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CHAPTER-1

INTRODUCTION

Abstract

This paper addresses the situation of human trafficking in India. It argues that the focus
on trafficking either as an issue of illegal migration or prostitution still dominates the
discourse of trafficking, which prioritizes state security over human security and does not
adequately address the root causes of trafficking and the insecurity of trafficked
individuals. The root causes or vulnerability factors of trafficking such as structural
inequality, culturally sanctioned practices, poverty or economic insecurity, organ trade,
bonded labor, gender violence, which are further exacerbated by corruption, have
remained unrecognized in academic and policy areas. This paper argues that emphasis
needs to be given to such underlying root causes and modes and also crimes related to
human trafficking, that threatens human security of the trafficked persons in India.
Accordingly, it provides some preventive measures to address and deal with the problem.

Keywords: Trafficking, Human Trafficking, Causes and modes, Preventive measures.

The Process:
The first stage through which the human-trafficking initiates, is the transportation of victim
from
source area. This process of trafficking include different stages and stakeholders. At the initial
stage,
the process start with the place of origin, commonly known as source areas, where the victim is
being recruited or taken through fraud and then transported towards the demand market with
the
help of local or professional traffickers. The process of trafficking initiates at this stage and this
stage is the 'origin' for the whole trafficking crime. The origin of trafficking may be different at
different stages as per to the extent and networking of the traffickers. For example, the origin
may
be a small town or a village for domestic trafficking process whereas it may be a country for
internationally networked trafficking. After the origin phase, next stage is the 'Transition stage',
where the victim has to stay for a limited period of time or has to stay over for a few days,
weeks or
months. The transit may also become an origin for next transportation. The final stage is the
'Destination stage' where the trafficked victim is finally delivered to owner and then is asked to
provide services to the customers and thus, become this victim of this modern slavery.

The Extent:

As per the record, in India, there are 1794 identified places of such origins from where females
victims are being trafficked. The whole chain of this transportation process has involved
number of
stakeholders in this crime of trafficking. In fact, it is a billion dollars bussiness industry and a
complete chain of networking and lobbying from powerful to the gross root village/ local level
trafficker. The extent is that, it has resulted to make this industry as one of the organized crime
industry in the world. It is the world's third largest crime after drugs and arms trafficking.
Moreover,
the activities and involvement of thousand criminals working like a professionals in the
organised
crime industry has led to several other social discourses and has become a fuel for other
criminal
activities as well. It includes Human trafficking, in terms of prostitution, in context of
migration, as
a human rights problem, as a labour issue, as a criminal problem and trafficking in children.
The
criminal and organized act of human trafficking is working as a base for the growth and rise of
other criminal activities as well.

The organisation of human trafficking in such a professional manner has also been taken as a
backdrop of the emerging phenomenon of globalisation, feminization of international
migration and state policies to sustain in the present competitive economic scanerio. The
impact of new international policies with the emergence of agencies like World Bank, the
World Trade organization, International Monetary Fund, is the increasing displacement of
rural population, lower wages and abject poverty. The resul is the decrease of social
programme and increase in the incentives to consumption where sex and trafficking is not
exempted.

In fact, nearly 2.5 million people in forced labour including sexual exploitation at any
point of time. It is found that majority of trafficking victims lies between the age group from
18 to
24 years. An estimated 1.2 million children are trafficked every year. Around 161 countries
across
the globe are being infected by this henious crime of human-trafficking as per the 2006 report
of
UN Office on Drugs on Crime, Trafficking in Persons, Global Patterns. Human trafficking has
become 32 billion dollar profit making industry , as per ILO.
Human trafficking is one of the major concern of twenty first century that has taken a rapid
pace
with the advent of the free movement and free trade under the shadow of globalisation. One
should
not be confuse about Human Trafficking as a form of human smuggling and migration. On the
one
side, smuggling involves illicit crossing of nation-state border with proper intention and
concensus
of the indiviual and migration is nothing, but voluntary movement of indiviuals. On the other
side,
Human-trafficking has been subjected to the act without the wishes of the indiviuals leading to
vulnerability and exploitation.

However, as far as India is concerned, India remained in the Tier 2 watch list having one of the
lowest ranking in trafficking in person report, anually issued by the state department of U.S.
Remaining in Tier 2 list means that the government is making significant efforts but does not
yet
meet the standards of countering human-trafficking. A report by an Non government
organization in
India estimated that 45000 children are missing in India each year. It stated that most of these
kids
end up as prostitutes, bonded labour or among the homeless population in big cities. It has
been
found that there are 300,000 to 500,000 children working in the prostitution industry in India.
India
also has the highest number of child labour in the world with an estimate of estimate of 12.66
million children involved in hazardous work as per Census 2011.

Furthermore, it is also noted that most of the victims and their families are not coming forward
for
reporting because of the social stigma associated with it. Therfore, the magnitude and the
extent of
human-trafficking in india is still unclear due to lack of significant and proper availibility of
data.
Since the poverty, exclusion and lack of awareness are the main driving forces for human-
trafficking, the tribal belts and the areas populated by marginalized caste has become a fertile
ground for the traffickers since the task of recuiting the victim is an easy process and people
can be
motivated and convinced by the traffickers with less efforts and with a promise of good
economic
returns in these regions

Purpose and Forms :


Historically, the term 'trafficking 'was used for the movement of persons for the purpose of
such
acts thats are immoral and hidden from the society, For example, postitution. But, over the
years,
the purposes and the specturm of Human-trafficking has been expanded apart from that of
prostitution. Though sex trafficking still constitutes one of its major forms in which children
and
women are forced and exploited for the purpose of prostitution. But, several other intentions,
motives and purposes have been included in this phenomenon of human-trafficking. It ranges
from
commercial sexual exploitation to the extent of slavery. The various purposes of human-
trafficking
includes the trafficking in human beings for sexual exploitation, forced labour, services,
slavery,
entertainment, illegal activities, drug trafficking, servitude, removal of organ etc.

In India, as far the types of commercial sexual exploitation is concerned, it includes forced
prostitution, socially and religiously sanctioned forms of prostitution, sex tourism,
pronography,
paedophillia, massage palours, bartending etc. The trafficking for labour activities is taken for
the
benefits in the industries when children are employed and exploited in number of trades,
bonded
labour, domestic work, agriculture labour, construction, carpet industry, garment industry, aqua
culture etc. Moreover, trafficking for illegal activities have begging, human organ trade, drug
peddling and smuggling, mock adoption, false marriage/ bride trafficking etc in the loop.
Methods:

In India, the Modus Operandi through which the trade of human-trafficking is flourishing has
been
adopted by the traffickers as per the demand and the circumstances of the victims. Different
strategies and tactics have been adopted, in order to lure the innocent masses and exploit them
further. There are various methods through which the human-trafficking is being organised. As
per
the study of National Human Rights Commission of India, the several methods through which
victims are being trapped and human-trafficking is happening, includes: Offering jobs as
domestic
servants, Promising jobs in the film world, Promising jobs in factories, Offering money, Luring
them with ‘pleasure trips’, Making false promises of marriage, Befriending them by giving
goodies,
Offering shelter to girls who have run away from home or street children, Offering them to
take on
pilgrimages, Coercion including kidnapping and drugging, In lure of adoption and etc.
Moreover,
the recuitment of children as child soldiers or for underground arm groups is also being
involved in
this process.

The traffickers use different approaches like sometime they employ local source,
relatives and also are known to various languages especially, the language of their zone of
trafficking. The recent trend that has been noticed, especially in case of India, is the trend of
traffickers using marriage bureaus, placement agencies and tutorials agencies. It has been
found in
most of the literature that, in the process of trafficking, there are informers, enforcers,
supporting
personnel and specialists, debt-collectors, money-movers and transporters who gather
information
on matters such as border surveillance, immigration and transit procedures, asylum systems,
and
law enforcement activities. There are also agents, who pay the recruiter, arrange for travel
documents, hold the women until they are ready to leave and brokers who meet the women on
arrival and pay the agent for delivering them.
Further, a recent report by a leading newspaper of India has come up with a new trend for the
trafficking of children. It says that children have been trafficked by the NGOs from a
backward and poverty effected region, in order to attract the donors and get the heavy
donations from abroad. Moreover, the emergence, rise and excessive use of social media can
also be viewed or considered as a new mean and method for luring the younger generation and
then being exploited by the traffickers.
1.1 Human Trafficking and Women Trafficking in India

By Jaffer Latief Najar

Over the centuries, the human race developed its concious gingerly and has become one of the
sophisticated social creature of the nature. With experiences and a sense to have a dignified life
and
to serve the fellow members of the race, the mankind tried to establish certain set of
obligations and
limitations within their community so that the essence of humanity deliver collectiveness
instead of
indiviualism. These obligations and limitations developed the phenomenon of rules, norms,
values,
moral and ethics, that an indiviual has to accept and follow, being a member of the same
creature.
The acceptance of these phenomenon by humanity resulted to the emergence of society and
social
values as well as its committment to serve for the welfare and prosperity of all of its members,
irrespective of colour, region, religion, culture, ethnicity, language, age and gender. However,
over a
period of time, the difficulties in having access to limited resources led to the violations of
these
social norms and values. The indiviual interest became a priority than the collective interest or
than
the interest of society. The result of these violations led towards vulnerabilities,
marginalisation and
the losing prosperity and well being of mankind. The extent of vulnerabilities has reached to
such a
level that one member of this human family has become exploitator of the those who have low
accessibility to resources and no hold on social structure. Human trafficking in the present
century,
is one of the worst kind of exploitation and abuse that human being ever had or thought of.

Definition:
Accoding to United Nations' Palermo Protocol, “Trafficking in persons can be defined as the
recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or
use of 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 should include, at a minimum, the exploitation of the prostitution of others or
other
forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organ”.
A) Legal interventions:

As far as the legal framework and perspective on the issue of Human-trafficking is concerned,
several International and National Conventions, laws and protocols have been adopted by the
international and state agencies and departments. The international interventions include:
International agreement for suppression of white slave traffic (1904 and 1910), International
convention for the suppression of the traffic of the women and children (1921), Slavery
Convention
(1926), ILO Forced Labour Convention (1930), International Convention for suppression of
traffic
in women of full age, Universal Declaration of Human Rights (1948), Convention for the
suppression of the traffic in persons and of exploitation of the Prostitution of others (1949),
UN
convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(1984), Tourism Bill of Rights and the Tourist Code (1985), Convention on Protection of
Rights of
Migrant Workers (1990), Optional Protocol to the Convention on the elimination of all forms
of
discrimination against Women (1999), UN protocol to Prevent, Suppress, and Punish
Trafficking in
Persons, especially Women and Children, 2000 etc.

However, the legal framework within the ambit of Indian territory has a strong foundation as
the
issue has also been taken under the fundamental rights, in the constitution of India. Article 23
(1) in
the constitution of India prohibits trafficking in human beings and forced labour. The
Suppression
of Immoral Traffic in Women and Girls Act, 1956 was enacted with an objective of abolishing
the
immoral trafficking in women and girls. This act was later ammended and renamed as The
Immoral
Traffic (Prevention) Act, 1986 (ITPA). ITPA is a special legislation that deals exclusively with
trafficking.

But, irrespective of the legal sanctions and constant watch, it is the fact of the matter that the
phenomenon of human-trafficking has not reduced yet. In fact, it is still expanding and
flourishing
its existence among the vulnerable groups and has huge impact on their basic fundamental
rights of
having a dignified life with full liberty as guaranteed by the constitution.
Reasons behind expansion of Human trafficking in India:

The common push factor that has been identified as the main driving force behind human-
trafficking is the abject poverty. However, caste based discrimination, lack of resources, lack
of
human and social capital, social insecurity, gender discrimination, commodification of women,
social exclusion, marginalisation, inadequate and outdated state policies, lack of governanace,
nexus of police and traffickers, unemployment, breaking down of community support system,
cheap
child labour, child marriage and priority to marriage, attraction of city life, corruption,
employment
trade, migration policies conflict and lack of awareness among the victims are also some the
factors
leading to human-trafficking. Globalization has also become one of the emerging push factor
leading to human-trafficking.

Further, the report of the International Organization for Migration,


says that 90 percent of the victims trafficked as sex slaves experienced domestic violence
before
they were trafficked. The decreasing sex ratio and the increasing demand of women in women
starve areas would also been considered as a factor behind bride trafficking in India. There are
also
certain other factors that are responsible through direct and indirect means and mode but, all
kind
of these push factors forced the victim to get further exploitation, vulnerabilities and to become
an
element of this modern kind of slavery throughout their life span.

Human-trafficking is one of the worst criminal activity that has spreaded its infection over the
planet. It is one of the wicked act that has made the lives of millions as worse as the hell. This
kind
of modern slave trade has washed away the humanity among those who are being involved.
The
moral values, ethos and sense of belongings as a member of same human race has been crubed
by
the indiviual interest and pleasure. The victimization of poor and vulnerable masses has
excluded
them from the human race and commodified them like animals and vegetables in the market.
Their
right and access to justice has no signifacant meaning and worth for them. The procedures,
process,
means, methods as well as the rate of involvement is increasing in this crime eachday due to
lack of
resources, highest demand in the market, very few income options and impotent legal watch
system.
It is, thus, imperative to have a careful watch and monitoring mechanism as well as strong
interventions and committment through which we can attempt to clean out this crime across the
globe.

Human trafficking is generally understood to refer to the process through which individuals are
placed or maintained in an exploitative situation for economic gain. Trafficking can occur
within a country or may involve movement across borders. Women, men and children are
trafficked for a range of purposes, including forced and exploitative labour in factories, farms
and private households, sexual exploitation, and forced marriage. Trafficking affects all
regions and most countries of the world.

While it is difficult to secure reliable information about patterns and numbers, our
understanding about why trafficking happens has improved. Inequalities within and between
countries, increasingly restrictive immigration policies and growing demand for cheap,
disempowered labour are just some of the underlying causes that have been identified. The
many factors that increase individual vulnerability to trafficking include poverty, violence and
discrimination.

The exploitation of individuals for profit has a long history and international efforts to address
it can be traced back at least a century, well before the birth of the modern human rights
system. However, it is only over the past decade that trafficking has become a major concern.
During that same period, a comprehensive legal framework has developed around the issue.
These changes confirm that a fundamental shift has taken place in how the international
community thinks about human exploitation. It also confirms a change in expectations of what
Governments and others should be doing to deal with trafficking and to prevent it. Hence, the
victim-centred approach is also gathering increased support from the international community.
Human rights form a central plank of the new understanding and there is now widespread
acceptance of the need for a human rights-based approach to trafficking. As explained further
in this Fact Sheet, such an approach requires understanding of the ways in which human rights
violations arise throughout the trafficking cycle and of the ways in which States’ obligations
under international human rights law are engaged. It seeks to both identify and redress the
discriminatory practices and unequal distribution of power that underlie trafficking, that
maintain impunity for traffickers and that deny justice to victims.

This Fact Sheet seeks to provide a brief but comprehensive overview of human rights and
human trafficking. In exploring the applicable legal and policy framework, it draws on two
major outputs of the Office of the United Nations High Commissioner for Human Rights
(OHCHR): the 2002 Recommended Principles and Guidelines on Human Rights and Human
Trafficking and its extensive Commentary.. Chapter I explores the definition of trafficking
and its core elements. It also examines some of the myths and misunderstandings around the
definition. Chapter II considers the relationship between human rights and human
trafficking. It identifies those human rights that are commonly affected by trafficking and
considers the situation of special groups with reference to additional or different rights to
which they may be entitled. This chapter also summarizes what is involved in taking a
“human rights-based” approach to trafficking. Chapter III turns to the obligations of States.
It identifies the sources of these obligations and explains how a State may be legally
responsible for the harm caused by trafficking, even if it did not directly cause it. Specific
obligations of States are discussed with reference to victim protection and support;
repatriation and remedies; criminal justice responses; and prevention. Chapter IV considers
how these obligations can be implemented and monitored, with a view to ensuring that States
and others are held accountable for their acts and omissions.

B) Research Methodology

The present paper is mainly based on secondary data, which has been taken from District
Census Handbook, Statistical Abstract State wise and National Crime Record Bureau
(NCRB). For the present paper census and crime data have been analysed. The systematic
approach has been adopted for analysis. Both qualitative and quantitative methods have
been applied for the data analysis.
C) Crimes related to Human Trafficking in India

Heads of crime which are related to human trafficking.


 Importation of girls from foreign country (Sec. 366B IPC)
 Procuration of minor girls (section 366-A IPC)
 Buying of minors for prostitution (section 373 IPC) (previously known as buying of
girls for prostitution)
 Selling of minors for prostitution (Section 372 IPC) (in previous editions, data was
collected under buying of girls for prostitution)
 Immoral Traffic (Prevention) Act 1956
 Human trafficking (section 370 & 370A IPC), after enactment of the Criminal Law
(Amendment) Act 2013

Table 1: Crime head-wise incidence of various crimes under human


trafficking during 2010 – 2014.

Sr. No. Crime Head YEARS %


variatio
2010 201 2012 201 2014 n in
1 3 2014
over
2013
1 Procuration of minor girls(Sec. 366-A IPC) 679 862 809 122 2020 65
4
2 Importation of girls from foreign country 36 80 59 31 13 -58.1
(Sec.366B IPC)
3 Selling of minors for prostitution (Sec. 372 130 113 108 100 82 -18
IPC)#
4 Buying of minor for prostitution (Sec. 373 78 27 15 6 14 133.3
IPC)#
5 Immoral Trafficking (Prevention) Act 1956 2499 243 2563 257 2617 1.5
5 9
6 Human Trafficking (Sec. 370 & 370 A IPC) - - - - 720 -
*
Total cases of human trafficking 3422 351 3554 394 5466 38.7
7 0
‘*’Newly included in 2014; ‘#’ Modified in 2014, NCRB (2014)

D) Preventive Measures

i) Border measures

Stringent Enforcement of cross border trafficking, Secure Vigilance in Trafficking routes


and Proper social accountability is needed.

ii) Economic and social policies


 Taking measures to raise levels of social protection and to create employment
opportunities.
 Taking appropriate measures to eliminate discrimination against women in the field of
employment in order to ensure, on a basis of gender equality, the right to equal pay for
equal work and the right to equality in employment opportunities.
 Developing programmes that offer livelihood options and include basic education,
literacy, communication and other skills, and reduce barriers to entrepreneurship.
 Encouraging gender sensitization and education on equal and respectful relationships
between the sexes, thus preventing violence against women.
 Ensuring that policies are in place that allow women equal access to and control over
economic and financial resources.

iii) Awareness-raising measures


By the help of NGOs and Police officials there can some types of advertisements through
the popular media in particular location and by conducting some awareness programs in
villages, local schools, among kids of the poor society and public to be alert of being
victimized.

iv) Legislative measures


Adopting or strengthening legislative, proper law enforcement,
uncorrupt officials, educational, social, cultural or the measures and, where applicable,
penal legislation, including through bilateral and multilateral cooperation, to discourage
the demand fosters all forms exploitation of persons, especially women and children, and
leads to trafficking.

References
1. Government of India. India country report 2013 – statistical appraisal. Central statistics
office, Ministry of Statistics and programme implementation; 2013, 98.
Availablefrom:http://mospi.nic.in/mospi_new/upload/SA ARC_Development_Goals_
India_Country_Report_29aug13. pdf.
2. Human Trafficking the Fact, Global Initiative to Fight Human Trafficking, 2008, 1-2.
3. "India". Trafficking in Persons Report 2008. U.S. Department of State, 2008.
4. "Launching of Web Portal on Anti Human Trafficking" (Press release). PIB. 20
February 2014. Retrieved 21, 2014.
5. National Crime Records Bureau Data from 2010, 2011, 2012, 2013, 2014.
6. Shamim I. State of Trafficking in Women and Children and their Sexual Exploitation in
Bangladesh. Dhaka: Centre for Women and Children Studies (CWCS), 2010.
7. "TIP Protocol Ratified status. UN.
8. Timesofindia.indiatimes.com dated 8-12-2014.
9. Walk Free Foundation Global Slavery Index 2014,
www.Azadindia.org dated – 24-3, 2013.

