By Harpreet Kaur, UILS, Chandigarh
“Editor’s Note: Child trafficking is generally defined as the process of recruitment, transport, transfer, harbour or receipt of a person under the age of 18 for the purpose of exploitation. It is a problem that affects all nations due to porous borders and weak domestic laws. The causes of child trafficking are poverty, lack of employment opportunities, breakdown of social structures etc. It causes physical, mental and emotional exploitation of the victims and they are often not able to lead a healthy and stable life. It is prevalent in India on a large scale. This paper attempts to define child trafficking, specify its causes and discuss the international legal instruments that deal with it. It also studies the problem with respect to India- the causes, laws etc. and suggests how to plug the loopholes in the system to address the situation in a better way.”
Child trafficking is a global phenomenon and is not limited to any geographical region or country. It is a gross violation of the human rights and fundamental freedoms of children. It infringes upon the child’s physical and mental integrity, which are central to the experience of human dignity and, poses a significant threat to the child’s life. Child trafficking is inherently a dynamic, hidden phenomenon that is difficult to identify[i]. Children –boys and girls– have been exposed to unprecedented vulnerabilities. Nations are attempting to combat this trade in human misery through legislative, executive, judicial and social action. Children and their families are often lured by the promise of better employment and a more prosperous life far from their homes. Others are kidnapped and sold. Trafficking violates a child’s right to grow up in a family environment and exposes him or her to a range of dangers, including violence and sexual abuse. In India too, over the last decade, the volume of human trafficking has increased though the exact numbers are not known, it is one of the most lucrative criminal trades, next to arms and drug smuggling undertaken by highly organized criminals[ii].
The trafficking of children, defined as the recruitment, transport, transfer, harbouring or receipt of a person under the age of 18 for the purpose of exploitation (including prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs)[iii], is widely recognized as presenting a threat of global proportions. While precise statistics concerning the scope of the problem do not exist, it is estimated that some 1.2 million children are trafficked each year worldwide[iv].
The causes of global trafficking are varied and complex, but notably include poverty, lack of opportunities, the economic gains to be made through the exploitation of children, entrenched gender discrimination and discriminatory cultural practices. Human trafficking, over 20 percent of which is trafficking in children, is believed to be a multi-billion dollar industry[v]. Trafficked children have many faces. They are, to take only a few examples, prostitutes; mail order brides; beggars; child soldiers; and labourers in homes, on plantations and in mines. Increasingly, they are being recruited to aid in the manufacture of drugs and weapons. Children who are susceptible to being trafficked are those who are subject to pervasive discrimination, including minorities, stateless children, refugees and girls[vi]. A report produced by the United Nations Population Fund provides the following assessment: (a)s women and girls are, generally, less valued they are more often seen and used as commodities …they are easy targets for traffickers[vii].
Where children lack stable home environments and financial security, and where the opportunities available to them are slim, trafficking tends to flourish. Rates of trafficking are frequently high in areas where there are limited job possibilities; where children have minimal education and vocational skills; and where children are living without parents or primary caregivers (including in orphanages)[viii]. Porous borders and the presence of natural disasters/conflicts further enhance vulnerability to trafficking, as does forced migration[ix]. Children without birth registration or identity documents also face a heightened risk of trafficking. Victims of trafficking are frequently exposed to physical and sexual abuse, dangerous work environments, and denied access to education. They are also typically placed in situations of extreme dependence and conditioned to believe that they have no alternative life options[x]. UNICEF remarks that:
“Traffickers exploit the fact that children have a less-developed capacity than adults to assess risk, to articulate and voice their worries (about being exposed to danger), to distinguish right from wrong (when being required to commit a crime) and to look after themselves (including taking action to defend themselves from harm)”.[xi]
Unsurprisingly, trafficking frequently has devastating long-term effects on the mental and physical health of its victims, and a tendency to perpetuate poverty and marginalization.
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (informally known as the ‘Palermo Protocol’) is the first legal instrument to provide an internationally agreed definition of trafficking in human beings and child trafficking[xii].
The ‘Palermo Protocol’ was adopted in 2000 and entered into force in 2003. With regard to child trafficking, it is clear that no violence, deception or coercion is required for a person under 18 to be considered a victim of trafficking; it is sufficient that he or she has been recruited and moved for the purpose of exploitation. Article 3 (c)[xiii] of the Protocol states that “[t]he 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.” Exploitation includes prostitution and other forms of sexual exploitation, harmful work, being forced to work, slavery, forcing people to do illegal or criminal things and the removal of organs. The definition applies to all people, men, women and children. But when it comes to children, any kind of recruitment, transportation, moving them around, buying or selling them or keeping them for the purpose of exploitation will be considered ‘trafficking’ –no matter how it is done.
This definition implies an understanding that a child cannot consent to being trafficked, and that a child’s ‘consent’ is not recognized as a justification for any form of child exploitation or abuse. Also, the above definition clearly spells out that trafficking covers not only the transportation of a person from one place to another, but also their recruitment and receipt so that anyone involved in the movement of another person for their exploitation is part of the trafficking process. It further articulates that trafficking is not limited to sexual exploitation only for it could occur also for forced labour and other slavery like practices. This means that people who migrate for work in agriculture, construction or domestic work, but are deceived or coerced into working in conditions they do not agree to, are also defined as trafficked people[xiv].
