Disha Agarwal pursuing BBA LL.B. (Hons.) from ICFAI Law School, Hyderabad.
SEXUAL SLAVERY WITHOUT BORDERS: TRAFFICKING FOR COMMERCIAL SEXUAL EXPLOITATION IN INDIA
Trafficking of women and children is considered as the most contemptible forms of human rights violation. Human trafficking for commercial sexual exploitation has been defined as the modern form of slavery and is the most gross violation of human rights. India has been recognized as one of the severe affected countries in this regard. It faces the problem of both in-country and cross border trafficking. The meaning of Human Trafficking can be understood through ‘Action Means Purpose’ model:
Act refers to- the act of harbouring, transportation, recruitment.
Means refers to- Wherein it is done through the means of coercion, threat, undue influence, misrepresentation, fraud, deceit, abuse of power, by making payments or providing benefits to the person who is controlling the victim.
Purpose refers to- The Act is done for the purpose of sexual exploitation, exploitation, prostitution, commercial sexual exploitation, slavery, sexual slavery etc.
It is imperative to note that trafficking does not necessarily means transporting the victim to a particular destination, coercing the victim to do exploitive acts also suffices within the definition of trafficking.
There are series of international treaties and conventions that strengthen their goal in protection of children and girls from trafficking for commercial sexual exploitation- The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979, the Convention on the Rights of the Child (CRC), 1989 etc. The international instruments that deal exclusively in regard to trafficking are : The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000, The SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002.
Factors of CSE:
There are various factors which lead to trafficking of women and children for commercial sexual exploitation. These traffickers are mainly driven by the vulnerability of these two groups: women- minor girls and children.
Poverty: The traffickers usually target poor households whom they can blackmail for money. Such poor households also lack to take an initiative or lodge a complaint against such crimes. These include female house-holds, families below the average poverty line, indebted families etc.
Unemployment and migration: Due to low unemployment opportunities, people are forced to migrate to cities or semi-urban areas and thus fall prey to such trafficking due to their vulnerability.
Certain other economic factors such as globalization, income disparities between rural and urban states, growth of tourism- whereby tourists fall prey to trafficking.
Domestic violence: Increased activities of domestic violence and subsequently increasing tolerance towards those activities constitute essential factors for trafficking for commercial sexual exploitation.
Caste-based discrimination: Due to the discrimination based on castes in India, certain castes which are considered backward and poor like Dalits, SC’s ST’s etc. essentially fall prey to these activities.
Gender discrimination: This is one of the major reasons in India which make women, minor girls vulnerable to trafficking. Due to low opportunities and lack of equality in all respects lead to an increase in such activities towards them.
Other factors such as social beliefs, child marriage, stigmatization of divorced, widowed etc constitute social cultural factors.
There are other factors as well like lack of effective governance or policies to combat trafficking for CSE, environmental factors like drought, cyclone which result in deprivation of long-term sustainable livelihood etc.
There are different forms of commercial sexual exploitation in India. It includes recruiting girls from economically deprived and marginalized groups like SC’S ST’S, Dalits and selling them off to brothel workers whether inside India or outside India and are forced for prostitution and sexual exploitation. Such activities may be carried out by known family members also. It also includes kidnapping, abducting of potential victims. There are also certain kind of recruitment strategies which employers adopt: giving false promotion to a foreign country or a different state. One of the most common form of CSE which was and is still prevalent in India is child marriage whereby underage girls are forced to marry adults and later on sold for sexual exploitation. Through customary sexual exploitation also such trafficking takes place, whereby girls are sexually exploited in the name of religious and tribal prostitutions, they are forced to stay as concubines for the temple priests etc and then sold off to brothel owners. Commercial sexual exploitation also occurs through sex tourism. This kind of commercial sexual exploitation of minor girls and boys is carried out by Indian and International tourists. Such CSE activities are becoming prevalent in the girls and children of upper castes as well. The brothels are also not restricted to traditional brothels but include dance bars, mobile bars, pubs etc.
Legislations dealing with trafficking for CSE:
Human Trafficking is prohibited under Article 23 of Indian Constitution, which states that trafficking in human beings, beggary and other similar forms of forced labour are prohibited under the Constitution and any violation of the same shall be an offence punishable in accordance with the law. Other constitutional provisions in relation to trafficking include right to equality, right to equal protection under the law, right to life and liberty and right for children from engaging them in hazardous forms of labour.
Legislation dealing currently with trafficking are Immoral Traffic Prevention Act, 1956 (ITPA) and the Indian Penal Code (1860), Protection of Children from Sexual Offences Act, 2012, Juvenile Justice (Care and Protection of Children) Act, 2000.
Immoral Traffic Prevention Act, 1986 (ITPA):
Immoral Traffic Prevention Act, includes trafficking only for Commercial Sexual Exploitation. It does not include other forms such as trafficking for physical purposes which are covered under other legislations. The ITPA was put in force so as to comply with India’s obligation under the UN Suppression of Traffic Convention. ITPA focuses on prevention of trafficking, prosecution of traffickers and subsequently protection of victims. It prohibits various kinds of activities and punishes people who are involved in such activities like: keeping a brothel, procuring the services of prostitution with or without consent, any activity in furtherance of prostitution, seducing a person in custody etc. The ITPA Act amendment has been proposed so as to increase the age of children from 16 to 18, It contains major amendments like setting up of an institutional mechanism such as central nodal authority for preventing and combating trafficking. It also enhanced the punishments in relation to trafficking of children.