I. WHAT IS HUMAN TRAFFICKING?

International agreement on what constitutes “trafficking in persons” is very recent. In fact, it


was not until the late 1990s that States began the task of separating out trafficking from other
practices with which it was commonly associated such as facilitated irregular migration. The
first-ever agreed definition of trafficking was incorporated into the 2000 Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing
the United Nations Convention against Transnational Organized Crime (Trafficking Protocol).
That definition has since been incorporated into many other legal and policy instruments as
well as national laws.

A. The international definition of trafficking

The Trafficking Protocol defines the term “trafficking in persons” as follows:

(i) “Trafficking in persons” shall mean the recruitment, transportation, transfer,


harbouring or receipt of persons, by means of the threat or use of 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 labour or services, slavery or practices similar to slavery, servitude or the
removal of organs; (b) The consent of a victim of trafficking in persons to the
intended exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have been used;
... (art. 3). 3 The three key elements that must be present for a situation of
trafficking in persons (adults) to exist are therefore: (i) action (recruitment, …);
(ii) means (threat, …); and (iii) purpose (exploitation).

International law provides a different definition for trafficking in children (i.e., persons under
18 years of age). The “means” element is not required in this case. It is necessary to show
only: (i) an “action” such as recruitment, buying and selling; and (ii) that this action was for
the specific purpose of exploitation. In other words, trafficking of a child will exist if the child
was subjected to some act, such as recruitment or transport, the purpose of which is the
exploitation of that child.

B. Important features of the definition

The following are key features of the new international legal understanding about trafficking:
Trafficking affects women, men and children, and involves a range of exploitative
practices. Trafficking was traditionally associated with the movement of women and girls
into sexual exploitation. The international legal definition set out above makes clear that men
and women, boys and girls can all be trafficked—and that the range of potentially exploitative
practices linked to trafficking is very wide. The list of examples set out in the definition is
open-ended and new or additional exploitative purposes may be identified in the future.

Trafficking does not require the crossing of an international border. The definition covers
internal as well as cross-border trafficking. That is, it is legally possible for trafficking to take
place within a single country, including the victim’s own.

Trafficking is not the same as migrant smuggling.


Migrant smuggling involves the illegal, facilitated movement across an international border
for profit. While it may involve deception and/or abusive treatment, the purpose of migrant
smuggling is to profit from the movement, not the eventual exploitation as in the case of
trafficking.
Trafficking does not always require movement. The definition of trafficking identifies
movement as just one possible way that the “action” element can be satisfied. Terms such as
“receipt” and “harbouring” mean that trafficking does not just refer to the process whereby
someone is moved into situations of exploitation; it also extends to the maintenance of that
person in a situation of exploitation.

It is not possible to “consent” to trafficking. International human rights law has always
recognized that the intrinsic inalienability of personal 4 freedom renders consent irrelevant to
a situation in which that personal freedom is taken away. This understanding is reflected in the
“means” element of the definition of trafficking. As noted by the drafters of the Trafficking
Protocol: “once it is established that deception, coercion, force or other prohibited means were
used, consent is irrelevant and cannot be used as a defence.”

II. WHAT IS THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND HUMAN


TRAFFICKING?

The links between human rights and the fight against trafficking are well established. From its
earliest days to the present, human rights law has unequivocally proclaimed the fundamental
immorality and unlawfulness of one person appropriating the legal personality, labour or
humanity of another. Human rights law has prohibited discrimination on the basis of race and
sex; it has demanded equal or at least certain key rights for non-citizens; it has decried and
outlawed arbitrary detention, forced labour, debt bondage, forced marriage, and the sexual
exploitation of children and women; and it has championed freedom of movement and the
right to leave and return to one’s own country. 2 Legislative Guides for the Implementation of
the United Nations Convention against Transnational Organized Crime and the Protocols
Thereto (United Nations publication, Sales No. E.05.V.2), p. 270.

Human rights most relevant to trafficking

• The prohibition of discrimination on the basis of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth, or other status
• The right to life
• The right to liberty and security
• The right not to be submitted to slavery, servitude, forced labour or bonded labour
• The right not to be subjected to torture and/or cruel, inhuman, degrading treatment or
punishment
• The right to be free from gendered violence
• The right to freedom of association
• The right to freedom of movement
• The right to the highest attainable standard of physical and mental health
• The right to just and favourable conditions of work
• The right to an adequate standard of living
• The right to social security
• The right of children to special protection

Different human rights will be relevant at different points in the trafficking cycle. Some will
be especially relevant to the causes of trafficking (for example, the right to an adequate
standard of living); others to the actual process of trafficking (for example, the right to be free
from slavery); and still others to the response to trafficking (for example, the right of suspects
to a fair trial). Some rights are broadly applicable to each of these aspects.

A. Trafficking as a violation of human rights

As noted above, many of the practices associated with modern-day trafficking are clearly
prohibited under international human rights law. For instance, human rights law forbids debt
bondage: the pledging of personal services as security for a debt where the value of those
services is not applied towards the liquidation of the debt or their length or nature is not
limited and defined. Many trafficked persons who enter into a debt with their exploiters
(relating to, for example, placement or transport fees) find themselves in a situation of debt
bondage; the debt is used as a means of controlling and exploiting them. Human rights law
also prohibits forced labour, defined by Convention No. 29 concerning Forced or
Compulsory Labour of the International Labour Organization (ILO) as: “all work or service
which is exacted from any person under the menace of any penalty and for which the said
person has not offered himself [herself] voluntarily”. Slavery, servitude, child sexual
exploitation, forced marriage, servile forms of marriage, child marriage, enforced
prostitution and the exploitation of prostitution are also trafficking-related practices that
are prohibited under international human rights law.

Does international human rights law actually prohibit “trafficking in persons”—as opposed to
“practices associated with trafficking” such as those listed above? This is an important
question because it can have an impact on the nature of a State’s obligations and
responsibilities. Only two of the major human rights treaties—the Convention on the
Elimination of All Forms of Discrimination against Women (art. 6) and the Convention on the
Rights of the Child (art. 35)—contain substantive reference to trafficking. However, over the
past decade a general agreement has emerged within the international community that
trafficking itself is a serious violation of human rights. For example, both the Council of
Europe’s Convention on Action against Trafficking in Human Beings and the European Union
Directive on preventing and combating trafficking in human beings and protecting its victims
identify trafficking as a violation of human rights. The United Nations General Assembly and
the Human Rights Council have repeatedly affirmed that trafficking violates and impairs
fundamental human rights, as have many of the international human rights mechanisms.

B. The human rights of trafficked persons Both the Charter of the United Nations and
the Universal Declaration of Human Rights confirm that rights are universal: they apply to
everyone, irrespective of their race, sex, ethnic origin or other distinction. Trafficked persons
are entitled to the full range of human rights. Even if they are outside their country of
residence, international law is clear that trafficked persons cannot be discriminated against
simply because they are non-nationals. In other words, with only some narrow exceptions that
must be reasonably justifiable, international human rights law applies to everyone within a
State’s territory or jurisdiction, regardless of nationality or citizenship and of how they came
to be within the territory.
International human rights law recognizes that certain groups require additional or special
protection. This may be because of past discrimination
The rights of aliens
Aliens … have an inherent right to life, protected by law, and may not be arbitrarily
deprived of life. They may not be subjected to torture or to cruel, inhuman or
degrading treatment or punishment; nor may they be held in slavery or servitude.
Aliens have the full right to liberty and security of the person. If lawfully deprived of
their liberty, they shall be treated with humanity and with respect for the inherent
dignity of their person. Aliens may not be imprisoned for failure to fulfil a contractual
obligation. They have the right to liberty of movement and free choice of residence;
they shall be free to leave the country. Aliens shall be equal before the courts and
tribunals, and shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law in the determination of any
criminal charge or of rights and obligations in a suit at law. Aliens shall not be
subject to retrospective penal legislation, and are entitled to recognition before the
law. They may not be subjected to arbitrary or unlawful interference with their
privacy, family, home or correspondence. They have the right to freedom of thought,
conscience and religion, and the right to hold opinions and to express them. Aliens
receive the benefit of the right of peaceful assembly and of freedom of association.
They may marry when at marriageable age. Their children are entitled to those
measures of protection required by their status as minors. In those cases where aliens
constitute a minority within the meaning of article 27, they shall not be denied the
right, in community with other members of their group, to enjoy their own culture, to
profess and practise their own religion and to use their own language. Aliens are
entitled to equal protection by the law. There shall be no discrimination between
aliens and citizens in the application of these rights. These rights of aliens may be
qualified only by such limitations as may be lawfully imposed under the Covenant.

or because their members share particular vulnerabilities. In the context of trafficking, relevant
groups include women, children, migrants and migrant workers, refugees and asylum seekers,
internally displaced persons, and persons with disabilities. Sometimes, members of a group
will be specifically targeted for trafficking. Children, for example, may be trafficked for
purposes related to their age such as sexual exploitation, various forms of forced labour and
begging. Persons with disabilities can also be targeted for certain forms of exploitative
labour and begging. Women and girls are trafficked into gender-specific situations of
exploitation such as exploitative prostitution and sex tourism, and forced labour in domestic
and service industries. They also suffer gender-specific forms of harm and consequences of
being trafficked (for example, rape, forced marriage, unwanted or forced pregnancy, forced
termination of pregnancy, and sexually transmitted diseases, including HIV/AIDS).

Individuals belonging to specific groups who are subject to trafficking may be in a position to
claim different or additional rights. For example, international human rights law imposes
important and additional responsibilities on States when it comes to identifying child victims
of trafficking as well as to ensuring their immediate and longer-term safety and well-being.
The core rule is derived from the obligations contained in the Convention on the Rights of the
Child: the best interests of the child are to be at all times paramount. In other words, States
cannot prioritize other considerations, such as those related to immigration control or public
order, over the best interests of the child victim of trafficking. In addition, because of the
applicability of the Convention to all children under the jurisdiction or control of a State, non-
citizen child victims of trafficking are entitled to the same protection as nationals in all
matters, including those related to the protection of their privacy and physical and moral
integrity. Other treaties may further specify these rights. For example, the Trafficking
Protocol requires certain special measures with regard to child victims, as does the
Convention on Action against Trafficking in Human Beings.

C. The importance of a human rights-based approach to trafficking

While the link between human rights and human trafficking is clear, it does not necessarily
follow that human rights will naturally be at the centre of responses to trafficking. For
example, cross-border trafficking can be dealt with as an immigration issue, with human
rights being addressed only as an afterthought. It is also possible for States to address
trafficking primarily as a matter of crime or public order. Over the past decade, an
international consensus has developed around the need for a rights-based approach to
trafficking. The General Assembly and the Human Rights Council, for example, have both
advocated such an approach, as have many relevant human rights mechanisms, including
special procedures and treaty bodies.

What does it mean, in practical terms, to take a human rights-based approach to trafficking? A
human rights-based approach is a conceptual framework for dealing with a phenomenon such
as trafficking that is normatively based on international human rights standards and that is
operationally directed to promoting and protecting human rights. Such an approach requires
analysis of the ways in which human rights violations arise throughout the trafficking cycle,
as well as of States’ obligations under international human rights law. It seeks to both identify
and redress the discriminatory practices and unjust distribution of power that underlie
trafficking, that maintain impunity for traffickers and that deny justice to their victims.

Under a human rights-based approach, every aspect of the national, regional and international
response to trafficking is anchored in the rights and obligations established by international
human rights law. The lessons learned in developing and applying a human rights-based
approach in other areas, such as development, provide important insights into the main
features of the approach and how it could be applied to trafficking.

The key points that can be drawn from these experiences are:

• As policies and programmes are formulated, their main objective should be to promote and
protect rights;

• A human rights-based approach identifies rights holders (for example, trafficked persons,
individuals at risk of being trafficked, individuals accused or convicted of trafficking-related
offences), their entitlements and the corresponding duty bearers (usually States) and their
obligations. This approach works towards strengthening the capacities of rights holders to
secure their rights and of duty bearers to meet their obligations;

• Core principles and standards derived from international human rights law (such as equality
and non-discrimination, universality of all rights, and the rule of law) should guide all aspects
of the response at all stages. The following sections show clearly how recent developments at
the international, regional and national levels have helped to clarify what a rightsbased
approach to trafficking means in practice.

III. WHAT ARE THE OBLIGATIONS OF STATES WITH RESPECT TO


TRAFFICKING?

Obligations and rights are two sides of the same coin. In most cases, obligations that arise out
of international law are imposed on States. However, while the Fact Sheet focuses specifically
on this aspect, it is important to keep in mind that individuals and private entities, such as
corporations, can also be subject to legal obligations.

A. Sources of obligations

Treaties are the primary source of obligations for States with respect to trafficking. By
becoming a party to a treaty, States undertake binding obligations in international law and
undertake to ensure that their own national legislation, policies or practices meet the
requirements of the treaty and are consistent with its standards. These obligations are
enforceable in international courts and tribunals with appropriate jurisdiction, such as the
International Court of Justice, the International Criminal Court or the European Court of
Human Rights, and may be enforceable in domestic courts, depending on domestic law.

Because trafficking is a complex issue that can be considered from different perspectives,
many treaties are relevant. For example, treaties dealing with slavery and the slave trade,
forced labour, child labour, the rights of women, the rights of children, migrant workers and
persons with disabilities, as well as more general treaties dealing with civil, cultural,
economic, political or social rights, are all applicable to trafficking. Major crime control
treaties, such as the United Nations Convention against Transnational Organized Crime and
the United Nations Convention against Corruption are also relevant to trafficking, as is the
Rome Statute of the International Criminal Court. These are in addition to the treaties dealing
specifically and exclusively with trafficking.
Other accepted sources of international law, such as custom, general principles and the
decisions of international tribunals, can also be relevant when determining exactly what is
required of States in their response to trafficking. The prohibition on slavery is widely
recognized to be part of customary international law, binding on all States irrespective of
whether they have actually become a party to one or more treaties that specifically prohibit
slavery. A general principle of law is one that is common to all major legal systems of law and
thereby part of international law. A general principle of law relevant to trafficking is that
someone should not be held responsible for a crime he or she was compelled to commit. An
example of a judgement of an international tribunal that has helped to establish the
international legal framework around trafficking is Rantsev v. Cyprus and Russia, which was
decided by the European Court of Human Rights in 2009.

Treaties and other instruments particularly relevant to trafficking

Protocol to Prevent, Suppress and Punish Trafficking in Persons,


Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, 2000 (Trafficking
Protocol)

Convention on the Elimination of All Forms of Discrimination against


Women, 1979

Convention on the Rights of the Child, 1989

Optional Protocol to the Convention on the Rights of the Child on the


sale of children, child prostitution and child pornography, 2000

United Nations Convention against Transnational Organized Crime,


2000 International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, 1990

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

Council of Europe, Convention on Action against Trafficking in


Human Beings, 2005 (European Trafficking Convention)

Charter of Fundamental Rights in the European Union, 2000, article 5,


and Directive 2011/36/EU of the European Parliament and Council on
preventing and combating trafficking in human beings and protecting
its victims, 2011

South Asian Association for Regional Cooperation, Convention on


Preventing and Combating Trafficking in Women and Children for
Prostitution, 2002

Finally, it is important to consider the many instruments around trafficking that are not strictly
law. These include the Recommended Principles and Guidelines on Human Rights and
Human Trafficking; guidelines on child trafficking, issued by the United Nations Children’s
Fund (UNICEF), and on trafficking and asylum, issued by the Office of the United Nations
High Commissioner for Refugees (UNHCR); resolutions adopted by the General Assembly
and the Human Rights Council; findings and reports of international human mechanisms such
as treaty bodies and special procedures; and non-treaty agreements between countries
regarding issues such as the repatriation and reintegration of trafficked persons.

These varied sources of “soft law” do not directly impose obligations on States—or confer
rights on individuals or groups. It is therefore important to the integrity of international law
that their legal weight is not overstated. However, some soft law instruments can form part of
the international legal framework by, for example, helping to identify or confirm a particular
legal trend or even by contributing to the development of customary international law in
relation to a particular aspect of trafficking. Soft law can also provide insight into the
substantive content of more general legal norms that Treaties and other instruments
particularly relevant to trafficking Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations Convention
against Transnational Organized Crime, 2000 (Trafficking Protocol) Convention on the
Elimination of All Forms of Discrimination against Women, 1979 Convention on the Rights
of the Child, 1989 Optional Protocol to the Convention on the Rights of the Child on the sale
of children, child prostitution and child pornography, 2000 United Nations Convention against
Transnational Organized Crime, 2000 International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families, 1990 International Covenant
on Civil and Political Rights, 1966 International Covenant on Economic, Social and Cultural
Rights, 1966 Council of Europe, Convention on Action against Trafficking in Human Beings,
2005 (European Trafficking Convention) Charter of Fundamental Rights in the European
Union, 2000, article 5, and Directive 2011/36/EU of the European Parliament and Council on
preventing and combating trafficking in human beings and protecting its victims, 2011 South
Asian Association for Regional Cooperation, Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution, 2002 11 are contained in treaties.

For example, the Trafficking Protocol requires States to take some measures to provide
victims of trafficking with access to remedies. Soft law materials, such as the Recommended
Principles and Guidelines, as well as reports of the United Nations Special Rapporteur on
trafficking, are key resources in determining the actions required by States to fulfil this
particular obligation.

B. Understanding State responsibility to address trafficking

To what extent are States responsible for trafficking-related harm? This is an important
question because it will determine what they are required to do to prevent or respond to
trafficking. States may sometimes be reluctant to accept legal responsibility for trafficking and
its concomitant violations of human rights. They may argue, for example, that the primary
wrong has been committed by private criminals and not by the State itself. They might also
claim to have done everything possible to prevent the harm. Although determining the
responsibility of States can be difficult because of the complex nature of trafficking and its
associated legal framework, in very general terms, States will be responsible for their own acts
or omissions that breach their obligations under international law, including human rights law.
In addition, States will generally not be able to avoid responsibility for the acts of private
persons when their ability to influence an alternative, more positive outcome can be
established. In such cases, the source of responsibility is not the act itself but the failure of the
State to take measures of prevention or response in accordance with the required standard,
usually to be found in a treaty.

Some important non-treaty instruments relevant to trafficking Recommended Principles and


Guidelines on Human Rights and Human Trafficking (Recommended Principles and
Guidelines) Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law (Basic Principles and Guidelines on the Right to a Remedy
and Reparation) UNICEF Guidelines on the Protection of Child Victims of Trafficking
(UNICEF Guidelines) Criminal Justice Responses to Trafficking in Persons: ASEAN
Practitioner Guidelines UNHCR Guidelines on international protection: The application of
article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees
to victims of trafficking and persons at risk of being trafficked (UNHCR Trafficking
Guidelines) 12 C.

The obligation to identify, protect and support victims of trafficking Over the past decade there
has been great progress in clarifying the rights of victims of trafficking to protection and
support—and the corresponding obligations of States. While there are still some areas that
remain to be settled, there is a general agreement around several core obligations, all based on
a general duty to identify victims of trafficking in the first place. Some of these obligations
are: providing immediate protection and support; providing legal assistance, including
temporary residency, and not criminalizing the victims. Victim identification Victims of
trafficking are often not identified and, as a result, are simply invisible. When victims of
trafficking do come to official attention, they may be misidentified as illegal or smuggled
migrants. This is significant because, as explained in the Recommended Principles and
Guidelines, “a failure to identify a trafficked person correctly is likely to result in a further
denial of that person’s rights” (guideline 2). If a trafficked person is not identified at all or is
incorrectly identified as a criminal or an irregular or smuggled migrant, then this will directly
affect that person’s ability to access the rights to which she or he is entitled. In short, failure to
quickly and accurately identify victims of trafficking renders any rights granted to such
persons illusory.