The definition of child trafficking in the Palermo Protocol is complex and can be difficult to apply in practice. It may be challenging to differentiate between a child victim of trafficking and a child who has experienced other forms of exploitation or abuse. This is especially the case when exploitation and abuse take place in the context of movement or migration and when the available information on a child’s situation and background is incomplete. In the absence of a uniform system for identifying children who are survivors of various forms of exploitation and abuse, trafficked children are often misidentified[xv]. They may be identified as migrant children, immigrants with irregular status, victims of sexual exploitation and abuse, juvenile delinquents or children living on the street. At the same time, not all children identified as having been trafficked have actually had experiences that fall under the international definition of child trafficking. Therefore, the way in which cases are identified and recorded in national statistics may not reflect the full scope of child trafficking.
Even children may be hesitant to be identified as trafficking victims. They may fear threats from traffickers against themselves or their family members, social stigma or legal consequences. Children may have concerns that once identified as having been trafficked, they will not be able to make money, pay off their debts or live up to the expectations their families have of them[xvi].
All those who contribute to the movement of the child and know that what they are doing is likely to lead to the exploitation of the child are traffickers. In this way, recruiters, intermediaries, document providers, corrupt officials, employers, exploiters and transporters are traffickers[xvii].
Causes of Child Trafficking
The problem of child trafficking is the result of a constellation of factors, including widespread poverty, lack of livelihood opportunities, entrenched gender discrimination, displacement, the demand for young girls, the upheaval associated with natural disasters/conflict in parts of the country and the profits to be made. In some cases, socio-cultural and religious factors have an impact on child trafficking, as where religious figures have made use of their position to traffic girls for prostitution[xviii]. Additional risk factors include, for example, parent illiteracy, illness or death of one of the main family breadwinners, unemployment, early school drop-out of the concerned children, absence of workplace inspection or policing, and a specific demand for child labour[xix]. Frequently, trafficking is accomplished through the deception of girls and their families. In many villages in West Bengal it is reported that traffickers have obtained access to girls by pretending to be grooms without dowry demands[xx]. In other cases, trafficking has been facilitated by relatives or friends of the victims, as well as teachers and placement agencies[xxi]. The traffickers also exploit lack of political will by governments to tackle trafficking and its root causes[xxii]. Moreover, girls who have been exploited are also commonly used to lure girls from source areas[xxiii].
Also, increasing breakdown of social structures (which results in a loss of family and community support networks, making families, particularly women and children, increasingly vulnerable to traffickers demands and threats); Globalization and economic disparities between countries, and porous borders facilitates easy movement of people and large-scale illegal migration of women and children into India from the neighbouring countries and this illegal migration are exploited by the traffickers to traffic women and children into exploitative situations, including prostitution and labour[xxiv].
International Legal Instruments
Convention for the Suppression of Traffic in Person of the Exploitation of the Prostitution of Others (The Trafficking Convention)[xxv]: The international community first denounced trafficking in the Trafficking Convention, which was approved by the General Assembly of the United Nations in 1949[xxvi]. The Convention calls on states parties to punish traffickers and to protect all persons against such abuse. It also calls on states parties “so far as possible” to “make suitable provisions for [trafficking victims] temporary care and maintenance”, to repatriate trafficked persons “only after agreement . . . with the State of destination”, and where such persons cannot pay the cost of repatriation, to bear the cost “as far as the nearest frontier”[xxvii]. To a certain extent, this Convention was a legal turning point, as it was the first international instrument on trafficking and related issues that was legally binding.
After this, the main protocol is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children. It aims to prevent and combat trafficking of women and children and provide assistance to the victims.
The United Nations Office on Drugs and Crime (UNODC) is responsible for implementing the Protocol. It offers practical help to states with drafting laws, creating comprehensive national anti-trafficking strategies, and assisting with resources to implement them. In March 2009, UNODC launched the Blue Heart Campaign to fight human trafficking, to raise awareness and to encourage involvement and inspire action. The Protocol[xxx] commits of ratifying states to prevent and combat trafficking in persons, protect and assist victims of trafficking and promote cooperation among states in order to meet those objectives. It prohibits the trafficking of children (which is defined as being a person under 18 years of age) for purposes of sexual exploitation , exploitative labour practices or the removal of body parts[xxxi].
The Protocol reflects the first international consensus on the definition of trafficking, which is the first step toward a concerted international effort to combat trafficking. Beyond the definition, the true force of the document lies in the law enforcement provisions. Article 5 obligates State Parties to criminalize trafficking, attempted trafficking, participating as an accomplice, and organizing and directing trafficking. Additionally, Article 10 requires law enforcement training to help identify potential trafficking victims and organized crime methods used to traffic individuals. Articles 11 and 12 mandate strengthened border control measures, such as checking travel documents, boarding vehicles for inspection, and increasing the quality of travel documents to reduce fraud. The mandatory provisions regarding victims are an additional advantage of the Protocol. For example, Article 9 addresses mandatory prevention measures, specifically citing mass media information campaigns, close cooperation with NGOs, and the creation of social and economic incentives. Examples of such incentives include microcredit lending programs, social advancement of women, job training, or tax incentives to start small businesses.
Optional Protocols to the Convention on the Rights of the Child: In 2000, the UN General Assembly also adopted two optional protocols[xxxii] to strengthen the Convention. One protocol required governments to increase the minimum age for recruitment into the armed forces from 15 years and to ensure that members of their armed forces under the age of 18 do not take a direct part in armed conflict. The other protocol provided detailed requirements for governments to end the sexual exploitation and abuse of children. It also protects children from being sold for non-sexual purposes, such as other forms of forced labour, illegal adoption and organ donation.
