INTRODUCTION:

“Those who deny freedom to others deserve it not for themselves. Whenever I hear anyone arguing for slavery, I feel a strong impulse to see it tried on him personally.”

President, 1809-1865

It’s sad but true: here in this country, people are being bought, sold, and smuggled like modern-day slaves. They are trapped in lives of misery—often beaten, starved, and forced to work as prostitutes or to take gruelling jobs as migrant, domestic, restaurant, or factory workers with little or no pay. We’re working hard to stop human trafficking—not only because of the personal and psychological toll it takes on society, but also because it facilitates the illegal movement of immigrants across borders and provides a ready source of income for organized crime groups and even terrorists

Trafficking in persons is a serious crime and a grave violation of human rights. It involves an act of recruiting, transporting, transferring, harbouring or receiving a person through a use of force, coercion or other means, for the purpose of exploiting them. Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Every country in the world is affected by trafficking, whether as a country of origin, transit or destination for victims

Human Trafficking: - A Crying Urge Of One Time

Human trafficking can be described as forcing of a person into any kind of exploitation sexual or labor or both, which is human rights violation and the fastest growing criminal industry in the world.

It is important to note that the trafficking of persons is not limited to cases in which victims are transported across borders. Internal trafficking occurs domestically in every nation. It preys on vulnerability of all kinds, exacerbates that vulnerability, and then exploits it for revenue.

International law has recently identified the gravity of this modern day slavery and initiated a movement against the phenomenon. One of the backbones of this movement is the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) under UN Convention Against Transnational Organized Crime.

Article 3 of the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention Against Transnational Organized Crime, 2000, states: “‘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 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.” Article 1 (3), SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, signed by India on January 5, 2002, states:

“Trafficking means the moving, selling or buying of women and children for prostitution within and outside a country for monetary or other considerations with or withoutthe consent of the of the person subjected to trafficking.” Article 1 (4) of the SAARC Convention defines “Traffickers” as: “Traffickers” means persons, agencies or institutions engaged in any form of trafficking Article 34 of the Convention on the Rights of the Child (CRC) states: “States Parties undertake to protect the Child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any lawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

Further, Article 35 of the Convention on the Rights of the Child states: “States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.” The Immoral Traffic (Prevention) Act, 1956 (ITPA) does not specifically define “trafficking”. However, the ingredients of trafficking, such as sexual exploitation and abuse of persons; running of a brothel; living on the earnings of a prostitute; procuring, inducing or taking a person for the sake of prostitution; detaining a person for prostitution, etc., are contained in Sections 3, 4, 5, 6, and 8 of the Act. In the ITPA, (amended in 1978 and 1986), even though “trafficking” is not yet defined in accordance with the UN Protocol, To Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime or as per the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, the essential ingredients of trafficking are covered in the provisions contained in the ITPA and the Indian Penal Code (IPC), viz. Sections 2(f), 3, 4, 5, 6, and 9 of the ITPA, and Sections 366, 366 A, 367, 370, 371, 372, and 373 of the IPC. Most importantly, trafficking of persons is an offence, the prohibition of which flows out of the Constitution of India (Article 23), and not merely through legislation (see Table 1). “Prostitution” is defined under Section 2(f) of the ITPA. It may be noted that the definition includes “sexual exploitation or abuse of person for commercial purposes”. Hence, the basic ingredients of trafficking, viz. exploitation, abuse, and commercial exploitation, is implicit in the definition of “prostitute”, thereby excluding completely a person who is indulging in prostitution out of one’s free will. In other words, for a person to be defined as a “prostitute”, there must necessarily be the element of “sexual exploitation, or abuse and commercial exploitation.” As per the ITPA, a “trafficker” would means a person who is running a brothel under Section 3, and/or a person living off the earnings of prostitution as per Section 4, a procurer/inducer/ transporter as defined under Section 5, and/or a person detaining a woman for prostitution as defined in Section 6. Relevant provisions pertaining to personal liberty, trafficking in human beings and protection of the dignity of women as contained in the Constitution of India, and in the existing laws in India

Sociological Elements of Human Trafficking

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 includes exploiting the prostitution of others, sexual exploitation, forced labour, sla;very or similar practices and the removal of organs.

To ascertain whether a particular circumstance constitutes trafficking in persons, consider the definition of trafficking in the Trafficking in Persons Protocol and the constituent elements of the offense, as defined by relevant domestic legislation.