The ITPA confers exclusive powers for rescue and rehabilitation of victims to the police officers and magistrates. The Act authorizers the police officers to conduct search without the authorization upon satisfaction of the conditions laid down in the Act. It also provides that the rescued children upon health check-ups are put in protective homes. Any person contravening the provisions laid down under the Act are punishable with imprisonment where their punishment extends up to 7-10 years. Though this Act exclusively deals with Trafficking for commercial sexual exploitation, there has been less focus on rehabilitation and rescue of the victim.
Indian Penal Code, 1860:
IPC covers under its ambit a number of trafficking related provisions. It prohibits the following activities such as: kidnapping or abducting of girls for reason such as illicit intercourse or marriage against their will and subjecting them to slavery. It also includes importation of girls from a foreign country, selling girls for prostitution, buying and selling of minors. It also includes provisions of wrongful restraint or wrongful confinement.
The Criminal Law Amendment Bill, 2013 has been passed where Section 370 is replaced by Section 370-A whereby it provides for detailed provisions to counter the menace of human trafficking. It included different types of exploitation such as physical exploitation, any type of sexual exploitation, slavery, forceful removal of organs etc.
This Act includes within its ambit prevention of trafficking for commercial sexual exploitation of minor girls. This Act covers penetrative sexual assault against any child, penetrative sexual assault committed by persons who are in authority. It also includes punishment for various kinds of sexual assault against a child and also covers any person who abets or instigates such kind of offences. It further has also added an explanation which states that whoever employs, harbours, transports the child by means of threat, fraud or coercion or gives payments or benefits to receive consent of a person who is under control of another person shall be liable for abetment of the act.
The said Act recognizes that the child who is vulnerable and can be inducted by trafficking is construed as a child in need. It provides for provisions for rescue and rehabilitation of such children. It establishes NGO’s and child welfare committees to ensure better protection of the child in need. The Act aims at providing speedy and better treatment by conforming to child’s development needs. It thereby adopts a child-friendly mechanism.
There are other legislations also which deal with trafficking of women and children such as : Prohibition of Child Marriage Act, 2006, Bonded Labour System (Abolition) Act, 1976, Child Labour (Prohibition and Regulation) Act, 1986, Transplantation of Human Organs Act, 1994, Goa Children’s Act, 2003.
A way forward:
Ø There are innumerable laws that deal with trafficking of children and women in part and parcel. What lacks is effective implementation strategies. Several laws explicitly violate human rights like taking away the children from the women engaged in prostitution, preventing women from engaging in sex work and forcing them to migrate makes them vulnerable to trafficking. The laws need to be victim-friendly.
Ø Human Trafficking is not considered as a priority in India, laws have become outdated, it lacks effective implementation. It is also to be noted that the laws dealing with trafficking in India include within its ambit only women and children, thus making the laws gender-biased. Considering the increasing number of crimes against men, it is essential to formulate laws that are gender centric.
Ø Keeping the lacunas in mind, the Government has enacted a scheme namely: ‘Comprehensive Scheme for Prevention of Trafficking for Rescue, Rehabilitation and Re-Integration of Victims of Trafficking for Commercial Sexual Exploitation-Ujjawala’. The main focal points of this scheme are prevention of trafficking on one hand and rehabilitation and rescue of the victims on the other hand. This scheme has emerged as a ray of hope as long provided it is implemented well.
Ø An Anti-Trafficking Cell was set up in 2006 by way of an administrative measure to act as a focal point for tackling problems related to human trafficking. It communicates information to various authorities and also provides them with follow-up and actions plan to deal with discrepancies.
Ø Amidst legislative and administrative measures, what is required most is the awareness among people. As children are vulnerable towards trafficking, programs must be carried out to bring awareness among them. An in-depth awareness regarding existing legislations, preventive strategies and step by step procedure can be explained to them.
Ø It is imperative that India changes its social and cultural atmosphere and put an end to caste and gender-based discrimination which will go a long way in battling trafficking and other types of illegal activities.
Ø NGO’s or other type of charitable institutions can pursue cases on behalf of victims. Many people do not want to initiate an action against such crimes as they are quite expensive and time consuming. Providing legal aid will encourage more victims to pursue legal and administrative remedies.
Ø Considering the paradigm shift from offline to online mode, an anti-trafficking web portal or an anti-trafficking mobile app can be instituted. It can provide for basic services such as helpline in case of emergency, location tracking, steps to combat and further regarding legal help details can be provided.
Ø ITPA is quite inadequate to deal with the issues arising in relation to trafficking. It fails to provide the definition of the term trafficking and commercial sexual exploitation. The Act does not provide comprehensively for the rights of the victim. There are certain provisions like in camera proceedings which prevents victims from testifying. The Act in toto can be construed as not a victim friendly act.
Ø ITPA needs to be amended which covers all the necessary provisions. The definition of trafficking should be inserted as construed under Article 370-A of the IPC, 1860. It is of significance that there should be a clear demarcation between sex work which is per se legal and commercial sexual exploitation leading to trafficking, becoming illegal. A distinction between sexual activities that are legal and illegal would also help in protecting genuine sex workers since it is not outlawed in India. The term used in the Act is ‘corrective homes’ which indicate making wrong things right. So, the term corrective homes shall be replaced with rehabilitation homes or centres thereby making a step towards victim-friendly approach.
Ø Other forms of recommendations include enhancement of punishment and effective implementation strategies.