suppression of trafficking in women and children, repatriation and
rehabilitation of victims of trafficking and preventing the use of women and children in
international commercial sexual exploitation networks.
COSTITUTIONAL PROVISIONS FOR THE PROTECTION OF CHILDREN
The Constitution of India, the fundamental law of the land, forbids trafficking in persons.
The Constitution of India Article 14 states equality before law and equal protection of laws
within the territory of India. As per Article 15 (3) nothing in this article shall prevent the State
from making any special provision for women and children. Article 21 provides right to life and
personal liberty implicitly contains the mandate of protection against the immoral trafficking of
children. In Gaurav Jain v. Union of India,352 the Supreme Court while stating clearly the
violation of right to life of trafficked victims, ordered the Union Government to form a
Committee to frame the National Plan of Action and to implement it in mission mode. The court
taking a proactive view believed and hoped that the directions would relieve the human problem
by rehabilitation of the unfortunate fallen women and children caught in the trap of prostitution;
to be brought into the mainstream of the social order; these directions would enable them to avail
of the equality of opportunity and of status, with dignity of person which are the arch of the
Constitution.
Article 21A states that the State Shall provide free and compulsory education to all
children of the age of six to fourteen years. Article 23 described the right against exploitation is
directly concerned with fundamental human rights. Article 23 of the Constitution specifically
prohibits traffic in human beings and beggar and other similar forms of forced labour. Article 24
further prohibits employment of children below 14 years of age in factories, mines or other
hazardous employment.
In Bachpan Bachao Andolan v Union of India,353 the Solicitor General of India provided
report on the issue of child trafficking in India. The court laid down that “it may be pertinent to
mention that the right of children to free and compulsory education has been made a fundamental
right under Article 21A of the Constitution. Now every child of the age of 6 to 14 years has right
to have free education in neighbourhood school till elementary education”.
The Directive Principles of State Policy articulated in the Constitution are also
significant. Article 39A directs that the legal system should ensure that opportunities for securing
justice are not denied to any citizen because of economic or other disabilities. Further, Article
39(e) directs that the State should, in particular, direct its policy towards securing that childhood
and youth are protected against exploitation and against moral and material abandonment. These
351
UNODC, Government of India (2008).
(1997) 8 SCC 114.
353
2011 SCC (5) 1.
352
LAW MANTRA
THINK BEYOND OTHERS
objectives reflect the great anxiety of the constitution makers to protect and safeguard the interest
and welfare of the children of our country, who often become victims of immoral traffic. 354
LAW TO COMBAT TRAFFICKING
The Constitution of India guarantees equality and freedom to all citizens by virtue of
fundamental rights vested in them. Trafficking is explicitly forbidden as it is opposed to the basic
structure of the Constitution. These constitutional safeguards have been implemented by way of
several central as well as state legislations.
The evil of human trafficking for sexual exploitation must be curbed. The Immoral
Traffic (Prevention) Act, 1956 (ITPA), originally enacted as the ‘Suppression of Immoral Traffic
in Women and Girls Act, 1956’, is the most important legislative instrument for the prevention
and combat of trafficking in human beings in India. India enacted the ITPA in 1956, in
pursuance to International Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of others signed at New York on 9th May, 1950. The key object
of ITPA has been to inhibit or abolish traffic in women and girls with the intention to force them
into prostitution as a means of earning their livelihood. There are provisions in ITPA providing
penalty for immoral trafficking, punish traffickers, punish persons keeping a brothel, 355 Punish
persons who live off the earnings of a woman,356 and provides welfare measures focussed
towards rehabilitation of sex workers. The emphasis is on punishment for the clients, pimps and
brothel owners etc. and not the commercial sex workers.
The Criminal Law (Amendment) Bill 2013, was passed by both houses of Parliament in
March, 2013. It provides for amendment of Indian Penal Code, Indian Evidence Act, and Code
of Criminal Procedure on laws related to sexual offences. It adds Section 370A to the Indian
Penal Code which criminalizes human trafficking. The definition provided under section 370A is
not restricted to prostitution but also includes other forms of trafficking. This is evident from the
use of the word "exploitation" instead of "prostitution" in the section. Thus, the scope of the
section had been broadened. Stricter punishment has been given under the amendment. An
offence of trafficking shall be punished with rigorous imprisonment for a term of at least seven
years, but which may extend to ten years, and shall also be liable to fine. Where the offence
involves the trafficking of more than one person, it shall be punishable with rigorous
imprisonment for a term which shall not be less than ten years but which may extend to
imprisonment for life, and shall also be liable to fine.
The protection of Children from Sexual Offences Act, 2012 has been enacted to
strengthen the legal provisions for the protection of children from sexual abuse and exploitation.
For the first time, a special law has been passed to address the issue of sexual offences against
children. The Act defines a child as any person below the age of 18 years and provides protection
to all children under the age of 18 years from the offences of sexual assault, sexual harassment
and pornography. These offences have been clearly defined for the first time in law. The Act
provides for stringent punishments ranging from simple to rigorous imprisonment of varying
periods.
354
R.P.Kataria, Law Relating to Prevention of Immoral Traffic in India (2009), p.43.
Sec.3, Supra n.2.
356
Sec.4, ibid.
355
LAW MANTRA
THINK BEYOND OTHERS
The Juvenile Justice (Care and Protection of Children) Act, 2000 defines a child and
provides provisions for care and protection of children. It has provisions which provide for
protection measures for the repatriation and rehabilitation of children.
Under the Indian Penal Code buying and selling of minors for the purposes of prostitution
i.e. trafficking, is a grave offence. As per section 372 and 373 of IPC i.e. selling and buying of
minors for the purpose of prostitution is an offence, shall be punished for imprisonment for a
term which may extend to 10 years.
In Vishal Jeet v. Union of India, 357 the Court after bestowing deep and anxious
consideration on the human trafficking laid down guidelines for formation of Advisory
Committee in all States and Central Government to oversee and prepare programme for
combating trafficking.
In the September of 2006, the Indian government created an anti-trafficking law
enforcement "nodal cell". It is a central department comprising two officials responsible for
accumulating and analysing data relating to trafficking in persons in the country. Its duty also
includes the action taken by the central and state governments to combat the evil of trafficking.
In 2007, three state governments established anti-trafficking police units, the first of this kind in
the India.
CRITICISM
Sexual exploitation is what constitute the violations of the civil and basic human rights of
so many trafficking victims. Regardless of how they are recruited and transported, most children
trafficked for sexual exploitation are denied at some point the right to liberty, the right to live in
full dignity, the right not to be held in slavery or involuntary servitude, the right to be free from
cruel and inhumane treatment, the right to be free from violence, and the right to health and
education.
The ITPA which has been enacted to provide a solution to the problem of trafficking.
However, the Act has been criticised on various accounts. It provides a measly amount of Rs.
20,000 as compensation to victim. Nowadays it can be seen that the cost of living has increased.
In such a situation such an amount is not enough to rehabilitate the victim or to provide such a
person with alternate means of livelihood. There is every possibility and is a grave danger of the
rescued persons falling back into the traps of the traffickers. Further, it can be seen that the
punishment provided to the trafficker under Section 3 of the Act is only three years. Such
punishment does not act as a deterrent to offenders. There have been very few instances of
conviction under the Act indicating its failure in curbing trafficking. The ITPA only criminalizes
trafficking with the objective of prostitution but ignores other aspects of trafficking.
The ITPA allows for special courts,358 to be set up for the purpose of trafficking cases. To
date, none of these provisions have been enacted either by the State or Central Government. This
makes the trail in trafficking cases unnecessarily lengthy and so the end result is lower
conviction rates.
Another criticism is that the child sexual exploitation is one of the least prosecuted crimes
in India. The fact that child are often the only eye-witness to the crime and concerning about the
357
358
(1990) 3 SCC 318.
Sec.22-A of Immoral Traffic (Prevention) Act, 1956.
LAW MANTRA
THINK BEYOND OTHERS
reliability of child testimony are considered to be the causes for the breakdown of prosecution
case.
Poverty and economic backwardness are the main reasons for the child trafficking. The
Government should make necessary arrangements for the rehabilitation of the trafficked victims.
In Vishal Jeet v. Union of India,359 The Supreme Court while putting on record the growing
exploitation of young women and children for prostitution and trafficking reported that in spite
of the stringent and rehabilitative provisions of law under various Acts, it cannot be said that the
desired result has been achieved. The Supreme Court ordered for an objective multi-dimensional
study and a searching investigation into the matter relating to the causes and effects of this evil
and requiring most rational measures to weed out the vices of illicit trafficking. It stated that this
malady is not only a social but also a socio-economic problem and, therefore, the measures to be
taken in that regard should be more preventive rather than punitive.
In Prerna v. State of Maharashtra,360 the Division Bench of the Bombay High Court while
examining the court process for child victims of trafficking gave the guidelines to ensure that the
child in need of care and protection must be dealt with bearing in mind the possibility of their
reformation and rehabilitation. The Court stated that cases relating to sex trafficking should be
disposed of expeditiously. Trial Courts ought to take victim’s statement within one month and
complete the trial within six months of the charge sheet being filed. India has a fairly wide range
of laws prohibiting and protecting against trafficking.
The deficiency of satisfactory legislation, properly functioning administrative machinery
and an effective judiciary are the most obvious causes of human trafficking. Many countries lack
both relevant legislation and explicit policies on human trafficking. Where such policies do exist,
they are often neither implemented nor followed up properly. In some countries where human
trafficking or similar activities are criminal offences, punishment on conviction may be
comparatively lenient. Those mentioned factors are the main obstacles for ending human
trafficking.
SUGGESTIONS
 Taking measures to raise levels of social protection and to create employment
opportunities for all;
 Developing programmes that offer livelihood options and include basic education,
literacy, communication and other skills;
 The importance of a ‘victim-centered’ approach that stems from an understanding of
human trafficking as a violation of human rights;
 All states are urged to utilize the AHTUs as a key machinery to deal with the crimes of
human trafficking in a holistic manner.
 Highlighting of the importance of strengthened guidelines and mechanisms for
identification of victims, and the links between better identification and treatment of
victims and more effective law enforcement;
 Every State Government should set-up a State Advisory Committee for preventing and
combating trafficking of women and children for commercial sexual exploitation.
359
360
Supra n.12
2003 (2) Mah.L. J. 105
LAW MANTRA
THINK BEYOND OTHERS