The offence of trafficking, essentially, has the following ingredients:

Displacement of a person from one community to another-:

The displacement could be from one house to another, one village to another, one district to another, one state to another or from one country to another. Displacement is also possible within the same building. An example will clarify the point. Presume that the brothel keeper controls several young women who are inmates and that one of the women has a teenage daughter staying with her. If the brothel keeper, by duress or bribe, manages to get the mother to agree to allow the teenager to be used for CSE, the teenager has been moved out of the ‘mother’s community’ and into the ‘brothel community’. This displacement is adequate to constitute trafficking.

Exploitation of the trafficked person-:

The ITPA and related laws envisage sexual exploitation of the trafficked person. The process of exploitation may be manifest, as in a brothel, or latent, as in certain massage parlours, dance bars, etc, where it takes place under the facade of a legitimate commercial activity.

Commercialization of the exploitation and commoditisation of the victim-:

The trafficked victim is exploited as if she is a commodity (see the detailed list of violations in the following chapter). The exploiters generate revenue out of the exploitation. They may share a part of the revenue with the victim too. The victim who is getting a share of the money generated is often ‘branded’ as an accomplice and arrested/charge-sheeted and even convicted. The trafficked victim, whose freedom even to think, let alone move out, is dictated by the exploiters, should never be treated as an accomplice,. Even if she gets a share of the ‘earnings’, the fact that she has been trafficked to CSE does not alter her status as a victim.

Sex trafficking in women and child

Trafficking in Women and Children is the gravest form of abuse and exploitation of human beings. Thousands of Indians are trafficked everyday to some destination or the other and are forced to lead lives of slavery. They survive in brothels, factories, guesthouses, dance bars, farms and even in the homes of well-off Indians, with no control over their bodies and lives.

The Indian Constitution specifically bans the traffic in persons. Article 23, in the Fundamental Rights section of the constitution, prohibits "traffic in human beings and other similar forms of forced labour". Though there is no concrete definition of trafficking, it could be said that trafficking necessarily involves movement /transportation, of a person by means of coercion or deceit, and consequent exploitation leading to commercialization. The abusers, including the traffickers, the recruiters, the transporters, the sellers, the buyers, the end-users etc., exploit the vulnerability of the trafficked person. Trafficking shows phenomenal increase with globalization. Increasing profit with little or no risk, organized activities, low priority in law enforcement etc., aggravate the situation. The income generated by trafficking is comparable to the money generated through trafficking in arms and drugs.

Trafficking in human beings take place for the purpose of exploitation which in general could be categorized as

(a) Sex -based

(b) Non-Sex-based.

The former category includes trafficking for prostitution, Commercial sexual abuse, Pedophilia, Pornography, Cyber sex, and different types of disguised sexual exploitation that take place in some of the massage parlors, beauty parlors, bars, and other manifestations like call girl racket, friends clubs, etc. Non sex based trafficking could be for different types of servitude, like domestic labor, industrial labor, adoption, organ transplant, camel racing marriage related rackets etc. But the growing traffic in women is principally for the purpose of prostitution. Prostitution is an international problem which can be found in both developing and industrialized nations. Unfortunately, society remains tolerant of this abominable crime against women[1]. There are ways of getting women into prostitution that are common to many countries; then there are particular methods unique to a country. Probably the three most common methods are false employment promises, false marriages and kidnapping. But what makes women and girls vulnerable are economic distress, desertion by their spouses, sexually exploitative social customs and family traditions.

In India, public debate on the issue of trafficking of women and children for commercial sexual exploitation emerged in the 1990s after the landmark decisions of the Supreme Court in the cases of Vishal Jeet vs. Union of India (1990) and Gaurav Jain vs. Union of India (1997), in which the Supreme Court issued directions to the Union and State Governments to study trafficking in depth and prepare a national plan to address the problem. In 1998, the Government of India (GoI) formulated the National Plan of Action to Combat Trafficking and Sexual Exploitation of Women and Children. This prescribes an exhaustive set of guidelines to Central and State Governments, covering the entire spectrum of prevention, law enforcement, awareness generation and social mobilisation, health care, education, child care services, housing, shelter and civic amenities, economic empowerment, legal reform, and rescue and rehabilitation. Today in India, there are seven Public Interest Litigations (PILs) seeking more effective implementation of the Plan by the Central and State Governments.

Why Does Trafficking Occur?

There are several factors that lead to trafficking of women and children or cause them to become victims of trafficking. These factors can be broadly classified into two categories: supply factors and demand factors.

Supply Factors

• Abject poverty sometimes forces parents to sell their children to traffickers.

