By Sumit Kumar Suman, CNLU
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness.”
Human trafficking is one of the most heinous crimes imaginable, often described as modern-day slavery. This crime robs its victims of their most basic human rights and is occurring in U.S.A, Canada, Australia, England, India and worldwide.
The crime of human trafficking affects virtually every country in the world and has been associated with transnational criminal organizations, small criminal networks and local gangs, violations of labor and immigration codes, and government corruption (Richard, 1999; U.S. Government Accountability Office, 2006).
Historically, trafficking has been defined most often as the trade in women and children for prostitution or other immoral purposes. More recently trafficking has been defined to include other types of force, fraud, or coercion beyond sexual exploitation. It has been further clarified that victims do not need to be transported across international or other boundaries in order for trafficking to exist.
In 2000, the international community developed and agreed to a definition for trafficking in persons that can be found in Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[i]
Trafficking in persons shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.
So, trafficking in human beings, more so in women and children, is one of the fastest growing forms of criminal activity, next only to drugs and weapons trade, generating unaccountable profits annually. The reasons for the increase in this global phenomenon are multiple and complex, affecting rich and poor countries alike.[ii]
2005 US State Department figures estimate that 600,000-800,000 people are trafficked annually across international borders. Approximately 80% are women and girls, of whom 50% are minors. The vast majority of those trafficked under 18 years of age are girls.[iii]
One of the most problematic issues of eliminating trafficking is compliance with international law. As of 2008, there are 143 parties to the United Nations Convention against Transnational Organized Crime, 119 parties to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and 112 parties to the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air.
The Trafficking Protocol is unique from other treaties because it was created as a law enforcement instrument, which, in theory, gives it more influence than inspirational agreements. Provisions within the Trafficking Protocol state that parties must: take action to penalize trafficking, protect victims of trafficking, and grant victims temporary or permanent residence in the countries of destination. Enforcement of international law in regards to human trafficking is most effective and efficient when it is incorporated into regional and domestic legislation.
Domestic v. International Trafficking
The United Nations has offered two sets of principles/guidelines that should be used as guide posts when developing a human trafficking prevention model. In 2002, the UN’s OHCHR[iv] released the Recommended Principles and Guidelines on Human Rights and Human Trafficking. At the outset, the “do no harm” principle is important to note, which states, “anti-trafficking measures shall not adversely affect the human rights and dignity of persons, in particular, the rights of those who have been trafficked.” Three of the Principles and one Guideline specifically focus on human trafficking prevention.
1. Strategies aimed at preventing trafficking shall address demand as a root cause of trafficking;
2. States and intergovernmental organizations shall ensure that their interventions address the factors that increase vulnerability to trafficking, including inequality, poverty and all forms of discrimination.; and
3. States shall exercise due diligence in identifying and eradicating public-sector involvement or complicity in trafficking. All public officials suspected of being implicated in trafficking shall be investigated, tried and, if convicted, appropriately punished.
United States of America:
Despite increasing global attention and significant, if fractured, national responses, human trafficking is today, a very tragic reality. American trafficking is unique among affluent advanced democracies because its sex trafficking victims are younger, more often native born, and more mobile.
The United States, like many developing countries, is a major source country for sex trafficking victims, has sex tourism on its territory, and its native born sex trafficking victims have Hobbesian lives that are “brutish and short.” Yet many other forms of trafficking occur among the massive illegal migrant population. Despite the absence of widespread corruption and close links between traffickers and state officials, patterns of American trafficking more closely resemble those of a developing than a developed country.
The passage of the Trafficking Victims Protection Act (TVPA) in 2000 by the United States Congress, introduced with enormous bipartisan sup-port, was signed by President Clinton and subsequently reauthorized under the Bush administrations in 2003, 2005 and 2007.[v]
The TVPA raised awareness of the problem,[vi]addressed prevention, facilitated prosecution, and provided resources to aid numerous victims of trafficking. The legislation combines a focus on victims’ assistance with stiff sanctions for traffickers.[vii] To date, estimates of human trafficking have focused almost exclusively on international trafficking victims (Laczko & Gozdziak, 2005), and this holds true for the United States as well. Only a recent estimate of minors at risk for sexual exploitation comes close to estimating U.S. domestic trafficking. Between 244,000 and 325,000 American youth are considered at risk for sexual exploitation, and an estimated 199,000 incidents of sexual exploitation of minors occur each year in the United States (Estes & Weiner, 2001).