Juvenile Justice Act provides comprehensive mechanism for care and protection of
children including rehabilitation and social integration of children. Therefore, its
implementation is essential to address trafficking of children.
CONCLUSION
Prevention is better than cure. So inorder to end trafficking there must be preventive
measures. Prevention of trafficking involves interventions at various levels to combat the
initiation of trafficking. Prevention has to be a combined effort of both governmental and nongovernmental agencies.
The Government must make certain that good quality education, opportunities of
employment and income generation programmes are put into operation to provide good quality
life to highly susceptible persons. It should carry out routine programmes to educate and
sensitize parents, teachers, and community workers about trafficking. More stringent laws and
better implementation are rule of law, one of the pillars of sustained economic growth. Stricter
punishments shall act as a deterrent to other traffickers required to curb the problem. But simply
enacting trafficking legislation is not enough. Provide for tougher prosecution of criminals,
greater support and protection for victims, and stronger warning messages to prevent innocent
men, women and children from being lured into exploitation. Failure to adequately address
human trafficking weakens the. Policies are required to be framed in the direction of creation of
rehabilitation facilities for victims rescued.
NGOs can contribute by spreading awareness in community members about the
prevalence of trafficking in humans. They should also remain vigilant and report missing persons
who may be victims of trafficking. This can be helpful in identifying traffickers and their
hideouts. NGOs working in rural area may carry out workshops to ensure that people are aware
of safe migration practises and report inconsistent migration offers.
The Integrated Anti Human Trafficking Unit (IAHTU) is a unique structure that ensures
complete integration between the activities of the police department the correctional –cumdevelopment department and civil society to prevent and combat human trafficking.
Apart from legal action, both the Central and the State Governments would have an
obligation to safeguard the interest and welfare of the children and girls of this country and had
to evaluate various measures and implement them in the right direction. Children are often
considered the intrinsic wealth of any family setting. It is in the children of India the great faith is
reposed so as to lead this nation into brighter chapters of the future.
LAW MANTRA
THINK BEYOND OTHERS
WOMEN TRAFFICKING- A CURSE FOR
THE MODERN SOCIETY BY VANITA
AWASTHI AND ROHIT KUMAR GUPTA
INTRODUCTION:
Trafficking of women is a horrific crime that continues to ruin millions of life across the globe.
Trafficking, in its essence, is not just a crime; it is a global crisis that the world is facing today.
Innocent lives are devastated; glorious dreams are shattered when the traffickers deceive young
women to force them into a life of sexual slavery and bonded labor, and put a question on the
future of our society. It is an absolute violation of the rights of every victim of trafficking who is
entitled by the law making organizations to live a life of dignity and freedom. There is an urgent
need to prevent the growth of this inhumane business of selling young girls and women as
commodities to exploit them for some selfish motives of a bunch of other humans. Although
trafficking is prevalent in the society since time immemorial, these days the evil of trafficking is
growing at an unprecedented rate. The accurate figures cannot be determined owing to the
clandestine nature of this trade but, the rough estimates are, nonetheless, alarming. The United
States Department of State Trafficking in Persons Report 2003 estimates that “800,000 to
900,000 people are trafficked across international borders annually. According to the report,
millions of people around the world live in situations of forced labor and commercial sexual
exploitation.”361“Globally, an estimated 12.3 million people are enslaved (International Labour
Organization (ILO) 2005). Out of this number, an estimated 2.5 million people are in forced
labor (coerced prostitution and sexual exploitations). Out of the 2.5 million mentioned above, an
estimated 1.4 million people constituting approximately 56% of victims in forced labor come
from Asia and the pacific. 250,000, constituting about 10%, come from Latin America and the
Caribbean, 230,000 or 9.2% come from the Middle East and Northern Africa, 130,000 or about
5.2% come from Sub Saharan Africa, 270,000 or about 10.8% are from industrial countries such
as the US and Western Europe. And 200,000 or about 8% come from countries in transitions or
weakened states hit by various problems. 362
Majority of the trafficking victims in the world are vulnerable women who seem like easy
targets to the traffickers. In India especially, a lot of impediments stand in the way of women
empowerment. Even today, a large section of female population is illiterate and uneducated
struggling every day with the petty discriminations of caste, creed, sex and religion. In rural

C.N.L.U Patna
Trafficking in Persons Report , Office to monitor and combat trafficking in persons, available at
http://www.state.gov/j/tip/rls/tiprpt/2003/21262.htm retrieved on August 3, 2013 at 18:26 IST
361
362
Majeed A. Rahman Human Trafficking in the era of Globalization: The case of Trafficking in the Global Market
Economy
Transcience
Journal
Vol
2,
No
1
(2011)
available
at
http://www2.huberlin.de/transcience/Vol2_Issue1_2011_54_71_Glossary.pdfretrieved on August 3, 2013 at 18:03 IST
See also http://humantraffick.org/facts/
http://www.caritas.org/includes/pdf/coatnet/traffickingfacts.pdf
LAW MANTRA
THINK BEYOND OTHERS
areas women are still considered as a burden to the family. This orthodox notion, sometimes,
induces the poverty- stricken family members to sell their daughters to the traffickers for money.
At other instances, traffickers lure the innocent girls through fabricated and deceitful promises of
employment and decent pay. These girls believe the traffickers and agree to do as they say with a
hope to create a better life for themselves and their families, only to, later, find themselves
subjected to various forms of coercion and forced into prostitution and slavery. In some cases,
women voluntarily agree to work in the sex industry but what they face later are unanticipated
and horrific situations.
The victims have to endure merciless beatings and assaults, violent rapes and absolute slavery.
Dispossessed of all kinds of documentation, trapped in a foreign country and paralyzed by a
constant fear of brutish violence and inhumane treatment, these women find it impossible to
escape. No person sitting in the cozy surroundings of his/ her home can really imagine the depth
of the pain of these victims. But everybody can understand the fact that trafficking is a ruthless
violation of the right to life that every human being on this earth is entitled to. And along with it
all other rights that it encompasses like the right to personal liberty, bodily integrity, freedom of
movement and expression, protection from torture or cruel treatment, etc.
Precious lives are being ruined every single minute all around the world. Surely, something
needs to be done to fight this global crisis. But before taking any preventive or mitigating
measures, it is essential to get to the roots of the problem. It is essential to understand the what,
why and how of trafficking.
I.
HUMAN TRAFFICKING:
Human trafficking is defined by various national and international organizations in much the
same way, like the few discussed below. All the definitions talk about trafficking as an illegal
act of taking a person to another land either by means of fraud or force in order to force them
to live a life of slavery, usually for deriving monetary benefits.
The California Legislature defined human trafficking as "all acts involved in the recruitment,
abduction, transport, harboring, transfer, sale or receipt of persons, within national or across
international borders, through force, coercion, fraud or deception, to place persons in situations
of slavery or slavery-like conditions, forced labor or services, such as forced prostitution or
sexual services, domestic servitude, bonded sweatshop labor, or other debt bondage."
“As codified in the California Penal Code, anyone who "deprives or violates the personal liberty
of another with the intent . . . to obtain forced labor or services" is guilty of human trafficking.
Depriving or violating a person's liberty includes "substantial and sustained restriction of
another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or
threat of unlawful injury to the victim or to another person, under circumstances where the
person receiving or apprehending the threat reasonably believes that it is likely that the person
making the threat would carry it out".” Forced labor or services include "labor or services that
LAW MANTRA
THINK BEYOND OTHERS
are performed or provided by a person and are obtained or maintained through force, fraud, or
coercion, or equivalent conduct that would reasonably overbear the will of the person".” 363
“The Trafficking Victims Protection Act of 2000 (TVPA) defines "severe forms of human
trafficking" as: The recruitment, harboring, transportation, provision, or obtaining of a person for
sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in
which the person induced to perform such act has not attained 18 years of age; or
 Labor or services, through the use of force, fraud, or coercion for the purpose of subjection
to involuntary servitude, peonage, debt bondage, or slavery.” 364
Coercion includes threats of physical or psychological harm to children and/or their families.
Any child (under the age of 18) engaged in commercial sex is a victim of trafficking.

