HUMAN RIGHTS DILEMMA OF TRAFFICKING IN HUMAN

BEINGS: EFFICACY OF LAWS IN JAMMU AND KASHMIR

ABSTRACT OF THE THESIS

Submitted to the University of Jammu
For the degree of
DOCTOR OF PHILOSOPHY
in
Law

SUPERVISOR RESEARCH SCHOLAR

Prof.Kulwant Singh, InshaIdrees
Department of Law,
University of Jammu.

DEPARTMENT OF LAW
UNIVERSITY OF JAMMU
JAMMU- 180006
2023
 Trafficking in human beings had become matter of serious concern in India.
The scale and extent of trafficking in human beings was less explored owing to its
clandestine nature. Trafficking in human beings, by its very nature and aim of
exploitation, treated human beings as commodities to be bought and sold and put to
forced labour, often for little or no payment.The majority of trafficked persons in
India, including men, women, boys and girls were trafficked for the purposes of
forced labour where they were held in exploitative conditions, severe restrictions on
their freedom of movement, withholding of wages or identity documents, physical or
sexual violence, abusive working and living conditions, threats and intimidation or
fraudulent debt from which there was no escape for the workers. Human trafficking
posed enormous challenges to governance and law enforcement machinery. The
ignorance of victims about their rights and their inability to approach concerned
authorities, and lack of infrastructure and resources with police lead to the
discrepancy between reported and estimated crimes.The broader object of the study
was to analyse trafficking in Jammu and Kashmir and to analyse as to how far the
legal enforcement mechanisms had made an overarching response to all the
dimensions of trafficking including, primacy of human rights, migration policy,
legislative and other measures.

The problem of trafficking could be traced back to the time of Greek city
states which tried to regulate, control and limit certain kind of activities in
society,like, prostitution. After Greek city states, others also attempted to regulate
prostitution but despite theirbest efforts prostitution had retained itself in large towns
for the last 2,500 years,which proves its deep-rooted existence in human social life.
Social, economic and moral changes, which necessarily influence different aspects of
social life, had affected this institution as well. The Abolitionist Movement that set in
at the end of 19th century brought with it a system of state regulation of prostitution
because of the spread of venereal diseases. Apart from this, the inquiries conducted by
various social organizations around the same period revealed that women were more
often than not forced into this profession and did not embrace it willingly as was
misconception hitherto. The trafficking acquired elusive character because the crime
was not committed in just one country but thevictimsenticed away from one country
on some deceitful pretext were exploited in another. The term “traffic” was first used
to refer to the so-called ‘white slave trade’ in women around 1900. The trafficking
and voluntary migration of white women from Europe to Arab and Eastern states as
concubines or prostitutes was of particular concern to European middleclass. The
result was the creation of an international agreement for suppression of the ‘white
slave trade’ in 1904. At that time, traffic meant the movement of women for
prostitution. In India Immoral Trafficking Prevention Act, 1956 was one of the
earliest legislations to prevent commercialization and prostitutionof women while
major part of trafficking in the country happened for forced labour under exploitative
conditions.

Human trafficking had been the least researched area in J&K, therefore, to
understand problem of human trafficking and to analyse role of implementation
machinery, it was sine qua non to conduct a field studies. The uniqueness of this
study rested with the fact that it was based on primary data collected from different
categories of respondents, viz.,judges, lawyers, law enforcement officials, police
personnel, civil society organisations, academicians, common people and victims with
a focus on nature and prevalence of labour and human trafficking in Jammu and
Kashmir, efficacy of laws in dealing with this problem,extent of reporting of such
cases, and problems faced by the authorities in dealing with this menace. The locale
of the study was the districts of Jammu, Samba and Kathua from Jammu Division and
the districts of Srinagar, Budgam and Anantnagfrom Kashmir Division. Out of the
said six selected districts, Jammu and Srinagar were capital cities having the presence
of major administrative and judicial institutions while the major industries and large
number of brick kilns were located in the other four selected districts having huge
influx of labour in those areas.

A total of 500 respondents were selected for study, which included 100
respondents from general public,300 respondents from officials connected with the
implementation of concerned laws, and 100 victims of human trafficking by using
appropriate sample selection techniques depending upon the nature of the sample
required for study.