Articles 34 and 35 of the Convention on the Rights of the Child say that governments should protect children from all forms of sexual exploitation and abuse and take all measures possible to ensure that they are not abducted, sold or trafficked. The Convention’s Optional Protocol on the sale of children, child prostitution and child pornography supplements the Convention by providing States with detailed requirements to end the sexual exploitation and abuse of children[xxxiii].
The Protocol[xxxiv] provides definitions for the offences of ‘sale of children’, ‘child prostitution’ and ‘child pornography’. It also creates obligations on governments to criminalize and punish the activities related to these offences. It requires punishment not only for those offering or delivering children for the purposes of sexual exploitation, transfer of organs or children for profit or forced labour, but also for anyone accepting the child for these activities[xxxv]. The Protocol also protects the rights and interests of child victims. Governments must provide legal and other support services to child victims. This obligation includes considering the best interests of the child in any interactions with the criminal justice system. Children must also be supported with necessary medical, psychological, logistical and financial support to aid their rehabilitation and reintegration.
Till May 2012, 157 states have become party to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and 147 state parties have ratified Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict[xxxvi]. While the ratification of the Optional Protocols is necessary, it is not enough. Measures must be taken to implement their provisions. Without effective implementation, the Optional Protocols are simply words on paper. State Parties need to develop and implement comprehensive strategies to prevent and respond to violence against and exploitation of children. According to the information provided on the website of UNICEF, Governments and civil society around the world are taking steps to implement the Optional Protocols, often with UNICEF support. In Ukraine, for example, efforts are under way to reform the criminal code to combat child abuse images and protect children from sexual exploitation[xxxvii]. In several countries, specialized police units have been set up to ensure sensitive responses to child victims of violence, including sexual exploitation and abuse[xxxviii]. More countries are investing in comprehensive support services for children who have experienced violence and exploitation, including health, legal, protective and counselling services. The global campaign has presented a powerful opportunity to strengthen protections for children. Still, accelerated efforts are needed at national, regional and global levels to ensure universal ratification and effective implementation of both Optional Protocols.
Convention on the Elimination for All Forms of Discrimination Against Women: Under CEDAW, states parties are obliged to eliminate discrimination and must take all appropriate measures to suppress all forms of traffic in women (articles 2e and 6). However, the Convention does not explain what these measures might be.
Some countries have expressed concern that, although the Convention itself does not require that acts of prostitution be criminalized, several of its provisions have the indirect effect of making the practice of prostitution illegal. Australia, for example, noted that these provisions blur the distinction between voluntary and coerced prostitution. “To consider voluntary sex work and coercive prostitution as the same issue, and therefore to demand the outlaw of prostitution per se, is to view prostitution as a moral issue and to consider sex workers as people unable to make informed decisions on their life. Such a view is paternalistic and raises serious human rights implications. Further, criminalization of the voluntary sex industry fosters conditions of violence against women sex workers.”[xxxix]
Convention on Combating the Crime of Trafficking in Women and Children for Prostitution: Concerned over the trafficking of women and children within and between countries in the region, SAARC adopted a Regional Convention on Combating the Crime of Trafficking in Women and Children for Prostitution[xl] in January 2002, during the Eleventh Summit in Kathmandu. The Convention calls for cooperation amongst Member States in dealing with various aspects of prevention, interdiction and suppression of trafficking in women and children for prostitution, and repatriation and rehabilitation of victims of trafficking. It also calls for prevention of use of women and children in international prostitution networks, particularly where countries of the region are the countries of origin, transit and destination. It provides that “State Parties to the Convention, in their respective territories, shall provide for punishment of any person who keeps, maintains or manages or knowingly finances or takes part in the financing of a place used for the purpose of trafficking and knowingly lets or rents a building or other place or any part thereof for the purpose of trafficking[xli].” In trying offences under the Convention[xlii], “judicial authorities in Member States shall ensure that the confidentiality of the child and women victims is maintained and that they are provided appropriate counselling and legal assistance[xliii]“.
A Regional Task Force has been formed in all the Member States to monitor and assess the implementation of various provisions of the Convention on Combating the Crime of Trafficking in Women and Children for Prostitution. The Regional Task Force has met in 2007, 2008, 2009, 2010 and 2011. During the First Meeting of the Regional Task Force (New Delhi, 26 July 2007), the Meeting agreed to exchange information on best practices by the respective Governments, NGOs and members of the Civil Society to combat Trafficking in Women and Children. It was decided that a Standard Operating Procedure (SOP) to implement various provisions of the Convention, including reporting under Article VIII (5) and repatriation of victims of Trafficking and related matters as defined in the Convention, would be developed. The Third Meeting of the Regional Task Force (Shimla, May 2009) finalized the draft Standard Operating Procedure[xliv].
Furthermore, the Special Session of Regional Task Force held at the SAARC Secretariat in April 2010 prepared the draft outline for the establishment of two regional Toll-free helplines dedicated for women and children respectively. Women and children survivors or victims of violence or discrimination can then dial up these numbers to seek help and support irrespective of the country they are in South Asia. The Project proposal was submitted to the SDF Board and approved. The project has been expected to start in 2013[xlv].
The Problem of Child Trafficking In India
Although it is often difficult to obtain comprehensive data on the extent of human trafficking in India, it is generally accepted that India is a source, destination, and transit country for trafficking of persons, including young girls[xlvi]. A 2006 study found that 378 of the 593 districts were affected by human trafficking[xlvii]. It is estimated that ninety percent of trafficking in the country is internal, with victims of trafficking mostly being used for forced labour. Child victims of trafficking in India are exploited in many ways – including factory and agricultural workers, domestic servants and beggars[xlviii]. Girls, in particular, are vulnerable to trafficking for the purpose of forced marriage and commercial sexual exploitation.