The United Nations promulgated a protocol to end human trafficking in the world which came
into force in December 2003. It defined trafficking for the first time as “the recruitment,
transport, 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 a control over another person for the purposes 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. The consent of a victim of trafficking in persons to the intended exploitation
set forth (above) shall be irrelevant where any of the means set forth (above) have been used.” 365
II.
MECHANICS AND CONDITIONS OF TRAFFICKING
ROOT CAUSES– The causes of trafficking366 are numerous and they mostly differ from place to
place, but there are a few common factors that are observed in the majority of cases. One such
factor is the marginalization and oppression of women. Traffickers mostly target victims
belonging to the weak and vulnerable sections of the society. Thus, women subject to
discrimination of various kinds in their homelands make an easy prey.
“Traffickers successfully lure women into sex work because these women are victims of poverty,
of the social practice of marginalizing women, of the failure of some cultures and societies to
363
Kamala D. Harris, The state of human trafficking in California 2012 available at
http://oag.ca.gov/sites/all/files/agweb/pdfs/ht/human-trafficking-2012.pdf?retrieved on August 2 at 16:33 IST
364
April Rieger, Missing the Mark : Why the Trafficking Victims Protection Act fails to protect sex trafficking
victims in the United states, available at http://www.law.harvard.edu/students/orgs/jlg/vol301/rieger.pdfretrieved on
August 3 at 19:16 IST
365
United Nation Convention Against Transnational Organized Crime (2000): Annex II, Section Article 3, p.42-43
available
at
http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebooke.pdfretrieved on August 2, 2013 at 16:55 IST
366
LAW MANTRA
THINK BEYOND OTHERS
place a value on traditional women’s work, and of the lack of education and employment
opportunities for women in developing and transition countries.”367
“Traffickers have taken advantage of the unequal status of women and girls in the source and
transit countries, including harmful stereotypes of women as property, commodities, servants,
and sexual objects.”368
PROCUREMENT
By force – Some women are forcibly taken from the streets, kidnapped/abducted to be later sold
into the hands of local pimps. But what seems more disgusting is the fact that many girls are sold
by their own family members who want to derive monetary benefits in the process.
By fraud – Other women are deceived by the traffickers before being sold, who employ
fraudulent means to convince the victims to accompany them. Sometimes by promising
employment and decent wages, whereas the other times by engaging with them in romantic
relationships. It so happens that after a woman is married off, she accompanies her husband to a
foreign land with hopes of leading a happy and settled life. But after reaching there, the husband
abandons her and sells her to a brothel owner. “Traffickers use many tactics to supply their
operations, enticing individuals of low social or political status and economic means with
promises of money, education, or steady employment opportunities.” 369
CONSENSUAL MIGRATION– Many times it happens, that the victims initially agree to enter
the sex industry, but once they reach the prostitution homes, the situation seems too gory to face.
They have to face unanticipated and inhumane slave-like conditions, had they known which
earlier, they would have never agreed to enter the contract. But, since, their documents are seized
by the traffickers they are bound by the circumstances, to comply with the demands of the
traffickers.
DOCUMENT CONFISCATION AND DEBT BONDAGE – As soon as the victims enter the
foreign land, they become helpless as their personal belongings and money is confiscated. Their
visas and passports are also snatched away from them so as to gain control. Sometimes the
victims are not even familiar with the local language; hence escape becomes almost impossible
for them in a place where there are merely slaves to their owners, without any identity of their
own. They are also told to have incurred huge debts in the process of travel across the boundaries
which they are meant to repay by offering services as per the will of their owners. Initially this
debt includes only travel fares, but as each day passes the daily expenditure of food, shelter and
367
Susan W. Tiefenbrun, Sex Sells But Drugs Don’t Talk: Trafficking of Women Sex Workers and an Economic
Solution,
24
T.
Jefferson
L.
Rev.
161,
170
(2002)
available
at
http://heinonline.org/HOL/Page?handle=hein.journals/tjeflr24&div=15&g_sent=1%09&collection=journals#167
368
Amy O’Neil Richard, Ctr. for the Study of Intelligence, International Trafficking in Women to the United States:
A Contemporary Manifestation of Slavery and Organized Crime
(2000) available at
https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/books-andmonographs/trafficking.pdf
369
Jennifer A.L. Sheldon-Sherman, Penn State Law review, The Missing “P”: Prosecution, Prevention, Protection,
and
Partnership
in
the
Trafficking
Victims Protection
Act,
Vol.
117:2 available
at
http://www.pennstatelawreview.org/117/2/117-2-Article_Sheldon-Sherman.pdf
LAW MANTRA
THINK BEYOND OTHERS
clothing is also added to the total sum. The picture can get as ugly as the traffickers asking the
women to service around 25 men every single day. But, no matter what, the debt is rarely paid
off completely.
III.
AFTERMATH AND EFFECTS OF TRAFFICKING:
EMOTIONAL AND PSYCHOLOGICAL EFFECTS– The hellish experience370 that a
trafficking victim goes through leaves deep scars not only on her body, but also on her mind, that
are seldom healed. The trauma associated with constant physical, mental and sexual abuse is
hard to forget. “Its effects can be devastating and if left unaddressed, can undermine victims’
recovery and potentially contribute to vulnerability to re-victimization.”371 The dehumanization
and objectifying of the victims may lead them to disremember their innate sense of power and
dignity. The kind of force and coercion used by the traffickers often makes the victims feel
powerless and incapable. As a result, the victims go through an identity crisis.
“Victims of sex trafficking often experience Post-Traumatic Stress Disorder (PTSD) and
other trauma related disorders, depression, anxiety disorders, a feeling of being disconnected
from emotion, flat effect, hopelessness and helplessness, nightmares, self-blame, anger
management issues, suicidal ideation and suicide attempts, paranoia, Stockholm syndrome,
spiritual disruption, self-care issues, sleeping issues, and dissociative disorders. Women may
also receive traumatic brain injuries (TBI), which can affect memory, personality, and
overall functioning.”372Unable to cope up with the brutality of the traffickers, some of the
victims even turn to drugs and alcohol.
ARREST, DEPORTATION AND FURTHER VICTIMIZATION- Sometimes, when a
trafficking victim is discovered by the police, she is labeled as an illegal alien, and often arrested
for prostitution and later deported back to her home country. Deportation is dangerous as there
are chances that the victims may again fall in the trap of the traffickers who disguise themselves
as normal people. Also the victims are disowned by their families like a social pariah, ostracized
by the society and often killed for bringing shame to their families.
IV.
ANTI- TRACFFICKING LAWS IN INDIA:
As per the provisions of law, girls below 16 years of age are considered as children and girls
below 16 years of age are considered as children and girls between the ages of 16 to 18 years
are treated as minors. 373
370
371
US Dept of State, Office to monitor and combat trafficking in persons, Addressing the internal wounds: The
psychological aftermath of human trafficking available at http://www.state.gov/documents/organization/194931.pdf
372
Heather J. Clawson, Amy Salomon, Lisa Goldblatt Grace, U.S. Department of Health and Human Services,
Office of the Assistant Secretary for Planning and Evaluation, Treating the Hidden Wounds : Trauma Treatment and
Mental
Health
Recovery
for
victims
of
Human
Trafficking
available
at
http://aspe.hhs.gov/hsp/07/humantrafficking/Treating/ib.pdf
See also http://www.mentalhealthgracealliance.org/mental-illness/the-psychology-of-sex-trafficking/
373
The Immoral Traffic (Prevention) Act, 1956
LAW MANTRA
THINK BEYOND OTHERS
To control such immoral trafficking, initially an Act was ratified as the “suppression of Immoral
Traffic in Women and Girls Act, 1956”.That Act was passed for fulfillment of the International
convention for the suppression of traffic in persons and of the exploitation of the prostitution of
others, signed at New York on 9.5.1950.374 This Act was amended twice, once in 1978 and for
the second time in 1986. Again in 2006 a bill has been placed before the parliament for
amendment of certain sections of the Act to remove some loopholes, particularly the section 8
and 20, which results in further victimization of the victim. Moreover, the present Act gives
less importance on traffickers. The Bill is still pending and the same has been referred to the
Parliamentary Standing Committee.
India has turned into a focus of human trafficking; the Constitution of the country has banned all
sorts of trafficking under Article 23. The Suppression of Immoral Traffic Act 1956 (SITA),
amended as the Immoral Traffic (Prevention) Act (ITPA) in 1978 and later in 1986, was in
reaction to the ratification of the International Convention on Suppression of Immoral Traffic
and Exploitation of Prostitution of Others in 1950. The amended law emphasizing on prevention
rather than suppression of human trafficking took into consideration the international
conventions and protocols and provided severe penalties for different types of exploitative
conditions.
The law provides security and rehabilitation for the rescued girls. Keeping a brothel or allowing
sites to be used as a brothel is a crime under the ITPA.375 It also provides penalty to (a) adults
living on the incomes of prostitutes, (b) getting a person for the sake of prostitution, and (c)
keeping a person in premises where prostitution is carried on. But, prostitution is not a crime
under the ITPA. It however forbids solicitation or engaging in sex work in or near a public place.
Often this endowment of the act is used by the police to harass and penalize the sex workers who
themselves are the victims of trafficking. The Government of India has therefore newly tried to
amend the law and release the sex workers of the crime of lobbying or seducing by deleting
Section 8 of the act even though it complicated the matter by suggesting typical punishment for
the clients under a new section 5C.10 separated from the ITPA, trafficking of women and
children for sexual exploitation is covered under several other sections of the Indian Penal Code
(IPC), namely, 366A (Procuration of Minor Girls Under 18 Years of Age), 366B (Import of Girls
Under 21 Years of Age From a Overseas Country), 367 (Abduction and Kidnapping for Slavery,
Unusual Lust, etc.), 372 (Marketing of Minor Girls for Prostitutions), 373 (Procurement of
Minor Girls for Prostitutions).
There are some other crimes under IPC that have direct bearing on the problem of trafficking.
Thus, for an occasion, trafficked women/girls very often are raped 376 before being shifted to the
brothel. Moreover sexual intercourse with a girl child under 16 years of age, even with her
assent, creates the offence of a rape.377 Similarly, distinctive legislations like The Bonded Labor
Abolition Act 1976, Offences against Children Act 2005, Child Marriage Restraint Act 1929,
374
Anker, van den Christien L., and Jeroen Doomernik. (2006), Trafficking and Women's Rights, New York:
Palgrave Macmillan.
375
The Immoral Traffic (Prevention) Act (ITPA),amended in 1978
376
Section 376, Indian Penal Code,1860
377
Section 374, Indian Penal Code,1860
LAW MANTRA
THINK BEYOND OTHERS
Juvenile Justice Act 2000, Child Labor Act 1986 and local legislations like Goa Children’s Act
2003 also attempt to avert human trafficking.
Human trafficking in India can be categorized into three groups: (a) for money-making sexual
exploitation, (b) for an unequal labor, and (c) for other forms of exploitation like organ sale,
begging etc. A brief look into the available records and reports on trafficking show that the
trafficked women and children are constrained into activities like massage parlors or beer bars,
prostitution in brothels ,dancing, petty crimes, pornography, agricultural labor ,domestic help,
begging, organ trade, camel jockeying, drug trafficking and even trafficking. The increase
growth of sex tourism and increasing response for cheap labor in the globalised world has
subsidized to the increase in trafficking of young women and girls. Women are ex- changed at
prices that vary on the basis of physical beauty and virginity. In the sex industry some customers
prefer girl children who are supposed to be unaffected by AIDS. Resultantly, there is a continual
demand for girl children.
V.
CONCLUSION
Trafficking of women is indeed a horrendous crime or rather an evil trade that continues to fill
the pockets of the traffickers, even today. Although a lot needs to be done in order to protect the
lives of millions of women who are being transported every day to foreign countries and then
forced into prostitution or slavery, the steps that are being taken in this regard cannot be ignored.
The government has issued an elaborate ‘plan of action to prevent trafficking with special focus
on women.’ It contains a detailed description of the duties of different authorities who need to
work together so as to fight the evil of trafficking. The laws are in place, the schemes are well
planned, what remains to be done is its proper implementation. Now this becomes every person’s
duty to implement what is required to be done on his/her part; which when done will free a lot of
innocent women from the fetters of slavery in the hands of their cruel traffickers.
LAW MANTRA
THINK BEYOND OTHERS
PROSTITUTION: REASON FOR HUMAN
TRAFFICKING BY ANSHUL SHAH AND
JAY DESAI AND SAMYAK VORA
INTRODUCTION
It is generally thought that prostitutes sell sex for money out of their own free will. More
often than not, this is NOT the case. There is usually a pimp (a man who controls the
prostitute) who forces her to have sex with men so that the pimp can take the money the
men give her. The pimp manages to gain control of the woman by violence, blackmail,
threats and other despicable methods. Some people say prostitution should be made legal
because it is like a business and it would be easier to prevent violence and disease etc.
Other people say that legalising it would be an admission that women are second-class
citizens. In practice it has been found that legalisation only increases human trafficking,
helps pimps appear respectable and that illegal prostitution continues as before. If ways
can be found to stop men from wanting prostitutes, prostitution would be reduced. This
has worked in Sweden with heavy fines for the men but there are many more problems
involved with prostitution.
378
Prostitution is much more than women choosing to sell their sexual favours for money.
More often than not, the women have no choice and get no money. A large survey
showed that of those involved in prostitution:
89% wanted to escape, but did not have other options for survival,65% to 95% had been
sexually assaulted as children,70% to 95% were physically assaulted,60% to 75% were
raped,88% experienced verbal abuse and social contempt,68% met criteria for posttraumatic stress disorder. The severity of symptoms was in the same range as combat
veterans seeking treatment, battered women seeking shelter, rape survivors, and refugees
from state-organised torture
Most prostitutes have a pimp who forces them to have sex with clients and gives them no
money. Through verbal and physical violence they are intimidated into a life of sexual
slavery. Studies show that once a pimp has control of a woman he rarely allows her to
leave.Most women and children who are victims of human trafficking are sold into
prostitution. It is a massive problem but because prostitution has been around for so long,
the authorities and general public often undervalue its importance.
TYPES OF OPERATIONS379
People can be trafficked via organised international networks, through local trafficking
rings or by occasional traffickers. Thus, traffickers may operate alone, in small gangs or