India was home to an estimated 14 million victims of humantrafficking,

including victims of sex trafficking, bonded labour, child labour, domesticservitude
and forced marriage. After the Criminal Law Amendment Act, 2013, under Indian
 Penal Code,trafficking of persons for “physical exploitation or any form of sexual
exploitation, slavery or practices similar to slavery, servitude and the forced removal
of organs” were made punishable. The Immoral Traffic (Prevention) Act, 1956 was a
very comprehensive and detailed legislation which gave power and strength to law
enforcement and justice delivery agencies to combat and prevent trafficking in human
beings. The principle object of this legislation was to prevent commercialisation of
the trafficking of women and girls. The Act providedpunishment for keeping a
brothel, for living on the earnings of prostitution, procuring, inducing or taking
persons for prostitution, detaining a person in premises where prostitution was carried
on,prostitution in the vicinity of public places, seducing or soliciting for the purpose
of prostitution, seduction of a person in custody, etc.Even after those amendments, the
Act did not prove effective in dealing with immoral trafficking in all its dimensions.
The bonded labour was prohibited under the Bonded Labour System (Abolition) Act,
1976, but the debt bondage flourished because of the extremely low rate of
prosecutions against those crimes.The Child and Adolescent Labour (Prohibition and
Regulation) Act, 1986 prohibited engagement of children in all occupations and
engagement of adolescents in hazardous occupations and processes.The Juvenile
Justice (Care and Protection of Children) Act, 2000consolidated and amended the law
relating to juveniles in conflict with law and children in need of care and protection as
those children were found vulnerable to human trafficking.

Judicial response towards human trafficking had facilitated not only in

understanding their perception but also in assessing the strength and weakness in the
response by police, prosecution and community at large. Judicial activism and
suomotuproceedings in the courts had brought in new understanding of the policies,
programmes and their implementation in combating human trafficking.In Vishal Jeet
v. Union of India and others,1where a PIL was filed for the rehabilitation of girls,
devadasis and jogins, who had been forced into prostitution, the Supreme Court held
that in spite of stringent and rehabilitative provisions under various laws, the results
were not as desired and, therefore, it called for the evaluation of measures by the
Central and State governments to ensure their effective implementation. The court
also called for severe and speedy legal action against exploiters, such as pimps,
brokers and brothel owners.

11
. (1989) 3 SCC 318.
 Under Section 10 of the Bonded Labour System (Abolition) Act, 1976, the
DistrictMagistrate had been authorised to investigate and eradicate bonded labour.In
the case of BandhuaMuktiMorcha v. Union of India2there were a large number of
workers in Haryana's stone quarries working as bonded labourers in violation of the
Bonded Labour System (Abolition) Act, and who, in addition to being imprisoned,
were working under inhumane conditions. The Court noted that the Act was enacted
with the intent of giving effect to Article 23 of the Constitution, which prohibited
trafficking in human beings and begaar, as well as other similar forms of forced
labour.In Public Union for Civil Liberties v. State of Tamil Nadu, 3the Supreme Court
had held that the State mustprovide adequate shelter, food, education to the children
of bonded labourers and medicalfacilities to the bonded labourers and their families as
part of arehabilitation package.

In Prerana vs. State of Maharashtra and Others,4 the Mumbai High Court
looked into the issue of violation of rights of trafficked children by various authorities
supposed to implement the law and took serious objection to the judicial authority
treating the trafficked minor girls as ‘confirmed prostitutes’. The Court issued several
directions for the proper implementation of the Juvenile Justice (Care and Protection
of Children) Act (JJ Act) and the Immoral Traffic (Prevention) Act (ITPA), keeping
in view the human rights of the trafficked persons. The Court addressed several issues
concerning child rights, viz., the role of advocates and NGOs in the JJ Act, child
friendly procedures in dealing with rescued persons, etc., and brought out clear
guidelines for compliance by all concerned.

