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
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: Revisited:
Trafficking of human beings is the recruitment, transportation, transfer and receipt of people for the purpose of exploitation (labour/sexual) by coercion, fraud, deceit, threat, abuse of power or position of vulnerability.
Victims of Trafficking:
The illicit and clandestine movement of persons across national borders, largely from developing countries and some countries with economies in transition, with the end goal of forcing women and girl children into sexually or economically oppressive and exploitative situations for profit of recruiters, traffickers and crime syndicates, as well as other illegal activities related to trafficking.
Extent to Which Immoral Trafficking is Addressed:
The most comprehensive definition of trafficking is the one adopted by the UN Office of Drugs and Crime in 2000, known as the “UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,” 2000 under the UN Convention against Transnational Organized Crime (UNTOC). This Convention has been signed by the government of India.
Child Trafficking: Role for Judicial Activism:
The 1949 Convention against trafficking gave rise to the first Indian law against trafficking- The Suppression of Immoral Traffic Women & Girls Act 1956.
Commercial Sex Workers:
The commercial sex worker has been a universal being throughout civilization as prostitution is the so-called "oldest profession". The earliest known record of prostitution appears in ancient Mesopotamia.
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