© Global Synergetic Foundation, (2006

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Combating the Trafficking of Children for Commercial Sexual Exploitation
dr.s.s.d.pandey www.satishankar.com

The overwhelming presence of people of Indian origin in and the presence of Nepalese population in the Terai region contiguous to the Indo-Nepal border has made socio-cultural intercourse indispensable. The 1700 km long Indo-Nepal open border has not only facilitated socio-cultural exchanges that date back to centuries but have been strengthened by age old historical ties. The geographical proximity and socio-cultural affinity have determined the contour of the relationship between both the countries. The geographically contiguous and open border in this context has serious implications. In this context, "it is virtually impossible to stop the streams of ideas, information, weapons, diseases, socio cultural malpractices and money moving through the trans-state networks...and these networks have become more sophisticated as a result of recent development in communication and transportation.” The open border has the potential to facilitate such transactions very smoothly. This is possible because Diasporas often create trans-state networks that permit and encourage exchanges of significant resources such as money, manpower, political support and cultural influence, with their homelands as well as their ethnic community living in other parts of the world. Socio-cultural similarities on either side of the international border, a universal phenomenon, are more pronounced in the case of Nepal-India border, because such ties have been enhanced by open border with no restrictions on the movement of people on either side. Social and cultural similarities do exist along the Nepal China boundary as well but more so in the case of Nepal India border where people have easier access and interaction. Ethnic and linguistic similarities exist along the NepalIndia border both in the south plains and hills in the east and west. The open border has naturally promoted social and cultural interaction among the nationals of both sides through matrimonial relationship as well.

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Every year thousands of children are migrated from villages to the different cities of Nepal and India. Many of them are working there as rag pickers, domestic child workers and carpet workers etc.

B. Magnitude of Problem: B1 It is estimated that about 200,000 Nepali women and children who are trafficked and sold into India over the period of year are working as the forced prostitutes in brothels in different parts of India. B2 It is estimated that there are at least 20% children less than 16 years of age are sold and trafficked for prostitution. Some of the children who are trafficked and sold into the brothels are as young as 10 years old. B3 Most of women and children who are trafficked into India come from mountain areas of Nepal and they are cheated and deceived by traffickers using different tricks, fake attractions, and fraud marriage. A majority of girls who are the victims of trafficking and forced prostitution used to work as weavers in the carpet factories both in India and Nepal. Many researches and case studies in this regards have revealed that carpet industries, especially in Nepal are used as the safest transit place for trafficking by the traffickers. Main Entry/Exit Points: There are about 500 miles of open border between Nepal and India, while there are about 30 entry/exit points. However, the open Das Gaja in the southern part of Nepal has also provided an informal entry/exit point for people. Main Entry/Exit Points to India: East: Kankarbhitta,Jogbani,Pashupati Nagar,Koshi ,Gaur,Bhitta,Shikharbaas,Chhapkaiya

Barrage,Bhadrapur,Lagma

South: Jaya Nagar, Sunauli, Mauwa, Bhagawanpur, Dubi, Raxual, Susta,

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West:Jamuna,Belia,MahendraNagar,Krishna Nagar,Koilabaas,Banabasa,Kanchanpur,Gulariya,Belauri,Bhajani Source: CWIN B6 An estimated figures of Nepali women and child victims who are working in different parts of India: S.No. B6.1 B6.2 B6.3 B6.4 B6.5 B6.6 B6.7 B6.8 B6.9 B7.0 Cities Bombay Calcutta Delhi Gorakhpur Pune Patna Lakhnau Madras Surat: Others Nos. 45,000 35,000 20,000 04,000 03,000 04,000 02,500 03,500 01,500 26,000

Source: Informal Estimation B7 A majority of women and girls who are the victims of trafficking, come from the so called low caste community, poverty stricken areas and urban poor areas where the level of social consciousness is low. B8 Images of good jobs, success, money and glamour. The desperate people of the villages are more than willing to try their luck, thus becoming the perfect target for traffickers. For many people in Nepal, India means Bombay, and Bombay is their dream land where they dream to put an end to their lives of poverty and hardship. The Roots of the Problem: UNVEILING THE CRUX OF THE CONCERNS PUSH FACTORS: POVERTY/GENDER DISCRIMINATION/LACK OF ACCESS TO RESOURCES/POLITICAL DISRUPTION¨