The findings of the study had great implications on the understanding of the
phenomenon of human trafficking. Human trafficking involved violation of whole
gamut of laws including those dealing with human rights of victims. It threatenedthe
very fabric of the society as it involved not only criminal traffickers but also pointed to
the lackadaisical attitude of the law enforcementauthorities in dealing with this
malaise.The essential attributes of trafficking, which pre-supposed the very existence
of vulnerable situations of inequality and injustice, coupled with the exploitation of
victims by the traffickers, causing them untold harm, provided a unique character to

2
AIR 1984 SC 820.
3
(1994) 5 SCC 116.
4
2003 2 LJ 105 (MAH).
 trafficking. Therefore, the policies, programmes and strategies to address and prevent
trafficking had to be unique with a focus on all such issues. All such efforts needed to
address not only the source areas but also the demand areas, the transit points and the
trafficking routes. In most of the trafficking cases in Jammu and Kashmir conviction
rate was extremely low because of the lack of information, reluctance of witnesses to
record their evidence before authorities. The pattern of registration of the crime under
ITPA was more focussed on criminalization of the victim. Most of the cases were
registered under Section 8 of ITPA for solicitation and not under Section 5, which
invited punishment for traffickers for procuring or inducing women for prostitution. It
was the trafficked victim who usually got detained under Section 8, thereby
suppressing the crime of human trafficking under the guise of alleged crime of
soliciting. There was a need for law enforcement authorities to re-orient themselves
against traffickers while providing care and protection to victims. It was necessary to
sensitize police personnel in handling cases of human trafficking,establish functional
Anti-Human Trafficking Units (AHTU) in each district besides shelter homes for the
trafficked victims. A close watch on traffickers, source areas, economically and
socially deprived vulnerable groups, debt crisis management and social security
system, etc.,was necessary to stem the growing tide of human trafficking.
In Jammu and Kashmir thereporting of human trafficking cases was very low
because of the absence of robust institutions to combat human trafficking. Structural
gaps in the legal system and weak linkages between law and policy have compounded
the problem.Allocation of extremely low resources to counter human trafficking
efforts have resulted in inadequacies within the system and meagre compensation to
the trafficked victims. In Jammu and Kashmir human trafficking for both labour and
sexual exploitation had remained hidden and under reported. Absence of effective
infrastructural facilities to counter human trafficking, like, Anti-Human Trafficking
Units, which existed in rest of India, presented a very dismal picture of Jammu and
Kashmir.
A number of hypotheses had been investigated and tested in the present study.
Those are given here under as:

1. Inadequate employment opportunities, poor living conditions, political and

economic insecurity, and discrimination put humans at the risk of trafficking.
The data collected during the course of study regarding reasons for humantrafficking
 depicted that women, children and the marginalised people were more prone to
trafficking. The associated growing inequalities in wealth between source and
destination regions; economic decline; lack of economic opportunities and under-
development of an area, characterised by poverty, under-employment, landlessness
and impoverishment among rural populations; discrimination; population pressure;
harsh economic policies; limited access to resources; lack of opportunities for local
employment,lack of basic subsistence put people at the risk of being trafficked. The
real or perceived differences in wages; better employment opportunities in destination
areas; demand for female migrant workers; a growing number of women and men in
destination countries for domestic work; and the growing acceptance of the practice of
prostitution, increased the risk of trafficking. The actual difficulty rested with
distinction between migrant labourers who movedto Jammu and Kashmir voluntarily
in search of employment and the labour who had been lured into exploitative labour.
Furthermore, many migrant workers began their journey voluntarily but then became
vulnerable to trafficking when they were not able to secure adequate employment for
which they had originally migrated. Labour trafficking was particularly driven by
poverty of the worker and poor implementation of law. Therefore, the data proved the
hypothesis that inadequate employment opportunities, poor living conditions, political
and economic insecurity, and discrimination put humans at the risk of trafficking.

2. Rapid growth of construction business of various kinds has increased the flow of
migrant labourers and also their exploitation in Jammu and Kashmir.
The data depicted that migrating labour ranged from people who move for personal
and professional development, usually middle class professionals to semi-skilled,
unskilled and low skilled workers,who moved to areas offering higher wages for
relatively low skills. While migration involved risk for all those who moved for work,
but people at the lower end of the skill level risked being trafficked. For the migrants
with minimal skills, migration was more an issue of survival. Internal mobility was
critical to the livelihood of many people,especially tribal people, socially deprived
groups and people from resource-poor areas. Women and children formed the largest
group of unskilled paid labour, who worked at construction sites, brick kilns,in
domestic work and other unskilled jobs. The nature, terms and conditions of work in
those sectors gave them little hope of voluntary and legitimate recruitment in the local
labour force. Migrants searching for better opportunities did manage to find a better
 life most of the time but some got trapped in exploitative situations. In Jammu and
Kashmir,the heavy influx of migrant labour was mostly at the brick kilns and
construction sites where they experienced exploitative working conditions. Therefore,
the hypothesis that rapid movement of goods, capital and labour had increased the
flow of migrant labourers and also their exploitation,stood proved.