The obligation to identify victims of trafficking is implied in all legal instruments that provide
for victim protection and support. The Recommended Principles and Guidelines identify a
range of practical steps that should be taken to ensure that victims of trafficking are quickly
and accurately identified. These include preparing written identification tools such as
guidelines and procedures that can be used to support identification; and training relevant
officials (such as police, border guards, immigration officials and others involved in the
detection, detention, reception and processing of irregular migrants) in accurate identification
and the correct application of agreed guidelines and procedures. Provision of immediate
protection and support Victims who break free from their traffickers often find themselves in a
situation of great insecurity and vulnerability. They may be physically injured as well as
physically and/or emotionally traumatized. They may be afraid of retaliation. They are likely
to have few, if any, means of subsistence. Unfortunately, the harm experienced by victims of
trafficking does not necessarily cease when they come to the attention of the authorities.

Mistreatment by public officials may result in a continuation of an exploitative situation or the


emergence of a new one. The harm already done to victims can be compounded by failures to
provide medical and other forms of support—or by linking it to an obligation to cooperate that
victims may not be willing or able to meet. The State in which a victim is located is
responsible for providing that person with immediate protection and support. This
responsibility becomes operational when the State knows or should know that an individual
within its jurisdiction is a victim of trafficking. The principle is applicable to all countries in
whose territory the victim is located. It applies to all trafficked persons, whether victims of
national or transnational trafficking.

The first and most immediate obligation of that State is to ensure that the victim is protected
from further exploitation and harm—from those who have already exploited that person as
well as from anyone else. What this means in practice will depend on the circumstances of
each case.

The standard of due diligence, discussed at various points in this Fact Sheet, certainly requires
States to take reasonable measures to this end. In most situations, reasonable protection from
harm requires:

• Moving the trafficked person out of the place of exploitation to a place of safety;
• Attending to the immediate medical needs of the trafficked person;

• Assessing whether the trafficked person is under a particular risk of intimidation or


retaliation.

While the immediate obligation to protect from further harm relates, of course, to the victim, it
may also extend to others who could potentially be harmed or intimidated by traffickers and
their accomplices. In addition to victims, this list could include informants, those giving
testimony, those providing support services to the trafficked person and family members. The
right to privacy is an important aspect of protecting victims from further harm. Failure to
protect privacy can increase the danger of intimidation and retaliation. It can cause
humiliation and hurt to victims and compromise their recovery.

The key provisions relating to the right to privacy for victims of trafficking are set out in the
text box below. These provisions The obligation to remove from risk of harm In a recent
judgement, the European Court of Human Rights affirmed that if State authorities were aware,
or ought to have been aware, of a risk of trafficking, a failure to take appropriate measures
within the scope of their powers to remove the individual from that situation or risk is a
violation of that person’s rights. Source: Rantsev v. Cyprus and Russia, Application No.
25965/04, Judgement of 7 January 2010, confirm that the protection of privacy should be
extended to all trafficked persons unless there are reasonable grounds justifying
interference—such as consideration of the rights of accused persons to a fair trial.

The State in which a trafficked person is located is also required to provide that person with
physical and psychological care that is adequate to meet at least immediate needs.
Importantly, the provision of such care has been widely acknowledged to be a non-negotiable
right of the victim: a right that should be recognized and implemented irrespective of that
person’s capacity or willingness to cooperate with criminal justice authorities. There is
growing recognition that separating protection and support from victim cooperation in this
way is a fundamental part of a human rights approach to trafficking. The scope and nature of
the obligation on States to provide care and support to victims of trafficking will depend on
many factors because the legal basis for such support is very wide. The Trafficking Protocol,
for example, sets out a range of support measures that State parties are required to consider
implementing (art. 6).

The European Trafficking Convention details a number of very specific measures that are
obligatory (arts. 10–17). Human rights law is another, important source of obligations in this
area. For example, if the victim of trafficking is a child then the overarching rule of “the best
interests of the child” must guide decision-making about support (see above). In line with the
Basic Principles and Guidelines on the Right to a Remedy and Reparation, trafficked persons
as victims of crime and of human rights violations have a right to be treated with humanity
and respect for their dignity and human rights—and are entitled to measures that ensure their
well-being and avoid revictimization .

A human rights approach requires that the provision of care and support should be both
informed and non-coercive. For example, victims of trafficking should receive information on
their entitlements so they can make an informed decision about what to do. As discussed
above, care and support should not be made conditional on cooperation with criminal justice
authorities. Victims should also be able to refuse care and support. They should not be forced
into accepting or receiving assistance. The right to privacy “There should be no public
disclosure of the identity of trafficking victims and their privacy should be respected and
protected to the extent possible, while taking into account the right of any accused person to a
fair trial.” Recommended Principles and Guidelines. A State party is to protect the privacy and
identity of victims of trafficking “in appropriate cases and to the extent possible under its
domestic law”. Trafficking Protocol, article 6 State parties are required to “protect the
private life and identity of victims”. European Trafficking Convention, article 11 Legal
assistance and involvement Trafficked persons have an important role to play and a legitimate
interest in legal proceedings against their exploiters.

Phases of Human Trafficking

There are three main phases of human trafficking which are origin; transit and destination
point. Origin is the place from where the victims are recruited; transit denotes transportation
and transfer, sometimes harbouring also. Destination is the final point where the victims are
received and maintained for exploitation. Even the victims may be exploited in origin and
transit phase but it is for a short period. At destination, negotiation takes place for maximum
profits (Figure 1).

Figure 1: Phases of Human Trafficking.

Obligations that flow from this are in addition to the protection, assistance and support
obligations mandated for all trafficked persons and discussed above. For example:
• Trafficked persons should be provided with legal and other assistance in relation to any court
or administrative proceedings in a language they understand. This should include keeping
victims informed of the scope, timing and progress of proceedings and of the outcome of their
cases.

• Trafficked persons have a right to be present and express their views during any legal
proceedings.

Non-coercion in the provision of support In relation to health care and counselling, “trafficked
persons should not be required to accept any such support and assistance and they should not
be subject to mandatory testing for diseases including HIV/AIDS”. Recommended Principles
and Guidelines, guideline 6 In relation to all assistance measures provided for in the European
Trafficking Convention, State parties are required to ensure the relevant services “are
provided on a consensual and informed basis, taking due account of the special needs of
persons in a vulnerable position and the rights of children in terms of accommodation,
education and appropriate health care”. European Trafficking Convention, article 12 .

In summary, trafficked persons should be given a genuine opportunity to consider their legal
options. This requires, at a minimum, the provision of information of a type and in a manner
that will allow them to make an informed choice. Should trafficked persons be involved in, or
otherwise support, any form of legal action, they have the right to play a meaningful role in
that process and to receive protection and support for the duration of their involvement.
Temporary residence permits and reflection periods Victims of trafficking who are unlawfully
in a country face special dangers and vulnerabilities as a result of their legal status. For
example, they may be unable to access important sources of subsistence and support such as
housing and work opportunities. They may be vulnerable to further exploitation as well as
intimidation and retaliation. They risk being prevented from participating effectively and
meaningfully in legal proceedings against their traffickers. Without regularization of their
status, victims also risk being detained in immigration facilities or shelters.
In addition, they are liable to deportation at any time. In practice it has been observed that
victims of trafficking may have their situation regularized for a number of reasons and in a
number of ways, for instance through: Trafficked persons as victims of crime and as witnesses
The responsiveness of judicial and administrative processes to the needs of victims should be
facilitated by:

(a) Informing victims of their role and the scope, timing and progress of the proceedings and
of the disposition of their cases, especially where serious crimes are involved and where they
have requested such information;

(b) Allowing the views and concerns of victims to be presented and considered at appropriate
stages of the proceedings where their personal interests are affected, without prejudice to the
accused and consistent with the relevant national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d) Taking measures to minimize inconvenience to victims, protect their privacy, when
necessary, and ensure their safety, as well as that of their families and witnesses on their
behalf, from intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or
decrees granting awards to victims

• Granting of a reflection and recovery period during which non-conditional support is given
with the aim of providing victims with time and space to decide on their options, including
whether they will cooperate with criminal justice agencies in the prosecution of their
exploiters;

• Granting of a temporary residence permit linked to (usually criminal) proceedings against


traffickers; such visas usually require victim cooperation and terminate once legal proceedings
are completed; and
• Granting of a temporary residence permit on social or humanitarian grounds that may be
related to, for example, respect for the principle of non-refoulement (discussed further below),
inability to guarantee a secure return and risk of retrafficking. The following important
principles and obligations, found in a range of international and regional instruments, are
relevant to any consideration of whether a victim of trafficking should be granted a right to
temporary residence:

• The right of victims to participate in legal proceedings against their traffickers and to remain
in the country during the proceedings;

• The right of victims to receive protection from further harm;

• The right of victims to access effective remedies;

• The obligation on States not to return victims when they are at serious risk of harm, including
from intimidation, retaliation and retrafficking;

• The special rights of child victims of trafficking, including the obligation to take full account
of the child’s best interests.

II. What is Women Trafficking In India

Violence against women and children has crossed all limits in the present social
scenario. Human trafficking is one of crime which not only dehumanizes women and
children but also a shame for society. The rising cases (reported only) of procurement
of minor girls, 53 per cent in 2013 according to NCRB speak volumes of the mess
women and children are in. Assam, Bihar and West Bengal has witnessed the growing
movement of traffickers and trafficking. In the case of women trafficking in India,
sexual exploitation is the major purpose and the girls are put into prostitution. But
these days, trafficking for bride has pricked our conscience. Girls are bought as brides
from the states of Kerala and West Bengal and transported to Haryana, Punjab and
parts of Uttar Pradesh and Rajasthan. Girls from the poor community are selected and
targeted for this form of human trafficking. It is well known that these women are
treated as sexual commodity and child- producing machines. The reason for this
increased surge in bride trafficking is the complete skewed sex ratio of these states
which purchase women and girls as brides. M. Shafiqur Rhaman Khan, who is a
Delhi- based activist working on the issues of Human Rights, focusing on prevention
of Human (bride) trafficking and honour-killing in India mentions in his piece of
article that Panipat and Sonipat are the main transit points of the trade. A large
number of “placement agencies” are working in this area to facilitate bride trafficking.

Their main job is to bring the girls from the poverty-stricken states and supply in
different parts of the state. A large number of people of Haryana works as truck
drivers and also involve themselves simultaneously as network for procuring girls from
the source area. This is one aspect of women trafficking where women from the poor
areas are promised good job and marriage but sold for few bucks. There are many
more situations like bar dancers of Mumbai where lives of thousands of women are at
stake and caught in the web of trafficking.

Role of the Non-Governmental Organisations (NGOS)

The report of the ‘Trafficking in Women and children in India’ by Sen and Nair [6]
presents a mixed picture of the NGOs. At one point of study of survivors of commercial sex
exploitation, they were asked about the NGOs. Majority of them has appreciated the
functionaries of the NGOs. But when the victims were asked to respond regarding the role
of NGOs, a good number of victims were unaware of the NGOs engagement in the field of
trafficking while few mentioned it’s functioning in HIV prevention. In the present times, lot
of NGOs are actively engaging themselves in the field of trafficking namely Human Rights
Watch, Amnesty International, OXFAM, Save the Children, the Red Cross, Action Aid and
Shakti Vahini. They have been indulging in social monitoring and advancing the knowledge
of human rights.

Citation: Roy S, Chaman C (2017) Human Rights and Trafficking in Women and Children in
India. J His Arch & Anthropol Sci 1(5): 00027.

DOI: 10.15406/jhaas.2017.01.00027

Human Rights and Trafficking in Women and Children in India

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Welfare Board, India.

The Convention specifically provides that victims have a right to monetary compensation from
convicted traffickers in respect of both material injury and suffering, and requires parties to
take steps to guarantee compensation of victims. It gives examples of ways in which this
obligation can be realized, including through the establishment of a special fund or initiatives
aimed at social assistance or reintegration of victims. The possibility of State compensation
schemes funded by the seized proceeds of trafficking is also noted. The obligation to provide
effective and appropriate remedies to victims of trafficking has been repeatedly confirmed by
the General Assembly and the Human Rights Council and human rights mechanisms. The
nature and form of remedies The Recommended Principles and Guidelines require access to
“adequate and appropriate” remedies and this standard is widely accepted. The Recommended
Principles and Guidelines also provide some limited guidance on what this might mean in
practice—referring to “fair and adequate remedies”, which may be criminal, civil or
administrative in nature and which “include the means for as full a rehabilitation as possible”
(guideline 9). The Basic Principles and Guidelines on the Right to a Remedy and Reparation
are clear that remedies or reparation should be proportional to the gravity of the harm suffered
(paras. 15, 18 and 20). Both the form and the extent of the remedies required will depend on
the nature and the circumstances of the violation as well as the relevant primary obligation
(the rule that was breached and that gave rise to the right to a remedy in the first place).
However, in all cases, international law dictates that the form of the remedy should reflect and
advance the obligation on the offending State to, as far as possible, wipe out the consequences
of the breach and re-establish the situation that existed prior to its occurrence. Remedies can
involve one or more of the following elements: Restitution comprises material, judicial or
other measures aimed at restoring the situation that existed prior to the violation—as far as
possible. Adequate 30 and appropriate actions to secure restitution in a case of trafficking
could include: release of the victim from detention; recognition of legal identity and
citizenship; return of property; and safe return to one’s place of residence. Compensation is
the most common form of remedy and is payable for damage caused by an internationally
wrongful act to the extent that such damage is economically assessable and not able to be
made good by restitution. In the case of trafficking, an adequate and appropriate remedy could
include: compensation payable for physical and psychological harm, lost opportunities, loss of
earnings, moral damage, and medical, legal or other costs incurred as a result of the violation.
Rehabilitation is a victim-centred notion that recognizes a need to ensure that the person
whose human rights have been violated has his or her status and position “restored” in the
eyes of the law and of the wider community. Rehabilitation can include the provision of
medical and psychological care, as well as legal and social services. Victims of serious
violations of human rights such as trafficking will inevitably require a range of support
services. The rehabilitation element of reparations would impose an obligation on the
offending State to provide such services. Satisfaction and guarantees of non-repetition:
satisfaction is a remedy for injuries that are not necessarily financially assessable but can be
addressed by ensuring that the violations of the victim’s rights are properly acknowledged and
dealt with. Verification of the facts and full and public disclosure of the truth (to the extent
this will not cause further harm) are examples of remedies aimed at providing satisfaction to
the victim. Guarantees of non-repetition are an important component of the right to a remedy
in the case of trafficking owing to the danger of, and harm caused by, retrafficking. Safe
return, integration support and measures to prevent future trafficking are relevant, as is
effective investigation, prosecution and sanctioning of traffickers. In relation to trafficking in
women and girls, modifying legal, social and cultural practices that sustain or promote
tolerance of such violence is an important aspect of guaranteeing non-repetition. Ensuring
access to remedies The right to a remedy is rarely effectively available to trafficked persons
because they frequently lack information on the possibilities and processes for obtaining
remedies. A right of access to effective remedies means that, in addition to making such
remedies available under criminal or civil law, States should ensure that victims are provided
with information and assistance that will enable them to actually secure the compensation or
restitution to which they are entitled. 31 The Basic Principles and Guidelines on the Right to a
Remedy and Reparation provide detailed and specific guidance on the steps required to ensure
access to justice for victims of serious human rights violations, such as: • Disseminating
information about all available remedies; • Developing measures to minimize the
inconvenience to victims and their representatives; and to protect against unlawful
interference with victims’ privacy and ensure their safety from intimidation and retaliation
before, during and after judicial, administrative or other proceedings that affect their interests;
• Providing proper assistance to victims seeking access to justice; and • Making available all
appropriate legal, diplomatic and consular means to ensure that victims can exercise their
rights to a remedy. In the context of trafficking, an additional and important requisite for
realizing the right to a remedy is the presence of the victim in the country where the remedy is
being sought (see sect. D above). The Special Rapporteur on trafficking in persons has
proposed a set of draft basic principles on the right to an effective remedy for trafficked
persons (see box below). Draft basic principles on the right to an effective remedy for
trafficked persons 1. Rights and obligations 1. Trafficked persons as victims of human rights
violations have the right to an effective remedy for harms committed against them. 2. All
States, including countries of origin, transit and destination, are obliged to provide or facilitate
access to remedies that are fair, adequate and appropriate to all trafficked persons within their
respective territory and subject to their respective jurisdiction, including non-citizens, for
harms committed against them. 3. The right to an effective remedy encompasses both a
substantive right to reparations and procedural rights necessary to access reparations. 4. In
substance, trafficked persons should be provided with adequate reparations for the harms
suffered, which may include restitution, compensation, recovery, satisfaction, and guarantees
of non-repetition. 5. Trafficked persons should also be provided with access to a competent
and independent authority in order to successfully obtain reparations. This necessitates, at a
minimum, the provision of: 32 (a) Information concerning their rights, the reparations
available and the existence of and modalities for accessing reparation mechanisms; (b) Legal,
medical, psychological, social, administrative and other assistance necessary in seeking
remedies; (c) A reflection and recovery period, followed by residence status while trafficked
persons seek remedies. 2. Realizing the right to a remedy 6. States shall: (a) Ensure that
adequate procedures are in place to enable quick and accurate identification of trafficked
persons and provide adequate training to law enforcement and other agencies that might come
in contact with trafficked persons; (b) Ensure that trafficked persons are not subjected to
discriminatory treatment in law or in practice on any ground, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status, including their age, their status as victims of trafficking, their occupation or types of
exploitation to which they have been subjected; (c) Give due consideration to individual
circumstances of trafficked persons to ensure that remedies are centred on the empowerment
of trafficked persons and full respect for their human rights. At a minimum, States should “do
no harm” and ensure that remedial proceedings are not detrimental or prejudicial to the rights
of trafficked persons and their psychological and physical safety. Restitution 7. States shall:
(a) Place the best interests of trafficked persons at the centre in providing measures of
restitution; (b) Provide trafficked persons with temporary or permanent residence status as a
form of remedy where a safe return to the country of origin cannot be guaranteed, may place
them at risk of persecution or further human rights violations, or is otherwise not in their best
interests; (c) Effectively address the root causes of trafficking in order to ensure that trafficked
persons are not returned to the pre-existing situation which places them at risk of being
retrafficked or further human rights violations. Recovery 8. States shall: (a) Provide a non-
conditional reflection and recovery period, during which trafficked persons are provided with
measures necessary for the physical, psychological and social recovery, including, but are not
limited to: appropriate housing, counselling and information about their situations and legal
rights; medical, psychological and material assistance; and employment, educational and
training opportunities; 33 (b) Ensure that trafficked persons’ access to assistance and other
benefits are under no circumstances dependent upon their cooperation in legal proceedings.
Compensation 9. States shall: (a) Ensure that laws, mechanisms and procedures are in place to
enable trafficked persons, if they desire, to: (i) Obtain civil damages for trafficking-related
offences, including breaches of labour laws; (ii) Secure awards or orders from criminal courts
for compensation from persons convicted of trafficking-related offences; (iii) Gain access to
compensation from the State for injuries and damages. (b) Address the common obstacles for
trafficked persons to obtain compensation for their material and non-material damage. To this
end, they should ensure that: (i) All trafficked persons have a legally enforceable right to
obtain compensation, irrespective of their immigration status and of whether their perpetrators
have been convicted; (ii) Trafficked persons are fully informed of their legal rights, including
their rights to have access to remedies through judicial, labour and administrative proceedings,
promptly and in a language and form they understand; (iii) Trafficked persons seeking to
access remedies are provided with necessary assistance to this end, including social assistance,
free and qualified legal aid and representation, and, where necessary, qualified interpreters,
regardless of their immigration status; (iv) Trafficked persons are allowed to lawfully remain
in the country in which the remedy is being sought for the duration of any criminal, civil,
labour or administrative proceedings, without prejudice to any claim they may have to the
right to remain on a more permanent basis as a remedy in itself; (v) Laws and procedures are
in place to support the seizure of the proceeds of trafficking and confiscation of traffickers’
assets, and explicitly indicate that such proceeds and assets are intended in the first instance to
compensate trafficked persons and in the second instance for general provision of remedies to
trafficked persons; (vi) Effective measures are in place for the enforcement of reparation
judgements including foreign judgements. 10. In cases of trafficked women and girls who
have been subjected to sexual and gender-based violence, States should take into account
potential risks of psychological harm, stigma and communal and family ostracism that judicial
proceedings may impose on them and provide measures to afford adequate protection to those
women and girls affected, while creating opportunities to seek compensation through non-
judicial avenues obligation and a central component of an effective national response to
trafficking in persons. There are several key elements to the obligation to criminalize
trafficking: • Criminalization independent of any transnational offence or involvement of
organized criminal group: the offence of trafficking should be established in the domestic law
of every State independently of its transnational nature or the involvement of an organized
criminal group. 35 • Application of the international definition: international cooperation on
trafficking requires a common understanding of trafficking, reflected in a common definition.
States are required to ensure that the national definition is in keeping with the international
standard. For example, the national definition should recognize that women, men and children
can be trafficked for a range of exploitative purposes; it should recognize that the elements of
the crime of trafficking in children are different from those of trafficking in adults; and it
should be clear that theTrends in India According to National Crime Records Bureau (NCRB),
2013 report, there is an increase of 10.9% in human trafficking reported incidence (3,940
cases in 2013 as compared to 3,554 cases in 2012). There is a trend of increasing reported
cases of human trafficking. From 2,848 cases relating to human trafficking reported during
2009, it rose to 3,422 cases in 2010. It further rose to 3,517 cases in 2011, 3,554 cases in 2012
and 3,940 cases in 2013 (Table 1). The crime of human trafficking during the year 2013 has
increased by 38.3 per cent over 2009. It is just the number of reported cases, leave alone the
unreported cases. As the human trafficking is highly clandestine in modus operandi, the major
number of cases never comes into public domain..