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PULL FACTORS: CIRCUS, CHEAP LABOUR, ENTERTAINMENT INDUSTRY, SEX INDUSTRY, BONDED LABOR ETC.¨ POVERTY: FEMINISATION/UNEQUALDISTRIBUTION/MARGINALIZATION/ NON RECOGNITION OF LABOR AND EARNING¨ UNDEREMPLOYMENT: LACK OF JOB OPPORTUNITIES/GENDER DISCRIMINATION SOCIAL STIGMA: GENDER DISCRIMINATION/ FAMILY DISINTEGRATION CHILD ABUSE AND NEGLECT: STREETCHILDREN/WORST FORM OF CHILD LABOR¨ GOVERNANCE: DECENTRALIZATION, WOMEN’S POLITICAL EMPOWERMENT, BIRTH REGISTRATION, CORRUPTION, UNDER REPORTING ETC. Review and Assessment C1. Social - Cultural Domain Social Unawareness Our social-cultural domain is entangled with traditions superstitions and male chauvinist concepts that encourage discrimination against daughters. Unless daughters are provided with equal opportunity and initiatives are taken to ensure overall development of women, this practice will continue to exist and grow. Ultimately our sisters and daughters will be compelled to survive under injustice and exploitation. For years, our mind has been preoccupied with superstition and evil practices. Unless we get rid of exploitative thinking and activities through good social-cultural processes, the evil practices such as the Badi-Badini, Deuki, Dattak and Jhuma systems will continue to exist. Our children and women must be liberated from such social-cultural restrictions. This is the need of hour. C1.1 Caste System C1.2 Child Marriage C1.3 Traditional Prostitution/Religion C1.4 Family Break-ups C1.5 Tradition of Nurshing Mother C1.6 Lack of Social Awareness C1.7 Degrading Social Status of Women C1.8 Jari:Traditional Marriage Practice

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C1.9 Migration C1.10 Neglected Status of the Girl Children

INCIDENCES AND STATISTICS¨ TRADITIONAL MAPPING: SPECIFIC AREA, ETHNIC GROUP(S) AND FIXED OUTE/EXITPOINTS ¨ SHIFT ON FOCUS: GREY AREAS EXPLORED/NO PARTICULAR ETHNICPREFERENCE AND ROUTE CHOICE ¨ HIGH VOLATAGE ZONES: MAGNITUDE ANDGRAVITY LESS VISIBLE ¨ DATA VARIATION AND ASSUMPTION: ANECDOTAL/RAPID ASSESSMENT AND SAMPLE SURVEY-BASED Section A: UNDERSTANDING TRAFFICKING ¨ DEFINITION AND DEBATE: NEW DYNAMICS/VISIONING ESTABLISHED ¨ MODES OPERANDI: NEW NATURE/ PATTERN/PROCESS (SOURCE, DEMAND ANS EN-ROUTE) DEMYSTIFIED AND COMPREHENDED ¨ WOMEN AND CHILDREN: SPECIFIC/DISTINCTNEEDS IN THE ENTIRE PROCESS AND STAGESIDENTIFIED AND ACKNOWLEDGED ¨ PROSTITUTION AND TRAFFICKING: PRINCIPAL AND PROSPECTS DEBATED AND POSSIBLE RECONCILIATION OF SCHOOL OF THOUGHTS STREAMLINED ¨ IMPACT ASSESSMENT: GENDER INJUSTICE, ECONOMIC LOSS, HEALTH (STIGMATIZATIONOF HIV/AIDS AND TRAUMA C2 Economic Exploitation C2.1 Unfair distribution of wealth/lack of economic justice C2.2 Unequal land holding system C2.3 Weakening women’s situation in economic decision C2.4 Denial of women's rights to parental property is also a violation of human rights. C2.5 Lack of training, skill education and employment

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MOBILITY TRENDS AND PATTERNS

a) MIGRATION AND TRAFFICKING¨ VOLUNTARY vs FORCED
MIGRATION: PREDEPARTURE TRAINING/MIGRATION TIPS¨

b) SAFE vs UNSAFE MIGRATION:
RISK AND VULNERABILITY¨ VOLUNTARY MIGRATION: FALSE HOPE(GREEN PASTEUR) AND DECEPTION¨ FOREIGN EMPLOYMENT POLICY: GENDER DISCRIMINATION IN FREEDOM OF MOBILITY C3 Lack of Political Commitment: C3.1 Issues related to women and children are not prioritised into the political programme. C3.2 Lack of adequate laws for the protection and prevention of children who are the victims of trafficking and selling. C3.3 Ineffective implementation and enforcement of the laws and policy regarding the rights of women and children. C3.4 Lack of implementation of national regional and international commitments of HMG/Nepal on Human Righs Issues. C3.5 Lack of clear visions and understanding for the protection of the Rights of the Child. C4 Open Border Passport to the hell. Evidence has proved that the age- old friendship border between Nepal and India has unfortunately become a golden gate for criminals. For many innocent children and women of Nepal, this has been proved to be the passport to Hades. Trafficking in women and children in Indo-Nepal border mainly involves the commercial sexual exploitation, however, issues like child labour, bonded child labour and organ transplantation are also covered here. C5 Growing Crimes against Women and Children