3. The underlying causes of human trafficking are adequately addressed by anti-

trafficking laws in force in Jammu and Kashmir thereby ensuring social justice
to those trafficked.
India had made considerable progress in its human trafficking prevention efforts but
there was still room for improvement. The Central laws to prevent human trafficking
were of wide range to address the issue but seemed lenient towards perpetrators of
trafficking. The Immoral Trafficking Prevention Act, 1956 authorized the Central
Government to constitute an authority for the prevention of trafficking in persons, and
focussed on the punishment of trafficking offences as well as rehabilitation efforts
with little mention of prevention activities. The Bonded Labour Abolition Act, 1976
provided for the abolition of the bonded labour system to prevent economic and
physical exploitation of weaker sections of society. The penalties under anti-
trafficking regime were inadequate to deter the traffickers. The conviction rate in
human trafficking cases was extremely low because of lack of information and weak
evidence before the court. The pattern of registration of the crimes under ITPA was
focussed more on criminalization of the victim. Most of the cases were registered
under Section 8 of ITPA for solicitation and not under Section 5, which invited
punishment for traffickers for procuring or inducing women for prostitution. Most of
the people still confused human trafficking with sex work bringing to the fore that
inadequate attention had been paid to other forms of trafficking, like, labour
trafficking. A comprehensive effort to address the problem of trafficking through
appropriate prevention, rescue and rehabilitation programmes was need of the hour.
Therefore, the hypothesis that the underlying causes of human trafficking were
adequately addressed by anti-trafficking laws in force in Jammu and Kashmir thereby
ensuring social justice to those trafficked, stood not proved.
4. Proper redress of socio-economic and legal conditions that create workers’
vulnerability to exploitation may mitigate the suffering of those trafficked.
The study revealed that social security for migrants was considered fundamental for
the protection of workers and their households from contingencies threatening basic
living standards. Migrants moved from a place of origin to a destination in a process
that could be permanent, temporary, circular or transient. Overall the mobility process
of migrants was complex, lengthy, unstable and diverse. Migrants needed to have
their rights protected against social and economic distress in relation to sickness,
economic insecurity, unemployment, disability, poverty, old age and so on. It was
important to point out that migrant labour owing to their vulnerabilities was at a
higher risk of facing uncertainties. Labour migration flow was increasingly dominated
by semi-skilled and unskilled workers, like, construction workers, female domestic
helps and so on. They typically faced numerous problems as they lacked bargaining
power. Most of the times they had not come through proper channels leading to unfair
wages, long working hours,low wage, lack of basic amenities,like, safe drinking
water, and healthcare, etc., leading to their vulnerability to exploitation. Hence, a
proper preventive regime was required to address the problemsof trafficked victims
effectively. Therefore, the hypothesis that proper redress of socio-economic and legal
conditions that create workers’ vulnerability to exploitation may mitigate the suffering
of those trafficked was proved.

5. The structural causes of power disparities in the labour market are inversely
proportional to the emancipation of trafficked human beings.
The study depicted that human trafficking was predominantly an issue of economic
labour market exploitation and it needed to be seen from the labour perspective where
the focus was not individual but on the economic, social and legal conditions of the
labour collectively. The factors that created workers vulnerability to exploitation, like,
poverty, vulnerability to exploitation by employers, especially for persons in domestic
work, or in workplaces unregulated by safety, health, decent conditions and minimum
wage protections were crucial. Adopting a labour approach to human trafficking
would shift the focus away from individual harm to power disparities between victims
and traffickers and economic and social conditions that made individuals vulnerable
to trafficking. Individual and collective labour and employment rights emerged in an
attempt to bring about structural changes to labour market that would strengthen
workers bargaining position. The study made it clear that the unregulated labour
market and the restriction of choice to the labour at the hands of the employer aided
absence of structural mechanism increased the vulnerability and risk for people in
labour market to get trafficked. Therefore, the hypothesis that the structural causes of
power disparities in the labour market are inversely proportional to the emancipation
of trafficked human beings stood proved.