• Harmful cultural practices often make women and children extremely vulnerable. Child marriage is sometimes the route for a child to be trafficked for sexual purposes. The stigma attached to single, widowed, and abandoned women, or second wives through bigamous marriages, causes such women to be abandoned by society. They become easy targets for traffickers.

• Female illiteracy and lack of access to education by girls.

• Male unemployment and loss of family income puts pressure on women to earn and support the family.

• Natural calamities and poor rehabilitation of disaster victims puts pressure on women to earn and support the family.

• Dysfunctional families or families that have difficulty functioning and communicating in emotionally healthy ways; a family that has a negative environment, which contributes little to the personal development and growth of family members5.

• Desertion by one or the other parent uncared for or abandoned children.

• Traditional practices give social legitimacy to trafficking. These include the Devadasi and Jogin traditions where Devadasis are often trafficked and sexually exploited. This is equally applicable to other communities such as the Nats, Kanjars, and Bedias where traditionally girls are made to earn through prostitution.

• Porous borders. Weak law enforcement and inefficient and corrupt policing of the borders ensure that women from neighbouring countries are brought into India and forced into prostitution in different towns.

• Clandestine nature of the crime and weak law enforcement. The crime does not come to light very often because of its clandestine nature. Victims are unable to access justice and even when they attempt to do so, weak law enforcement enables the traffickers to escape.

• Urban opportunities. Many women are either lured by false promises of jobs in urban areas or they voluntarily migrate to urban areas on hearing about the opportunities in cities from their neighbours and friends.

When a woman is pushed into prostitution due to these causes, the issue of consent of the trafficked person is not relevant. Even if a woman knows that she is being trafficked and gives her full consent, it does not absolve the trafficker of guilt. Trafficking is an offence irrespective of the woman’s consent (Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956).

The Push Factors

Which requires low investments and ensures high returns.

Facets of the misery and the exploitation of children in brothel prostitution or other work

Living environment is deplorable – the physical facilities provided in the so called work areas are below any acceptable standards.

The Conditions of “Work” And Treatment meted out to the women often involves slavery like practices and prison like environments. The hours that they have to spend taking customers are long with no time for rest or recreation. They are often forced to take customers even iof they are physically unfit to take one.

Wages paid are low, not at par with the male counterparts (if any) or they are not paid at all. The traffickers, the brothel madams or the employers may withhold the earnings of the women and thus they are rendered without any access to their own remuneration.

They have no access / little access to health or medical facilities. Those who are trafficked and forced into commercial sex constantly face the risk of pregnancy, abortions, maternal mortality and the threat of Sexually transmitted diseases, HIV and AIDS.

Above all of this is the mental trauma that these women undergo. They lose their self-esteem and their will to live life. Even when they are being put through processes of reintegration, they have to constantly deal with humiliation, isolation and social ostracization.

A growing entertainment and commercial sex industry employing a large number of boys and girls and women, as the male clients prefer younger women and virgin girls and also boys in fear of HIV and AIDS and other STD infections.

In a competitive world of business, employers and enterprises, with no strict ethical policies to guide them, they employ child labour in order to pay less. Children can be controlled well and do not bargain for higher wages. Exploitative and undignified work is imposed on them.

Certain patterns of economic development in a country or in a region attracts male migrant workers and change the demographic profile of the population, trigger rural – urban migration, cross border migration, tourism etc. generate the demand for commercial sex.

Criminal acts and rights violations on the trafficked persons

In the existing scenario, trafficking is usually confused with prostitution and therefore, there is no proper understanding of the seriousness of trafficking. It would be appropriate here to list out the wrongs, violations, harms and crimes that are committed by various persons on a trafficked victim. These violations can be realized only during a careful interview of a trafficked person. Once the victim is allowed, facilitated and promoted to speak, the unheard story will reveal a long list of violating acts perpetrated on her. As a typical example, under the Indian Penal Code, a trafficked girl child has been subjected to a multitude of violations. She has been:

Displaced from her community, which tantamount to kidnapping/abduction (Sections 361, 362, 365, 366 IPC may apply).

· Procured illegally (S.366 A IPC).

· Sold by somebody (S.372 IPC).

· Bought by somebody (S.373 IPC).

· Imported from a foreign country (if she hails from a foreign country, or even from J & K State, and is under 21 years of age – S.366 B IPC).

· Wrongfully restrained (S.339 IPC).

· Wrongfully confined (S 340 IPC).

· Physically tortured/injured (S.327, 329 IPC).

· Subjected to criminal force (S. 350 IPC).