Table 1: Incidence of human trafficking during 2009-2013.

Year

Number of Reported Cases


2009 2848
2010 3422
2011 3517
2012 3544
2013 3940

Source: NCRB, 2103


The NCRB has been collecting data under the following heads of crime which are
related to human trafficking:

A. Procurement of minor girls (Section 366-A IPC).


B. Importation of girls from foreign country (Section 366-B IPC).
C. Selling of girls for prostitution (Section 372- IPC).
D. Buying of girls for prostitution (Section 373- IPC).

Table 2: Crime head-wise incidence of various crimes under human trafficking


during 2009-2013 and percentage variation in 2013 over 2012.

Year Percentage
Crime Head 2009 2010 2011 2012 2013 Variation in

2013 Over
2102
Procurement of minor girls 237 679 862 809 1224 51.3
Import of girls from foreign 48 36 80 59 31 -47.5
country
Selling of girls for prostitution 57 130 113 108 100 -7.4
Buying of girls for prostitution 32 78 27 15 6 -60
Immoral Trafficking 2474 2499 2435 2563 2579 0.6
(Prevention) Act 1956

Source: NCRB, 2013.

The crime head-wise details of reported crimes during 2009 to 2013 along with
percentage variation in the year 2013 over 2012 are presented in the Table 2.
Dimensions of Human Trafficking
Human trafficking is a multi-dimensional problem. There is not only significant
rise in trafficking but also increase in its magnitude. The literature on trafficking
carries conflicting layers of understanding with trafficking equated with prostitution
and migration. Any reliable statistical information is absent in terms of quantification
of almost any aspect of trafficking, from the number of people trafficked to the
amount of money earned but it is estimated by UNICEF that it is around 5 to 10
billion dollars earned per year by traffickers [10]. The United Nations estimated the
number of trafficking victims at more than 30 million, with the largest number
originating in Asia and an estimated 1, 50, 000 annually in South Asia alone [9]. The
Indian government’s Ministry of Women and Child Development estimated the
number of persons trafficked for commercial sexual exploitation in India to be around
2.8 billion and about three million prostitutes in the country. It is said to be ‘acquiring
grave dimensions worldwide in the recent context of globalisation’ [6]. Also, there is
rise in the ‘global sophistication, complexity and consolidation of trafficking
networks’ which is said to having diverse and sophisticated mechanisms [6].

According to ‘Report on Trafficking in Women and Children India’ by Sen and


Nair [6], the overall major trends are:

A. Trafficking major purpose is commercial sexual exploitation

B. There is a repeated preference for younger children and inclusion of men.

C. Trafficking is becoming extremely lucrative business, sometimes


exceedingly doing well than arms and drug trafficking.

D. There is strong nexus between traffickers and public officials with the
participation of corporate, sex and tourism industry.

E. Majority of women and children are trafficked through deception and false
promises

All these trends are enormously prevalent in India as well as in the global context.
Let us now move to analyse the factors which contribute in the above mentioned
trends and also discuss other aspects which coalesced and contribute to these trends.
According to Ghosh [11] human trafficking in India can be classified into three
groups: (a) for commercial sexual exploitation, (b) for exploitative labour and (c) for
other forms of exploitation like organ sale, begging, etc. A quick analysis of the
available records and reports on trafficking reveals that the trafficked women and
children are pressed into activities like prostitution in brothels, massage parlours or
beer bars, pornography, dancing, petty crimes, domestic help, agricultural labour,
begging organ trade and drug trafficking.
These rules guarantee, to all persons, the right to receive a fair and public hearing by a
competent, independent and impartial tribunal established by law. • Sanctions: it is widely
recognized that sanctions are an essential part of the national response to trafficking.
International law requires States to ensure that trafficking offences and related violations of
human rights are subject to effective and proportionate sanctions. Weak sanctions can
undermine criminal justice efforts and may fail the victims by not offering them the
protection they deserve. On the other hand, rigid or extremely severe sanctions, such as
mandatory minimum custodial terms or the death penalty, may not meet the required human
rights and criminal justice standard. • Asset confiscation and disposal: trafficking is a highly
lucrative and relatively risk-free crime. An effective criminal justice response requires steps
to be taken to ensure that trafficking does not reward its financiers, organizers and
beneficiaries. International treaty law confirms an obligation on States to seize and
confiscate assets of trafficking and to ensure their laws and institutions are up to this task.
The Recommended Principles and Guidelines (principle 16 and guideline 4.4) as well as the
European Trafficking Convention (art. 23.3) encourage States to find ways to use
confiscated assets to support victims of trafficking. • International cooperation: informal
cooperation mechanisms, such as intelligence exchange between national law enforcement
agencies, as well as legal tools, such as extradition and mutual legal assistance, are important
means of eliminating safe havens for traffickers and thereby ending the high levels of
impunity they currently enjoy and securing justice for victims. International law requires
States to facilitate such cooperation, for example, by making trafficking an extraditable
offence and by adhering to the principle of “extradite or prosecute”. Human rights law also
places limits on the ways in which such cooperation is to take place.4 G. Preventing
trafficking In the context of trafficking in persons, prevention refers to positive measures to
stop future acts of trafficking from occurring. Policies and activities identified as
“prevention” are generally those considered to be addressing 4 See further Association of
Southeast Asian Nations, ASEAN Handbook on International Legal Cooperation in
Trafficking in Persons Cases (2010). 39 the causes of trafficking. These are generally agreed
to be the factors that (a) increase the vulnerability of victims and potential victims; (b) create
or sustain demand for the goods and services produced by trafficked persons; and (c) create
or sustain an environment within which traffickers and their accomplices can operate with
impunity. International law confirms that States bear some responsibility for preventing the
occurrence of an internationally wrongful act such as trafficking. The standard implied in
this obligation is, once again, one of due diligence: the State is required to take “all
reasonable and necessary measures” to prevent a given event from occurring. A decision on
what is “reasonable and necessary” in this context will require consideration of the facts of
the case and the surrounding circumstances, including the capacities of the State. The key
trafficking treaties confirm an obligation of prevention, as do “soft law” sources, such as
resolutions and policy documents of United Nations bodies and regional intergovernmental
organizations and the work of the human rights treaty bodies and special procedures. A
human rights-based approach to trafficking may question or place limits on the use of certain
common prevention strategies. The most important restriction is that responses to trafficking
should not violate established rights (see sect. H below). The practical implications of this
rule for the prevention of trafficking are considered further below. Prevention through
addressing vulnerability to trafficking While our understanding of trafficking is far from
complete, it is clear that certain factors can make an individual, a social group or a
community more vulnerable to trafficking and related exploitation. These factors include
poverty and inequality as well as human rights violations such as discrimination and gender-
based violence—all of which contribute to creating economic deprivation and social
conditions that limit individual choice and make it easier for traffickers and exploiters to
operate. They tend to have a different and disproportionate impact on groups that already
lack power and status in society, such as women, children, migrants (especially irregular
migrants), refugees and the internally displaced. Vulnerabilities to trafficking can be short-
or long-term, specific or general, procedural, political, economic or structural.
Understanding the nature of particular vulnerabilities can help to ensure that responses are
targeted, appropriate and effective. An example of a short-term, specific vulnerability that
has been repeatedly recognized, including by several human rights treaty bodies, is that
caused by a lack of information about safe migration options and the dangers associated with
trafficking. This vulnerability could 40 be addressed through initiatives aimed at raising the
awareness of potential migrants, including those who could be trafficked, with appropriate
precautions and advice on how to avoid falling under the control of traffickers. Poverty and
lack of avenues for safe, legal and non-exploitative migration increase vulnerability in much
more complex ways and require long-term and more comprehensive approaches. A human
rights approach to trafficking recognizes that empowering individuals by guaranteeing their
human rights will reduce their susceptibility to being trafficked and exploited. Such an
approach requires us to consider the reasons why some people are trafficked and others are
not; why some people are prepared to take dangerous migration decisions and others are not;
why some people are more readily exploited than others and in different ways. An
understanding of vulnerability to trafficking should result in preventive measures that are
realistic, effective and respectful of human rights. It should also contribute to more effective
treatment of victims through, for example, better-informed support measures and
reintegration programmes. States have a legal obligation to prevent trafficking and
associated human rights violations through addressing vulnerability. However, there is not
yet sufficient clarity about what this means in practice. The Trafficking Protocol, for
example, requires State parties to “take or strengthen measures … to alleviate the factors that
make persons, especially women and children, vulnerable to trafficking, such as poverty,
underdevelopment and lack of equal opportunity” (art. 9.4). Its parent instrument, the United
Nations Convention against Transnational Organized Crime, also requires States to address
the adverse social and economic conditions believed to contribute to the desire to migrate
and, hence, to the vulnerability of victims of trafficking (art. 31.7). Both treaties highlight
the need for education and awareness-raising aimed at improving understanding of
trafficking, mobilizing community support for action against trafficking, and providing
advice and warning to specific groups and individuals that may be at high risk of
victimization. The European Trafficking Convention has similar provisions (arts. 5–6). The
importance of addressing vulnerabilities to trafficking is emphasized by the United Nations
General Assembly, the Economic and Social Council and the Security Council, United
Nations human rights bodies and through a range of regional and international policy
instruments. The Recommended Principles and Guidelines highlight particular measures to
reduce vulnerability, such as: providing accurate information to potential migrants;
developing realistic information campaigns to inform communities about trafficking; and
expanding the opportunities for legal, gainful and non-exploitative labour migration. 41 The
following paragraphs identify some of the issues that may arise in addressing specific forms
of trafficking-related vulnerability. Vulnerability related to poverty and inequality The limits
that poverty places on life choices can lead to individuals taking risks and making decisions
about their lives and their futures in a way that they would never have done if their basic
needs were being met. Inequality is an additional factor contributing to vulnerability.
Inequality can relate to wealth, income and opportunity. Inequalities that have an impact on
trafficking exist within as well as between countries. In short, trafficking inevitably involves
the movement of individuals from regions and countries of relatively less wealth, income
and opportunity to regions and countries of relatively greater wealth, income and
opportunities. Addressing poverty and inequality must be a priority for all countries, and for
the intergovernmental organizations that represent them and promote their interests. While
this is a broad and long-term goal that goes well beyond the issue of trafficking, there are
certain steps that could be taken in this direction to specifically address those aspects of
poverty and inequality that are most directly relevant to trafficking. These include: better
educational opportunities, especially for women and children; better access to credit, finance
and productive resources, especially for women; and legal and social measures to ensure
labour rights, including a minimum wage that enables an adequate standard of living.
Vulnerability related to discrimination and violence against women Major human rights
instruments, both international and regional, prohibit discrimination on a number of grounds
such as race, sex, language, religion, property, birth, nationality, ethnic or social origin, or
other status. Discrimination can be linked to trafficking in a number of ways. It is no
coincidence that those most likely to be trafficked (irregular migrants, stateless persons, non-
citizens and asylum seekers, members of minority groups) are especially susceptible to
discrimination and intolerance, based on their race, ethnicity, Poverty and vulnerability to
trafficking It is widely recognised that improvement of economic and social conditions in
countries of origin and measures to deal with extreme poverty would be the most effective
way of preventing trafficking. Among social and economic initiatives, improved training and
more employment opportunities for people liable to be traffickers’ prime targets would
undoubtedly help to prevent trafficking in human beings. Source: Explanatory Report of the
Council of Europe. religion or other distinguishing factors. Some groups, such as migrant
women and girls, are vulnerable to intersectional and multiple discrimination. In addition to
increasing the risk of trafficking, discriminatory attitudes, perceptions and practices
contribute to shaping and fuelling the demand for trafficking. Racial and gender-based
discrimination in the recognition and application of economic and social rights is also a
critical factor in rendering persons more susceptible to trafficking than others. In both these
cases, the impact of discrimination results in fewer and poorer life choices. It is the lack of
genuine choice that can, in turn, render women and girls more vulnerable than men and
certain nationalities and ethnicities more vulnerable to being trafficked in certain
situations—where they are minorities or where they are living in poverty or instability after
conflict or political transition. Importantly, while trafficking itself is a form of violence
against women, violence directed against or primarily affecting women can also be a factor
making them more vulnerable to trafficking. For example, women may accept dangerous
migration arrangements in order to escape entrenched gender discrimination, including
family violence and lack of protection against such violence. Women may also be more
vulnerable than men to coercion and force at the recruitment stage, increasing their
susceptibility to being trafficked in the first place. States, particularly those of origin, can
address vulnerability to trafficking related to discrimination and violence against women
through a range of practical measures, such as providing safe shelter with medical,
psychological and legal facilities to women experiencing violence. Longer-term measures
that seek to address the social, cultural and structural causes of violence are also important.
These may be: reforming legislation that either discriminates against women or fails to
address violence against women; ensuring the prompt investigation and prosecution of
complaints related to violence against women; providing access to effective remedies for
gender-based violence; and implementing initiatives aimed at educating the public and
relevant officials about violence against women.

Special vulnerabilities of children, including unaccompanied and separated children

International law recognizes that children, because of their reliance on others for their
security and well-being, are vulnerable to trafficking and related exploitation. It, therefore,
accords children special rights of care and protection. Appropriate responses to child
vulnerability must be built on a genuine understanding of that vulnerability—specifically,
why some children are trafficked and others are not.

All measures taken to reduce the vulnerability of children to trafficking should aim to
improve their situation—rather than just prevent behaviours such as migration for work,
which, while not desirable, especially for young children, 43 may not necessarily be
exploitative or lead to trafficking. It is also important to recognize that children are not a
homogenous group: older children have different needs, expectations and vulnerabilities
than younger children; girls and boys can similarly be disaggregated.
Actions to reduce the vulnerability of children to trafficking.

• Ensure that appropriate legal documentation (including for birth, citizenship and marriage)
is in place and available;
• Tighten passport and visa regulations in relation to children, particularly unaccompanied
minors and minors accompanied but not by an immediate family member;

• Improve children’s access to educational opportunities and increase the level of school
attendance, in particular by girls;

• Protect children from violence including family and sexual violence;

• Combat discrimination against girls;

• Raise public awareness of the unlawful nature and effects of child trafficking and
exploitation. Source: Recommended Principles and Guidelines on Human Rights and
Human Trafficking: Commentary.

Vulnerability in conflict and post-conflict situations

Trafficking is a feature of armed conflict as well as of post-conflict situations. During


conflict, individuals may be abducted or otherwise trafficked by military or armed groups to
provide labour, military and sexual services. Even after the cessation of hostilities, civilian
populations may be under extreme economic or other pressure to move and are thereby
particularly vulnerable to threats, coercion and deception. War and post-war economies are
often built on criminal activities, which can quickly be expanded to include trafficking.
Weak or dysfunctional criminal justice systems ensure that traffickers and their accomplices
can operate with impunity. Violent and lawless war zones often become source, transit or
destination points for victims of trafficking. The presence of international military or
peacekeeping forces can present an additional threat of trafficking and related exploitation,
with women and girls being at particular risk. International law and international policy
require action to address the particular vulnerabilities of individuals caught up in conflict. To
the extent that the situation, its cause or its consequences have a gender dimension, it is
essential to ensure that responses, too, integrate an appropriate gender perspective.

Prevention through addressing demand

Trafficking feeds into a global market that seeks cheap, unregulated and exploitable labour
and the goods and services that such labour can produce.

It is this realization that has prompted calls for States and others to consider demand as part
of the problem of trafficking and to acknowledge demand reduction as an important part of
any comprehensive approach to prevention.

It is difficult and sometimes controversial to focus on demand, and the fact that there is no
common understanding of what “demand” actually means further complicates matters. For
example, when used in connection with trafficking, demand can refer to quite different
things: e.g., employer demand for cheap and exploitable labour; consumer demand for the
goods or services produced or provided by trafficked persons; and even demand generated
by exploiters and others involved in the trafficking process such as recruiters, brokers and
transporters, who rely on trafficking and victims of trafficking to generate income. A
distinction can also be made between the demand itself, and the causes and factors that can
shape it. Of course, demand cannot be considered separately from supply—not least because
supply may well generate its own demand. For example, the availability of a cheap and
exploitable domestic labour force can itself contribute to generating demand for exploitative
domestic labour at a level that may not otherwise have existed. Similarly, some argue that
demand for prostitution fuels the market for persons trafficked into prostitution.
International treaty law requires States to take at least some measures to discourage the
demand that fosters trafficking-related exploitation. However, provisions relating to demand
are very general and it is difficult to isolate specific actions. For example, the Trafficking
Protocol requires State parties to “adopt or strengthen legislative or other measures, such as
educational, social or cultural measures, including through bilateral and multilateral
cooperation, to discourage the demand that fosters all forms of exploitation of persons,
especially women and children, that leads to trafficking” (art. 9.5). The European
Trafficking Convention contains a similar provision, along with a list of minimum measures
that its State parties have to take (art. 6).

Several of the United Nations human rights treaty bodies and special procedures have taken
up this issue, in particular the need to raise public awareness of the unlawful and exploitative
nature of human trafficking. International and regional policy documents provide further
confirmation of a growing understanding of the need for States to consider demand as a root
cause of trafficking and a key factor in any effective prevention strategy. However, once
again, there is a lack of specificity about how demand can or should actually be addressed in
practice.

It is helpful to consider how human rights can contribute to fleshing out the substantive
content of the obligation to address demand (see also chap. II, 45 sect. C above). The
following text box provides guidance on the various considerations that should underpin a
human rights-based approach to addressing demand.
Considerations for a human rights approach to addressing demand Focus and scope

• The obligation to address demand rests primarily with the country within which the
exploitation takes place, because it is within these countries that both consumer and
employer demand is principally generated.

• The links between demand and supply, noted above, also imply certain obligations on
countries of origin.

• The demand reduction required under international law is not restricted to demand for
exploitative sexual services but encompasses demand for the full range of exploitative
practices identified in the international definition of trafficking.

• States are not precluded by international law from regulating prostitution as they consider
appropriate, subject, of course, to their obligation to protect and promote the human rights of
all persons within their jurisdiction.