The porous borders in the region are often cited as a contributing factor to cross- border trafficking, including the trafficking of girls from Nepal and Bangladesh to India. ECPAT International estimates that 150,000 women and children are trafficked from South Asia annually, most from, through or to India[xlix]. The combined estimates for Nepal and Bangladesh range from 500 to 10,000 girls being trafficked to India annually; another estimate puts the figure at more than 200,000 over a period of seven years[l]. At present, there are no laws governing the repatriation of trafficking victims from India to Bangladesh and Nepal and concerned organizations have sought to assist girls in reaching their homes by liaising with partner organizations in these countries[li].
Crossing the border between Bangladesh and West Bengal is a daily routine for many […]. A well-organized bribe system also helps people to cross over the flat terrain. Further, a multiple passport system […] facilitates easy entry of Bangladeshi girls into Kolkata brothels and a close nexus exists between traffickers and border village communities‘. After being sorted and graded‘, [girls] may be sold to pimps or sent to the Middle East, Kolkata, Bashirghat, Delhi, Mumbai or Agra”. -Sen and P.M. Nair, A Report on Trafficking in Women and Children in India 2002-2003, Volume 1, Institute of Social Sciences, National Human Rights Commission and UNIFEM (2004), 11-12[lii].
International Instruments Signed By Government of India
The Government of India signed the Trafficking Protocol on 12 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. It has also ratified the 1949 Convention for the Suppression of the Traffic of Persons and of the Exploitation of the Prostitution of Others, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), all of which have been ratified by the Government of India. The Government of India has also ratified the two Optional Protocols to the Convention on the Rights of the Child – (i) on the Involvement of Children in Armed Conflicts and (ii) on the Sale of Children, Child Prostitution and Child Pornography. 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, which has also defined the term ‘trafficking’, has also been ratified by the Government of India[liii].
Anti-Trafficking Laws in India
The Indian Constitution explicitly prohibits trafficking of human beings and forced labour, and makes both offences punishable. Article 23(1) of Indian Constitution provides that: traffic in human beings […] and forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law[liv]. Moreover, the Directive Principles of State Policy articulated in the Constitution are also significant, Article 39(e) provides that the health and strength of workers, men and women, and the “tender age of children are not abused” and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Also, Article 39(f) imposes a duty on the State to direct its policy towards ensuring 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.
The Immoral Traffic Prevention Act (1956) (ITPA)[lv] is the main legal instrument addressing the trafficking of human beings in the country. It is supplemented by provisions in certain other domestic laws, including the Indian Penal Code. The ITPA is focused on trafficking for the purpose of prostitution. Accordingly, it outlaws the running of a brothel; living on the earnings of a prostitute; procuring, inducing or taking a person for the sake of prostitution; and detaining a person in a place where prostitution is carried on. The Act also provides for the rescue and rehabilitation of victims/survivors of trafficking, action against exploiters and increased punishment for trafficking offences involving children. However, till date, its prime objective has been to inhibit/abolish traffic in women and girls for the purpose of prostitution as an organized means of living. The Act criminalizes the procurers, traffickers and profiteers of the trade but in no way does it define ‘trafficking’ per se in human beings[lvi]. Under ITPA stringent punishment has been prescribed which ranges from seven years to life imprisonment[lvii].
The Indian Penal Code, 1860 for its part, contains various provisions related to child trafficking. It imposes, for instance, criminal penalties for kidnapping[lviii], abduction (including for the purpose of compelling marriage), buying or selling a minor for prostitution[lix], unlawful compulsory labour, importing/procuring girls and buying or selling a person for slavery[lx]. In addition, sexual assault on a child under 16 years of age, even with formal consent, amounts to rape under the IPC[lxi].
Also relevant for the repression of child trafficking is the Juvenile Justice (Care and Protection of Children) Act (2000) which includes prohibitions on cruelty to a child; employment of a child for begging; providing a child with narcotic drugs or psychotropic substances; and forcing a child into hazardous employment[lxii]. Child is defined by the Act as a person under the age of 18. The Juvenile Justice Act also establishes a framework for providing care, protection, treatment, education, vocational training, development and rehabilitation to vulnerable children. To assist with this, the Juvenile Justice Act authorizes the establishment of Child Welfare Committees and protection homes in each state (Section 29). At present however, Child Welfare Committees and protection homes have been established only in selected districts of the country, and their operation is not without obstacles, especially as concerns the tracing of children‘s families and their possible return to their homes[lxiii]. From the point of view of child protection, a key problem with the JJ Act is that it does not require state governments to form district Child Welfare Committees and Juvenile Justice Boards. Nor are state governments required to establish and maintain children’s homes and shelter homes. The Juvenile Justice Act states ambiguously that the state government may constitute or establish these bodies. In general, the rehabilitation mechanisms set up under the Act could benefit from better coordination among concerned bodies at the implementation stage.
Some States also enacted their own Acts[lxiv] like:
Karnataka Devadasi (Prohibition of Dedication) Act, 1982: Act of dedication of girls for the ultimate purpose of engaging them in prostitution is declared unlawful whether the dedication is done with or without consent of the dedicated persons.
Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989: Penalty of imprisonment for three years and fine are stipulated in respect of anyone, who performs, promotes, abets or takes part in Devadasi dedication Ceremony.
