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Introduction
Trafficking in Women and Children is the gravest form of abuse and
exploitation of human beings. Thousands of Indians are trafficked
everyday to some destination or the other and are forced to lead
lives of slavery. They survive in brothels, factories,
guesthouses, dance bars, farms and even in the homes of well-off
Indians, with no control over their bodies and lives.
The Indian Constitution specifically bans the traffic in persons.
Article 23, in the Fundamental Rights section of the constitution,
prohibits "traffic in human beings and other similar forms of
forced labor". Though there is no concrete definition of
trafficking, it could be said that trafficking necessarily
involves movement /transportation, of a person by means of
coercion or deceit, and consequent exploitation leading to
commercialization. The abusers, including the traffickers, the
recruiters, the transporters, the sellers, the buyers, the
end-users etc., exploit the vulnerability of the trafficked
person. Trafficking shows phenomenal increase with globalization.
Increasing profit with little or no risk, organized activities,
low priority in law enforcement etc., aggravate the situation. The
income generated by trafficking is comparable to the money
generated through trafficking in arms and drugs.
Trafficking in human beings
take place for the purpose of exploitation which in general could
be categorized as (a) Sex -based and (b) Non-Sex-based. The
former category includes trafficking for prostitution, Commercial
sexual abuse, Pedophilia, Pornography, Cyber sex, and different
types of disguised sexual exploitation that take place in some of
the massage parlors, beauty parlors, bars, and other
manifestations like call girl racket, friends clubs, etc. Non sex
based trafficking could be for different types of servitude, like
domestic labor, industrial labor, adoption, organ transplant,
camel racing marriage related rackets etc. But the growing traffic
in women is principally for the purpose of prostitution.
Prostitution is an international problem which can be found in
both developing and industrialized nations. Unfortunately, society
remains tolerant of this abominable crime against women. There are
ways of getting women into prostitution that are common to many
countries; then there are particular methods unique to a country.
Probably the three most common methods are false employment
promises, false marriages and kidnapping. But what makes women and
girls vulnerable are economic distress, desertion by their
spouses, sexually exploitative social customs and family
traditions.
In a recent survey in India,
prostituted women cited the following reasons for their remaining
in the trade, reasons that have been echoed in all concerned
countries. In descending order of significance, they are: poverty
and unemployment; lack of proper reintegration services, lack of
options; stigma and adverse social attitudes; family expectations
and pressure; resignation and acclimatization to the lifestyle.
The two principal Indian laws
that address trafficking and prostitution in particular are the
Suppression of Immoral Traffic in Women and Girls Act of 1956 (SITA)
and the Immoral Traffic (Prevention) Act of 1986 (ITPA),
colloquially called PITA, an amendment to SITA. Neither law
prohibits prostitution per se, but both forbid commercialized vice
and soliciting. Aside from lack of enforcement, SITA is
problematic in several ways. One of its drawbacks is that the
prescribed penalties discriminate on the basis of sex: a
prostitute, defined under SITA as always a woman, who is arrested
for soliciting under SITA could be imprisoned for up to a year,
but a pimp faces only three months. SITA allowed prosecution of
persons other than the prostitutes only if the persons involved
"knowingly" or "willingly" made women engage in prostitution.
Accordingly, pimps, brothel owners, madams, and procurers could
feign ignorance of prostitution and escape punishment. The client,
moreover, was not viewed as an offender and could not be
sanctioned under SITA. Finally, SITA only addressed street
prostitution; prostitution behind closed doors was left alone -- a
loophole that actually promoted the establishment of brothels.
SITA, a penal law, was passed in 1956 and enforced in 1958 as a
consequence of India's signing the Trafficking Convention, rather
than as a result of any mass social welfare movement. SITA did not
seek the "abolition of prostitutes and prostitution as such and to
make it per se a criminal offence or punish a person one
prostitutes oneself." Its stated goal was "to inhibit or abolish
commercialized vice, namely the traffic in persons for the purpose
of prostitution as an organized means of living." Prostitution was
defined as the act of a female who offers her body for promiscuous
sexual intercourse for hire. Accordingly, the engagement by a
woman in individual, voluntary, and independent prostitution was
not an offense.
The law permitted penalization of a woman found to be engaged in
prostitution under certain conditions. For example, Section 7(1)
penalized a woman found engaged in prostitution in or near a
public place. Section 8(b) did the same for a woman found seducing
or soliciting for purposes of prostitution. The law also permitted
a magistrate to order the removal of a person engaged in
prostitution from any place and to punish the person upon refusal.
Offenses under SITA were bailable, but a woman picked up from the
street by the police usually did not have either the money or the
influence to keep her out of custody or free from fines.
Several studies across India
have shown that this is the most abused section of the ITPA, used
more as a tool for harassment and extortion by the law
enforcement. Women are apprehended from known red-light areas
whereas their brothel keepers and pimps are left untouched. In
cases of organized prostitution, this results in continual debt
bondage for the amount paid by her keepers as a fine or as a bail
amount. In fact, sometimes the brothel keepers are alleged to
collude with policemen and arrange the arrests of "their" women so
they can continue to serve in bondage.
India is said to have adopted a tolerant approach to prostitution
whereby an individual is free to carry on prostitution provided it
is not an organized and a commercialized vice. However, it commits
itself to opposing trafficking as enshrined in Article 23 of the
Constitution which prohibits trafficking in human beings. India is
also a signatory to international conventions such as the
Convention on Rights of the Child (1989), Convention on
Elimination of all forms of Discrimination Against Women (1979),
UN Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children (2000) and the latest South
Asian Association for Regional Cooperation (SAARC) Convention on
Preventing and Combating Trafficking in Women and Children for
Prostitution (2002).