Demand and discrimination

• Demand in the context of trafficking is often shaped by discriminatory attitudes (including


cultural attitudes) and beliefs. Women may be preferred for certain forms of exploitation
because they are perceived as weak and less likely to assert themselves or to claim the rights
to which they are entitled. Certain ethnic or racial groups may be targeted for trafficking-
related exploitation on the basis of racist or culturally discriminatory assumptions relating to,
for example, their sexuality, servility or work capacity.

• Demand for prostitution supplied through trafficking may reflect discriminatory attitudes
and beliefs based on both race and gender.

• Rights-based strategies to address demand should focus on addressing discriminatory


attitudes and beliefs, particularly those directed against women and migrants.

The role of the State

• States are able to shape demand for the goods and services produced by trafficking through
laws and policies on a range of matters, including immigration, employment, welfare and
economic development. For example, failure to provide legislative protection to certain
individuals, such as domestic workers, “entertainers” or migrant workers, creates an
environment that encourages demand.

• Laws and policies that institutionalize discrimination can also shape demand, as can a
failure on the part of the State to challenge discriminatory social attitudes, practices and
beliefs effectively. 46 • By maintaining trafficking as a low-risk, high-profit crime, a failure
on the part of the State to investigate, prosecute and punish trafficking and related
exploitation effectively can contribute to the demand generated by traffickers and exploiters.

• Failure on the part of the State to protect the rights of certain persons, including women,
children and migrants, can further contribute to building demand by exacerbating
vulnerability and, thereby, exploitability.
The importance of labour protection

• Poor or inadequately enforced labour standards in countries of destination sustain a demand


for trafficked labour. Demand for the labour or services of trafficked persons is absent or
markedly lower where workers are organized and where labour standards for wages,
working hours and conditions, and health and safety are monitored and enforced.

• Rights-based strategies to address the demand for cheap, controllable labour should
therefore aim to secure adequate labour protection, including through properly monitored
regulatory frameworks, for all persons, including migrants and those working in the informal
economy.

Non-violation of established rights.

• Human rights-based strategies to address trafficking-related demand must not compromise


established rights, in particular, the rights of those who have been trafficked or of migrants,
internally displaced persons, refugees or asylum seekers.

Source: Recommended Principles and Guidelines on Human Rights and Human Trafficking:
Commentary.

Prevention through addressing corruption and complicity

In many situations of trafficking, some level of direct or indirect involvement of public


officials is often claimed. Direct involvement refers to situations whereby public officials are
actually part of the trafficking process—for example, as recruiters, brokers or exploiters.
There are also many types of less direct official involvement (see text box below). Public
sector complicity in trafficking, whether direct or indirect, undermines confidence in the rule
of law and the fair operation of the criminal justice process. It fuels demand for illegal
markets, such as trafficking, helps organized criminal groups to obstruct justice, exacerbates
victim vulnerability, and renders almost impossible the full discharge of a State’s obligation
to investigate and prosecute trafficking cases with due diligence.

Military, peacekeeping, humanitarian and other international personnel may also be involved
in trafficking and related exploitation. This is a complex issue and the dynamics are not yet
fully understood. Certainly, a large, mostly male international presence is likely to fuel the
demand for goods and services 47 produced through trafficking and exploitation, in
particular prostitution. International personnel are generally deployed to situations of
conflict or immediate post-conflict in which populations are vulnerable and basic
institutions, including law enforcement, are fragile or non-existent.

In addition, the legal framework governing engagement may be unclear and lines of
responsibility and control blurred. The growing privatization of conflict, characterized by the
increased involvement of private corporations as contractors and subcontractors, has
exacerbated problems of responsibility and control. These various factors can combine to
create a climate of impunity: a legal and procedural vacuum in which international personnel
involved in criminal exploitation and trafficking are not investigated, apprehended or
prosecuted.

States have an obligation to identify and respond adequately to traffickingrelated corruption


and complicity—an obligation that should be seen as part of the broader duty to prevent
trafficking. The United Nations Convention against Transnational Organized Crime, for
example, acknowledges the strong link between organized criminal activities such as
trafficking and corruption. It requires State parties to take strong measures to criminalize all
forms of corrupt practices (art. 8).

State parties are also required to adopt measures designed to promote integrity and to prevent
and punish the corruption of public officials. They must also take measures to ensure
effective action by their authorities in the prevention, detection and punishment of the
corruption of public officials, including providing such authorities with adequate
independence to deter the exertion of inappropriate influence on their actions (art. 9). The
provisions of this Convention affirm the much more specific obligations of the United
Nations Convention against Corruption. Examples of trafficking-related corruption and
complicity.

• Border officials accepting bribes or inducements to permit the passage of persons who may
be trafficked;

• Law enforcement officials or international peacekeeping, military or humanitarian


personnel accepting favours in exchange for protection from investigation or prosecution;

• Labour inspectorates or health and safety officials accepting bribes to certify dangerous or
illegal workplaces;

• Law enforcement or other public officials (including international peacekeeping or


international military personnel) maintaining commercial interests in businesses using the
services of trafficked persons, such as brothels; and
• Criminal justice officials, including prosecutors and judges, accepting bribes to dispose of
trafficking cases in a particular way. Source: Recommended Principles and Guidelines on
Human Rights and Human Trafficking: Commentary. Other specialist trafficking treaties,
including the European Trafficking Convention (art. 24), recognize public sector complicity
in trafficking as an aggravated circumstance warranting relatively harsher penalties. Many
international and regional policy documents confirm the link between trafficking and
corruption and the need for States to respond effectively. For example, the General
Assembly has sought to protect trafficked persons against further harm by calling upon
Governments to penalize persons in authority found guilty of sexually assaulting victims of
trafficking in their custody.

What does the duty to respond to trafficking-related corruption and complicity mean in
practice? The relevant legal standard is due diligence: the State must be able to show that it
has taken and is taking every reasonable step to prevent, identify and respond to such
practices. The United Nations Human Rights Committee has usefully spelled out the steps
that should be taken to deal with violations of human rights involving public officials that
are highly relevant to trafficking:

[In] order to combat impunity, stringent measures should be adopted to ensure that all
allegations of human rights violations are promptly and impartially investigated, that the
perpetrators are prosecuted, that appropriate punishment is imposed on those convicted and
that the victims are adequately compensated. The permanent removal of officials convicted
of serious offences and the suspension of those against whom allegations of such offences
are being investigated should be ensured.

Additional actions that may be required of States to meet the due diligence standard include:
• Ensuring that the legal framework provides for the identification, investigation and
prosecution of trafficking-related offences, including those committed by or with the
complicity of public officials;

• Ensuring that the involvement of public officials in trafficking or related offences is an


aggravated circumstance attracting relatively harsher penalties;

• Ensuring that procedures are in place for the effective investigation of complaints of
trafficking involving or implicating public officials. These procedures should aim to ensure
accountability, maintain public confidence and alleviate legitimate concerns. Accordingly,
the investigation should commence promptly and be conducted with expedience. It must not
be a mere formality but must be capable of leading to the identification and punishment of
culprits. The investigation must be independent and public. There must be meaningful
measures to establish the truth of a victim’s allegations or to obtain corroborating evidence.

If military, peacekeeping, humanitarian and other international personnel are involved in


trafficking and related exploitation, the legal issues are more complicated. The
Recommended Principles and Guidelines provide a very useful guide in this respect,
focusing particular attention on closing this responsibility gap, identifying the obligations
and responsibilities of States and intergovernmental organizations, and ensuring that
international military, peacekeeping and humanitarian operations do not become safe havens
for traffickers and their accomplices (guideline 10). Many of the practical steps proposed by
the Recommended Principles and Guidelines (e.g., training, the adoption of regulations and
codes of conduct, the establishment of investigatory and prosecutorial bodies, the removal of
privileges and immunities, and the imposition of criminal disciplinary and financial
responsibility) have been affirmed and even extended by recent reports, recommendations,
commitments and initiatives of the major intergovernmental organizations, such as the
General Assembly, the Security Council, the North Atlantic Treaty Organization, and
coalitions of United Nations and private agencies involved in humanitarian work.

H. Ensuring responses do not violate established rights

Measures taken to address trafficking can have an adverse impact on the rights and freedoms
of trafficked persons and others—a danger that has been repeatedly recognized by the
United Nations human rights system.

States and others are under an international legal obligation to ensure that measures taken to
combat and prevent trafficking do not undermine or otherwise negatively affect human
rights. This principle is recognized in the Recommended Principles and Guidelines. It is
affirmed in the Trafficking Protocol:

Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and
individuals under international law, including international humanitarian law and
international human rights law and, in particular, where applicable, the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees and the principle of non-
refoulement as contained therein (art. 14.1).

Several human rights are particularly at risk through the application of antitrafficking
measures: the prohibition of discrimination; the right to freedom of movement; and the right
to seek and receive asylum from persecution. These are discussed further below.

Anti-trafficking measures and the prohibition on discrimination, including gender-


based discrimination
The link between discrimination and vulnerability to trafficking has been explored in some
detail in section G above. Another important aspect of the link between discrimination and
trafficking lies in the fact that measures taken by States and others to prevent or respond to
trafficking can perpetuate discrimination and even violate the legal prohibition against
discrimination. This danger is explicitly recognized in the Trafficking Protocol:

Examples of anti-trafficking measures that may adversely affect


established rights

• Detention of trafficked persons in immigration or shelter facilities;

• Prosecution of trafficked persons for status-related offences


including illegal entry, illegal stay and illegal work;

• Denial of exit or entry visas or permits—whether generally


applicable or only in relation to a group of persons identified as
being especially vulnerable to trafficking;

• Denial of the right of all persons, including those who have been
trafficked, to seek asylum from persecution;

• Denial of basic rights to migrants, including migrant workers and


those not lawfully within the territory of the State;

• Raids, rescues and “crackdowns” that do not include full


consideration and protection of the rights of the individuals
involved;

• Forced repatriation of victims in danger of reprisals or


retrafficking; • Denial of a right to a remedy;

• Violations of the rights of persons suspected or convicted of


involvement in trafficking and related offences, including unfair
trials and inappropriate sentencing;

• Laws or procedures that authorize any of the above.

Risks to human rights that may arise in addressing vulnerability


to trafficking

• Failing to distinguish between children who are trafficked into


situations of exploitation and children who migrate on their own or
are assisted by others to find non-exploitative jobs they want to stay
in;

• Failing to distinguish between those who are trafficked and those


who migrate for work;
• Preventing or obstructing children, women or members of a
particular ethnic or racial group from leaving home or migrating in
search of work;

• According insufficient recognition and protection to male victims


of trafficking;

• Failing to focus adequate attention on all forms of trafficking.


Source: Recommended Principles and Guidelines on Human Rights
and Human Trafficking: Commentary.

The measures set forth in this Protocol shall be interpreted and applied in a way that is not
discriminatory to persons on the grounds that they are victims of trafficking in persons. The
interpretation and application of those measures shall be consistent with internationally
recognized principles of non-discrimination (art. 14.2).

The problem of gender-based discrimination is particularly acute. Under international human


rights law, an anti-trafficking measure will violate the prohibition on sex-based
discrimination if the measure can be shown to: (a) negatively affect the rights of the
individual involved; and (b) be overwhelmingly directed to and affect women and girls.
Detention of women and girls and restrictions on the emigration of women and girls are just
two examples of potentially discriminatory responses to trafficking.

Anti-trafficking measures and the right to freedom of movement.

The right to freedom of movement generally refers to a set of individual rights that include:
the right to move freely and to choose a place of residence within a State; the right to cross
frontiers in order to both enter and leave the country; and the prohibition on the arbitrary
expulsion of non-citizens. Many of the major international human rights treaties, including
the International Covenant on Civil and Political Rights (art. 12), explicitly recognize and
protect the right to freedom of movement, as does the Universal Declaration of Human
Rights (art. 13) and all the major regional human rights treaties.

Freedom of movement is particularly vulnerable to being compromised by States in their


efforts to respond to trafficking. States may, for example, take legislative, administrative or
other measures to prevent individuals from emigrating in search of work. They may take (or
not prevent non-governmental entities from taking) national or foreign victims of trafficking
into “protective” custody. They may prevent a victim from returning home until certain
requirements, such as providing testimony against traffickers, are met.

The Recommended Principles and Guidelines contain a specific reference to freedom of


movement In the context of protecting established rights:

States should consider protecting the rights of all persons to freedom of movement and
ensuring that anti-trafficking measures do not infringe upon this right (guideline 1).

When considering the human rights impact of a particular anti-trafficking measure, it is


important to acknowledge that freedom of movement and related rights are not absolute.
Such freedom may, for example, be guaranteed only to those who are lawfully within the
territory of the State. In its general comment 52 No. 27 (1999) on freedom of movement, the
Human Rights Committee, in considering limits on this right, noted that it is “an
indispensable condition for the free development of a person”. Any restrictions on this right
“must be provided by law, must be necessary … and must be consistent with all other rights
recognized in the Covenant” and “conform to the principle of proportionality”.
In deciding whether a restriction on freedom of movement is lawful, it is therefore essential
to ask whether it is: (a) provided for by law; (b) consistent with other rights (such as the
prohibition on sex-based discrimination); and (c) strictly necessary. These requirements
must all be fulfilled. For example, even if a State is able to argue that its emigration
restrictions are based on a need to preserve public order or public morals through preventing
trafficking and that the measures taken are both necessary and in proportion to their stated
aim, that same State must also be able to show that its restriction is non-discriminatory.
Since almost all emigration restrictions related to trafficking are limited to women and girls,
it would be difficult for any State to argue convincingly for their lawfulness under current
international legal standards.

Anti-trafficking measures and the rights of refugees

Refugees and asylum seekers may also be victims of trafficking. International law is clear
that asylum claims are to be considered on their substantive merits and not on the basis of
the applicant’s means of entry. In practical terms this means that all persons, including both
smuggled migrants and trafficked persons, should be given full opportunity (including
through the provision of adequate information) to make a claim for asylum or to present any
other justification for remaining in the country of destination on that basis. This rule has
important practical significance. Many States impose penalties for unlawful entry, use of
fraudulent travel documents, etc. It has been noted that such penalties increasingly consist of
a denial of rights in the context of refugee determination procedures.

Trafficking itself could potentially be the basis of a claim for refugee status. In 2006,
UNHCR issued Guidelines on international protection: The application of article 1A(2) of
the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of
trafficking and persons at risk of being trafficked (UNHCR Trafficking Guidelines). They
acknowledge that not all victims or potential victims of trafficking fall within the scope of
the refugee definition and that being a victim of trafficking does not, per se, represent a valid
ground for claiming refugee status. However, they also affirm that, in some cases, trafficked
persons may qualify for international refugee protection if the acts inflicted by the
perpetrators would amount to persecution for one of the reasons contained in the definition
of the 1951 Convention and the State does not provide effective protection.

The principle of non-refoulement is another important aspect of the traffickingrefugee nexus


that is particularly relevant to the obligation on States not to violate established rights. It
prevents a State from returning a person to another State if there are substantial grounds for
believing that the individual in question would be subjected to persecution. It also provides
that States are not permitted to return or extradite a person to another State where there are
substantial grounds for believing that the individual in question would be subjected to torture
or other forms of ill-treatment. A determination that a victim of trafficking would likely face
serious reprisals or retrafficking may, in certain circumstances, trigger the obligation of non-
refoulement.

Measures to guard against the violation of established rights in relation


to asylum

• Ensure that procedures and processes are in place for the receipt and
consideration of asylum claims for both trafficked persons and smuggled
asylum seekers, and that the principle of non-refoulement is respected and
upheld at all times;
• Ensure that a supportive environment is provided to asylum applicants who
claim to be victims of trafficking;

• Understand that asylum seekers who are victims of trafficking may be in


fear of revealing the full extent of their persecution and that this fear may
have a gender dimension that needs to be taken into account;

• Accept that certain forms of trafficking may have a disproportionately


severe effect on women and children and may, in fact, give rise to
individuals being considered victims of gender-related persecution;

• Avoid any overt or implied link between the merits of an asylum claim and
the willingness of a victim to give evidence against his or her exploiters.

Sources: Recommended Principles and Guidelines and UNHCR Trafficking


Guidelines.

IV. IMPLEMENTATION, MONITORING AND ACCOUNTABILITY

The value of new international, regional and national laws around trafficking depends on
their effective implementation. This chapter provides a brief overview of the web of
mechanisms and procedures that have been established to help close the “implementation
gap” between laws and practice, and thereby to ensure greater accountability of States and
others who are responsible for responding to trafficking.
A. Mechanisms attached to treaties on trafficking The Trafficking Protocol does not
establish a specific monitoring mechanism to oversee its implementation. However, its
parent instrument, the United Nations Convention against Transnational Organized Crime,
establishes a Conference of the Parties to the Convention, which has been empowered to
request and receive information on State parties’ implementation of the Protocol and to
make recommendations to improve the Protocol and its implementation. In 2008 the
Conference of the Parties set up a working group to assist and advise it in fulfilling its
responsibilities with regard to the Protocol. That working group is mandated to:

• Facilitate implementation of the Protocol through the exchange of experience and practices
between experts and practitioners;

• Make recommendations on how State parties can better implement the Protocol;

• Assist the Conference of the Parties in providing guidance to its secretariat (United Nations
Office on Drugs and Crime) on its activities relating to the implementation of the Protocol;

• Advise the Conference of the Parties on implementation-related cooperation with other


bodies.

The European Trafficking Convention has a relatively sophisticated monitoring mechanism


comprising a technically focused Group of Experts on Action against Trafficking in Human
Beings and a more politically oriented Committee of the Parties, linked directly to the
Committee of Ministers of the Council of Europe. State parties are required to regularly
report to the Group of Experts on their implementation of the Convention and the Group of
Experts is itself empowered to seek information including through on-site visits. Reports
prepared by the Group of Experts are sent to the State party as well as to the Committee of
the Parties for any follow-up that may be required. While the Committee cannot modify or
change these reports, it can request State parties to take certain measures to implement its
recommendations.

B. The international human rights system

The international human rights system plays a central role in promoting the effective
implementation of the international legal framework around trafficking. The United Nations
Human Rights Council considers the issue of trafficking and, along with the General
Assembly, regularly adopts resolutions on the subject. The work of other key players is
briefly described below.

United Nations human rights treaty bodies

For each of the major international human rights treaties, a committee of independent experts
has been established to monitor the implementation of its 55 provisions by its State parties.
As part of their obligations under most of these treaties, State parties are required to submit
regular reports to the respective committees on the situation with regard to protected rights
and the steps that they have taken to fulfil their treaty obligations. The committees examine
these reports and a dialogue is initiated with the reporting State. In addition to providing
guidance to that State, the “concluding observations” of a treaty body on the performance of
a State party can provide useful information to other countries on what is expected of them
in relation to a particular right or standard set out in the treaty. Most treaty bodies also issue
general comments interpreting the treaty provisions.
Some of the treaty bodies perform additional functions aimed at strengthening the
implementation of the treaties by their State parties (such as inquiries). Some treaty bodies
may consider complaints or communications from individuals alleging that their rights have
been violated by a State party, provided the State has opted into this procedure. Finally, the
Subcommittee on Prevention of Torture, a new type of treaty body, may visit all places of
detention in State parties and provides assistance and advice to both State parties and
independent national bodies for the prevention of torture and other cruel, inhuman or
degrading treatment or punishment.

Given the broad scope of rights potentially affected by trafficking, it is not surprising that the
work of most human rights treaty bodies touches on trafficking in one way or another. Their
attention to trafficking has increased greatly over the past decade as trafficking has become
more prominent on the international political agenda and its relationship to specific human
rights more clearly established. For example, trafficking in children and women is now
regularly discussed by the Committee on the Rights of the Child and the Committee on the
Elimination of Discrimination against Women; and the trafficking of migrant workers is a
major issue for the Committee that oversees the International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families. Both the Human
Rights Committee and the Committee on Economic, Social and Cultural Rights have
repeatedly raised the issue of trafficking in the context of specific rights protected by the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. The Committee against Torture and the Committee
on the Elimination of Racial Discrimination have occasionally discussed trafficking during
their consideration of State party reports.