Lastly, in Goa Children’s Act, 2003, trafficking is specially defined; every type of sexual exploitation is included in the definition of sexual assault; responsibility of ensuring safety of children in hotel premises is assigned to the owner and manager of the establishment; photo studios are required to periodically report to the police that they have not sought obscene photographs of children; and stringent control measures were established to regulate access of children to pornographic materials.
Criminal Law Amendment Act, 2013
The recent Criminal Law Amendment Act, 2013 recognises trafficking as an offence in the Section 370 of the Indian Penal Code. This is on similar lines as the Palermo Protocol, ratified by India in May 2011, following a Supreme Court judgement defining trafficking in public interest litigation (PIL) field by Bachpan Bachao Andolan in 2011. The bill targets the entire process that leads to trafficking of a person and also makes the employment of a trafficked person and subsequent sexual exploitation a specific offence under Section 370 A[lxv]. While the old section 370 of Indian Penal Code dealt with only buying or disposing of any person as a slave the new section will take in its purview buying or disposing of any person for various kinds of exploitation including slavery. This provision includes organ trade as well. As the explanation further clarifies “exploitation” would also include prostitution. This is in addition to the ITP Act, 1956.
The new section also ensures that persons involved at each and every stage of trafficking chain are brought within the criminal justice system. Also by specifically including that if a person is brought with his/her consent, where such consent is obtained through force, coercion, fraud, deception or under abuse of power, the same will amount to trafficking, the law has been substantially strengthened. This will cover all situations where girls who happen to be major are duped with promises of marriage and willingly accompany the traffickers who exploit them in various ways. It has also been specifically added in the provision that consent of the victim is immaterial for the determination of the offence[lxvi].
The new section also differentiates the instances of trafficking major persons from minor persons. This differentiation is brought about by providing separate penalty for each with higher minimum sentence for trafficking minor persons. In addition the section also provides for enhanced punishment for repeated offender as well as where the offender traffics more than one person at the same time. By providing that trafficking in minor persons on a repeated conviction will attract imprisonment for life (meaning the remaining natural life) the law has been substantially changed[lxvii]. This will surely act as a big deterrent. Involvement of a public servant including a police officer shall entitle him to life imprisonment which shall mean the remaining natural life[lxviii]. Section 370A further adds strength to trafficking related law by criminalizing employment of a trafficked (major/minor) person. A person who has reason to believe or apprehension that the minor/major person employed by them has been trafficked will make them criminally liable. This places a huge responsibility on the employers who were till now, let off easily under the not so strict provisions of the child labour laws and juvenile related laws. Here also a higher minimum prison term is prescribed where a minor person is involved. Also important is the fact that irrespective of age of the person employed, simply employing a trafficked person is an offence. This provision will go a long way in ensuring that people verify the antecedents of the placement agencies as also get the police verification of the persons employed. This will also aide in curbing the huge demand for labour who are victims of unsafe migration[lxix].
Law Enforcement in India
The various efforts undertaken by Indian Government to combat the problem of child trafficking are based on the Report of the Central Advisory Committee on Child Prostitution, the recommendations of the National Commission for Women and the directions of the Supreme Court of India as well as the experiences of various non-governmental organizations working in this area. The Ministry of Women and Child Development, the Nodal Ministry in the Government of India dealing with issues concerning women and children drew up a National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children in the year 1998. The Ministry of Women and Child Development has requested all Secretaries of the Department of Women and Child Development in the States and Union Territories to hold regular meetings of State Advisory Committee constituted under the 1998 National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children and monitor initiatives being undertaken by them with regard to prevention, rescue, rehabilitation, reintegration and repatriation of victims of trafficking[lxx]. The Ministry of Women and Child Development has also undertaken a study in collaboration with UNICEF on Rescue and Rehabilitation of Child Victims Trafficked for Commercial Sexual Exploitation. The Report of this study was released to the public in 2005. It has also formulated a Protocol for Pre-Rescue, Rescue and Post-Rescue Operations of Child Victims of Trafficking for Commercial Sexual Exploitation. This Protocol contains guidelines for State Governments and a strategy for Rescue Team Members for pre-rescue, rescue and post-rescue operations concerning children who are victims of trafficking and were sexually being exploited for commercial reasons.[lxxi]
In September 2006, the Indian government responded to the trafficking issue by creating a central anti-trafficking law enforcement “nodal cell.” The nodal cell is a federal two-person department responsible for collecting and performing analysis of data related to trafficking, identifying the causes of the problem, monitoring action taken by state governments, and holding meetings with state-level law enforcement. In 2007, three state governments established anti-trafficking police units, the first of this kind in the India[lxxii]. In October 2006, the central government passed a law banning the employment of children in domestic work. In July 2006, the Maharashtra government was given authority by the Supreme Court to seal brothels. In March, 2008 Ministry of Labour & Employment has also issued a Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked & Migrant Child Labour. In addition to this Ministry has also issued guidelines in 2010 to all the State Governments/UTs administrations on regulation of functioning of private placement agencies. Many State Governments have made provisions for registration of private placement agencies under Shops & Establishments Act[lxxiii].