These figures, however, are limited estimates of youth at risk for human trafficking and do not address adult U.S. citizens traffic into the sex industry or American children and adults trafficked for labor. We can, however, turn to estimates of other at-risk populations, such as runaway/throwaway youth, youth exploited through prostitution, and child labor, to gain a better sense of the potential prevalence of domestic trafficking, or at least the numbers of people at high risk of trafficking.
The United States combines the problems of labor trafficking and forced and bonded labor found in advanced democracies with the problems of sexual trafficking found in the developing and the transitional world of Eurasia. As in other advanced economies, there is significant labor trafficking in the agricultural, construction, and restaurant sectors. But American trafficking is unique among the Western developed democracies in having a significant problem of internal trafficking of its own citizens, particularly juveniles.
Unlike most developed countries, where the preponderance of sexual trafficking victims are foreign, in the United States most victims of sexual trafficking are American-born minors, a fact generally unknown by American society. Sex tourism also exists within the United States as Americans travel between states to engage in sex with minors, meetings that are often arranged through the Internet.[viii]
The United Kingdom is a destination country for men, women, and children primarily from Africa, Asia, and Eastern Europe who are subjected to human trafficking for the purposes of sexual slavery and forced labour, including domestic servitude.
The TVPA is a federal statute of the United States. It is believed that some victims, including minors from the UK, are also trafficked within the country. It is also believed that migrant workers are trafficked to the UK for forced labour in agriculture, construction, food processing, domestic servitude, and food service.
The Government of the United Kingdom fully complies with the minimum standards for the elimination of trafficking. Over the last year, UK authorities continued to launch aggressive anti-trafficking law enforcement efforts to uncover trafficking and identify victims. The National Vigilance Association was created at a meeting located in London in 1885. The purpose of this association was to be the main agency for undertaking private prosecutions for human trafficking and alert police of those that broke the new passed Criminal Law Amendment Act.
Article 23 and 24 of the Indian Constitution deals with the Right against Exploitation. Article 23 prohibits the traffic in human beings. So this article embodies two declarations. First, that traffic in human and other similar forms of forced labour are prohibited. And secondly, any contravention of the prohibition shall be an offence and punishable in accordance with law.[ix] Further Indian constitution also provides regarding human trafficking, under Article 24 which 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.
The commitment to address the problem of trafficking in human beings is also reflected in various laws/legislations and policy documents of the Government of India. The Indian Penal Code, 1860 contains some of the provisions that are relevant to trafficking and impose criminal penalties for offenses like kidnapping, abduction, buying or selling a person for slavery/labor, buying or selling a minor for prostitution, importing/procuring a minor girl, rape, etc.
Trafficking in human beings, more so in women and children, is one of the fastest growing forms of criminal activity, next only to drugs and weapons trade, generating unaccountable profits annually. India is no exception to this. The source areas or points of origin are often the more deprived places, regions or countries, and the points of destination are often although not always urban conglomerates within or across borders. Human trafficking is a crime against the person because of the violation of the victim’s rights of movement through coercion and because of their commercial exploitation.
Human trafficking is the trade in people and does not necessarily involve the movement of the person to another location. Human trafficking in India, whilst illegal under Indian law remains a significant problem. People are frequently illegally trafficked through India for the purposes of commercial sexual exploitation and forced/bonded labour.\ The Immoral Traffic (Prevention) Act, 1956 (ITPA), initially enacted as the ‘Suppression of Immoral Traffic in Women and Girls Act, 1956, is the main legislative tool for preventing and combating trafficking in human beings in India.