United Nations human rights special procedures and trust funds


The United Nations investigatory mechanisms or “special procedures” are charged with
monitoring, advising and publicly reporting on a human rights 56 situation in a specific
country (country mandates) or on a particular issue (thematic mandates). All thematic and
country-specific mechanisms are authorized to receive information relevant to their mandate
from a variety of sources (including intergovernmental and non-governmental
organizations), and to make recommendations regarding the prevention of violations. Some
are empowered to respond to allegations of violations by, for example, establishing a
dialogue with complainants and Governments or even engaging in investigating allegations.
The reports of the special procedures can be an important source of information and insight
into human rights norms and standards. Because special procedures are dealing with real
situations,
they are often able to identify the practical measures required by States to protect, respect and
fulfil a certain human right.
Mandate of the Special Rapporteur on trafficking

• Promote the prevention of trafficking in persons in all its forms and


the adoption of measures to uphold and protect the human rights of
victims;

• Promote the effective application of relevant international norms and


standards and contribute to their further improvement;

• Integrate a gender and age perspective throughout the work of the


mandate through, inter alia, the identification of gender- and age-
specific vulnerabilities in relation to the issue of trafficking in persons;

• Identify and share best practices as well as challenges and obstacles in


order to uphold and protect the human rights of victims and identify
protection gaps in this regard;

• Give particular emphasis to recommendations on practical solutions


with regard to the implementation of the rights relevant to the
mandate, including by the identification of concrete areas and means
for international cooperation to tackle the issue of trafficking in
persons;

• Examine the impact of anti-trafficking measures on the human rights


of victims of trafficking in persons with a view to proposing adequate
responses to challenges arising in this regard and to avoid
revictimization of victims of trafficking;

• Request, receive and exchange information on trafficking in persons


from Governments, treaty bodies, special procedures, specialized
agencies, intergovernmental organizations and non-governmental
organizations and other relevant sources, as appropriate, and respond
effectively to reliable information on alleged human rights violations
with a view to protecting the human rights of actual or potential
victims of trafficking.

• Work in close cooperation with other relevant agencies, organs and


institutions, and report annually to the Human Rights Council and the
General Assembly.

Source: United Nations Human Rights Council resolution 17/1. 57

The special procedures most relevant to the subject of trafficking are the Special Rapporteur
on trafficking in persons, especially women and children; the Special Rapporteur on
violence against women, its causes and consequences; the Special Rapporteur on the sale of
children, child prostitution and child pornography; the Special Rapporteur on the human
rights of migrants; and the Special Rapporteur on contemporary forms of slavery.
The United Nations Voluntary Trust Fund on Contemporary Forms of Slavery was
established by the General Assembly in 1991 to provide humanitarian, legal and financial
aid to individuals who are victims of contemporary forms of slavery. This term covers
trafficked persons who are victims of exploitative practices such as forced labour, bonded
labour, sexual slavery, the worst forms of child labour, commercial sexual exploitation of
children and forced marriage. Priority in allocating grants is given to projects addressing the
root causes of slavery; to projects providing direct medical, psychological, social, legal,
humanitarian, educational or other forms of assistance to victims of contemporary forms of
slavery; and to projects combined with income-generating activities.

The Office of the United Nations High Commissioner for Human Rights (OHCHR)

While several United Nations specialized agencies have a mandate to work on migration-
related issues, few have a protection mandate or an explicit human rights focus to their
activities. OHCHR situates human trafficking in the global context of movement and
migrations increasingly undertaken as a result of economic globalization, the feminization of
migration, armed conflict, the breakdown or reconfiguration of States, or the transformation
of political boundaries. Its strategy further acknowledges that migrants in an irregular
situation are more likely to be victimized by unscrupulous employers or fall in the hands of
traffickers. It also recognizes that restrictive and exclusionary immigration and asylum
policies push migrants into alternative migration methods, including trafficking, with serious
implications for their human rights. In line with these issues, priorities and strategies,
OHCHR is involved in analysing the impact of migration laws, policies and programmes on
the rights of migrants; assisting Governments and other national stakeholders in reinforcing
their capacity to monitor, investigate and provide redress for violations of migrants’ rights;
and providing training to migration officials, law enforcement officers, parliamentarians,
judges and lawyers, on identifying victims of trafficking and monitoring violations of
migrants’ rights. OHCHR is a member of the Inter-agency Coordination Group against
Trafficking in Persons and has been instrumental in strengthening and transforming it from
an information-sharing body to an inter-agency policymaking 58 body. OHCHR is also a
member of the Global Migration Group, comprised of 16 United Nations agencies and other
international entities. During its term as chair in the second half of 2010, the Global
Migration Group issued a landmark joint statement voicing deep concern about the human
rights of migrants in an irregular situation, including the risk of trafficking. It called on
States to address the demand side of trafficking and exploitation and expressed continued
commitment to anti-trafficking measures.

C. The Global Plan of Action to Combat Trafficking in Persons and the United Nations
Trust Fund for Victims of Trafficking

In 2010, the General Assembly adopted the Global Plan of Action to Combat Trafficking in
Persons, which focuses on preventing trafficking, prosecuting offenders and protecting
victims, and affirms many of the standards and rules set out in chapter III above. It also
stresses the importance of obtaining more research, data and analysis about the problem;
urges all Governments to take coordinated and consistent measures to defeat trafficking; and
calls for integrating the fight against human trafficking into the United Nations broader
programmes to boost development and strengthen security around the world. The Global
Plan does not directly contribute to strengthening monitoring and accountability
mechanisms. However, it does establish the United Nations Voluntary Trust Fund for
Victims of Trafficking in Persons, Especially Women and Children, to provide
humanitarian, legal and financial aid to victims of trafficking through established channels
of assistance, such as governmental, intergovernmental and non-governmental organizations.
The Trust Fund is administered through a board of trustees, which meets regularly to
consider and advise on proposals.
D. International and regional courts and tribunals

International and regional courts and tribunals are another potentially important source of
monitoring and accountability. Several of the ad hoc international criminal tribunals (such as
the International Criminal Tribunal for the former Yugoslavia) have occasionally considered
trafficking-related issues. The inclusion of trafficking and related practices such as slavery
and sexual slavery into the Statute of the International Criminal Court (art. 7.1 (c) and (g))
raises the possibility that this important mechanism of individual criminal accountability will
have future relevance to the issue of trafficking. The European Court of Human Rights has
issued judgements in several cases that dealt with or touched on trafficking. Rantsev v.
Cyprus and Russia has been especially significant in fleshing out the substantive content of
several impor- 59 tant legal obligations, including the obligation to prevent trafficking-
related exploitation and the obligation to investigate cases of trafficking with due diligence.

Human rights issues relating to trafficking, such as slavery, forced labour and exploitation of
migrant workers, have also been considered by regional courts, including the European
Court of Human Rights, the Inter-American Court of Human Rights and the Court of Justice
of the Economic Community of West African States.

E. National monitoring and accountability

In the final analysis, human rights are protected and respected because of what exists and
what is done at the national level. It is the quality and strength of national laws, procedures
and practices that will ultimately determine the nature of a State’s response to trafficking.
The establishment of mechanisms to oversee and guide national trafficking responses is an
important aspect of developing a strong, rights-based response. Such mechanisms should be
mandated to and capable of measuring the national response against the international
standards set out in this Fact Sheet. As recognized in the Recommended Principles and
Guidelines (guideline 1), national mechanisms also have a critical role to play in monitoring
the impact of anti-trafficking interventions to ensure they do not interfere with or otherwise
negatively affect established rights.

An increasing number of countries are setting up single national offices, such as a rapporteur
to oversee the national response to trafficking. Recently, the European Union mandated the
creation of such a position within its member States (see below). In other countries,
independent national human rights institutions, such as national human rights commissions,
have taken up the issue of trafficking: conducting inquiries into the national situation,
advising government agencies and assessing national responses that are seen to fall short of
the State’s international obligations.

National rapporteurs or equivalent mechanisms Member


States shall take the necessary measures to establish national rapporteurs
or equivalent mechanisms. The tasks of such mechanisms shall include the
carrying out of assessments of trends in trafficking in human beings, the
measuring of results of anti-trafficking actions, including the gathering of
statistics in close cooperation with relevant civil society organisations
active in this field, and reporting.

Source: Directive 2011/36/EU on preventing and combating trafficking in


human beings and protecting its victims (art. 19). 60

While independent monitoring is an important aspect of ensuring that laws, policies and
practices protect and do not infringe established rights, those governmental agencies most
directly involved in the trafficking response—including legislators, law enforcement,
prosecutorial and judicial bodies and victim support agencies—should also monitor their
own actions and performance from a human rights perspective. In addition, as noted in the
Recommended Principles and Guidelines, non-governmental organizations working with
trafficked persons should be encouraged to participate in monitoring and evaluating the
human rights impact of anti-trafficking measures. Such monitoring should not be limited to
the actions of the State, but could usefully be extended to encompass the activities of non-
governmental agencies themselves, in particular service providers and others involved
directly with victims.
1.2 Impacts, Causes and Consequences of Women Trafficking in India from

1.2.1 Human Rights Perspective

Human trafficking is the illegal trade of human beings mainly for the purposes of commercial
sexual exploitation and forced labour. It is the movement of men, women and children from
one place to another through force, coercion or deception into situations of their economic
and sexual exploitation. The UN Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children [known as the Palermo Protocol adopted in
November 2000] defines trafficking as
“.....the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the
threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or of 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 labour or service, slavery
or practice similar to slavery, servitude or the removal of organ.”
[UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children 2000]
This definition was adopted by the UN Convention Against Transnational Organised Crime,
to which India is signatory. It is one of the first internationally accepted definitions of
trafficking and it came into force from 25 December 2003. It provides a guiding principle
for macro conceptual understanding of the problem although it is argued that this definition
is elaborated mainly in the context of crime control rather than with a focus on human rights.
It does not particularly provide protection to prostitutes from prosecution for the acts they
are forced to perform even though it talks about preventive measures, victim compensation,
repatriation, etc. However, a wider perspective on trafficking cannot be developed unless the
questions of human rights and political economy of trafficking are taken care of. But the
Protocol lacks a clear definition of the term ‘exploitation’. It also assumes a clear line
between legal and illegal migration, whereas in practice this is a much more fluid process.
Yet, this definition deals with the means of trafficking, exploitative consequences of
trafficking, and more importantly the issue of force or coercion that separates the crime from
migration and smuggling.
Exploitation of women against their free will is the main aim of human trafficking.
According to various studies, most of the children particularly females, teenagers, orphans
and women are the most prominent victims of human trafficking in India. This is because of
widespread lack of education, employment, poverty, weak border immigration security
systems and other social problems, hence, results increase in vulnerability; creates number
of orphans; and advances human trafficking. India too is a major source, destination and
transmits country for men, maid and children trafficked for the purposes of forced labour
and commercial sexual exploitation. Men, maid and children in debt bondage are forced to
in industries such as rice mills, sugar mills, juice mills, brick firms, agricultural and
embroidery factories. Those from India's most disadvantaged social economic state are
particularly vulnerable to forced or bondage labour and sex trafficking. Human trafficking is
also caused by Gender discrimination. Hence, to eliminate this problem, women
empowerment need to be promoted in an effective manner through women education.
Human trafficking affects every country around the world, despite socio-economic status,
history, or political structure. An international market has been produced by the human
traffickers for the trade in human beings based on high profits and demand for commercial
sex as well as cheap labour. It is slavery because traffickers use violence, threats, and other
forms of coercion to force their victims to work against their will. This includes controlling
their freedom of movement i.e. when, how and where they will work.
Human trafficking is a booming international trade, making billions of dollars at the expense
of millions of victims; many of them are young girls and children, who are robbed of their
dignity and freedom. Although most of us have never witnessed this crime, it happens every
day all around the world. Criminals profit while satisfying consumer demand. Victims are
coerced to do what others would never freely do and they are paid virtually nothing for their
pains. In a perverse commercialization of humanity, they are used like products and then
thrown away. Gender discrimination further aggravates human trafficking.

1.2.2 Methodology

This study is primarily based on qualitative literature survey method. It facilitates in depth
analysis of the issues related to human trafficking in India and the crime against women in
India. Extensive review of the literature provided useful insight about the various factors that
are responsible for the human trafficking of Indian women. The present study is exclusively
based on secondary data which has been collected from the various issues of annual reports,
books, magazines, bulletins, other related documents and National Crime Record Bureau
Reports. Information collecting from different sources was analysed in a qualitative way for
taking inference.

Objectives of the Study

The main aim and objectives of this paper are to understand the impacts, reasons and social
taboos incorporated with women trafficking in India and attempt to analyse its impact on
Society, Preventive Measures and also to study how women education can bring awareness
and knowledge about human trafficking.

The main objective of this study is to identify causes and consequences of trafficking of
women. In recent times the number of trafficked women in India has significantly
increased. To realize the economic demand of themselves and their families, many young
migrants are now becoming victims of human trafficking. Trafficking even if it has roots in
economic demands of the victims, in addition, factors like poor awareness on recruitment
processes, preference for quicker method of migration, prevalence of traffickers throughout
the country who brainwashes young girls with false promises, and poor understanding on
the risks involved in trafficking intersect and put women in trafficking networks. Social
taboos which are attached to those women who have been rescued from the prostitution
centres results back them to prostitution centres. As society is dominated with patriarchal
mind setup so they do not allow them to live freely in society. The overlap of factors for
trafficking of women is closely linked to the idea of intersectional-list feminist theory.
Causes and Consequences of Trafficking

Human trafficking is a global problem which results in a number of factors which include the
widespread of poverty, lack of livelihood opportunities, deep-rooted gender discrimination,
displacement, the demand for young girls (in part due to the fear of HIV/AIDS), the
upheaval associated with natural disasters conflict in parts of the country and the profits to
be made. In some cases, socio-cultural and religious factors have an impact on child
trafficking, as where religious figures have made use of their position to traffic girls for
prostitution. Frequently, trafficking is accomplished through the deception of girls and their
families. In many villages in West Bengal it is reported that traffickers have obtained access
to girls by pretending to be grooms without dowry demands. In other cases, trafficking has
been facilitated by relatives or friends of the victims, as well as teachers and placement
agencies. Girls who have been exploited are also commonly used to lure girls from source
area.
One of the major reasons that human trafficking has received such significant attention,
particularly by human rights groups, is because of the egregious abuses reported to be
perpetrated on victims. Those who are trafficked for forced sex work are frequently raped by
one or more males as a form of "initiation" and or intimidation. They are often made to
engage in high risk sex, such as intercourse without condoms, anal sex and gang rape. It is
not unusual for women and girls to be held captive under lock and key, brought to and from
the work venue, when not forced to live and work at the same location and work long hours
with significant numbers of men to service each day.

To date, few prospective studies have been done on the health needs of trafficking survivors.
A 2006 quantitative study in Europe documented the physical, sexual and mental health
symptoms experienced by women trafficked for sexual exploitation [Hossain. M et al 2010].
In this survey of approximately 200 women, the majority reported high levels of physical or
sexual abuse before [59%] and during [95%] their exploitation, and multiple concurrent
physical and mental health problems immediately after their trafficking experience [Hossain
M et al 2010]. The most commonly reported physical health symptoms included fatigue,
headaches; sexual and reproductive health problems [vaginal discharge, pelvic pain, and
infection] back pain and significant weight loss. Follow-up interviews with the women
revealed that mental health symptoms persisted longer than most of the physical health
problems.
At each stage, women, men and children may encounter psychological, physical and sexual
abuse; forced or coerced use of drugs or alcohol; social restrictions and emotional
manipulation; economic exploitation, in escapable debts; and legal insecurities [Zimmerman
C, 2007]. Risks often persist even after a person is released from the trafficking situation and
only a small proportion of people reach post-trafficking services or receive any financial or
other compensation. For people who are trafficked, health influences are often cumulative,
making it necessary to take account of each stage of the trafficking process, as depicted by
the conceptual model in Figure 1.
Figure 1. Shows Influences on health and well-being at various stages of trafficking

Human trafficking is the illegal trade of human beings mainly for the purposes of commercial
sexual exploitation and forced labour. Recently, human trafficking is especially popular for
the purpose of extraction of organs. Trafficking is a lucrative industry. It is second only to
drug trafficking as the most profitable illegal industry in the world. Thousands of people
suffer from various forms of human trafficking and this problem needs effective solutions.
The most popular form of human trafficking is for the purpose of sexual exploitation. Fake
job offers are a common way to obtain women in India. In general, sex trafficking victims
are found in horrible circumstances and easily targeted by human traffickers. Individuals,
circumstances, situations defenceless to traffickers comprise homeless persons, runaway
teenagers refugees, displaced homemakers, job seekers, kidnap victims, tourists, and
drug/alcohol addicts. Such people are often extremely vulnerable and cannot protect
themselves. It is far more difficult to attract grown up men to the forced labour but
traffickers manage to recruit men using various threats and forced debts. The problem of
human trafficking is very urgent in the majority of the countries of the world. Especial India
is a bit less complicated.
Reasons behind expansion of human trafficking in India:

The most essential factor that has been acknowledged as the main driving force behind
human trafficking is poverty. Though, caste based discrimination, lack of resources, lack of
human and social capital, social insecurity, gender discrimination, commodification of
women, social exclusion, marginalisation, inadequate and outdated state policies, lack of
governance, nexus of police and traffickers, unemployment, breaking down of community
support system, cheap child labour, child marriage and priority to marriage, attraction of city
life, corruption, employment trade, migration policies conflict and lack of awareness among
the victims are also some other factors leading to human-trafficking. One of the promising
push factor which results in human trafficking is Globalization. According to the report of
the International Organization for Migration, that 90 percent of the victims trafficked as sex
slaves who experienced domestic violence before they were trafficked. The decreasing sex
ratio and the increasing demand of women in women starve areas would also been
considered as a factor behind bride trafficking in India. There are also certain other factors
that are responsible through direct and indirect means and mode but, all kind of these push
factors forced the victims to get further exploitation, vulnerabilities and to become object of
this modern kind of slavery throughout their life span.
Prevention of human trafficking in India

Human trafficking is a complex concern and there is no only solution which will resolve all
problems and approaches for prevention should deal with the main causes of trafficking.
Some of the suggestions are as under which to somehow decline the rate of human
trafficking are as under:
1. Prevention of human trafficking programmes should examine the socio-cultural and
economic conditions, identify the vulnerable groups, address the root causes of trafficking
and other forms of exploitation and abuse which includes discrimination, social and
economic marginalization, violence and abuse, as well as armed conflict and organized
crime.
Both long term and short term measures should be taken to reintegrate those victims taking
into account the child’s age and experiences. A supportive child-friendly services network
should be established that offers protection to child. Adequate education and information,
including training on life skills, is another important component of a protection system,
which helps build self-esteem, empowers the child to make informed decisions following the
trafficking experience, and prevents re-trafficking.
2. A uniform system to identify children who have been subject to abuse and exploitation,
whether as a result of trafficking or otherwise should be made. This identification should be
addressed by both the government and civil society as well. Quality services should be
available and accessible to all children, independent of identification. Services should
respond to children’s rights and individual needs.
3. To empower children, access to information and education is must for the prevention
of human trafficking. These must be aimed at empowering children to make informed
choices and protect themselves, which entails informing children about trafficking and other
risks of exploitation and abuse, including the risks of migration. Other issues needing
attention include discrimination, risky behaviour, gender stereotypes, sexuality and abusive
relationships.
4. Empowering child victims of trafficking which include building children’s self-esteem
through education, information on human rights, trafficking and other protection concerns,
and also through ensuring children’s meaningful participation in decision-making processes.
They should be recognized as social agents with the right to express their opinions freely.
Care should be taken of child’s mental health.
5. Children who have been trafficked need long-term support. Activities for their care,
protection and reintegration need to be carried out within a holistic framework. Close
contact with and support to the child’s family are needed to ensure that the child is
adequately protected when he or she returns home.
6. Children’s own initiatives against this menace should be appreciated and there is a
need to make police stations children friendly so that faith in the system and self confidence
would be boosted.
CHAPTER-2

HISTORICAL BACKGROUND TRAFFICKING IN INDIA

In the year of 1924, S.M. Edwards released his published piece of writing, Crime in India,
regarding the more important offences included in the Annual Criminal Returns with such
chapters focusing on Prostitution in India. Edwards started out with his concern on a
separate opinion from an article published by Dr. W. Crooke, stating that, “at the present
day prostitutes are tolerated in India to an extent which can hardly be paralleled in any
other part of the world” [5]. He then proceeds to point out the fact that “prostitution had
existed in India from time immemorial” [6]. In this culture, prostitution has had a much
different outlook, as well as a different growth, over the centuries as oppose to other
countries.