In 2006, for the entire country, only 27 convictions for trafficking offenses were reported. From October 2006 to December 2006, 1672 child labour violations were reported, but no one was criminally prosecuted. Also in 2006, 685 suspected sex traffickers were detained, but no convictions were reported[lxxiv]. Two specific examples given in the Trafficking in Persons report pertain to rescue missions. In New Delhi, 234 children were rescued by police from embroidery factories and rice mills. The owners of these businesses did not receive punishment. Forty-three government-run rescue missions freed 275 victims of commercial sex trafficking, however the government did not report any convictions on those accounts as well. As per inputs provided by National Crime Records Bureau (NCRB), the total number of cases registered under different provisions of law which come under the generic description of human trafficking during the period 2009, 2010 and 2011 were 2848, 3422 and 3517 respectively[lxxv]. One reason for the registration of less number of cases can be the connivance of officials of high ranking with the traffickers for personal gain. Recently, one such incidence was reported in December 2012, in which a police officer was also suspended[lxxvi].
Moreover, Criminal sanctions against human trafficking are often too lenient[lxxvii], scattered across many different laws and largely underutilized by the State Government in the areas worst affected by trafficking. NGOs and human rights activists are left to fill the void of the government’s negligence. Without a significant amount of funds, how much of an impact can NGOs have? Since the crisis is too big, the Indian government must step up and address this issue. The lack of specific and/or adequate legislation on trafficking at the national level has been identified as one of the major obstacles in the fight against trafficking. There is an urgent need to harmonize legal definitions, procedures and cooperation at the national and regional levels in accordance with international standards. The passage of unified, comprehensive legislation on human trafficking could be a platform for significant progress in the awareness of public officials. It could also serve as a clear tool for use by NGOs and human rights activists.
In India, not just the Central Government but also the concerned State Governments must act to uphold our own constitutional principles and international treaty obligations and work toward the full enjoyment of rights by all citizens, regardless of caste or descent. The steps which are needed to be taken are:
- Define the offence of child trafficking as it has been defined in only one state law (Goa Children’s Act).
- Enact laws which include support for the victims of trafficking, such as legal support, mental support by helping to return to their country, village and community.
- Make the legal process more child-friendly.
- Establish a child protection authority to address child abuse and exploitation including trafficking and commercial exploitation.
- Enact provisions which protect children from becoming victims again, if once they have been rescued and also ensure that laws do not further victimize them for any offence they may have committed while being trafficked.
- Lastly, NGOs, not just individuals, should be allowed to file a First Information Report (FIR) in trafficking cases. Currently if an NGO wants to file an FIR, an individual working for the NGO must file the FIR personally. If that individual later leaves the NGO or takes on too many other cases, that individual is still the only person who can officially take part in the court proceedings. This is problematic not only for the individual and the organization in cases that can last seven years, but also for the safety of the individual. In many cases, traffickers have threatened individuals who filed an FIR while working for an NGO.
Addressing human trafficking truly requires a comprehensive and multi-faceted strategy, which includes efforts aimed at the rehabilitation and social reintegration of trafficked victims. Otherwise, the strategy will not be successful in the long run. In essence, at the very core of any anti-trafficking strategy must be an unwavering commitment from individual countries and other multilateral actors to address human trafficking at every stage of this cycle, from prevention to recruitment, transportation to bonded labour, and from rescue to reintegration. Without this commitment, anti-trafficking efforts will be fundamentally unable to intervene on behalf of the trafficked victims whose human rights violations form the backbone of this exploitative trade[lxxviii].
Also, the enactment of the law on paper with no real training and support to the functionaries would be futile and therefore, what is needed now is “actual”, “planned” and “effective” implementation. Involving the community participation in the whole implementation process would create a greater impact[lxxix]. The procedures and technicalities should not reduce the ambitious legislations to empty words, because at stake here is the children- the future of the nation.
“Governments have to do more to guarantee children and young people their right to protection from trafficking. There is hope, and real and practical solutions exist. Trafficking of children for sexual purposes happens in virtually every country in the world —developed and developing— and we must see governments uphold their commitments to those solutions.”-Carmen M Madrinan[lxxx]
Edited by Kudrat Agrawal
[i] Government of Bihar, Department of Social Welfare, Standard Operating Procedure: Raid & Rescue of Trafficked Victims, http://socialwelfare.icdsbih.gov.in/upload/LatestUpdates/LatestUpdates_135356207344.pdf
[ii]Dr. (Mrs.) Intezar Khan, Child Trafficking In India: A Concern, http://jmi.ac.in/upload/publication/Child_Trafficking_in_India.pdf
[iii] Protocol to Prevent Suppress and Punish, Suppress and Punish Trafficking in Persons, Especially Women and Children.
[iv] UNICEF, End Child Trafficking, http://www.unicef.org.uk/campaigns/campaign_detail.asp?campaign=21
[v] ECPAT International, Their Protection is in Our Hands: the State of Global Child Trafficking for Sexual Purposes (2009), retrieved from http://resources.ecpat.net/EI/Publications/Trafficking/Full_Report_Global_Child_Trafficking_for_Sexual_Purposes.pdf
[vi] Trafficking of Children for Prostitution and the UNICEF Response, http://www.asiasociety.org/policy-politics/human-rights/trafficking-children-prostitution-and-unicef-response
[vii] UNFPA, Trafficking in Women, Girls and Boys: Key Issues for Population and Development Programmes, (2002); cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[viii] UNICEF and Inter-Parliamentary Union, Combating Child Trafficking: A Handbook for Parliamentarians, no. 9 (2005); cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011, http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[ix] Save the Children, Child Trafficking, http://www.savethechildren.in/india/key_sectors/child_trafficking.html
[x] PLAN, Because I am a Girl: Trafficking and Sexual Exploitation, http://www.plan-uk.org/becauseiamagirl/thefacts/growingup/trafficking/
[xi] UNICEF, Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe (2006) (hereinafter Reference Guide) 27-28; cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[xii] The ‘Palermo Protocol’ supplements the United Nations Convention against Transnational Organized Crime, which applies “to the prevention, investigation and prosecution of (a) the offences established in accordance with [the Convention]; and (b) serious crime as defined [by the Convention], when the offence is transnational in nature and involves an organized criminal group” (article 3.1). The Convention establishes four offences: i) participation in an organized criminal group; ii) money laundering; iii) corruption; and iv) obstruction of justice. An organized criminal group is defined as “a structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established pursuant to [the] Convention, in order to obtain, directly or indirectly, a financial or other material benefit” (article2 (a)). The main focus of the Convention is on mutual cooperation in law enforcement and on the wide criminalization of the prohibited conduct. Although the Convention contains some provisions relating to victim protection, they are restricted to protection during legal proceedings. See: United Nations General Assembly, United Nations Convention against Transnational Organized Crime, A/RES/55/25, United Nations, New York, 8 January 2001.