The study had been divided into six chapters.

Chapter –I of the study titled, ‘Human Trafficking: Introduction’,highlights the
conceptual definitions of human trafficking in the light of various definitions given in
different international conventions and protocols. In addition to it, the historical
perspective of the human trafficking, its causes, implications, modusoperandi of
traffickers, different approaches of the concept of human trafficking and effects of
the problem of human trafficking have been discussed in detail.

Chapter - II deals with ‘Research Methodology’. It lays down the various objectives
of the study, statement of the problem, hypotheses, universe, sampling, tools used for
the collection of data and review of literature. This chapter brings in and analyses the
data of various national and international organisations working on human
trafficking.It provides a detailed view of the methods used to collect the data for the
present study. Extensive use has been made of social sciences research techniques,
such as, interview schedules, observational study besides the collection of data from
secondary sources. The profile of the respondents, which gives a vivid account of
their socio-economic background, stating their age, education, religion, family
background, marital status have also been dealt with in this chapter.

Chapter- III entitled, ‘Legislative Framework’, discusses in detail International

Legal Framework where international instruments, like,Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of
Others, 1949;The Abolition of Forced Labour Convention, 1957;The United Nations
Charter;Convention on the Protection of the Rights of Migrant Workers and Members
of their Families, 1990;The United Nations Convention against Transnational
Organised Crime, 2000 and its Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, 2000;United Nations Millennium
Declaration; The United Nations Convention against Transnational Organized Crime
(UNTOC), 2000 have been dealt with in detail. This chapter further discusses national
legal framework on human trafficking. The Constitutional provisions and different
legislations, like, The Immoral Trafficking (Prevention) Act, 1956;The Bonded
Labour System (Abolition) Act, 1976;The Child and Adolescent Labour (Prohibition
and Regulation) Act, 1986 andJuvenile Justice (Care and Protection) Act, 2000 have
been discussed in detail.

Chapter - IV of the study, entitled, ‘Human Trafficking: Judicial Approach’,

discusses the approach of judiciary towards human trafficking. In this chapter various
Supreme Court and High Court judgements on human trafficking have been discussed
in detail.The decisions of the Supreme Court and various High Courts which have
contributedto the protection and rehabilitation of the trafficked victims find place in
this Chapter.

Chapter - Vdeals with the, ‘Evaluation, Analysis and Interpretation of Data’,

wherein field data collected during the course of study have been analysed using both
statistical and descriptive methods for arriving at conclusions. It basically incorporates
the major findings of field study relating to the nature of human trafficking; what was
the basic nature of human trafficking; what form of human trafficking was prevalent
in the union territory of Jammu and Kashmir; what were the factors responsible for
the growth of this menace; who were more vulnerable to human trafficking; what was
the nature of exploitation to which the labour migrants were exposed and who were
the persons responsible for trafficking of human beings and what were the human
rights violations of the victims of human trafficking to which they were generally
exposed in the place of work; Modus operandi of traffickers, Reasons for the
discrepancy between reported and estimated crimes: reasons of low conviction rate in
trafficking cases; experience of respondents of human trafficking while being
trafficked;availability of modes for the protectionof the victims of human trafficking;
place of reporting by the victim; nature of the response of police, judiciary and the
other officials responsible for tackling the problem of human trafficking; awareness of
trafficking issues among police staff; efficiency of laws to deal with the problem of
trafficking; identification of cases of labour exploitation;reporting of cases of human
trafficking; problems faced by the authorities in combating human trafficking; what
measures have been initiated by the concerned authorities for the rescue, redress,
rehabilitation and reintegration of the victims of human trafficking.
Chapter -VIItitled as ‘Conclusion;is concluding and summarising part of the study
where the summary of the findings of study and implications thereof have been
highlighted. It is felt that a comprehensive legislation is required to effectively deal
with perpetrators of human trafficking. There is a need for radical change in the law
enforcement practice and methods to include correspondingly harsh sentence for
engaging persons who are victims of labour trafficking in the same measure as those
who engage victims of sex trafficking. The government need to take steps to prevent
this crime by reducing the demand for all forms of trafficking, not only the trafficking
for sexual exploitation. Government needs to adopt policies that take into account the
safety of the victims and facilitate their repatriation.