Human Trafficking

Human Trafficking: The Wound that has Failed to Heal

By Dimple Sangeetha

“Imagine having all of your freedoms taken away, being forced to work against your will, and constantly living under the threat of violence.”

This is the plight of around 40.3 million victims of human trafficking worldwide who are compelled for prostitution, pornography, sex tourism, drug peddling, organ removal, adoption, armed conflicts, coerced marriages, forced labour as agricultural, mine or domestic workers.[1] Tahmina, 13 years old, who was bought for 50,000 Rupees only, said “They took me to Haryana and kept me in a room. Strange men were coming to see me and offering money and my own sister was outside that room knowing what was going to happen to me.”[2] Time and again, we keep on witnessing such horrifying accounts of the victims of this sickening disease. According to the US State Department Report on Human Trafficking, “India is a source, destination, and transit country for men, women, and children subjected to trafficking.”[3] India has been unsuccessful in meeting the minimum standard for the elimination of trafficking, it added.

Is the current law effective enough to combat trafficking?

When we look at the anti-trafficking legislation in India, we see a wide range of laws that cover certain specific and exclusive aspects of trafficking.^[4] First being, Section 370 of Indian Penal Code, 1860, according to which, whoever, for the purpose of exploitation: recruits, transports, harbours, transfers, or receives, a person or persons, by using threats, force, abduction, fraud, abuse of power or inducement commits the offence of trafficking. According to studies, it is difficult to get section 370 included in the FIR, if included it is mostly used for offences which are traditionally viewed as “trafficking”, such as sex and child trafficking and it is extremely difficult to get cases of bonded labour registered under this section.^[5] Other laws are Juvenile Justice Act 2015 which protects children who are at the risk of trafficking; and the Child Labour (Prohibition and Regulation) Act, 1986, which deal with forced labour and child labour. Even though these laws are in consonance with Article 23 of the Indian Constitution which prohibits trafficking in human beings, begar and other similar forms of forced labour, the Supreme Court has realised the need for preparation of a single comprehensive legislative framework covering all aspects of trafficking for law enforcing agencies after seeing the current scattered legislations.^[6]

The statute of a similar nature is ‘Immoral Traffic (Prevention) Act, 1956’ however; it has failed miserably to fulfill its objectives. On the one hand, the aim of the act is to curb the human trafficking, on the other; it nowhere specifies the definition of trafficking and penalises trafficking only for the purpose of commercial sexual exploitation. It leaves out trafficking for other purposes like bonded labour, organ removal, domestic work and involuntary marriages. The Act is of such a nature as if its main purpose is to regulate the industry of prostitution with provisions for punishment for keeping a brothel house, living on the earnings of prostitution, seducing or soliciting for purpose of prostitution and carrying of prostitution in vicinity of public places. It has also failed to create a distinction between the individuals who are trafficked and pressurized into this industry and the ones who are involved in consensual sexual work.

The Act can be said to be mindlessly drafted because of the enormous amount of loopholes. It misses out on the setting up of Central and State authorities for the purpose of curbing this menace. The involvement of social workers, psychologists, women’s organizations and health workers along with the police officials should have been there. The problem of Cross-border trafficking has not been dealt clearly; extra-territorial application needs to be incorporated. Proper rehabilitation measures to improve the gruesome condition of these victims have also been omitted. There are no provisions for compensation and repatriation of the victim. A reasonable amount of compensation, considering physical and mental treatment of the affected person, emotional injury, gravity of distress, loss of income, infected with life threatening disease should be given. Organization needs to be set up for return of adult victims; reasonable steps should be taken to find suitable family members who are willing to take care of the child victims. Parental rights and responsibilities should be suspended if parents are the ones who trafficked their children. Anti-Human Trafficking tribunal needs to be established for speedy trial of such offences and protection of victim and witnesses. Human Trafficking Prevention Fund and necessary rehabilitation centres for physical and mental treatment and social rehabilitation of the victim need to be there. Government should provide economic assistance, skillful training, employment, medical treatment and consultation service and facility to the victims.

What is the stance taken by the Supreme Court?

The Supreme Court has stated that the Central and the State Governments through Social Welfare Boards should prepare schemes for rehabilitation of physically and sexually abused women commonly known as the prostitutes. A panel of NGO Activists and Lawyers was also appointed to study, research and suggest a scheme for prevention of trafficking and rehabilitation of sex workers. The Court acknowledged that their rehabilitation is a long process and requires patience but if they are granted opportunity to avail some technical or vocational training, they would be able to earn their livelihood.^[7]

The state of Orissa was ordered to take immediate steps to rehabilitate the victims by providing minimum amenities like electricity, water supply, by conducting awareness camps to make such victims aware of their rights under the Constitution, providing minimum education to the children of such victims, providing health care so as to prevent spreading of AIDS and providing alternate accommodation to them. Housing, legal aid and free counseling assistance are other meaningful measures. The main objective was to mainstream and reintegrate women and child victims of commercial sexual exploitation in society and to provide specialized services to enable them to access existing schemes and services at par with other citizens.^[8]