Student,Auro University,Surat
http://4-ever.org/prostitution#intro
379
www.scribd.com/doc/508405/Human-Trafficking
378
LAW MANTRA
THINK BEYOND OTHERS
as part of organised crime groups. The traffickers can distributed according to age and
sex; caste and religion; education and marital status; state and country of origin. The
share of men and women among the respondents was around fifty-fifty, but relatively
high percentage of female traffickers in a generally male-dominated trade. The traffickers
adopt various methods of traffic in women. The following methods have been commonly
employed for trafficking in women and in India:
(a) Offering them jobs as domestic servants;
(b)Promising jobs in the film world;
(c)Dangling before them jobs in factories;
(d)Offering money;
(e)Luring them with ‘pleasure trips’;
(f)Making false promises of marriage;
(g)Befriending them by giving goodies, (girls who have run away from home or are street
children are highly vulnerable to the traffickers);
(h)Offering to take them on pilgrimages;
(i)Making other kinds of false promises and
(j)Coercion.
SOCIAL IMPACT OF TRAFFICKING
•Violation of whole gamut of laws and human rights
•Threat to society because traffickers operate across borders with impunity withthe
involvement of organized criminals
•Trafficking manifests and perpetuates patriarchal attitudes and undermines efforts to
promote gender equality
•Enormous losses to communities and governments in terms of human and social capital
investments
•Loss of future productivity and earning power through low education, ill health and
epidemic like HIV/ AIDS
IMPACT OF TRAFFICKING ON INDIVIDUALS
•Trafficked persons are traumatized by their experiences
•Depression and suicidal thoughts are common
LAW MANTRA
THINK BEYOND OTHERS
•The mental state of survivors include helplessness, withdrawal, disassociation, selfblame
•Trafficking survivors undergo psychiatric disorders depressive disorders and psychotic
disorders
•Stigmatized and outcast and facing moral and legal isolation
•Vulnerable to HIV /AIDS infections, drug addiction and high risk abortions.
NATIONAL FRAMEWORK OF LAWS RELATED TO TRAFFICKING IN INDIA
1. The Constitution of India, under Article 23 (1), prohibits trafficking in human beings
and forced labour. This right is enforceable against the State and private citizens.
2.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
immoral traffic in women and girls.
3. The Immoral Traffic (Prevention) Act, 1956 is a special legislation that deals
exclusively with trafficking. The Act defines the terms ‘brothel’, ‘child’, ‘corrective
institutions’, ‘prostitution’, ‘protective home’, ‘public place’, ‘special police officer’ and
‘trafficking officer’. The purpose of the enactment was to inhibit or to abolish
commercialized vice, namely the traffic in women and girls for the purpose of
prostitution, as an organized means of living. The other law related to trafficking
•The Probation of Offenders Act, 1958
•The Indecent Representation of Women (Prohibition) Act, 1986
•The Child Marriage Restraint Act, 1929
•The Criminal Law Amendment Ordinance, 1944
•The Young Persons (Harmful Publications) Act, 1956
•The Bonded Labour System (Abolition) Act, 1976
•The Child labour (Prohibition and Regulation) Act, 1986
•The Indian Evidence Act, 1872
•Criminal Procedure Code, 1973
•The Transplantation of Human Organ Act, 1994
•The Information Technology Act, 2000
•The Juvenile Justice (Care and Protection of Children) Act, 2000
LAW MANTRA
THINK BEYOND OTHERS
•The Karnataka Devadasi (Prohibition of Dedication) Act, 1982
•Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989
•Goa’s Children’s Act, 2003
PREVENTION
Trafficking is a human rights issue as well as a social issue because it affects not only the
rights and dignity of the individuals concerned, but also has a direct bearing on the
community and society at large. Trafficking can in no way be considered as just a
criminal issue or a law and order problem. It is primarily a matter of the protection of
human rights, especially those of women and children. Prevention of trafficking cannot
be successful without the involvement of the community. 380
•Community surveillance appears to be a good example of how community involvement,
combined with outside support, may assist communities to establish systems that can take
action in the event of suspected trafficking, and that can help those in difficulty.
However, care must be taken not to equate women leaving the village with trafficking.
Similarly, care must be taken not to abuse the system, so that it does not become a
mechanism for controlling women and girls.
•Establishing women's groups that can provide support and take action in the event of
problems is also a promising anti-trafficking strategy. Such groups can be used as a
forum for giving advice, and for support and shelter to those facing family or financial
problems who might otherwise be tempted to run away or leave the village via an unsafe
route (e.g., with an unknown broker).
•Working with children and young people through schools, teachers or child clubs
appears to be an innovative anti-trafficking strategy. Peer support/influence is harnessed
and the groups/clubs may act as neutral for a where children who are experiencing family
problems can seek help.
•Involving trafficking survivors is another promising strategy. Their involvement may be
useful in two ways. First, they can make anti-trafficking messages more realistic and
relevant to particular target groups. Experience in other fields has shown that people are
more likely to identify with peer-led education rather than that given by social workers.
Second, the example of one NGO, which helped trafficking survivors to set up their own
organization, shows that their involvement can also play an important part in the
rebuilding of their own self-esteem and confidence, and may act as an important
capacity-building opportunity.
India is listed in the Tier II list of the United Nations which includes countries which
have failed to combat human trafficking. India continues to be a source, destination and
380
http://prostitution.procon.org/view.answers.php?questionID=000243
LAW MANTRA
THINK BEYOND OTHERS
transit country for forced labor and sex trafficking. According to a report by the Ministry
for Women and Child Development, India has nearly 2.5 million prostitutes in nearly
300,000 brothels in 1,100 red-light areas across the country. 90% or more estimated as
in-country and 5 to 10% to cross-border trafficking, reported mainly from Bangladesh
and Nepal. The routes of trafficking do not exclude Europe and specifically to UK and
United States. Around 1.2 million children are involved in prostitution in India.
The trafficking of girls from Nepal into India for forced prostitution is perhaps one of the
busiest slave sex trafficking routes anywhere in the world; with estimated 5,000-10,000
Nepali women and girls trafficked to India each year. An estimated 100,000-200,000
Nepali trafficked persons are in India. In addition to being a destination, India is also a
transit country for Nepalese and Bangladeshi women trafficked to Pakistan, Western
Asia, and the Middle East and for women trafficked from the Russian Federation to
Thailand. Asia –Pacific therefore, has seen ‘feminization of migration’-with more
population movement being that of women. The feminization of migration gives rise to
specific problematic forms of migration, such as the commercialized migration of women
and girls as domestic workers and caregivers, often resulting in the trafficking of women
for labor and sexual exploitation.
Much of the attention on human trafficking focuses on those who are trafficked across
national borders every year, and, in many cases, forced to work as prostitutes or virtual
slaves. But those numbers don’t include victims trafficked within India — a country so
large and diverse that victims taken hundreds of miles away where a different language is
spoken have little chance of finding their way home. There are increasing reports of
females from northeastern states and Odisha subjected to servile marriages in states with
low female-to-male child sex ratios, including Haryana and Punjab. Maoist armed groups
known as the Naxalites forcibly recruited children into their ranks. Establishments of sex
trafficking are moving from more traditional locations – such as brothels – to locations
that are harder to find, and are also shifting from urban areas to rural areas, where there is
less detection.[viii] Not to hide, the rise of HIV/AIDS patients and vulnerable groups.
Anyone who has watched ‘Slumdog Millionaire’ the Oscar-winning movie would have
seen tiny speck of this dark side of India.
This remains, despite the fact that India has a fairly wide framework of laws enacted by