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Statistics have shown that most of the crimes in the world have been targeted against women and children. In Nepal as well, crimes against women and children are increasing. Crimes like rape, child prostitution, child marriage, child servitude, kidnapping of children, and exploitative child labour are occurring in every nook and corner of the country almost daily. Despite their illegality, such activities exist in our society as fait accompli. Until crimes and violence against women and children are eliminated, their rights and dignity cannot be established and restored. For this, necessary measures should be taken to fight against the crimes against women and children. D. Laws and Policy against Trafficking in Women in Nepal Constitutional Provisions against Human Trafficking: Under Article 20(1), the Constitution has guaranteed for all citizens the right against exploitation. As such, the article explicitly prohibits " the traffic in human beings, slavery and serfdom or forced labor in any form." Any act contravention to this provision is, therefore, punishable as a criminal offence under the existing law. Pursuant to the constitutional provision, the crime of trafficking of human being is rendered a criminal offence against the state. Definition of the Crime of Trafficking in Women by Civil Code (Muluki Ain), 1964: Section on Human Trafficking of the Civil Code, (Muluki Ain) 1964 defined the traffic in human being as a crime. Clause 1 of this section prohibits the act of taking any person of persons, by fraud or incitement, out of the territory of the country with an intention of selling. The same clause has stated that such an act as punishable by 10 to 20 years of imprisonment, and also prescribed the same punishment for those involved in buying the person or persons, provided that such culprit is available in the territory of Nepal. Provisions against Trafficking in Women as stated by Human Trafficking (Control) Act, 19986: This Act was enacted to cope with the growing menace created by the crimes of trafficking in women and girls for prostitution. The section 11 of this Act stipulates that no other law apply in matters that are covered by this act. The Human Trafficking Act, 1986, is, therefore, a specific law relating to crimes of trafficking in human being:

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Section 4 of the Human Trafficking (Control) Act prohibits the following acts as the crime of trafficking in human being: Selling of a human being for any purpose - Taking any person to foreign territory with an intention of selling - Involving any woman in prostitution by enticement or allurement or fraud, or threat or coercion, or by any other way or means; and - Abetting or assisting or conspiring and making attempt to carry out any of the above mentioned acts. Punishment against Human Trafficking by Law: The above mentioned acts have been made punishable by section 8 of the Act as follows: - 10 to 20 years of imprisonment for the crime of selling a person or persons - 5 to 10 years of imprisonment for the crime of taking a person to a foreign territory with an intention of selling - 10 to 15 years of imprisonment for the crime of forcing a woman into prostitution, and - 5 years of imprisonment for the crime of abetting or assisting or conspiring, or making attempt to accomplish the above mentioned acts - Sub-section of the section 8 provides for the pecuniary penalty too. As per the provision, the person convicted of the crime of selling human being is penalised, in addition to the imprisonment, with an amount of money equivalent to the amount involved in the transaction. The act, however, does not provide for any punishment or pecuniary penalty for the person engaged in the crime of buying. Special Provisions of Human Trafficking Act, 1996: This Act is a piece of legislation that makes provisions for stringent penal system. Considering the complexity of the situation that happens to be associated in this kind of crimes, the Act has made a special provision of shifting the burden of proof on the defendant. As such, the accused person has to discharge the evidentiary obligation to prove his innocence. Procedures and Jurisdiction:

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The State Cases Act, 1993, has defined the crime of trafficking in women and girls an offence against the state. Apparently, it obliges the state to investigate and prosecute the offence by using the state machinery. As provided by the Act, the investigation is initiated by the complaint about the offence by the victim or any person having knowledge of such crime. The complaint of the victim is recorded by the concerned Government Attorney, the Prosecutor, and by the order of the district court judge. The victim then becomes an important witness of the prosecutor. Extra-Territorial Jurisdiction: The Human Trafficking (Control) Act, 1986, is one of the very few statutes that recognizes the principle of extra-territorial jurisdiction of the state of Nepal. This Act stipulates to have the extension of the jurisdiction in any crime under this Act beyond frontiers of Nepal. As such, any crime relating to the trafficking in women and children having taking place in the foreign territories is recognizable in the courts of Nepal. INTERNATIONAL INSTRUMENTS ANDLINKAGE TO TRAFFICKING ¨ CEDAW/CRC-1979/1989 : FOUNDATION FORPROBLEM RECOGNITION/AMPLIFICATION ¨ SAARC CONVENTION-2002: NEW TOOL FORREGIONAL/CROSS BORDER COOPERATION ¨ INDO-NEPAL FRIENDSHIP AND PEACETREATY-1950: FREE MOBILITY vsOPEN/POROUS BORDER ¨ UN PROTOCOL-2000: PROGRESSIVE ANDBINDING INTERNATIONAL ARRANGEMENT ¨ US ACT:2000: LEVERAGE AND LACUNAS/REWARD AND PUNISHMENT Inadequacy and Ambiguities of the Laws: Human Trafficking (Control) Act, 1986 has suffered a very serious weakness in terms of Definition as it fails to bring within its ambit the act of separating any person from the legal guardian with an intention of trafficking for prostitution. Hence, no crime is established against someone who is found engaged in separating women or girls from their guardians, but has not yet taken the victim out of the territory of the country. Similarly, the Act has no provision of punishment to the culprit involved in the purchase of the women and girls for prostitution.

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The victim of trafficking is an important witness of the prosecutor during the trial. However, there is no place for protecting such witness arranged by the state. Apparently, the victim is often exposed to the danger of being threatened or forced by the culprits to change the statements or to become indifferent to the case. This has been seen in quite a number of judgments of the courts, in which the accused persons have been released on the ground that the victim failed to turn up to the court. Violence against Women and Ninth Five Year Plan: Despite so many national, regional and international commitments of HMG/Nepal, the issue of trafficking in women and children has not been properly addressed by the Ninth Five Year Plan (1997-2001). What has mentioned in the Plan is to protect human rights of women by taking preventive, protective and rehabilitative measures through the coordinated process among the Hilfsprogramme and activities of Government, NGOs and Local agencies to combat violence against women. Poor Enforcement of the Laws: F. The Way Ahead: F.1 The Challenges: F1.1 Lack of reliable information and poor level of social awareness. F1.2 Lack of victims support Hilfsprogramme. F1.3 Lack of coordination by HMG/Nepal. F1.4 Lack of proper investigation process. F1.5 Lack of law enforcement and political commitment in action. F1.6 Lack of women's empowerment Hilfsprogramme in action. F1.7 Lack of enough community conscientisation programme for the promotion and protection of the rights of women and children. F1.8 Growing rural migration to the cities. F1.9 Lack of economic alternatives for victims F1.10 Lack of bilateral initiatives between Governments of India and Nepal to combat trafficking in women and children. F.2 The Need for Change: F2.1 Law on crime against women and children F2.2 Independent council on women and children

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F2.3 Alliance of social organisations against crime on women and children F2.4 Special women and children's cell in Police Department F2.5 Bilateral initiatives of Nepal and Indian governments in order to fight against child traffickers and monitor border security F2.6 Victims' support programme F2.7 Community policing F2.8 Social awareness Hillsprogramme against child sex abuse and exploitation F2.9 Media awareness to deal with the cases of the child victims F2.10 Protection from Re-victimization F3 Lessons Learned: F3.1 Advocacy in Action F3.2 Pressure and Partnership F3.3 Intervention for the Change in Attitude F3.4 Question of Re-victimization F3.5 Psycho-social Counseling F3.6 Fight against the Crime F3.7 No Rescue Operation without Enough Home-work F3.8 Conflict Management F3.9 Community Rehabilitation of the Victims F3.10 Empowerment in Action F4 Strategies for Intervention: 1 Social awareness 2 Employment and Self-reliance 3 Co-ordination and alliance building work 4 Law Reform and Law enforcement 5 Systematic Crime Investigation 6 Border security 7 Information and Communication for action 8 Action against Crime on women and Children 9 STDs and HIV/AIDS 10 Bi-lateral/multi-lateral Political Agenda F5 Victims Support Programme

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F5.1 Rescue of Child Victims F5.2 Transportation of Girls from India to Nepal F5.3 Counseling, Medical Rehabilitation and Housing F5.4 Compensation, Rehabilitation and Social integration F5.5 Protection of from Re-victimization G. Conclusion ¨FIVE COMPONENTS DEVELOPED WITHIN THETRAFFICKING FRAMEWORK 1. ¨PROBLEM MAINSTREAMED IN THE MAINPROJECT 2. FOUNDATION FOR WOMEN’SEMPOWERMENT 3. LEADERSHIP AND STATUS DEVELOPMENT 4. MICRO-CREDIT PROJECT FOR WOMEN¨ 5. ERAZING MALE MONOPOLISTIC SUPREMACY OVER INCOME!