During the times of 321 B.C. and 300 B.C it was claimed that prostitutes had accomplished
the duties and liabilities of servants. With those who were noted for beauty and youth had
the privilege to be set as the king’s court on a higher salary, as they were also arranged into
divided classes according to the value of their jewelry and divine looks. Being in this
position as a prostitute was a privilege to hold, they not only surrounded the king, but “the
prostitutes of the city and camp were members of one of the most efficient and extensive
secret services that India has ever known” [7].
Now although this exact system may not still exist, the practice of prostitution still
knowingly remained. At this time in history the position of a prostitute was set as such an
honor, it was no concern to dismantle it. As these women were not only praised for what
they had done, but there were benefits along with the positions. As well as simply favoring
the highest totem in the hierarchy had helped establish their community hierarchy.

“Prostitution is often referred to as ‘the oldest profession’ and the working women are
known as ‘fallen women’, ‘public women’, or referred to in insulting and derogatory terms
such as randi and veshya, similar in tone to the English word, ‘whore’” [8]. In more
current times the women in India have little to no respect, in which they are considered the
outcast group, rejected by mainstream society. Yet, it truly is not these women’s fault for
choosing this direction; in fact they are basically pushed into this lifestyle. With Indian
society dividing the labor opportunities between men and women, divided into separate
domains where the women is under-valued, gives them limited access to resources. The
sex-trade industry is basically a survival strategy for women who are typically “deviants”
or victims of poverty. Although it is not ideal for the women or their families, at least this
route is an option. India produces a double standard for these women; “on the one hand,
media and the popular culture increasingly display images of women as sexual
commodities, as playthings for men’s sexual desires, at the same time we teach women to
reserve their bodies for marriage and for one man, and to be a modest wide and
mother” [9].

Yet, this is a concern in every other culture as well. But it doesn’t stop there, when
approaching this industry at a legal standpoint, at anytime women can be removed if
practicing, have their children taken away, and be evicted. The client on the other hand,
only commits a crime if he is practicing with the sex worker in a public place or if she is
under the age of sixteen. Why this hasn’t been put to a full stop? The community believes
that prostitution lowers rape rates. At first the law may appear to be in the wrong, helping
the growth of prostitution, but an underlying resolution is being put into effect, potentially
changing the culture of rape and abuse. With the laws still remaining a little fuzzy it will be
awhile until there are confident rights for prostitutes, until then it continues to be a work in
progress.

REFERENCES
ADB 2002 lombating traficking of women and children in South Asia:Nepal report Asian
developement . Bank-combating trafficking of woman and children in South Asia .

Central social welfare Board 1996 Prostitution in metropolitan cities of India New Delhi
CSWB.
Centre for women and development 1996 , survey of organizations working on the issues
of girl trafficking.

Articles –
1. Hindu, the 1999 ‘They have right’ 18th April.
2. Hindu, the 1999 ‘child trafficking on rise’ 6th February.
3. Hindustan Times;1998,2000,2001.
4. India Today;2001,2003
5. Indian Express; 1997,1999:24th April.
6. Times Of India;1997,1998,2000,2001,2003.

As for now, in the world of prostitution it’s considered to be a double standard with the
law; in which “that the sex trade is accessible but not offensively public and those sex-
workers are allowed to work but without legal protection”[10]. There are three broad
categories that prostitution has in legal approaches: legalization, prohibition, and
toleration. Legalization “accepts the institution of prostitution and gives full legal rights to
sex-workers, often accompanied by registration, licensing, and compulsory medical check-
ups” [11]. This is surprisingly practiced not only in the country of India, but also in the US
and Germany.

Prohibition “criminalizes the activities of all categories of people related to the sex trade
such as pimps, brothel-keepers and clients” [12]. The third approach is tolerance, which
“criminalizes the organizers of the sex trade but not the sex workers themselves”[13]. This
is intended to truly suppress prostitution gradually by tackling the abusive elements
without harming the sex-workers. It is considered to not be an offence to the law if a
woman is a sex-worker or takes on practice privately/independently, but if one is to solicit
in or near a public location it is then considered to be a punishable offence. The rights that
are given to sex-workers are still a bit confusing; “the intended spirit of toleration laws is
to punish the organizers of the sex trade while allowing sex-workers themselves full rights
as citizens” [14], but there are good intentions that are being brought to attention as
prostitution grows.
Even from another perspective on India, during ancient times “extra-material love may
have been voluntary and unpaid but there is the possibility of it being regarded by the male
partner as a form of service for which he was obliged to pay in some form” [15]. Yet
during this time it was not found being a profession, but a temporary contract of service.
These were also well considered to be gifts or equivalent to payments, since money or
currency was unknown. There are “oblique references to women being given gifts for their
favors, but the contexts leaves us guessing whether the women was a willing partner or
whether she agreed to oblige in return for the gifts she received” [16].
ILO TPEC 2001 and SAARC 2001 a legal definition of trafficking has for the first time
attempted by the Goa Children's Act.

The provision in the constitution of brief description in India

Article 14 Men and women to have equal rights and opportunities in the political, economic
and social spheres.

Article 15(1) Prohibits discrimination against any citizen on the grounds of religion, caste,
race, sex etc.

Article 15(3) Special provision enabling the State to make affirmative discriminations in
favour of women.

Article 16 Equality of oppurtunities in matter of public appointments for all citizens.

Article 39 Enumerate certain principle of policy to be followed by the state . Among


thembeing right to adequate means of livelihood for men and women equally and equal pay
for equal work. Article 39(A) State shall direct its policy towards securing all citizens men
and women equally, the right to means of livelihood. Article 39(d) Equal pay for equal work
for both men and women

Article 42 State to make provisions for ensuring just and humane conditions of work and
maternity relief.

Article 46 Directs the states to promote education and economic interest of the scheduled
caste, schedule tribes and other weaker section (women are included) and that it shall protect
Them from social Injustice and all forms of exploitation.
Methods and strategies of prevention
The UN's Protocol contains a number of provisions aimed at preventing trafficking.
State parties are required to establish policies, programmes and other measures aimed
at preventing trafficking and protecting trafficked persons from re-victimization. The
existence of vulnerable situations of inequality and injustice coupled with the exploitation of the victim's
circumstances by the traffickers and others cause untold harm to the trafficked victim
whofaces a multiplicity of rights violations. Therefore policies, programmes and strategies
thataddress prevention have to be unique with a focus on and an orientation towards all
these issues. Accordingly the prevention of trafficking needs to be addressed not only in relation tothe
source areas but also in the demand areas the transit points and the trafficking
routes.Strategies in all these areas have to be oriented towards the specific characteristics
of the situation and the target groups

 The best method of prevention is its integration it with prosecution and protection. Prosecution
includes several tasks like the identification of the traffickers bringing them to the
book, confiscating their illegal assets. Protection of the trafficked victim includes all
steps towards the redressal of their grievances thus helping the victim survive,
rehabilitate and establish herself/himself. Thus prosecution and protection contribute
to prevention.

 The strategies should address the issues of livelihood options and opportunities by focusing on
efforts to eradicate poverty, illiteracy etc. There should be special packages for
women and children in those communities where entry into CSE may be perceived
as the only available option. Education and other services should be oriented
towards capacity building and the consequent empowerment of vulnerable groups.

 Gender discrimination and patriarchal mindset are important constituents and


catalysts of the vulnerability of women and girl children. This manifests itself in
several serious violations of women's rights such as high incidence of female
foeticide and infanticide and the discrimination against women in healthcare,
education and employment. Since these are vulnerability factors that trigger
trafficking prevention strategies need to be oriented accordingly.

 Natural calamities and manmade disturbances do exacerbate the vulnerability


situation. Therefore relief and aftercare programmes need to have specific
components focused on the rights of women and children.

 At the micro level the prevention of trafficking in the source areas requires a
working partnership between the police and NGOs. Public awareness campaigns and
community participation are key to prevention programmes. Prevention is best
achieved by community policing.

 Political will is an essential requirement to combat trafficking.

 Creating legal awareness is one of the most important functions of any social
action programme because without legal awareness it is not possible to promote any
real social activism. Legal awareness empowers people by making them aware of
their rights, and can work towards strengthening them to develop zero tolerance
towards abuse and exploitation.

 Immigration officials at the borders need to be sensitized so that they


can network with the police as well as with NGOs working on preventing
trafficking.

 Help lines and help booths are very important for providing timely help to
any person in distress. The Ministry of Social Justice and Empowerment is
considering collaboration between government agencies and NGOs for setting up
help lines and help booths that can provide timely assistance to child victims. It will
be appropriate if the Child lines all over India, NGOs working on child rights, missing
person bureaus and police help lines are linked together as a formidable tool against
trafficking.

CHPTER-3

CHAPTER-3

LEGAL PROVISION IN RELATION TO WOMEN TRAFFICKING


Human trafficking in India and around the world is the trade (sell and purchase) of human
beings for the purpose of sexual slavery, bonded and forced labour or for any commercial
sexual exploitation and prostitution.

Men, women or children under human trafficking are made believe that the concerned
person will provide them with a good job in a different country or place. They blindly
believe the traffickers and are then sold by them to other people. Trafficking is the third
largest organized crime in the world.

3.1 Human Trafficking In India: Identifying a Human Trafficking Victim:

 Seems anxious, fearful or paranoid. Avoids eye contact.

 Tearfulness or signs of depression.


 Unexplained bruises or cuts or other signs of physical abuse.
 Inconsistent details when telling their story.
 Inability to leave their job or residence. Says they cannot schedule appointments.
 Is under 18 years and providing commercial sex acts. Or at any age unwillingly
providing commercial sex acts.
 Never is alone and/or always has someone translating or answering questions on
their behalf.
 Presents with secrecy or unable to answer questions about where they live.
 Is afraid of law enforcement or receiving help from an outside entity.
3.2 Human Trafficking in India: LAWS:

3.2.1 Through the Immoral Trafficking Prevention Act (ITPA), the Indian
Government penalizes trafficking for commercial sexual exploitation, with
prescribed penalty of 7 years’ to life imprisonment.

3.2.2 India also prohibits bonded and forced labour through:

i. Bonded Labour Abolition Act,


ii. Child Labour Act, and
iii. Juvenile Justice Act.

3.2.3 Sections 366(A) and 372 of the Indian Penal Code, prohibits
kidnapping and selling minors into prostitution respectively. Penalties
under these provisions are a maximum of 10 years’ imprisonment and a
fine.

3.3 Human Trafficking In India Of Women:

According to the Ministry of Women and Child Development, 19,223 women and children
were trafficked in 2016 against 15,448, the previous year.

The highest number of victims recorded in the eastern state of West Bengal.

9,104 children were trafficked last year, a 27% increase from the previous year.

The National Crime Records Bureau showed that almost equal numbers of children and
women were trafficked.
Thousands of people, largely poor, rural women and children are lured to India’s towns
and cities each year by traffickers who promise good jobs, but sell them into modern day
slavery.

Some end up as bonded labour or domestic workers, or forced to work in small industries
such as textile workshops, farming or are even pushed into brothels where they are
sexually exploited.

3.4 Constitutional and Legislative Provision in India:

3.4.1 Trafficking in Human Beings or Persons is prohibited under the Constitution


of India under Article 23 (1)

3.4.2 Protection of Children from Sexual offences (POCSO) Act,


2012, which has come into effect from 14th November, 2012 is a
special law to protect children from sexual abuse and exploitation.
3.4.3 The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the premier
legislation for prevention of trafficking for commercial sexual
exploitation.
3.4.5 Criminal Law (amendment) Act 2013 has come into force wherein
Section 370 of the Indian Penal Code has been substituted with Section
370 and 370A IPC which provide for comprehensive measures to
counter the menace of human.

3.5 There are other specific legislations enacted relating to trafficking in women
and children:
i) Prohibition of Child Marriage Act, 2006,

ii) Bonded Labour System (Abolition) Act, 1976,

iii)Child Labour (Prohibition and Regulation) Act, 1986,

iv)Transplantation of Human Organs Act, 1994,

v) apart from specific Sections in the IPC

3.7 Administrative measures and interventions

3.7.1 Anti Trafficking Cell (ATC):

It was set up in the Ministry of Home Affairs (MHA) in 2006 to act as a focal point
for communicating various decisions and follow up on action taken by the State
Governments to combat the crime of Human Trafficking.

3.7.2 Advisories:

To improve the effectiveness in tackling the crime of human trafficking and to


increase the responsiveness of the law enforcement machinery, MHA has issued
comprehensive advisories to all States/UTs:

3.8 Ministry of Home Affairs’ scheme :

Ministry of Home Affairs under a Comprehensive Scheme strengthening law enforcement


response in India against Trafficking in Persons through Training and Capacity Building
has released fund for establishment of Anti Human Trafficking Units for 270 districts of
the country.

3.8.1 Strengthening the capacity building:

To enhance the capacity building of law enforcement agencies and generate awareness
among them, various Training of Trainers (TOT) workshops on combating Trafficking in
Human Beings for Police officers and for Prosecutors at Regional level, State level and
District level were held throughout the country.

3.9 Judicial Colloquium:

In order to train and sensitize the trial court judicial officers, Judicial Colloquium on
human trafficking are held at the High court level with an aim to sensitize the judicial
officers about the various issues concerning human trafficking and to ensure speedy court
process. So far, 11Judicial Colloquiums have been held.

3.10 Human Trafficking In India: The new Act:

a. The law could have far-reaching benefits, like curbing the informal labour industry
and ensuring that fair wages are paid.

b. The draft’s unveiling has also already added to an ongoing debate on whether
prostitution should be legalised.

c. The draft also indicates a welcome move away from the antiquated, bureaucratic,
and loophole-packed legislature that currently exists in India.
d. If the bill succeeds in reducing human trafficking in South Asia, it will lead to a
decline in child labour practices.

What are the constitutional & legislative provisions related to Trafficking in India?

1. Trafficking in Human Beings or Persons is prohibited under the Constitution of India


under Article 23 (1)
2. The Immoral Traffic (Prevention) Act, 1956 (ITPA) is the premier legislation for
prevention of trafficking for commercial sexual exploitation.
3. Criminal Law (amendment) Act 2013 has come into force wherein Section 370 of the
Indian Penal Code has been substituted with Section 370 and 370A IPC which provide
for comprehensive measures to counter the menace of human trafficking including
trafficking of children for exploitation in any form including physical exploitation or any
form of sexual exploitation, slavery, servitude, or the forced removal of organs.
4. Protection of Children from Sexual offences (POCSO) Act, 2012, which has come
into effect from 14th November, 2012 is a special law to protect children from sexual
abuse and exploitation. It provides precise definitions for different forms of sexual abuse,
including penetrative and non-penetrative sexual assault, sexual harassment.
5. There are other specific legislations enacted relating to trafficking in women and children
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, apart from specific Sections in the IPC, e.g. Sections 372 and 373 dealing with
selling and buying of girls for the purpose of prostitution.
6. State Governments have also enacted specific legislations to deal with the issue. (e.g. The
Punjab Prevention of Human Smuggling Act, 2012)
What are the measures taken by Government of India to Prevent and Combat
Human Trafficking?

1. With a view to tackle the menace of human trafficking, Ministry of Home


Affairs, Government of India has undertaken a number of measures such
as:
2. Administrative measures and interventions
3. Anti Trafficking Cell (ATC): Anti-Trafficking Nodal Cell was set up in the Ministry
of Home Affairs (MHA) (CS Division in 2006 to act as a focal point for
communicating various decisions and follow up on action taken by the State
Governments to combat the crime of Human Trafficking. MHA conducts
coordination meetings with the Nodal Officers of Anti Human Trafficking Units
nominated in all States/UTs periodically.

Advisories: To improve the effectiveness in tackling the crime of human trafficking


and to increase the responsiveness of the law enforcement machinery, MHA has
issued following comprehensive advisories to all States/UTs:

• Advisory for preventing crime of human trafficking date 9.9.2009.


• Advisory on crime against children dated 14th July, 2010.
• Advisory on missing children dated 31st January, 2012.
• Advisory on Preventing and Combating cyber crime against children dated
4.1.2012.
• Advisory on Human Trafficking as Organised Crime dated 30th April,
2012.
• Advisory on Preventing and combating human trafficking in India-dealing
with foreign nationals dated 1.5.2012.
• SOP to handle trafficking of children for child labour dated 12.8.2013.
• Advisory on MHA Web Portal on Anti Human Trafficking dated 5.5.2014.
• Advisory dated 23.7.2015 for associating SSB and BSF in crime meetings.

These advisories/SOP are available on MHA's Web Portal on Anti Human Trafficking at
www.stophumantrafficking-mha.nic.in

Ministry of Home Affairs' scheme : Ministry of Home Affairs under a Comprehensive


Scheme “ Strengthening law enforcement response in India against Trafficking in
Persons through Training and Capacity Building, has released fund for establishment of
Anti Human Trafficking Units for 270 districts of the country.

Strengthening the capacity building: To enhance the capacity building of law


enforcement agencies and generate awareness among them, various Training of Trainers
(TOT) workshops on “ Combating Trafficking in Human Beings for Police officers and
for Prosecutors at Regional level, State level and District level were held throughout the
country.

Judicial Colloquium: In order to train and sensitize the trial court judicial officers,
Judicial Colloquium on human trafficking are held at the High court level. The aim is to
sensitize the judicial officers about the various issues concerning human trafficking and to
ensure speedy court process. So far, eleven Judicial Colloquiums have been held at
Chandigarh, Delhi, Himachal Pradesh, Maharashtra, Chhattisgarh, Tamil Nadu, Andhra
Pradesh, Bihar, Uttar Pradesh, Jharkhand and Odisha.
3.11 National framework of laws related to trafficking in India

3.11.1 The legal framework

The Constitution of India, under Art. 23 (1), prohibits trafficking in human beings
and forced labour. This right is enforceable against the State and private citizens.

The Indian Penal Code, 1860. Relevant provisions under the Indian Penal Code are
Sections 293, 294, 317, 339, 340, 341, 342, 354, 359, 361, 362, 363, 365, and 366, 370,
371, 372, 373, 375, 376, 496, 498, 506, 509, 511. Of significance are Sections 366A,
which makes procuration of a minor girl (below the age of 18 years) from one part of India
to another punishable and Section 366 B, which makes importation of a girl below the age
of twenty-one years punishable. Section 374 provides punishment for compelling any
person to labour against the will of that person.

Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) was
enacted under Article 35 of the Indian Constitution with the object of inhibiting or
abolishing the immoral traffic in women and girls. It was also in pursuance of the
Trafficking Convention, which India signed on 9 May 1950. The Act aimed to rescue
exploited women and girls, to prevent deterioration of public morals and to stamp out the
evil of prostitution, which was rampant in various parts of the country. In 1978, SITA was
amended by the Amendment Act 46 of 1978, which took effect from 2 October 1979.
This was owing to the realisation that the social evil needed to be curbed and that existing
provisions failed to do so. In 1986, SITA was drastically amended and renamed the
Immoral Traffic (Prevention) Act, 1956.
The Immoral Traffic (Prevention) Act, 1956 is a special legislation that deals
exclusively with trafficking. The Act defines the terms ‘brothel’, ‘child’, ‘corrective
institutions’, ‘prostitution’, ‘protective home’, ‘public place’, ‘special police officer’ and
‘trafficking officer’. The purpose of the enactment was to inhibit or to abolish
commercialised vice, namely the traffic in women and girls for the purpose of prostitution,
as an organised means of living. Offences under the Act are:

(i) Punishment for keeping a brothel or allowing premises to be used as a brothel


(S.3)

(ii) Punishment for living on the earnings of prostitution (S. 4)

(iii) Procuring, inducing or taking persons for the sake of prostitution (S. 5)

( iv) detaining a person in premises where prostitution is carried on (S. 6)

(v) prostitution in or the vicinity of public places (S. 7)

(vi) seducing or soliciting for the purpose of prostitution (S. 8)

(vii) seduction of a person in custody (S. 9).