the Parliament as well as some State legislatures, apart from the Constitutional
provisions. Poor implementation along with low conviction rates, and serious corruption
adds to the problem. But all is not lost, efforts from social activists, educated citizenry
and international support towards combating this modern slavery, has started showing
some impact.381
AREAS OF WORK
Brothels are illegal and it is restricted to certain areas of any given town. Though the
profession does not have official sanction, little effort is made to eradicate or impede it.
381
http://acontrarioicl.com/2012/11/02/human-trafficking-and-prostitution-in-india/
LAW MANTRA
THINK BEYOND OTHERS
India's largest and best-known red-light districts are Sonagachi in Kolkata, Kamathipura
in Mumbai and G. B. Road in New Delhi, that host thousands of sex workers. Earlier,
there were centres such as Naqqasa Bazaar in Saharanpur, Chaturbhuj Sthan in
Muzaffarpur, Meerganj in Allahabad and Kabadi bazar of Meerut.
LEGAL STATUS
382
The primary law dealing with the status of sex workers is the 1956 law referred to as
The Immoral Traffic (Suppression) Act (SITA). According to this law, prostitutes can
practice their trade privately but cannot legally solicit customers in public.[citation
needed] A BBC article, however, mentions that prostitution is illegal in India; the Indian
law does not refer to the practice of selling one's own sexual service as "prostitution".
Clients can be punished for sexual activity in proximity to a public place. Organised
prostitution (brothels, prostitution rings, pimping, etc.) is illegal. As long as it is done
individually and voluntarily, a woman (male prostitution is not recognised in any law in
India but even consensual anal intercourse is illegal under section 377 of the Indian Penal
Code) can use her body in exchange for material benefit. In particular, the law forbids a
sex worker to carry on her profession within 200 yards of a public place. Unlike as is the
case with other professions, sex workers are not protected under normal labour laws, but
they possess the right to rescue and rehabilitation if they desire and possess all the rights
of other citizens.
In practice SITA is not commonly used. The Indian Penal Code (IPC) which predates the
SITA is often used to charge sex workers with vague crimes such as "public indecency"
or being a "public nuisance" without explicitly defining what these consist of. Recently
the old law has been amended as The Immoral Traffic (Prevention) Act or PITA.
Attempts to amend this to criminalise clients have been opposed by the Health Ministry,
and has encountered considerable opposition.In a positive development in the
improvement of the lives of female sex workers in Calcutta, a state-owned insurance
company has provided life insurance to 250 individuals.Over the years, India has seen a
growing mandate to legalise prostitution, to avoid exploitation of sex workers and their
children by middlemen and in the wake of a growing HIV/AIDS menace.
"Legalization of prostitution goes against the International Labour Organization's (ILO)
definition of 'decent work' and is considered as selling sex under distress. Instead of
criminalizing the buying and selling of sex, we are giving more power to those who
exploit sex workers and treat them as commodities that can be sold in a market," Ranjana
Kumari, director, Centre for Social Research said in a statement.383
“The red light district in Bombay generates at least $400 million per annum in revenue,
with 100000 prostitutes serving 365 days a year, at the average rate of 6 customers per
day at $2 each.” When Robert Friedman, wrote this in 1996, he must not have though that
the industry was there to survive and flourish with even more vigour, crime and torture
382
http://en.wikipedia.org/wiki/Prostitution_in_India
http://timesofindia.indiatimes.com/india/Proposal-to-legalize-prostitution-to-be-placed-before-SC-panelNCW/articleshow/44973994.cms
383
LAW MANTRA
THINK BEYOND OTHERS
and become the largest in Asia. For ages, the commercial sex trade has been the chief
destination for trafficked girls in India.Sex tourism involving underage girls still remains
a highly profitable business, a billion-a-year industry in 2009, with a 30 percent increase
from previous years.384
LEGALIZATION
Sumana has commuted from a rented slum house in south-eastern Delhi to sit by a busy
road in the city centre. Dressed in a floral-print salwar kameez and with kohl around her
eyes, she picks up two or three customers a day for sex. Mostly they are car chauffeurs,
who pay as little as 300 rupees ($4.80) a time. Some, she says, are generous or gentle, but
there is also violence. Sumana sticks to daylight hours. Her family thinks she has an
office job, which is what she would prefer. But she has no education, and she will carry
on until her teenage son finishes school. She knows soliciting is illegal—though the law
is vague on prostitution itself. She understands the benefits of condoms, yet her
customers rarely wear one.
Sumana has no pimp; nor was she trafficked. The same goes for Bina, a younger woman
nearby who arranges to meet higher-paying men by phone: guards, drivers and cooks
who pass around her number. She complains of long hours. Officials say India has over
3m sex workers. It is unclear how many, like Sumana and Bina, opt for the business
because they need the money, and how many are forced by others. Bharati Dey, president
of the All India Network of Sex Workers, argues that prostitution is a matter of choice,
and that sex workers should have rights like anyone else. The industry has grown as
women, notably ill-educated rural migrants, enter India’s labour market in larger
numbers. Most find low-paid or casual work; for a minority, selling sex is a relatively
well-paid option. 385
In April the UN’s special rapporteur on violence against women said ending India’s de
facto criminalisation of sex workers would make them less vulnerable. Five years ago the
Supreme Court said prostitution should be legalised. So, now, does the National
Commission for Women, a federal body, changing its previous stance. Its head, Lalitha
Kumaramangalam, argues that a regulated industry could better stop forcible trafficking,
including of children, improve hygiene among workers and clients and limit the spread of
HIV and other diseases.
Openness and regulation bring benefits. Mayank Austen Soofi, who has written in depth
about the brothels of G.B. Road, a sprawling red-light district in Delhi dating back to the
Mughal era, says that every sex worker he knows wants to be legal. Prostitutes today
hesitate to approach doctors. They dread police harassment. And they fear their landlords
will expel them.
A priority should be ending forced prostitution, especially of children. Apne Aap, an
anti-trafficking group, says brokers pay as little as 4,000 rupees to the families of village
384
385
http://acontrarioicl.com/2012/11/02/human-trafficking-and-prostitution-in-india/
http://www.economist.com/news/asia/21629472-proper-debate-needed-legalising-sex-work-make-it-legal
LAW MANTRA
THINK BEYOND OTHERS
girls who are then raped by customers. Raids of brothels by NGOs and police to rescue
victims often fail because families later return the children to the same brokers. In other
cases girls and young women are tricked with promises of marriage. Apne Aap claims
that over a third of all sex workers are under 18.The organisation opposes legalisation,
arguing that more demand for sex would lead to more trafficking. Instead, Apne Aap’s
campaign, “Cool Men Don’t Buy Sex”, is intended to reduce demand. If that looks
unlikely to have much success, the prospects of legalisation appear slender, too. No
politician is ready to champion the idea. The conservative Bharatiya Janata Party is
unlikely to support it. Those selling sex will continue to live in the shadows.
THE LASTING SOLUTION
Men or pimps will only ever get temporary benefits from prostitution. Generally, women
will get no benefits. Even if voluntary, the thrill soon wears off and self-esteem lowers.
The long term solution depends on altering individuals and what they want. When any
human being thirsts for something better, if they knew a lasting solution was available
then hopefully they would try it. Prem Rawat has for many years helped people,
irrespective of their social, cultural background or beliefs, discover the real happiness
they have within themselves. Even people in prisons have turned their lives around
completely when given the gift of Knowledge, a practical experience of lasting inner
fulfillment.
Political changes will never fully work unless we all change as well, but here are some
useful links about prostitution and actions being taken.
RECOMMENDATION