· Mentally tortured/harassed/assaulted (S. 351 IPC).

· Criminally intimidated (S.506 IPC).

· Outraged of her modesty (S 354 IPC).

· Raped/gang raped/repeatedly raped (S 375 IPC).

· Subjected to perverse sexual exploitation (‘unnatural offences’) (S.377 IPC)

· Defamed (S 499 IPC).

· Subjected to unlawful compulsory labor (S.374 IPC).

· Victim of criminal conspiracy (S 120 B IPC).

This list is only illustrative and not exhaustive. Undoubtedly, in every case, the trafficked person is a victim of at least one or more of the violations listed above. Oftentimes victims become pregnant as they are subjected to non-protective sex. If the victim has been subjected to miscarriage then the liability of the offender falls under the Sections 312 to 318 IPC. In some cases, the process of exploitation has proven fatal wherein the victim succumbs to the direct effects of the harm or to the consequential problems arising thereof. This means that the offence of homicide/murder is also attracted.

The offences envisaged under the ITPA are specific to the context of CSE.They are briefly listed out below:

· Keeping or managing (or assisting in keeping or managing) a brothel or allowing premises to be used as a brothel (including vehicles) – S. 3 ITPA.

· Living on earnings of prostitution (even partly) – S.4 ITPA.

· Procuring, inducing, trafficking or taking persons for the sake of prostitution (S. 5 ITPA). Even attempt to procure or take would constitute the offence.

· Detaining a person in any premises (brothel or any other) where prostitution is carried out - S. 6 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. 7 ITPA.

· Seducing or soliciting for the purpose of prostitution in any public place or within sight of a public place - S. 8 ITPA.

· Seduction of a person in custody (which includes causing or assisting seduction for prostitution of a person in custody) – S. 9 ITPA.

The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act 2000) also has penal provisions. Anybody in control of a child who assaults, abandons, exposes or willfully neglects the child or procures him to be assaulted, abandoned or exposed causing the child unnecessary mental or physical suffering.

There are so many Human Rights violations that take place on trafficked person. The list includes the following:

· Deprivation of the right to life (slave–like conditions).

· Deprivation of the right to security.

· Deprivation of dignity.

· Deprivation of the right to access to justice and redressed of grievances.

· Denial of access to health services.

· Denial of right to self determination (e.g. when the victim is retrafficked).

· Denial of right to return to own community.

· Double jeopardy (e.g., a person trafficked across a border is sometimes convicted for non-possession of passport/visa, etc. and is simultaneously punished for ‘soliciting’).

· Denial of right to representation.

· Denial of right to be heard before decision making.

· The list of rights violations is long and several such violations can be listed out depending on the provisions of the Constitution/Protocols/Conventions etc

Prevention:

Most of the Government personnel as well as the Community memebrs are unaware of the Trafficking facet of migration. Those who understand this issue are not willing to acknowledge the presence of this phenomenon in their areas of operation. The magnitude and the misery associated with this gross violence is not being given the required amount of attention by the concerned personnel in most of the State. There is a great need for awareness generation at all levels and community policing to reduce the vulnerability of women and children and ensure safe migration and options for jobs and income. Special police officers needs to be designated to look into trafficking cases specifically under all police stations.

Rescue:

Rescue operation of minors, in prostitution or any kind of Commercial sexual exploitation or illegal work purposes, is primarily the State’s responsibility. NGOs however have done a much better job by themselves throughout the country. They have been able to identify the minor victims from the red light areas and more specifically from brothels. They have been able to rescue them with the involvement of the police. More rescues have to be handled professionally by the special police officers designated to look into trafficking cases.

Post Rescue:

· Rescued children usually live in State Remand Homes and often are in a situation where their minimum Human Rights are denied. Red-tapism, slack investigation and long judicial processes leads to the children spending a majority of their childhood in an unhealthy situation of the Government Homes and other homes.

· Children rescued from prostitution often go into “Post-traumatic Stress Disorder” which manifests into other behavioural disturbances, which are typical of children who have been subjected to prolonged and sustained violence. In addition they suffer from a loss of trust, lack of self-esteem due to isolation, which results in maladjustment in children. When they are taken out of prostitution the children are most sensitive and vulnerable. The problem gets magnified when a child is also infected with HIV. However, both the infrastructure and the personnel in the govt. remand homes are ill–equipped to handle and cater to the different requirements of these children.

Action Plan on Prevention

• Development of a database Conducting studies and focus group discussions and preparing a reliable database on source areas, routes, destinations, factors responsible for trafficking etc.

