DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

(SESSION 2023-24)

INADEQUACY OF LAWS AGAINST CROSS-BORDER SEX TRAFFICKING BETWEEN

NEPAL AND INDIA

(Published by Institute for the Study of Human Rights, Columbia University)

SUBMITTED TO:
Assistant Professor
Prof Aparna Singh

SUBMITTED BY:

Ayush Kumar
B.A LL. B (Hons.)
7th Sem
200101052

1
 Contents

1. Introduction ....................................................................................................................... 3

2. Open Borders: A Facilitating Factor .............................................................................. 4

3. Inadequacy Of Domestic Laws Against Sex Trafficking............................................... 5

4. A Poverty Ridden Patriarchal Society Denies Women’s Rights And The Impact of
Covid-19 ............................................................................................................................. 6

5. International Treaties Against Human Trafficking That lack Implementation ......... 7

6. What Is Needed? ............................................................................................................... 8

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 A bustling market in Kathmandu, Nepal. Photo by Laurentiu Morariu on Unsplash.

Introduction

Globalisation has caused the emergence of new technologies that facilitate trade and transport,
making business more rewarding. A negative ramification of this change is the proliferation of
cross-border human trafficking. The UN Office of Drugs and Crime1 [Hereinafter “UNODC]
defines Human Trafficking as the “recruitment, transportation, transfer, harbouring, or receipt of

1
https://www.unodc.org/unodc/en/human-trafficking/human-trafficking.html

3
people through force, fraud, or deception, intending to exploit them for profit.” Men, women, and
children of all ages and from all backgrounds can become victims of this crime, which occurs in
every region of the world.

There are nearly 36 million victims of human trafficking in the world, out of which two-thirds 2are
from Asia, making it the third-largest crime in magnitude and profit after arms and drug trafficking.
With Covid-19 in the picture, the situation is anticipated to turn grimmer. This blog will try to
discuss possible reasons why trafficking has taken such a huge stride in the region comprising
India and Nepal, what historical bilateral agreements provide a conducive environment for
trafficking and the socio-economic conditions that play their role. Further, it is pertinent to discuss
the domestic laws of both countries which have proved to be completely inadequate.

Open Borders: A Facilitating Factor

Nepal is an indispensable neighbour of India because of its cultural, historical and economic
connections. It also holds a vital place in India’s foreign policy because of the pertinent Chinese
threat for Nepal and then eventually for India. The two countries not only share an open border
and unhindered movement of people [Treaty of Peace and Friendship of 1950]3, but they also
share a bond cemented by economic and familial ties, popularly known as “Roti-Beti ka Rishta”
(Relation of food and family).

It turns out that this friendship comes at a heavy cost as the open border has become a facilitating
factor in illegal practices such as smuggling, and trafficking of girls. It is estimated that around 50
girls are trafficked from Nepal to India daily. According to the National Human Rights
Commission of Nepal, around 35,000 Nepali4 girls were trafficked between 2018-19.

Nepali girls are forced to work in the Indian sex industry where prostitution is not a criminal
offence while the Human Trafficking and Transportation (Control) Act, 2064 [2007]5 [Hereinafter
“HTTCA”] makes prostitution in Nepal punishable by imprisonment. However, while there is no
provision under the law, which makes prostitution a criminal offence in India, running a brothel is

2
https://www.dailysignal.com/2014/11/20/nearly-two-thirds-human-trafficking-victims-asia/
3
https://mea.gov.in/bilateral-documents.htm?dtl/6295/Treaty+of+Peace+and+Friendship
4
http://www.nhrcnepal.org/nhrc_new/doc/newsletter/NHRC_National_Report_TIP_in_Nepal_September_2018.pdf
5
https://www.warnathgroup.com/wp-content/uploads/2015/03/Nepal-TIP-Law-2007.pdf

4
illegal under the Immoral Traffic (Prevention) Act, 19566 [Hereinafter “ITPA”]. This act is the
main legislation available against trafficking for commercial sexual exploitation in India.
However, the act fails to define what exactly trafficking means.