[xiii] Articles 3(a) and 3(c) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime:
“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.
“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.”
[xiv]Government of Bihar, Department of Social Welfare, Standard Operating Procedure: Raid & Rescue of Trafficked Victims, http://socialwelfare.icdsbih.gov.in/upload/LatestUpdates/LatestUpdates_135356207344.pdf
[xv] South Asia In Action: Preventing And Responding To Child Trafficking: Analysis Of Anti-Trafficking Initiatives In The Region, August 2009, ISBN: 978-88-89129-88-3, retrieved from http://www.unicef-irc.org/publications/pdf/ii_ct_southasia_analysis.pdf
[xvii] Bianca Daw, Child Trafficking: Problems and Solutions, http://www.academia.edu/2065674/Child_Trafficking_Problems_and_Solutions
[xviii] Save the Children, cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[xix]S. K. Roy, Child trafficking in India: Realities and realization, IUAES2013, PANEL-MMM02, http://www.mecon.nomadit.co.uk/pub/conference_epaper_download.php5?PaperID=11283&MIMEType=application/pdf
[xx] A. Das, Child Marriages, trafficking on the Rise in West Bengal, The Hindu, 19 July 2007, http://www.hindu.com/2007/07/19/stories/2007071956291300.htm
[xxi] S. Madhok, Trafficking Women for Domestic Work, Infochange Women, http://infochangeindia.org/200803277013/Women/Features/Trafficking-women-for-domestic-work.html
[xxii] Jeanine Redlinger, Child Trafficking And Sexual Exploitation, UI Center for Human Rights Child Labor Research Initiative, OCTOBER 2004, http://www.continuetolearn.uiowa.edu/laborctr/child_labor/materials/pdf/modules/child_trafficking.pdf
[xxiii] Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[xxiv]S K ROY, Child trafficking in India: Realities and realization, IUAES2013, PANEL-MMM02, http://www.mecon.nomadit.co.uk/pub/conference_epaper_download.php5?PaperID=11283&MIMEType=application/pdf
[xxv] Approved by General Assembly resolution 317 (IV) of 2 December 1949 and Entry into force: 25 July 1951, in accordance with article 24.
[xxvi] Trafficking in Women and Children, UNIFEM GENDER FACT SHEET No. 2, http://www4.worldbank.org/afr/ssatp/resources/html/gender-rg/Source%20%20documents/Issue%20and%20Strategy%20Papers/trafficking/ISTRFK2%20UNIFEMtrafficking%20fact%20sheet.pdf
[xxvii] Convention for the Suppression of the Traffic in Persons, Article 19
[xxx] The Protocol obligates ratifying states to introduce national trafficking legislation.
[xxxi] Wikipedia, Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, http://en.wikipedia.org/wiki/Protocol_to_Prevent,_Suppress_and_Punish_Trafficking_in_Persons,_especially_Women_and_Children
[xxxii] Optional Protocols, adopted in 2000, are: (i) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; and (ii) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
[xxxiii] As a complement to the Convention on the Rights of the Child, interpretation of the Optional Protocol’s text must always be guided by the principles of non-discrimination, best interests of the child and child participation.
[xxxiv] After receiving the first 10 ratifications needed for its entry into force, the Optional Protocol on the sale of children, child prostitution and child pornography became legally binding on 18 January 2002. Today, more than 100 countries have signed and ratified this Protocol.
[xxxv] Convention on the Rights of the Child, http://www.unicef.org/crc/index_30204.html
[xxxvi] UNICEF, Universal ratification and effective implementation of the Optional Protocols to the CRC close at hand, http://www.unicef.org/protection/57929_62536.html
[xxxix]Trafficking in Women and Children, UNIFEM GENDER FACT SHEET No. 2, http://www4.worldbank.org/afr/ssatp/resources/html/gender-rg/Source%20%20documents/Issue%20and%20Strategy%20Papers/trafficking/ISTRFK2%20UNIFEMtrafficking%20fact%20sheet.pdf
[xl] The Convention defines trafficking 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.”