• Updating the database time to time

Sensitization

• Special training programmers in institutes for the concerned government officials, NGO representatives and PRI functionaries

• Joint sensitization programmers for Judicial Officers, senior Police Officers and Public Prosecutors with the objective of ensuring better justice to traffick victims and increasing conviction rate

• Sensitization programmers for media personnel to enable them to play an important role through appropriate reporting of incidents of trafficking.

Education

• Free and compulsory education upto XIIth standard along with health check-up and vocational training

• Programme of providing education and knowledge about reproductive health and life skill education in schools to reduce the risk of deception of young girls for sexual abuse and CSE

• Market based vocational training along with health check-up and health and nutrition education for school dropout girls, the most vulnerable group

Creating Livelihood Opportunities

• Enhancement of people’s knowledge about poverty-alleviation and economic empowerment programmes through sustained information sharing

• Implementation of the aforesaid programmes in source areas with special focus on potential traffick victims

• Adequate relief and welfare measures for victims of natural/ man-made calamities to address their vulnerability

Advocacy and Campaign

• Extensive usage of IEC materials and strategies (TV spot, radio jingles, folk culture) and holding of seminars, processions etc. for generating awareness among the common people on modus operandi of traffickers, their profiles, dangers of trafficking and methods to combat trafficking

• Involvement of PRI functionaries, grass-root level government Officials including Anganwadi Workers and other opinion builders in the awareness campaign

• Display of appropriate slides in all cinema/ video halls during shows for awareness of the common people

Law and Enforcement

• Computerised database at Police stations on traffickers, agents, victims, sources, routes, destinations, modus operandi, missing children and women

• A close vigil by the Police on major bus stands, railway stations

• Introduction of community policing in source areas

• Enforcement of compulsory marriage registration

• Setting up of special benches in every District Court for speedy trials

• Penal steps against the production, publication, sale and exhibition of any pornography

REFERENCE:

1. Bakshi, P M: Sale of women: A case for reform. (Lawyer Collective, Vol 14, No. 3, March 1999, p 12) (SCJL)

2. Banzon, Marie Yvette L.: Combating trafficking in person through gender focused strategy. (UN Chronicle, Vol. 42, No. 1, March – May 2007, p 54 (NHRC)

3. Barton, G P: Some international human rights aspects of child prostitution. (Law and Justice, Vol. 2, 1995, p 107-20) (ILI)

4. Bhamathi: Interstate trafficking of women and children: A SAARC perspective. (CBI Bulletin, Vol. 7, April 1999, p 10-3) (ILI)

5. Bhattacharya, Sunada: Prostitution: A socio – legal problem: An overview. (Calcutta Law Times, Vol. 1, Part 4, 1999, p 22) (SCJL)

6. Chakravarty, Joya: Trafficking in the girl child. (Journal of the Legal Studies, p 170-73) (ILI)

7. D’cunha, Jean: Prostitution law: Ideological dimensions enforcement practices. (Economic and Political Weekly, Vol. 27, 1992, p WS34-44) (ILI)

8. Das, P K: Child prostitution – A villeinage behind the legal screen. (Supreme Court Journal, Vol. 3, Part 2, October 1995, p 18) (SCJL)

9. Dempsey, M Madden: Rethinking Wolfenden: Prostitute – Use, criminal law and remote harm. (Criminal Law Review, June 2005, p 444) (SCJL)

10. Durgaji, K: Problem of prostitution. (Andhra Weekly Reporter, Vol. 1, Part 19 & 20, 1994, p J75) (SCJL)

11. Farrior, Stephanie: The International law on trafficking in women and children for prostitution: Making it live up to its potential. (Harvard Human Rights Journal, Vol. 10, 1997 p 213-55)

12. Gallaher, Anne: Human Rights and the New UN protocols on trafficking and migrant smuggling: A preliminary analysis. (Human Rights Quarterly, Vol. 23, Part 4, 2001, p 975-1004) (NHRC)

13. Games, Lawrence: Trafficking and sexual exploitation of children and women. (Criminal Law Journal, Vol. 113, No. 1295, November 2007, p 225) (NHRC)

14. Gangoli, Geetanjali: Prostitution legislation and decriminalization: Recent debates. (Economic and Political Weekly, Vol. 33, Issue 10, 1998, p 504-5) (ILI)

Received on 28.04.2014 Modified on 15.05.2014

Int. J. Rev. & Res. Social Sci. 2(2): April-June 2014; Page 108-113