The other relevant Acts which address the issue of trafficking in India are the Karnataka Devdasi (Prohibition of Dedication) Act, 1982; Child Labour (Prohibition and Regulation) Act, 1986; Andhra Pradesh Devdasi (Prohibiting Dedication) Act, 1989; Information Technology Act, 2000; the Goa Children’s Act, 2003; and the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006.
The judiciary has played an active role in preventing and combating trafficking by pronouncing some landmark judgments in “Public Interest Litigations” related to human trafficking. Prominent among them are the 1990 case of Vishal Jeet v. Union of India[x], and the case of Gaurav Jain v. Union of India.[xi]
In the former case, on the directions given by the Supreme Court, the Government constituted a Central Advisory Committee on Child Prostitution in 1994. Subsequently, State Advisory Committees were also setup by State Governments. The outcome of the latter case was the constitution of a Committee on Prostitution, Child Prostitutes and Children of Prostitutes to look into the problems of commercial sexual exploitation and trafficking of women and children and of children of trafficked victims so as to evolve suitable schemes in consonance with the directions given by the Apex Court.
Role of Ministry of Women and Child Development:
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.
A Central Advisory Committee under the chairpersonship of Secretary, Ministry of Women and Child Development has also been constituted with members from Central Ministries like the Ministry of Home Affairs, Ministry of External Affairs, Ministry of Tourism, Ministry of Health, Ministry of Social Justice and Empowerment, Ministry of Information Technology and Ministry of Law and Justice to combat trafficking in women and children and commercial sexual exploitation as well as rehabilitate victims of trafficking and Commercial Sexual Exploitation and improve legal and law enforcement systems.
Role of National Human Rights Commission:
In view of the existing trafficking scenario and at the request of the UN High Commissioner for Human Rights as well as on the recommendations of the Asia Pacific Forum of National Human Rights Institutions, the National Human Rights Commission nominated one of its Members to serve as a Focal Point on Human Rights of Women, including Trafficking in 2001.
Among the activities initiated by the Focal Point was an Action Research on Trafficking in Women and Children in India in the year 2002 in collaboration with UNIFEM and the Institute of Social Sciences, a research institute in New Delhi. The main focus of the Action Research was to find out the trends, dimensions, factors and responses related to trafficking in women and children in India. Besides, it looked into various other facets of trafficking, viz., the routes of trafficking, transit points, the role of law enforcement agencies, NGOs and other stakeholders in detecting and curbing trafficking.
It also reviewed the existent laws at the national, regional and international level. The Action Research was completed in July 2004 and its Report was released to the public in August 2004. The recommendations and suggestions that emerged out of the Action Research were forwarded to all concerned in the Central Government, States/Union Territories for effective implementation.
They were also requested to send an action taken report on the steps taken by them. In order that the recommendations and suggestions of the Action Research were implemented in true spirit, the Commission subsequently devised a comprehensive Plan of Action to Prevent and End Trafficking in Women and Children in India and disseminated the same to all concerned. So far as prevention of human trafficking is concerned.-
Preventing trafficking should take into account both demand and supply as a root cause. Central Government/State Governments/Union Territories should also take into account the factors that increase vulnerability to trafficking, including inequality, poverty and all forms of discrimination and prejudice. Effective prevention strategies should be based on existing experience and accurate information.
1. Analysing the factors that generate demand and supply for exploitative commercial sexual services and exploitative labour and taking strong legislative, policy and other measures to address these issues.
2. Empowering the vulnerable sections living in remote corners of country by extending to them various welfare, development and anti-poverty schemes of the Government of India, such as, Swadhar, Swayamsidha, Swa-Shakti, Swawlamban, Balika Samridhi Yojana, Support to Training and Employment Programme for Women (STEP), Kishori Shakti Yojana, etc. This would provide scope for ample economic opportunities for the women and other traditionally disadvantaged groups in their native place itself so as to reduce their vulnerability to trafficking.
3. Improving children’s access to schools and increasing the level of school attendance, especially of those affected or dependants, including the girl children, especially in remote and backward parts of the country. Efforts should also be made to incorporate sex-education and gender sensitive concerns in the school curriculum, both at the primary and secondary levels.