[xli] Article III
[xlii] Article V
[xliii] FOCUS, South Asian Convention against Trafficking, June 2005 Volume 40, http://www.hurights.or.jp/archives/focus/section2/2005/06/south-asian-convention-against-trafficking.html
[xliv] SAARC, Technical Committee on Women, Youth and Children, Gender related issues, http://saarc-sec.org/areaofcooperation/detail.php?activity_id=10
[xlvi] United States Department of State, Trafficking in Persons Report 2010 – India (2010); cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[xlvii]The Times of India, India is Transit Hub for Human Trafficking, 22 June 2006; cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[xlviii] Trafficking in Persons Report 2010 – India; cited at Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[xlix] ECPAT International, Stop Sex Trafficking of Children & Young People, http://ecpat.net/EI/Publications/Trafficking/Factsheet_India.pdf
[l] S. Sen and P.M. Nair, A Report on Trafficking in Women and Children in India 2002-2003, Vol. 1, Institute of Social Sciences, National Human Rights Commission and UNIFEM (2004), http://nhrc.nic.in/Documents/ReportonTrafficking.pdf
[lii] S. Sen and P.M. Nair, A Report on Trafficking in Women and Children in India 2002-2003, Vol. 1, Institute of Social Sciences, National Human Rights Commission and UNIFEM (2004), http://nhrc.nic.in/Documents/ReportonTrafficking.pdf
[liii] Government of Bihar, Department of Social Welfare, Standard Operating Procedure: Raid & Rescue of Trafficked Victims, http://socialwelfare.icdsbih.gov.in/upload/LatestUpdates/LatestUpdates_135356207344.pdf
[liv] Article 24 further prohibits employment of children below 14 years of age in factories, mines or other hazardous employment. Other fundamental rights enshrined in the Constitution relevant to trafficking are Article 14 relating to equality before law, Article 15 that deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Article 21 pertaining to protection of life and personal liberty and Article 22 concerning protection from arrest and detention except under certain conditions.
[lv] Renamed as such by drastic amendments to the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA).
[lvi] Government of Bihar, Department of Social Welfare, Standard Operating Procedure: Raid & Rescue of Trafficked Victims, http://socialwelfare.icdsbih.gov.in/upload/LatestUpdates/LatestUpdates_135356207344.pdf
[lvii] Section 5 of ITPA, 1956 provides punishment for Procuring, inducing or taking person for the sake of prostitution which is conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years.
[lviii] Section 366, Indian Penal Code
[lix] Section 372 and 373, Indian Penal Code
[lx] Section 370, Indian Penal Code
[lxi] Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[lxii] Juvenile Justice (Care and Protection of Children) Act (2000), Sections 23, 24, 25 and 26.
[lxiii] Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf
[lxiv] S. K. ROY, Child trafficking in India: Realities and realization, IUAES2013, PANEL-MMM02, http://www.mecon.nomadit.co.uk/pub/conference_epaper_download.php5?PaperID=11283&MIMEType=application/pdf
[lxvi] Garima Tiwari, Children as Victims of Trafficking in India, http://acontrarioicl.com/2013/05/27/children-as-victims-of-trafficking-in-india/
[lxvii] Piecemeal Approach available at http://www.frontline.in/social-issues/general-issues/piecemeal-approach/article4431434.ece
[lxviii] Rajul Jain, Human Trafficking And Law: Understanding Criminal Law (Amendment) Ordinance, 2013 available at http://nlrd.org/resources-womens-rights/anti-trafficking/anti-trafficking-government-notificationsadvisories/human-trafficking-and-law-understanding-criminal-law-amendment-ordinance-2013
[lxix] Rajul Jain, Human Trafficking And Law: Understanding Criminal Law (Amendment) Ordinance, 2013 available at http://nlrd.org/resources-womens-rights/anti-trafficking/anti-trafficking-government-notificationsadvisories/human-trafficking-and-law-understanding-criminal-law-amendment-ordinance-2013
[lxx] National Human Rights Commission, Integrated Plan Of Action To Prevent And Combat Human Trafficking With Special Focus On Children And Women, http://nhrc.nic.in/Documents/PLANOFACTION.doc
[lxxii] Misty Button, Combating Human Trafficking in India: How the United States can Serve as Catalyst for Change, 2007, http://www.raifoundation.org/discover-essay/CombatingHumanTraffickinginIndia.doc
[lxxiii] Ministry Of Labour Press Release, Trafficking in Girls – Measures taken by Government of India to combat trafficking, http://nlrd.org/childs-rights-initiative/news-from-government-of-india-child-rights-initiative/trafficking-in-girls-measures-taken-by-government-of-india-to-combat-trafficking
[lxxiv] Supra note 72
[lxxv] Ministry Of Labour Press Release, Trafficking in Girls – Measures taken by Government of India to combat trafficking, http://nlrd.org/childs-rights-initiative/news-from-government-of-india-child-rights-initiative/trafficking-in-girls-measures-taken-by-government-of-india-to-combat-trafficking
[lxxvi] Anand Haridas, Human trafficking: Inquiry reveals lacunae in system, http://www.thehindu.com/todays-paper/tp-national/tp-kerala/human-trafficking-inquiry-reveals-lacunae-in-system/article4202594.ece
[lxxviii] Dr. Hetal Pandya and Dr. Hemal Pandya, Racial Discrimination and Human Trafficking in India: Challenges Ahead, International Journal of Humanities and Social Science, Vol. 1 No. 6; June2011, http://www.ijhssnet.com/journals/Vol._1_No._6;_June_2011/12.pdf
[lxxix] Garima Tiwari, Children as Victims of Trafficking in India, http://acontrarioicl.com/2013/05/27/children-as-victims-of-trafficking-in-india/
[lxxx] Rebecca Everly, Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies, A Rights Awareness and Legal Assistance Program in Four Districts of West Bengal, June 2010 – March 2011,http://www.idlo.int/Publications/FinalReportGirlsProject.pdf