Inadequacy Of Domestic Laws Against Sex Trafficking

There are many domestic laws in place to tackle the menace of human trafficking in India as well
as Nepal but none of them seems to serve the purpose as trafficking has only been exponentially
rising day by day. Article 237 in the Indian Constitution, is a fundamental right, which prohibits
the trafficking of human beings and forced labour. Additionally, Section 366 B8 of the Indian Penal
Code makes “importing any girl under the age of twenty-one with the intent that she will be forced
or seduced to illicit intercourse with another person a punishable offence. ”Child Labour
[Prohibition and Regulation] Act, 19869 prohibits employment of children below of or below the
age of 14 in certain hazardous occupations.

Several Indian legislations against human trafficking prove to be inadequate because of the fact
that none (except for certain provisions of the ITPA) of them provide victims with the required
relief and rehabilitation. Non-availability of witness/victim protection mechanism and no
rehabilitation scheme leaves the prosecution with no evidence whatsoever.

In Nepal, the Trafficking Act of 1986 provides protection against the trading of human beings for
any purpose whatsoever. However, recruitment by deception10 for bonded labour was not taken
into consideration in this act unless it was for prostitution. The HTTCA 11 was then passed to
effectively implement the provisions under the Trafficking Controls Act, 1986. HTTCA was given
extraterritorial jurisdiction and the penalties for offences that took place within and outside Nepal
were made equal. Even after the HTTCA, the provision of extraterritorial jurisdiction is almost

6
https://www.indiacode.nic.in/handle/123456789/1661?view_type=browse&sam_handle=123456789/1362
7
https://indiankanoon.org/doc/1071750/
8
https://indiankanoon.org/doc/1371751/#:~:text=%E2%80%94Whoever%20imports%20into%202%5BIndia,**%5
D%20shall%20be%20punishable%20with
9
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjK_LXEwPzwAhXk8X
MBHbKSAOgQFjAPegQIEBAD&url=https%3A%2F%2Fwww.indiacode.nic.in%2Fbitstream%2F123456789%2F
12795%2F1%2Fthe_child_and_adolescent_labour_%2528prohibition_and_regulation%2529_act%252C_1986_no._
61_of_1986_date_23.12.1986.pdf&usg=AOvVaw1wQ68x943JU69V6sUtXhL-
10
11
https://www.warnathgroup.com/wp-content/uploads/2015/03/Nepal-TIP-Law-2007.pdf

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dormant in the implementation phase. The act was severely criticized because of the fact that it
made no distinction between sex trafficking and sex work. Further, the act has inadequate
provisions for compensation and protection for plaintiffs who bring the matters of trafficking to
the court.

A Poverty Ridden Patriarchal Society Denies Women’s Rights And The Impact of Covid-
19

These girls, in their early childhood, are denied access to basic education, equality, and personal
autonomy because of the rigid Nepali patriarchal society. Parents creep away from spending
resources on a girl child primarily because of high and persistent unemployment, widespread
poverty, prospective dowry demands, and a cultural preference for a boy child. One major reason
for widespread trafficking is child marriage,12 which is prevalent in both India and Nepal.
Fictitious marriages are used as a pretext for luring a victim or their family for trafficking. Parents
marry off their girl child at a very early age, husbands then sell them off to brothels for monetary
benefits.

Research shows that disease outbreak acts as a major catalyst for the practice of trafficking. In the
current pandemic, more than 1,700 children have lost both parents,13 and more than 7,400 have
lost one of their parents to the virus in India alone. These orphaned children are at great risk of
being trafficked and exploited. Apart from devastating the whole family structure, epidemics and
pandemics can also amplify several other trafficking risk factors, from poverty and unemployment
to the breakdown of the rule of law.