The Uttarakhand High Court has directed the police department to conduct DNA testing of parents and children to ensure that the children found begging in their company are their own.^[9] To prevent absconding of human traffickers, the Court has issued directions regarding the bail provisions for people accused of trafficking. There was a major hurdle as when the accused applied for bail, they were readily granted, then they fled to neighboring countries like Bangladesh and Nepal and repeated the same offence. This stalled the proceedings and deprived victims their rightful claim to rehabilitation. Therefore, the Court held that the application for bail must be taken into account considering antecedents and economic position of the accused, repetitiveness of the offence, and violence involved. Bail should be refused to habitual offenders and brothel owners. Once an accused has absconded or jumped bail, his or her bail must be cancelled and treated as cancelled. The State shall also create a database of human traffickers together with their name, age, photograph, local address, native address, names of their parents or guardian, contact details etc.[10] Similarly, an accused of human trafficking was made ineligible for grant of furlough.^[11]

Supreme Court of India discovered that there are various undesirable organizations and ill-equipped international agencies that are responsible for trafficking in children for the purpose of inter-country adoption. To curb this malpractice, various guidelines were issued, the first being that no foreigner can directly apply to Indian agencies for the adoption process, rather the application has to be forwarded by the recognized social or child welfare agency of that country. The licensed agencies regulate and supervise that the whole procedure is followed in accordance with the law and that the parents are not forced to pay any unconscionable or unreasonable amount which might be demanded by the unscrupulous agencies. Also, Central Adoption Resource Agency (CARA) was set up as a clearing house of information, to which the foreign agencies forward applications, which are then redirected to Indian agencies; all this helps to decrease the probability of trafficking.^[12]

Then, it came to the knowledge of the apex court that organized crime of trafficking of children from Nepal for Indian circuses is rampant. The children were trapped in these circuses for more than 10 years and were not allowed to meet their parents. Incessant cases of physical, emotional abuse and sexual abuse were reported. These children were subjected to mercilessly beatings and prevent comments from the crowd. Complaints about unsatisfactory food and leaking tents would result in maltreatment by the circus owners. It was suggested by the Court that a joint initiative of government and non-governmental organizations is necessary and all the state authorities such as airport authorities, border police, railway police, traffic police and hotel owners should be made responsible for protection of these children.^[13] By looking at the caselaws, it is more than clear that human trafficking is effected for purposes other than just commercial sexual exploitation too.

What are the international obligations of India?

Besides this, there is a compelling need that India recognizes and implements all the international instruments to deal with the problem of trafficking to its fullest extent. India is a signatory to Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Article 6 of this convention requires States to take all the appropriate measures to suppress all forms of traffic in women and exploitation of prostitution of women since it puts them at a special risk of violence and abuse.

India has signed SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution too which emphasizes that trafficking is incompatible with the dignity and honour of human beings and is a violation of basic human rights. Under this convention, there are certain circumstances which make the offence more severe such as the offence being committed in a custodial institution or in an educational institution or social facility or in their immediate vicinity or in other places to which children and students visit for educational, sports, social and cultural activities, or the use of violence and arms by the offender. According to guideline 11 of OHCHR Principles and Guidelines on Human Rights and Human Trafficking, States should adopt bilateral agreements aimed at preventing trafficking.

On 13^th May, 2011 India ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children or Palermo Protocol (2000). It encourages States to apply laws according to the age, gender and special needs of victims along with protection of their identity and privacy. States are required to strengthen border controls so that the transport operated by commercial carriers is prevented from being used in the commission of this offence. India has failed to incorporate such provisions in its national legislation. Also, there is an emphasis on adoption of a universal and comprehensive legislation that addresses all aspects of trafficking in persons. In the absence of such an instrument, persons vulnerable to trafficking are not sufficiently protected. While the international norms are clear, gaps still exist in the implementation. Although the Palermo Protocol calls for a comprehensive approach to combat trafficking, this approach has not been fully realized.

This is the reason why there is strong need for bringing separate legislation which covers trafficking in persons for all purposes other than just commercial sexual exploitation too along with inclusion of relevant provisions from international instruments. With this intention, the Trafficking of Persons (Prevention, Protection And Rehabilitation) Bill, 2018 was introduced in the Parliament along with additions like National Anti-Trafficking Bureau, National Anti-Trafficking Relief, Rehabilitation Committee, provisions relating to Repatriation and Compensation, however, the Bill lapsed. Owing to the lack of proper legal framework, the Government has still not been able to deliver desirable results when it comes to combating trafficking and therefore more stringent measures are the crying need of the day.^[14]