Prostitution should be legalized so that, the sex workers get equal rights as all
other citizen of the country.
A strong law should be made, so that forced prostitution in children is stopped.
Laws relating to Human Trafficking of women and children should be stringent,
so that the rate of Human Trafficking can be reduced.
Businesses: Provide internships, job skills training, and/or jobs to trafficking
survivors.
Consumers: Purchase items made by trafficking survivors such as from Jewel
Girls or Made by Survivors.
Students: Take action on your campus. Join or establish a university or secondary
school club to raise awareness about human trafficking and initiate action
throughout your local community. Consider doing one of your research papers on
a topic concerning human trafficking.
Professors: Request that human trafficking be an issue included in university
curriculum. Increase scholarship about human trafficking by publishing an article,
teaching a class, or hosting a symposium.
Law Enforcement Officials: Join or start a local human trafficking task force.
LAW MANTRA
THINK BEYOND OTHERS


Mental Health or Medical Providers: Extend low-cost or free services to human
trafficking victims assisted by nearby anti-trafficking organizations. Train your
staff on how to identify the indicators of human trafficking and assist victims.
Attorneys: Look for signs of human trafficking among your clients. Offer probono services to trafficking victims or anti-trafficking organizations. Learn about
and offer to human trafficking victims the legal benefits for which they are
eligible. Assist anti-trafficking NGOs with capacity building and legal work.
LAW MANTRA
THINK BEYOND OTHERS
PROSTITUTION: A REASON FOR HUMAN
TRAFFICKING BY NANDISH SHAH AND
DHWANI VIVEK THAKKER
Societal reaction to prostitution or sex work is many a time an instinctive one, not a reasoned or
thought out response. This instinct is the result of a socialization no human can escape
successfully, and while to some extent such conditioning is necessary for certainty and stability,
it becomes dangerous when it takes away one’s ability to make reasoned value choices and
forces one to make moral judgments that are really not one’s own. Prostitution is seen as a
necessary evil: necessary because the patriarchal structure demands that man’s natural
aggression and sexual drive need outlets. Sex worker is seen as the villain of the piece, whereas
she is the offender, she lurks in the shadows luring man, destroying families and eventually
moral fabric of society. This view reflects the moral stand where sex outside marriage or without
procreation is sinful and immoral. So, she is villain as compared to ‘good women’ who fits the
sexual stereotype while in a monogamous heterosexual marriage.
According to the Immoral Traffic (Prevention) Act, 1956, ‘prostitution’ means the sexual
exploitation or abuse of persons for commercial purposes386. As per the existing law, Immoral
Traffic (Prevention) Act 1956 (ITPA) prostitution becomes an offence when there is commercial
exploitation of a person. If a woman or child is sexually exploited and any person gains out of
the same, it amounts to commercial sexual exploitation (CSE), which is a legally punishable
offence wherein the culpability lies against all exploiters. Trafficking is the process of recruiting,
contracting, procuring or hiring a person for CSE. Therefore, trafficking is a process and CSE is
the result. The ‘demand’ in CSE generates, promotes and perpetuates trafficking. This is a
vicious cycle.
Prostitution in India is a Rs. 40,000 crore annual business and thirty percent of the sex workers
are children whose exploiters earn a whopping Rs. 11,000 crore387. According to a survey, there
are approximately 10 million sex workers in India out of which 100,000 are in Mumbai alone,
Asia’s largest sex industry centre. There about 300,000 to 500,000 children in sex trade in
India388 among which Bangalore along with five major cities together account for 80% of child
prostitutes in the country. These figures are startling and point towards the importance of a
genuine intervention of the State to curb this necessary evil.
This paper aims at exploring aspects of mental and physical trauma, caused to the sex worker.
The paper starts with broad overview of the trauma, trafficking into the sex industry and impact
of Legalization of Prostitute on human trafficking. This paper will consider such steps of
legalization that could be implemented in India. The decisions of the Supreme Court and various
High Courts will be looked at where the problems of sex work have been contemplated and