A trafficked victim is
therefore, a victim of multiplicity of crimes, and extreme form of
abuse and violation of human rights. The constitution of India,
under article 23 specifically prohibits trafficking in human
beings. At present the legal regime to trafficking of women and
children for commercial sexual exploitation includes the
following.
a. Indian Penal Code 1860
b. ITPA-1956
c. J.J. Act-2000.
d. Special laws of various states.
e. Rulings of Supreme Court and High Court.
The lack of understanding of
trafficking by the legal system could arise from one or more of
these factors: first, there is no definition of "trafficking" or
"trafficker" under the Act. Therefore, the police and the
judiciary do not have an understanding of the complexities
involved when a woman is trafficked, the different types of
traffickers, and their strategies. Neither does the court attempt
to hear the trafficked woman and her experiences. Second, the Act
also focuses on establishing "the purposes of prostitution" for
every offence which conveniently takes the attention away from
trafficking. For example, even to convict a trafficker for the act
of keeping a brothel, it becomes important to establish that
prostitution was taking place. So, when a woman who is trafficked
is kept in captivity for a period of time, it cannot amount to an
offence unless the place satisfies the criteria of a "brothel."
Similarly we find that in every case involving a raid there is
also an elaborate description of how the woman was clothed when
the raiding party found her in order to prove that she was getting
ready for sexual intercourse with the decoy witness and thus her
existence for the "purpose of prostitution" could be established
beyond "reasonable doubt." That the clothing or actions of a woman
at that point of time should not negate the fact that she was
trafficked seems to slip away from the adjudication process. The
Act thus misses out on what actually constitutes trafficking--the
elements of force, deception, and coercion, which go on overtly
and covertly over a period of time. Thirdly, in spite of the
definition of prostitution having changed from "the act of a
female offering her body for promiscuous sexual intercourse for
hire, whether in money or in kind, and whether offered immediately
or otherwise" to "sexual exploitation or abuse of persons for
commercial purpose," there is no perceptible attitude shift in the
lawmakers and enforcers from taking efforts to curb prostitution
to curbing trafficking. Moreover no powers are given to the
Magistrate to order eviction of traffickers.
Thus there exists a need for a
specialized legislation in India to deal with trafficking even
though the existing Indian Penal Code (IPC), 1860, deals with the
offences of kidnapping, abduction, and buying and selling of
minors (Sections 359-373 of IPC). The IPC is narrower in scope to
deal with the wide range of activities involved in trafficking
which do not neatly fit into "kidnapping" or "abduction." For
example luring, coaxing individuals in vulnerable positions with
false promises of better jobs, contract work as domestic workers,
mail order brides, and situations where the women are sold in
connivance with the parents or husband. The IPC is thus less adept
in dealing with the nuances involved in organized trafficking
In order to ensure effective
implementation of the existing law there is a need for
sensitization of all concerned in the criminal justice system,
including judicial officers, prosecutors, medical experts, Police
officers. Moreover there should be partnership with the NGOs so as
to ensure law enforcement, rescue, prevention, counseling,
rehabilitation, reintegration, social empowerment etc.
Piloting Good Practices:
1. Compulsory Registration of birth with special focus in
vulnerable areas.
2. More than 70% of victims belong to SC and backward castes that
are desperately poor. Need to improve the lot of people especially
women by specially targeted programmes.
3. Devise a system to monitor
missing persons across district and state borders.
4. Creating a database on trafficking including routes, vulnerable
areas, information about traffickers and their whereabouts,
information about NGOs working in this filed in different
districts and states, information about local bodies, Panchayats
and self-help groups in the vulnerable areas.
5. Drawing up specific guidelines for investigation and
prosecution of trafficking.
6. Identifying areas for law reforms in the area of trafficking
including both substantive as well as procedural law.
7. Coordination among different state police departments working
in this field including sharing of information regarding
interstate traffickers.
8. Permanently closing brothels known for repeated offences.
9. Improvements in victim care at government run facilities. These
shelter homes should have counselors, nurses, physicians,
psychiatrists etc. Such effort has been made by Maharashtra’s
Social Defense Department in coordination with NGOs which led to
an overall improvement in the environment of shelter homes.
10. Victim Compensation Fund to be created so as to provide
vocational trainings, give loans etc. so as to enable victim to
become economically independent.
11. Provision for confiscation of property and assets of
traffickers and agents of organized prostitution/flesh trade.
12. Formation of Community Vigilant groups in vulnerable areas.
13. Setting up of crisis centers at Railway Stations and bus stops
in trafficking prone areas/routes. These may be manned by a group
consisting of NGOs and police.
14. Drop in centers and night care services for children in red
light areas.
15. Promoting programs to stop second generation trafficking by
providing educational options to the children of sex workers and
other vulnerable children.
Thus the lack of an integrative approach towards prevention,
rescue, repatriation and reintegration presses for a new
legislation and in the view of the United Nations High Commission
there exists a need for initiation of public information campaigns
to make both potential victims and the general public aware of the
terrible exploitation and possible loss of life inherent in
trafficking in women and children.
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Trafficking
in Women and Children
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The
author can be reached at:
k.malavika@legalserviceindia.com /