The law confers wide powers on the concerned authorities in matters of rescue and
rehabilitation of victims and survivors and provides for stringent action against exploiters
including the eviction of brothels, surveillance, externment, as well as aggravated
punishment when the offences are committed on children.
CHAPTER-4

JUDICIAL APPROACH
''The judiciary is one of the most important sectors that need to be sensitised on
gender issues and violations of rights of women due to trafficking. An analysis of the
attitudes of judges reveals a protectionist approach rather than a substantive approach in
their judgment of criminal cases against trafficking."

— Combating Human Trafficking in Asia'

Combating Human Trafficking in Asia: A Resource Guide to International and Regional


Legal Instruments, Political Commitments and Recommended Practices, Economic and
Social Commission for Asia and the Pacific, United Nations, New York, 2003. P.39

CASE STUDY-1
The case of Upendra Baxi Vs. State of Uttar Pradesh shows how deeply entrenched is
the market for sex trafficking. The Agra Protective Home was constituted by and
functioned under the penal law, The Immoral Traffic (Prevention) Act, 1956. In a letter
to the Indian Express a member of the Board of Visitors of the Agra Protective Home
described the pathetic condition of the Home in which the girls were kept. According to
this letter,’ a letter was written to the then Justice P.N. Bhagwati who treated it as a writ
petition. The judgment transcending from 1989 to 1998 saw three phases and ultimately
the Supreme Court transferred the case to the National Human Rights Commission with
certain guidelines recorded by the Supreme Court. The guidelines were far reaching in the
changes they proposed to the existing framework while staying within the framework of
the Immoral Traffic Prevention Act and the Constitution. They required the person who is
either “ removed” under Section 15(4) or “rescued” under Section 16(1) of ITPA and
produced before a Magistrate to be heard either in person or through a lawyer (assigned by
the Legal Aid Committee of the District Court concerned ) at every stage of
proceedings including admission to a Protective Home, Intermediate custody as well as
discharge. The Supreme Court further lay down that in camera trial be held and that it
should be the duty of the court to ensure the presence of lawyers of both sides. If under
section 15(4) and section 16(1) it was a child, the child should be placed in an institution
recognized or established under the Juvenile Justice Act, 1986.

The guidelines also required Magistrates to maintain a list of those who have been given
safe custody of persons rescued or removed on furnishing undertakings .In the event of it
being brought to the Magistrates’ notice that such person has returned to prostitution, the
giver of the undertaking, after an enquiry, would be debarred from finishing any
undertaking in any proceeding under the ITP A. It was further suggested that the post of
special police officer shall, wherever possible ,be held by a woman police officer and that
there should be in place an Advisory Board consisting of five leading social workers to be
associated with the special police officer.

CASE STUDY-2

Apart from the Agra Protective Home case, in Radha Bai Vs.Union Territory of
Pondicherry, the petitioner’s protests against the Home Minister of Pondicherry alleging
that he was misusing the protective home for women for immoral purposes landed her in
deep trouble. The Commissioner suggested the closing down of such homes immediately
.Two decades later she got relief from the Supreme Court.

In Bholanath Tripathi Vs. State of U.P.,‘^ a public interest litigation was filed alleging
that a woman was held in confinement and was being used for earning money by
prostitution .The Supreme Court directed the Commissioner. Appointed to make enquiry
and if satisfied prima facie about the allegations, to remove her to a safe place and secure
her production before the Court. The Police and the other authorities of the State
Government concerned were also directed to afford assistance to the Commissioner.

CASE STUDY-3

In the case of The Public at Large Vs State of Maharashtra and Others, the petition
arose due to suo motu notice taken by the court of a newspaper article which indicated that
the minor girls were illegally confined and forced to be sex workers .The respondents were
directed by the court to show cause as to why action had not been taken under Sections
366' and 339’of Indian Penal Code, and Sections 5 and 6^® of the Suppression of Immoral
Traffic in Women and Girls Act 1956. The Court passed directions as under;

• To frame a proper scheme so that the women including minors who are produced for
sexual slaveiy are released from the confinement of their procures;

• For implementing this scheme, a proper cell, also involving social workers, be created so
that by regular checking, minors and others can be released and rehabilitated in the society;
and • Considering the spread of the dreaded disease of AIDS, the state of Maharashtra shall
frame a proper scheme with the active assistance of the Municipal Corporation of Greater
Mumbai for carrying out HIV tests for the willing sex workers so that the disease may not
spread like wildfire in the city.

CASE STUDY- 4

In the case of Public at Large Vs. State of Maharashtra and Others, 'the petition was
relating to the rehabilitation of rescued girls. After hearing the various parties and the
representations on behalf of various women’s social organizations, consensus on the
following points was arrived at:

• There was unanimity on the point that the rescued girls should not be subjected to HIV
test.

• If HTV tests have already been carried out on some of the girls, their identity should not
be disclosed and they should not be informed of the result of the test.

• All the rescued girls must be subjected to medical examination for finding out their age
and also given treatment if they are suffering from any other diseases.
• It the girls are found to be adult and are not covered by the Juvenile Justice Act, and if
they do not desire to remain in the present institutes, they must be allowed to leave the said
homes.

• The other State governments should be contacted and if those state governments were
ready and willing to make arrangements for reception of these girls, the Chairman of
Juvenile Justice Board would pass necessary orders. The police should give then necessary
escort and the girls must be handed over to the respective States on receipt of the request
made by such States

. • Rehabilitation of these girls is possible if they are segregated in groups of ten or fifteen
and thereafter counselling work is done.

• Parents of four minor girls who have been traced and who and who have been pleading
that the police have wrongly taken them in custody should be released. • Until the girls are
sent back to their respective states, the state government will direct adequate number of
probation officers to carry out the counselling job. The management in charge will permit
the police to record statements of the girls. The police should trace the belongings of the
girls and restore the same to them.

CASE STUDY-5

Again, in the case of State Vs. Shri Freddie Peats and Others, the Supreme Court played
an important role. In this case, the accused Freddie Peats, then sixty years old, claimed to
be a Man of God ( ‘Father’ Peats),a medical doctor and social worker who ran a
‘boarding’ or ‘orphanage’ for boys generally from broken homes and deprived families.
Peats used to sexually abuse and assault the boys. On his arrest there were 2305
photographs found in his flat. These photographs recorded different acts of sexual assault,
abuse, exploitation, repulsive remarks and other brute and silent violence against the
children and their privacy. These photographs covered a period of about seventeen years
and were of boys from the neighbour hood and from school all over Goa. Some of them
were of foreign visitors. Apart from photographs, there were negatives, drugs, syringes,
torture paraphernalia, several passports and bankbooks. In many photographs, the man in
the criminal act of sexual assault on children was Peats himself.

The session court held Freddie Peats guilty of offences punishable under sections 292,293,
,342,’ 355, 339,323and 337 of the Indian Penal Code; Section 20 and 43 of the Juvenile
Justice Act; Section 9 of the Immoral Traffic (Prevention) Act 1956; Sections 27 of the
Drugs and cosmetics Act 1940. Freddie Peats was ordered life imprisonment and fine .He
appealed against the order but the appeal was dismissed. Due to intervention of child rights
activist Sheela Barse, the trial in the Freddy Peats Case followed some child friendly
procedures like the following:

• All persons in the trial were in informal dress.

• No police officer was present inside the chamber or at the place where the trial was
conducted.

• While recording evidence, the child was directed to face the judge so that he will not
have occasion to look at the accused and be frightened.

CASE STUDY-5
In the case of, Perna Vs. State of Maharashtra and Others, the Mumbai High Court
looked into the issue of violation of rights of trafficked children by various authorities who
are supposed to implement the law. Pera, the petitioner is a registered organization which
works m the red-light areas of Mumbai and Navi Mumbai with the object of preventing the
trafficking of women and children and rehabilitating the victims o f forced prostitution.
This petition was filed in public interest to protect children and minor girls rescued from
the flesh trade against the pimps and brothel keepers keen on reacquiring possession of the
girls. On May 16, 2002 the social service branch of Mumbai police raided a brothel at
Santa Cruz. Four persons who were alleged to be brothel keepers/pimps were arrested.
Twenty four females were rescued. On conducting an ossification test, ten of them were
found to be minors. In this case the Mumbai High Court passed the following directions
which are of great significance for the children rescued from the brothels.

No magistrate can exercise jurisdiction over any person under eighteen years of age
whether that person in a juvenile in conflict with law or a child in need of care and
protection, as defined by sections 2 (1) and 2(d) of the Juvenile Justice (Care and
Protection of Children) Act 2000. At the first possible instance, the magistrate must take
steps to ascertain the age of a person who seems to be under eighteen years of age. When
such a person is found to be under eighteen years of age, the magistrate must transfer the
case to the Juvenile Justice Board if such a person is a juvenile in conflict with law, or to
the Child Welfare Committee of such a person is a child in need or care and protection.

A magistrate before whom such persons rescued under the Immoral Traffic (Prevention)
Act 1956 or found soliciting in a public place are produced should, under Section 17(2) or
the said Act, have their ages as certained the very first time when they are produced before
him. When such a person is found to be under eighteen years of age, the magistrate must
transfer the case to the Juvenile Justice Board if such person is a juvenile in conflict with
law or to the Child Welfare Committee if such a person is a juvenile in conflict with law or
to the child welfare committee if such a person is a child in need of care and protection.

Any juvenile rescued fi-om a brothel under the Immoral Traffic (Prevention) Act 1956
or found soliciting in a public place should only be released after an inquiry has been
completed by the probation officer. The said juvenile should be released only to the care
and custody of a parent/guardian after such parents/guardian has been found fit by the child
welfare committee, to have the care and custody of the rescued juvenile.

• If the parent/guardian is found unfit to have the care and custody of the rescued juvenile,
the procedure laid down under the Juvenile Justice (care and protection of children)
Act 2000 should be followed for the rehabilitation of the rescued child.

• No advocate can appear before the child welfare committee on behalf of a juvenile
produced before the child welfare committee after being rescued under the immoral
Traffic (Prevention) Actl956 or found soliciting in a public place .only the
parents/guardian of such juvenile should be permitted to make representations before the
child welfare Committee through themselves or through an advocate appointed for such
purpose.

• An advocate appearing for a pimp or brothel keeper is barred from appearing in the same
case for the victims rescued under the Immoral Traffic (prevention) Act 1956.

CASE STUDY-6

Again, Sheela Barse Vs. Union of India, emphized the significance of the dignity of
youth and childhood in a civilized society. It was stated that Article 39(f) of Indian
Constitution mandated that children be given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity. In earlier case of Sheela Barse
Vs Union of India ,the petitioner have moved the Supreme Court seeking the release of all
the children below 16 detained in Jails in different states. In People’s Union for
Democratic Rights Vs. Union of India, the court held: “But apart from the requirement of
ILO convention No: 59, we have Article 24 of the constitution which even if not followed
up by appropriate legislation must operate vigor and construction work being plainly and
undoubtedly a hazardous employment . It is clear that by reason of constitutional
prohibition no child below fourteen years can be allowed to be engaged in construction
work”. The term ‘slavery’ as well as related terms such as ‘bondage’, ‘forced labour’,
and ‘beggar’ find no definition in the IPC, their meanings have been clarified over the
years by the Supreme Court. In this case the Supreme Court observed: “where a person
provides labour or service to another for remuneration which is less than the minimum
wage fixed by minimum wages Act, 1948, he renders forced labour as beggar within the
meaning of Article 23”.

In Khatri II Vs. State of Bihar the Supreme Court held that the provision of free legal aid
by the state to those who cannot afford legal representation is integral to a person’s
fundamental right to life. Although the case had nothing to do with the issue of prostitution
per se, the Court went on to hold that there were instances “ involving offences such as
economic offences or offences against the law prohibiting prostitution or child abuse and
the like, where social justice may require that free legal services need not be provided by
the state.” This position was followed in a later decision of the Supreme Court in the case
of Suka Das Vs Union Territory of Arunachal.Pradesh.^’

This legal position has been rectified to some extent after the Legal Services Authorities
Act, 1986, was notified in 1995. The Act under section 12 ( c) provides for legal aid to
women and children, and under section 12(g) provides that persons in protective custody
under the ITPA are also entitled to legal aid. Even so, the Supreme Court’s observations
qualifying the right to free legal aid has serious implications for sex workers, their
children, child sex workers, partners of women in sex workers, or parents who have sent
their daughters into sex work.

Recently , a committee was appointed by the Mumbai High Court in relation to the case of
Jayesh Thakker and Another Vs. State of Maharashtra and Others and Internet Users
Association of India ( Intervenors).' The High Court laid down several restrictions on cyber
Cafes to provide for an adequate degree of supervision and control so that minors are
protected from being exposed to pornographic sites on the Internet in the cyber cafes. The
committee has given recommendations to make a childfriendly or child-safe ‘cyber zone’
where minors could safely access and use the internet for information, education,
communication and entertainment.

CASE STUDY-7

In the case of Krist Pereira Vs. The State of Maharashtra and others,'the judiciary has
used innovative methods to ensure justice to the child. This was a public interest litigation,
which was filed after the death of a child in a remand home in Bhiwandi under mysterious
circumstances. The Mumbai High Court constituted a committee of experts to examine the
conditions in different juvenile remand houses, children’s homes, and special homes in the
state of Maharashtra and to make appropriate recommendations for improving their
standards. The report of the committee brought to light the extremely distressing and
pathetic conditions prevailing in the various homes in the state.
The High Court constituted a state Committee on Juvenile Justice which shall be consulted
in matters of appointments as well as removal of personnel in the remand homes. The other
significant directions were:

• Establishment of more juvenile and special homes;

• Establishment of rehabilitation committees in districts;

• Appointment of at least one social worker in each juvenile court; • Appointment of duty
counsellors and visitors;

• Superintendent of institutions to be given powers to suspend caretakers and Other


members of the staff for misbehaviors,

• Training programmes for judge and other staff.

Sale etc. of obscene books. Pamphlets etc. .

Sale etc, of obscene objects to young person.- Whoever sells, lets to hire, distributes,
exhibits or circulates to any person under the age of twenty years any such obscene object
as is referred to in the last preceding section, or offers or attempts so to do, shall be
punished on first conviction with imprisonment of either description for a term which may
extend to three years , and with fine which may extend to two thousand rupees , and, in the
event of a second or subsequent conviction , with imprisonment of either description for a
term which may extend to seven years, and also with fine which may extend to five
thousand rupees.
Punishment for wrongful confinement.

Assault or criminal force with intent to dishonour person, otherwise than on grave
provocation.

Wrongfiil restraint.

Punishment for voluntarily causing hurt.

Causing hurt by act endangering life or personal safety of others.

CASE STUDY-8

The case of Sanjay Suri Vs. Delhi Administration,' protected the children against sexual
exploitation in jails, A news report described the ill treatment meted out in the Tihar Jail
in Delhi in connivance with the jail staff. The writers of this report then moved the
Supreme Court seeking the relief on behalf of the child prisoners’ .The court them
appointed the district judge to make an inquiry and report to it. His report disclosed a
shocking state of affairs’, according to the judgment. Adult prisoners subjected children to
sexual assault. They feared that if their names were disclosed, they would be victimized.
The court passed several orders based on the report. Some juvenile under trial prisoners
were ordered to be released immediately. Some convicted minors were freed on parole for
one month. The judgement stressed the need to generate a sense of humanism in jail
administration. The court passed certain orders to protect children. It called upon the
magistrates and trial judged to specify the age of the person ordered to be detained. We call
upon the authorities in jails throughout India not to accept any warrant of detention as a
valid one unless the age of the detainee is shown therein, the judgment emphasized. Thus
the jail authorities can refuse to honour a warrant if the age of the person remanded to jail
custody if not indicated. The warrant may be returned to the issuing court for rectifying the
defect. The age is to be shown so that the detainee could be directed to an adult prison or a
juvenile jail.

The judgment said that, the youth shall not be assigned any work in the same area where
regular prisoners are made to work. Care should be taken to ensure that there is no scope
for their meeting and having contact. Wardens should be shifted every three years. The
visitor’s board should consist of a cross section of the society.
CHAPTER-5

GREY AREA
CHAPTER-6

CONCLUSION AND SUGGESTION

Conclusion

Human trafficking jeopardizes the dignity and security of trafficked individuals, and severely violates
their human rights. Constitutions of India guarantee the equal rights of men and women, but they are often
merely rhetoric when it comes to the question of practical implementation. In order to combat trafficking
and thus to protect the human rights of the vulnerable people, strong political will of the government is
vital in implementing their anti-trafficking mandates. Thus we can say any crime which can be used as
business one day becomes a big social evil as in the case of human trafficking. The problem is still in our
hands to be solved if the strong steps are taken deliberately and policies are made and implemented
strictly. If timely steps are not taken then in very short time it will remain late but too late

Human rights embodied in the Indian Constitution are justifiable. All these rights now have the support of
a large number of international conventions and human rights covenants dealing with human rights. Even
the courts have used these international covenants to widen the scope of the human rights in the
constitution of India. As a result, it is possible to judicially enforce a large number of human rights
violations embodied in international covenants also. But the constitutional-cum- international mandate
needs to be accompanied by correct social perceptions, support services and a basic change in family and
societal values. A proper enforcement of these rights thus requires, educating people in these human rights
so that these rights are respected and observed in practice. A soothing culture

4. Suggestions

First of all raise awareness about human trafficking by different sources like media both print as well as visual and
inform people about this crime and mobilize people to stop it. Try to know the rare facts about human trafficking.
Empowering women improving maternal health, combating HIV/AIDS, eradicating poverty, improving education
and developing a global partnership for development. Society in general and police, doctors, and also their parents
particular should treat these victims as human beings and psychologically motivate them in such a way so that they
will live a new and happy life again.
Strengthen prevention—warn vulnerable groups and alleviate the factors that make people Vulnerable to
trafficking, such as poverty, underdevelopment and lack of opportunity Enrich knowledge—Deepen
understanding of the scope and nature of human trafficking through more data collection and analysis,
joint research initiatives and the creation of an evidence-based report on global trafficking trends Having
knowledge regarding state laws Having knowledge regarding health care professionals, social services
professionals and law enforcement professionals Keep learning about trafficking, its victims and its
survivor. In order to attract the attention of the public and to protect children and teenagers from the threat
of human trafficking an important aspect of prevention of Human Trafficking is education: making sure
people are aware of the existence, as well as the nature of human trafficking.

Education further helps empowerment of women by developing "Intrinsic Capacity, inner


transformation of one's consciousness to overcome barriers, access resources and traditional ideologies".
Education is crucial in halting the flow of women, children and men into forced bondage. It is through
education that we can elicit the most direct influence in the fight against human trafficking. Promotion of
Technical Education also helps to reduce the problem of human trafficking. Technical education
emphasizes on the acquisition of employable skills and therefore well placed to train the skilled and
entrepreneurial workforce that developing countries needs to create wealth and emerge out of poverty.
Technical education can be delivered at different levels of sophistication; can respond to the different
training needs of learners from different social economic and academic backgrounds and prepare them for
gainful employment and sustainable livelihood.

The ultimate aim technical education is employment. This means it has to be linked with job market and
therefore enhance its social economic relevance. Where there is employment, poverty level goes down,
which therefore means the vulnerability to human trafficking will be reduced. Therefore, promotion of
Technical Education among women is also necessary to reduce the serious problem of human trafficking.