Auro University School of Law, Surat, Gujarat
§ 2(f), Immoral Traffic (Prevention) Act, 1956 (hereinafter ITPA).
387
S. Sridevi Goel, Girl Child Prostitution, Society’s Responsibility – Indian Scenario, 7 CBI BULLETIN 14 (1999).
388
Donna M. Hughes et al, Factbook on Global Sexual Exploitation, Coalition Against Trafficking in Women
(CATW), http://www.catwinternational.org/factbook/india.php.
386
LAW MANTRA
THINK BEYOND OTHERS
addressed. The directions of the National Human Rights Commission and National Commission
for Women with regard to trafficking and the ITPA will also be looked into.
Physical Abuse And Trauma
National and International studies, research projects and various women’s programs have begun
to address the health burden of violence against women. Such projects have especially focused
on the health consequences to women of battering or domestic violence, rape and sexual assault,
child sexual abuse and incest, and female genital mutilation389. In depicting the health effects of
such forms of violence against women, these projects attempt to make the violence, harm and
human rights violation to women visible. When violence against women is considered,
prostitution is often exempted from the category of violence against women. However, a
consideration of the dire health consequences of prostitution demonstrates that prostitution not
only gravely impairs women’s health but firmly belongs in the category of violence against
women. The health consequences to women from prostitution are the same injuries and
infections suffered by women who are subjected to other forms of violence against women. The
physical health consequences include: injury, bruises, broken bones, black eyes, concussions.
The sex of prostitution is physically harmful to women in prostitution. STDs (including
HIV/AIDS, chlamydia, gonorrhea, herpes, human papilloma virus, and syphilis) are alarmingly
high among women in prostitution. Another physical effect of prostitution is unwanted
pregnancy and miscarriage. Other health effects include irritable bowel syndrome, as well as
partial and permanent disability.
The emotional health consequences of prostitution include severe trauma, stress, depression,
anxiety, self-medication through alcohol and drug abuse; and eating disorders. More succinctly,
women in prostitution suffer the same broken bones, concussions, STDs, chronic pelvic pain,
and extreme stress and trauma that women who have been battered, raped and sexually abused
endure. In fact, the case can be made that women in prostitution -- because they are subject to
being battered, raped and sexually abused all at the same time over an extensive period of time -suffer these health consequences more intensively and consistently.
Trafficking Of Women
In any given year, many thousands of young women and girls around the world are lured,
abducted or sold into forced prostitution. They are bartered at prices that vary depending on their
age, beauty and virginity, and exploited under conditions that amount to a modern form of
slavery.
Women and girls who have been trafficked can rarely escape or negotiate the conditions of their
employment. It have found that many police officers and other local government officials
facilitate and profit from the trade in women and girls: for a price, they ignore abuses that occur
in their jurisdictions; protect the traffickers, brothel owners, pimps, clients and buyers from
389
Violence Against Women: the Hidden Health Burden, World Bank Discussion Papers 255
LAW MANTRA
THINK BEYOND OTHERS
arrest; and serve as enforcers, drivers and recruiters. In most parts of the world, most notably in
rural areas, women and girls have fewer educational and economic opportunities than males. The
attraction of a big city, better-paying jobs, and a better life cause women and girls who have few
options at home to accept alleged job or marriage offers far away. Moreover, even if the woman
or girl herself is not tempted, the preference for sons in many societies (both to carry on the
family name and as social insurance in old age) and the promise of immediate payments often
lead families to sell their daughters390. Because many agents are local people familiar with local
conditions, they strategically recruit in the lean period before harvests or target families with
financial difficulties. The recruiters’ timing, coupled with the traditional responsibility of women
to care for their families, make offers of employment that is difficult to resist.
On the demand side, the growth of sex tourism has in some cases accelerated the forced
trafficking in women and girls. Additionally, in countries such as Thailand and India, which have
a high prevalence rate of the human immunodeficiency virus (HIV), the clients’ fear of infection
has led traffickers to recruit younger women and girls, sometimes as young as ten, from remote
areas perceived to be unaffected by the acquired immunodeficiency syndrome (AIDS) pandemic,
in order to ensure their "purity" or virginity. 391
Women trafficked or sold into forced marriage are also held captive through financial
obligations. Distance from home, lack of familiarity with the local language or dialect, and
inability to find local support networks further reinforce the women’s and girls’ dependence on
the brothel owners, pimps or "husbands." Victims of forced prostitution in particular are exposed
to health risks, especially sexually transmitted diseases (STDs), because they are not allowed to
negotiate the terms of sex.
Impact Of Legalization Of Prostitution on Human Trafficking
Three systems of prostitution-related laws have been formulated and applied in legal strategies
and these vary considerably both in effectiveness and appropriateness. 392These systems are
classified as:
Criminalization, Decriminalization and Legalization393 also known as Prohibitionist system,
Tolerationist system and Legalized Prostitution.394
The Criminalization or Prohibitionist system aims at changing criminal sanctions in order to
control the social evil of prostitution and to countenance it by amending the criminal law. It
perceives prostitution as immoral and aims at its eradication for which it bans prostitution per se,
by criminalising the activities of all categories of people involved in prostitution: brothel-
390
Report of South Asia Regional Workshop on Protecting the Rights of Women and Children with Special
Reference to International Trafficking and Labour Migration (Dhaka,Bangladesh, June 2-4, 1992), p. 3.
391
Marlise Simons, "The Sex Market: Scrouge on the World’s Children," The New York Times, April 9, 1993.
392
Frances M. Shaver, Prostitution: A Critical Analysis of Three Policy Approaches, 11(3) CANADIAN PUBLIC
POLICY 493 (1985).
393
394
Id.
Jean D’ Cunha, Supra note 104.
LAW MANTRA
THINK BEYOND OTHERS
keepers, pimps, procurers, clients and prostitutes.395 Under Decriminalization or Tolerationist
system, prostitution is not regarded as either a crime or a licensable activity; it is based on
voluntariness and considered an act between two consenting adults where the role of the State is
limited to eradicate coercive prostitution.396
The state can only bring in certain measures to curb excessive exploitation and preserve public
health. This system does not seek to abolish prostitution per se but is only targeted at trafficking
in women and girls for prostitution, brothel-keeping, pimping, procuring and renting premises
for prostitution; here prostitutes are not criminalized for their work and they have more or less
the same rights as other citizens in the society. 397
Decriminalization will enable sex workers to practice their work without police harassment; this
is seen as a major issue with many sex workers in India. It is at least a partial solution to some of
the problems suffered by men and women within prostitution. Decriminalization is a way to
protect workers’ rights and to make the brothel owners responsible criminally. This approach of
penalizing everyone involved in prostitution except for the sex worker works against her
interest.398 Along with changes in maintenance of rehabilitative homes, the corrupt police and
judicial authorities who demand sexual favours from sex workers have to be dealt with severely
punished heavily. 399 Finally coming to Legalization or regulation as it is sometimes called,
attempts are made to license or register prostitutes and brothels and to require that prostitutes be
monitored and checked for venereal diseases. The underlying assumption being that prostitution
serves the different sexual needs of men and women and must be regulated so as to regulate its
worst side-effects. “It permits for prostitution especially in 'closed houses', this system requires
prostitutes to mandatorily register themselves with local authorities and submit them-selves to
periodic health check-ups and receive a police clearance to work professionally, generally in
officially designated areas. Legalisation is thus perceived as a means of ensuring 'public health'