4. Generating awareness and spreading legal literacy on economic rights, particularly for women and adolescent girls should be taken up. Presently, there seems to be insufficient knowledge and information among the people to make informed decisions that affect their lives. This would not only enable them to know about their rights but also inform them about the risks of illegal migration (e.g. exploitation, debt bondage and health and security issues, including exposure to HIV/AIDS) as well as avenues available for legal, non-exploitative migration.[xii]
5. Developing information campaigns for the general public aimed at promoting awareness about the dangers associated with trafficking. Such campaigns should be informed by an understanding of the complexities surrounding trafficking and of the reasons as to why individuals may make potentially dangerous migration decisions.
6. Reviewing and modifying policies that may compel people to resort to irregular and vulnerable labour migration. This process should include examining the effect especially with regard to unskilled labour and woman.
7. Examining ways of increasing opportunities for legal, gainful and non-exploitative labour migration. The promotion of labour migration on the whole should be dependent on the existence of regulatory and supervisory mechanisms to protect the rights of migrant workers.
8. Giving focused attention to the adolescents, who are both potential victims and clients. It would be useful if appropriate information and value clarification is given to them on issues related to ‘sexuality’ and ‘reproductive health’. This exercise would be beneficial in view of the growing evidence of increased pre-marital sexual activity among adolescents and the looming threat of HIV/AIDS within this group.
9. Strengthening the capacity of law enforcement agencies to arrest and prosecute those involved in trafficking. This would include ensuring that law enforcement agencies comply with their legal obligations.
10. Devising necessary mechanisms for concerted coordination between the judiciary, police, government institutions and non-governmental organizations/civil society groups with regard to prevention and combating strategies. This kind of a government-public network would involve and make the non-governmental organizations/community responsible to act as watchdogs and informants on traffickers and exploiters.
11. Adopting measures to reduce vulnerability by ensuring that appropriate legal documentation for birth, citizenship and marriage is provided and made available to all persons.[xiii]
12. Setting up of a national database/web portal under the aegis of National Crime Records Bureau. The main purpose of this kind of a mechanism is to create a help desk in providing information on missing persons including women and children, alert notice on suspected traffickers, anti-trafficking networks, do’s and don’ts to be followed while dealing with victims of trafficking, etc.[xiv]
Landmark ruling of the Supreme Court as well as various High Courts in India[xv]
The Supreme Court and the various High Courts have been taking up cases for strengthening of the Institutional Machinery and various statutory agencies mandated by various laws. It has also been monitoring various scheme of rehabilitation for trafficked victims. The court while exercising its jurisdiction for enforcement of fundamental rights has given various landmark judgments for the strengthening government response in combating trafficking.
The Supreme Court has also set up various panels and committees to ensure that there is various monitoring mechanism in place for the enforcement of rights of trafficked victims and also to ensure Implementation of the law. Apart from this, the courts have also been creating a mechanism for victim protection and various guidelines for victims’ rights in terms of court procedure.
The Supreme Court has also stepped in and issued guidelines to tackle the problem of missing children. Some of the various proactive landmark judgments related to combating Human trafficking are provided below:
In Laxmi Kant Pandey vs Union of India[xvi]
The Supreme Court while supporting inter-country adoption stated it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the child, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labor or experimentation for medical or other research and may be placed in a worse situation than that in his own country. The court has laid down procedures to check and monitor intercountry adoptions so that the children don’t end up victimized.
Rehabilitation of Bonded Labour ordered and Vigilance Committee set up in prone areas:
Bandhua Mukti Morcha Vs. Union of India and others.[xvii]
Whenever it is shown that a laborer is made to provide forced labor the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration and he is, therefore, a bonded laborer entitled to the benefits under the law.
The State government, the Vigilance Committees and the District Magistrates will take the assistance of non-political social action groups and voluntary agencies for the purpose of ensuring implementation of the provisions of law. The State government should adopt a non-formal and unorthodox approach in the implementation of the law which is an important instrument for ensuring human dignity.