The elimination of trafficking in girls for prostitution is a very important agenda at present. However, It can not be possible without building a strong social movement on the ground level, because the fight against the trafficking in women and children is a war against the exploitation, injustice and crime created by the strong underworld Networks by using the given situation of poverty, starvation for commercial sexual exploitation in the flesh trade. Looking at the present developments on the crimes against women and children, one should realise that this problem cannot be resolved in isolation. Facts have revealed that this problem has been interlined with the growing socio-economic, cultural and political exploitation in the country. If we are really determined to fight against child sexual abuse and exploitation, we should seriously review and examine the roots and causes of this problem, its impact and results. In our context, it is also closely interlined with the issue of the Indo-Nepal open border situation. How can we review this situation and interlink it with the political issue ? Shall we call the HMG/Nepal and Indian Government for bilateral initiation for the prevention and control of the trafficking in girls.? I think this is a right time to call for discussions about the security in the border areas ? We all should be serious in this matter and draw the attention of all those governmental and non-governmental organisations that are trying to do something for the protection and promotion of the rights of the child.

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Trafficking in women and children for the commercial sexual exploitation is one of the most inhuman issues existed in our society. If our children are sold out in front of us how can we expect a better future in the days to come ? This is not only shame for us but also a challenge to our democracy, human rights and security. If we wish our children be liberated from the harms and exploitation, we should not wait for tomorrow. We have talked a lot on the issues of children at risk. But time has come to translate our words into action. References: 1. 2. 3. 4. Dr.S.S.D.Pandey (2001): Open Borders & Shifting Opportunities, Background paper, ©Global Synergetic Dr.S.S.D.Pandey (2002): Cross border Synergies & Quality of Life, Background paper, ©Global Synergetic Dr.S.S.D.Pandey (1994): Trafficking in Drugs & Economic Theory, ISBN 81-85694-10-9, © Author, (Varanasi) Gauri Pradhan (2002): Innocent Victims: Trafficking in Women and Girls across Nepal -India Border *******************

Appendix 1. B6 an estimated figures of Nepali women and child victims who are working in different parts of India: S.No. B6.1 B6.2 B6.3 B6.4 B6.5 B6.6 Cities Bombay Calcutta Delhi Gorakhpur Pune Patna Nos. 45,000 35,000 20,000 04,000 03,000 04,000

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B6.7 B6.8 B6.9 B7.0

Lakhnau Madras Surat: Others

02,500 03,500 01,500 26,000

Source: Informal Estimation Our Objectives • To understand and identify the push and pull factors in relation to trafficking. • To enhance awareness and to mobilize resources among the general public, the Govt. and local/international organizations, in order to develop an effective network for the annihilation of this depraved issue. • To continue and expand our work for the improvement of livelihood status in collaboration with Nepalese NGOs • To facilitate liaison and cross border co-operation. • Advocacy and networking with policy makers, Govt. functionaries and local, National and International NGOs. • Reintegration of the women & children victims trafficked into their families or if not possible, helping them to rebuild their life in independence. • To combat HIV/AIDS & ensure safe cross border migration through SEVA vigilance cell. Our Strategy • Micro level action research/study on micro plan and land mapping of both sides of the border area, factors that spur trafficking, motivation and psychological condition of responsible persons for this trade. • Awareness among community, law enforcing officials, public and private transporters through meetings/public hearing wall writings and print media. • Improvement of livelihood status through training on Agricultural Enterprises.CAPACITY BUILDING & EMPOWERMENT • Networking with other NGOs & Govt. organizations both locally, regionally, nationally and internationally. In particular to retain close liaison the other countries in South Asia (SAARC). • Formal coalition of local Indian and Nepalese NGO’s, academics, civil servants, advocates, media and international donor agencies that share a common concern about trafficking. • Establishment of SEVA GRAM to provide shelter, training to improve skill, medical treatment and counseling to rebuild a sense of confidence in victims.

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Our Activities • National Study (Action Research) on Trafficking in women and children entrusted to ISS, New Delhi by National Human Right Commission, Govt. of India. • Preparation of posters & handbills in Hindi and Nepalese language. A law book illustrating the National and International laws related to trafficking has been developed. These activates are being done with the help from UNIFEM. • Awareness campaign through wall writing in border area with help of UNIFEM. • Formation & meetings among Indo-Nepal border joint coordination committee and district level coordination committee • Establishment of Inter cross border anti trafficking advocacy and networking cell in Lucknow with help from UNIFEM. • Establishment of SEVA vigilance cell (SEVA-Satarkata Prakoshtha) tofacilitate safe migration.

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