through regulation and control of prostitutes and their health, while permitting unfettered male
access to women.”400 The ILO suggests that by including prostitution as an economic sector,
poor countries of South East Asia can benefit economically through the revenues generated by
the industry. Legalization makes more prostituted women available to more men. 401
There is a lot of criticism of the system of legalization. “It has been suggested by some feminists
that licensing and monitoring may not help sex workers to live and work with dignity. They feel
that regulation leads to a division between legal and illegal sex workers, leading to further
marginalisation of the latter. Many sex workers would not desire regulation as it may mean they
will be publicly seen as prostitutes and an increase in control over the lives of these prostitutes
would be demeaning to them and also the aspect of compulsory medical testing.”402 Many feel
395
Jean D’ Cunha, Supra note 107.
Frances M. Shaver, Supra note 108.
397
Jean D’ Cunha, Supra note 107
398
P. Kotishwaran, Supra note 84 at 184.
399
Id.
400
Jean D’ Cunha, Supra note 104 at WS-35.
401
Id at 1163.
402
Geetanjali Gangoli, Supra note 112.
396
LAW MANTRA
THINK BEYOND OTHERS
that legalizing prostitution is akin to legalizing child labour123 and tantamount to
slavery. 403Some suggest that the social stigma regarding prostitution will fade away after
legalization or decriminalization, yet the shame of those in prostitution remains after legalization
or decriminalization. 404“If brothels are to be legalized, the employees should be protected like
any other workers under the appropriate provincial labour standards legislation. Regulation going
beyond this minimum is likely to contribute to the continued stigmatization of prostitutes and to
the institutionalization of yet another working ghetto for women.” 405
According to Janice G. Raymond of the Convention Against Trafficking in Women (CATW), in
her article,406 there are ten reasons for not legalizing prostitution have been mentioned. These ten
reasons are:
1. Legalization of prostitution is a gift to pimps, traffickers and the sex industry because it will
give legitimacy to the consumers (including third-party businessmen, brothel owners and pimps)
of sex who would buy sex and would not be beneficial to the sex worker herself. Legalization
will dignify only the industry but not the sex worker.407
2. Legalization of prostitution and the sex industry promotes sex trafficking as there would be
no method to ensure that immigrant sex-workers from other countries would voluntarily consent
to their being a part of the sex industry. There is no definite mean to identify coercion
or forced sex work.408
3. Legalization of prostitution does not control the sex industry. It expands it. Prostitution as an
industry would flourish with private entrants coming into the business. This would in turn
increase the atrocities against which sex work was legalized in the first place. It could open doors
for other forms of sexual exploitation such as phone sex, table-top dancing, peep shows,
pornography, beer bars and so on.409
4. Legalization of prostitution increases clandestine, illegal and street prostitution because many
sex workers would not be eligible to register with the local authorities. Some could be minors,
some could be illegal migrants, and some could have diseases such as HIV or other venereal
diseases which would lead them to stay away from legalization. Many sex workers would
therefore move underground and in turn contribute to illegal sex work and street prostitution. 410
403
P. Kotishwaran, Supra note 115.
Mellissa Farley, Supra note 114 at 1092.
405
Frances M. Shaver, Supra note 124.
406
Janice G. Raymond, 10 Reasons for Not Legalizing Prostitution,
http://action.web.ca/home/catw/attach/10_Reasons_9-15-03_FINAL_[1].doc; See also Janice G. Raymond,
Prostitution, Trafficking and Traumatic Stress (Mellissa Farley ed., Binghamton: Haworth Press, 2003).
407
Id at 1.
408
Id at 2.
409
Id at 4.
410
Id at 7.
404
LAW MANTRA
THINK BEYOND OTHERS
There are many dangers of working on the street which include rape, police abuse, and substance
abuse also known as occupational hazards.411
5. Legalization of prostitution increases child prostitution as research shows that after sex work
was legalized in Netherlands and Victoria, Australia, child prostitution has grown exorbitantly
and this leads to various forms of commercial sexual exploitation of children.412
6. Legalization of prostitution does not protect the women in prostitution as there would be no
safeguards against abuse during sexual contact. Legalization would instead benefit the client
rather than the sex worker herself. 413
7. Legalization of prostitution increases the demand for prostitution. It encourages men to buy
women for sex in a wider and more permissible range of socially acceptable settings. When such
legal barriers disappear, the men forget their social and ethical barriers and view women as just
sexual merchandise and this leads to commoditisation of women.414
8. Legalization of prostitution does not promote women’s health as it is necessary that the clients
also need to be monitored for Sexually Transmitted Diseases such as HIV/AIDS. With such
mandatory health check-ups in place only for the sex workers, there is no guarantee that they will
be safe from contracting any disease during their work. The enforcement of a condom policy has
also failed as it is left to the sex worker herself to decide whether she wants to practice safe-sex
or not.415
9. Legalization of prostitution does not enhance women’s choice in terms of wages earned for
their sex work. Most women do not make a rational choice of sex work to be their profession.
Many are victims of trafficking and illegal pathways and land up in prostitution beyond their
will. So, legalization would in turn deny them their freedom. 416
10. Women in systems of prostitution do not want the sex industry legalized as this would
increase the risks and humiliation that is faced by the sex workers. They are definite that this
would increase violence against them and they do not consider this to be their rightful profession
as it destroys their life and health.417
Conclusion/Suggestion/Recommendation
Legalization of Prostitution is not the best way to go forward in tackling the problem of human
trafficking and the necessary social evil of prostitution. Sex Workers across the country,
especially in major cities, have been largely limited to a particular area where thousands of sex
workers live as a community. Provisions such as licensing, registration with local police and
411
Ilse Pauw and Loren Brener, Naming the Dangers of Working on the Street, 36 AGENDA 80 (1997).
Janice G. Raymond, Supra note 127 at 8.
413
Id at 9.
414
Id at 10.
415
Id at 11.
416
Id at 13.
417
Id at 15.
412
LAW MANTRA
THINK BEYOND OTHERS
local municipal bodies will not be possible until the stigma attached with sex work is done away
with. For this, the police need to be further sensitized to the field of sex work and they need to
respect the human rights of such sex workers. The legislature first needs to provide all the basic
human rights of these sex workers that are guaranteed under international law and municipal law.
Their social conditions need to be uplifted; they have to be rehabilitated and trained to transfer to
better paying jobs where they are given dignity and reasonable support. With legalization, the
sex workers’ problems will just worsen and prostitution will be further entrenched into our
society without a way of getting out of it. A distinction needs to be made between sex workers
who have taken up the profession voluntarily and sex workers who have been or are being forced
into this profession. Both sections are to be looked after with the latter requiring immediate
proactive support.
They need to be given life insurance and voter’s rights. Only when the complicity of the
policemen and the brothel owners is broken off and the nexus between them is annihilated, will
the sex workers have a say in their own matters. The best way to go ahead for India will be
decriminalization of prostitutes and criminalization of brothel-owners along with penalizing
demand in form of the consumer of sexual services. The sex worker needs to be rehabilitated
with State protection and care and has to be relocated to another sector of the industry with
proper training.
LAW MANTRA
THINK BEYOND OTHERS
Disclaimer: Whatever Author has submitted to us we have published without making
any changes. In case in future if any plagiarism case will arise, Author will be
responsible.

law mantra think beyond others

Transcription

Similar documents

Shocking Facts.pub

Human Trafficking: Black Girls Are Still Enslaved

Sex Trafficking 101: Modern-Day Slavery in Our Community

227 3, 2013 - , , - , Shekk E.A. ORGANIZATION AND CONTENT OF

Who w e are Who w e are Get involved

Spring 2013 - The Bridge to Hope

PowerPoint - The Tribal Court Clearinghouse

IIT Delhi For Society

Human Trafficking Victims Rights Act

Brad Dennis-Klaas Kids Foundation PPT