The Central and State governments will take all necessary steps for the purpose of ensuring that minimum wages are paid directly to the workmen employed in the stone quarries and stone crushers and not through middlemen.
A Developmental Approach to Human Trafficking: Focussing on Prevention
Responding to human trafficking problems requires multi-dimensional approaches.
1. Social protection: Enhancing a safety net system to target those who are vulnerable to trafficking in the project area.
2. Employment: Providing job training and creating more jobs in the community at risk of trafficking so that vulnerable populations do not necessarily need to go to the city or abroad to obtain a job.
3. Labor safeguards: Ensuring labor safeguards that include an anti-trafficking component in development projects for the following sectors that are particularly common for labor sex workers and illegal migrant workers) and educating on HIV/AIDS and sexually transmitted diseases.
4. Migration: Raising awareness about human trafficking and informing about the risks and consequences of work abroad and their labor rights.
So, we conclude that millions of men, wome, and children are victims of human trafficking for sexual, forced labor and other forms of exploitation worldwide. Violations of human rights are both a cause and a consequence of human trafficking.
The human and economic costs of this take an immense toll on individuals and communities. By conservative estimates, the cost of trafficking in terms of underpayment of wages and recruiting fees is over $20 billion. The costs to human capital are probably impossible to quantify.
The problem of trafficking cuts across a range of development issues, from poverty to social inclusion, to justice and rule of law issues, and thus has relevance for practitioners throughout the development community. Although human trafficking is a complex issue, the international legal instruments have been implemented to aid trafficking victims and to combat this worldwide epidemic.
Even states that are not a party to the United Nations Convention against Transnational Organized Crime and its two related protocols are obligated to protect the rights of trafficked persons under provisions in the Universal Declaration of Human Rights, which comprises customary international law.
Human trafficking is a development issue. Common development dimensions, such as poverty, gender inequality, unemployment, a lack of education, weak rule of law, and poor governance accompanied by socio-economic factors are strongly linked to vulnerability to trafficking.
Trafficking is a regional and global phenomenon. Enormous trafficking takes place not only within the country but also across borders, especially between the neighboring countries. A coherent approach is therefore required to tackle the problem of cross-border trafficking which cannot be dealt with at the national level alone. A strengthened national response can often result in the operations of traffickers moving elsewhere. International, multilateral and bilateral cooperation can play an important role in preventing and combating trafficking activities.
So, lastly we want to say that:
“Information and awareness are the most powerful tools in the fight against human trafficking It starts with you and me.”[xviii]
Formatted on February 17th, 2019.
[ii] US Department of state (2005) Trafficking on persons report.
[iv] United Nations Office of the High Commissioner for Human Rights. (2002). Recommended principles
and guidelines on human rights and human trafficking.
[v] Susan W. Tiefenbrun, “The Cultural, Political, and Legal Climate Behind the Fight to Stop Trafficking in Women: William J. Clinton’s Legacy to Women’s Rights.” Cardozo Journal of Law and Gender855 (2006), 101–129; Reauthorization in 2007, www.cbo.gov/doc.cfm?index=8783, accessed December 8, 2009.
[vi] Barbara Ann Stolz, “Interpreting the U.S. Human Trafficking Debate Through the Lens of Symbolic Politics,” Law & Policy29, no. 3 (July 2007), 311–38.
[vii] Anthony M. De Stefano, The War on Human Trafficking: U.S. Policy Assessed(New Brunswick: Rutgers University Press, 2007) (as it coated at demografi.bps.go.id/…/Human_Trafficking_a_global_perspektif_)
[ix] M.P. Singh, ‘VN Shukla’s Constitution of India’, 11th edn., Eastern Book Company: Lucknow, 2008, p.233.
[x] 1990 AIR 1412, 1990 SCR (2) 861
[xi] (1998) INSC 189 (30 March 1998)
[xii] Infra note 12.
[xvi] (1984) 2 SCC 244
[xvii] AIR 1984 Supreme Court 802
[xviii] Jared Leto.