Traffickers promise better wages and better working conditions in foreign lands, as opposed to the
widespread poverty and unemployment in Nepal, to lure the victim into the trap. With Covid-19
in the picture, one-third population14 of Nepal, who lived close to the poverty line before the
pandemic arrived, could fall below the poverty line. This will serve to aggravate the economic

12
https://www.hrw.org/report/2016/09/09/our-time-sing-and-play/child-marriage-
nepal#:~:text=Nepal%20has%20the%20third%2Dhighest,of%20boys%20marry%20before%2018.
13
https://www.dw.com/en/covid-thousands-of-indian-children-orphaned-by-pandemic/a-57742069
14
https://www.worldbank.org/en/country/nepal/overview

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conditions in Nepal. Additionally, this is the reason why the border authorities should be more
vigilant as the risk of exploitation15 of Nepali girls is much greater now.

Indian constitution extends some of the fundamental rights to foreign citizens as well such as
Article 1416 [Equality before the law] and Article 2117 [Right to life and personal liberty]. It is
well settled through various case laws that Article 21 contains in it the right to health. Nepali girls
lose their basic human rights for a lifetime once taken away from their homeland. These girls
brought to India as virgins suffer from diseases like Human immunodeficiency viruses [Hereinafter
“HIV”] which not only jeopardise their health but also shuts down any possibility of them going
back to their country and getting accepted for a fresh start. This may be because of the stigma
attached to HIV. It brings with it negative attitude and behavior towards people living with or at
risk of HIV.

Additionally, one survey in Bombay indicated that 50% of female prostitutes18 were infected with
HIV and other Sexually Transmitted Diseases [STDs]. This is the reason why girls who become
unfit for sexual exploitation choose to get into the trade themselves rather than getting back with
their families.

International Treaties Against Human Trafficking That lack Implementation

International frameworks are as futile as domestic laws in curbing human trafficking. India and
Nepal both have ratified [not adopted] the United Nations Convention against Transnational
Organized Crime [UNTOC)]19 [commonly known as the Palermo Protocol] and its protocol for
preventing the trafficking of human beings. Both the nations are party to the regional conventions
such as the SAARC Convention on protecting and Combating Trafficking in Women and children

15
https://freedomcollaborative.org/newsletter-archive/the-south-asian-perspective-a-deeper-look-at-covid-19
16
https://indiankanoon.org/doc/367586/
17
https://indiankanoon.org/doc/1199182/
18
https://www.worldbank.org/en/news/feature/2012/07/10/hiv-aids-nepal
19
https://www.unodc.org/documents/middleeastandnorthafrica/organised-
crime/UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_ORGANIZED_CRIME_AND_TH
E_PROTOCOLS_THERETO.pdf

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for prostitution [2002],20 whose purpose was to promote cooperation amongst the Member States
so that they may effectively deal with the suppression of trafficking in women and children.

While international standards are clear, there are still gaps in application. Even though the Palermo
Protocol asks for a comprehensive approach to combating human trafficking, it has yet to be fully
fulfilled. Frequently, states seek to fight human trafficking simply from an immigration or criminal
standpoint. To guarantee that the problem is dealt with to the best degree possible, states must
recognise and execute all international mechanisms to combat trafficking.

UNODC’s SOP21 to tackle cross-border trafficking presses on the role of the first responders. First
responders are agencies, organisations, or individuals, with a responsibility to identify and
interview a potential adult or child victim of human trafficking like the security forces. It also lists
down some physical indicators to identify and save a person being trafficked. One of the
rudimentary physical indicators includes signs of fear, submissiveness, nervousness, distress,
anxiousness, especially in females.

What Is Needed?

Lastly, India and Nepal must come together and formulate a singular framework to uproot all
trafficking supply chains. Border security forces of both countries need to devise a plan and train
their guards to efficiently distinguish between a person being trafficked against their will and
simply an irregular migrant. A legal framework must be established for the people who want to
migrate to India with their own choice, this way, sifting migrants from trafficked people will
become easier.

20
https://evaw-global-database.unwomen.org/-
/media/files/un%20women/vaw/full%20text/asia/south%20asian%20association%20for%20regional%20cooperatio
n/saarc%20convention%20on%20preventing%20and%20combating%20trafficking%20in%20women%20and%20c
hildren%20for%20prostitution.pdf?vs=3701
21
https://www.unodc.org/documents/southasia/publications/SOPs-on-TIP-India-Nepal-
Bangladesh/indo_nepal_20_March_18.pdf

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