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TRADING THE MISERABLE

The author is former director- general, National Human Rights Commission

Trafficking in women and children is one of the worst violations of human rights. The International Organization of Migration estimates that the global trafficking industry generates about $ 8 billion each year from what may be described as a “trade in human misery”. The problem is not new, but it has now been exacerbated by globalization, rise in sex tourism, increasing vulnerability of women and children, and the failure of the enforcement machinery to curb this evil. Trafficked women and children are used for prostitution, domestic work, camel jockeying, organ transplants, forced marriages and so on.

Trafficking has grown in recent years since it is extremely profitable and the risk of prosecution is relatively low. This is because most countries have weak laws on trafficking and allied activities. Trafficking in women and children is a big business today involving extensive international networks of organized criminals and unscrupulous government officials. It takes organized effort to move large numbers of people across borders and over long distances. It takes “recruiters” to identify and procure young women and children. It takes transporters to take them across borders to their destination. Then there are “receivers” to deliver them to brothels. Finally, there are the brothel managers and heads of criminal cartels who make the most profit in this trade in misery.

Presently, there is no clear and single definition of trafficking. The term is used to describe activities that range from voluntary migration to the forced movement of persons for exploitative purposes. The 1999 United Nations crime commission and the November 2000 convention against transnational organized crime are supplemented by two additional protocols concerning the smuggling of migrants and trafficking in persons, especially women and children. The latter is often referred to as the “trafficking protocol” and provides the currently agreed upon definition of trafficking as recruitment, transportation, purchase, sale, transfer, harbouring or receipt of persons (a) by threat or use of violence, abduction, force, fraud, deception or coercion (including abuse of authority) or debt bondage, for the purpose of, or (b) placing or holding such a person, whether for pay or not, in forced labour or slavery-like practices in a community other than the one in which such a person lived at the time of the original act described in (a). As has been correctly pointed out by experts, at the core of any definition of trafficking must be a recognition of the fact that trafficking is never consensual. It is this non- consensual nature of trafficking that distinguishes it from other forms of migration.

In India, apart from the provisions in the Constitution enjoining the equality of all before law, Article 23 prohibits trafficking in human beings and all forms of forced labour. The directive principles, enlisted in Article 39(e) and (k) declare that state policy should be directed towards protecting childhood and youth “against exploitation and material abandonment”. Building upon these, the Suppression of Immoral Trafficking in Women and Girls Act was enacted in 1956, whose aim is “to inhibit or abolish commercialized vice, namely, trafficking in women and girls for the purpose of prostitution, as an organized means of living”. The act was amended in 1986 as the Immoral Trafficking of Persons Prevention Act. The amended legislation prohibits prostitution in its commercial form without declaring prostitution, per se, an offence. It also prescribes stringent action against those forcing children into prostitution.

Sections 3 and 4 of the act punish anyone owning a brothel or living off the earnings of a prostitute. Section 15 allows the police to conduct raids on brothels without a warrant on the basis of information that an offence under the ITPA is being committed on the premises. The act also punishes any person who solicits for the purpose of prostitution or who carries on prostitution in public vicinity. Section 13 empowers state governments to appoint special police officers to be assisted by an advisory board comprising social welfare workers of the area. Section 13(4) empowers the Centre to appoint “trafficking police officers” with nationwide jurisdiction to prevent inter-state trafficking. However, the government is yet to appoint any such officer. Usually, the Central Bureau of Investigation is directed to perform the functions of trafficking officers.

Also, the act does not provide for any punishment for the client. Thus these legislations have tended to disadvantage street prostitutes more than those working off the streets. In a study on prostitution in Mumbai, it was found that the number of prostitutes arrested was disproportionate to the number of pimps, procurers, brothel-keepers arrested. Obviously, the reason for this is a nexus between the traffickers and the police. There is also the difficulty of gathering proof to sustain the charges against offenders. Often, the owner of a brothel does not live on the premises. Instead one of the prostitutes is in charge who claims, during a raid, that all the women present operate independently. As the act lays down penalties only for “sex for profit”, neither the woman in charge, nor the owner can be arrested. Many a time, the brothel-keeper sends a prostitute to a hotel. In such cases it becomes difficult for the prosecution to prove that the hotel is being used for commercial prostitution.

Another problem is the absence of regional cooperation for effectively combating trafficking. The cooperation of governments in a region is necessary because traffickers try to exploit laws in individual countries. According to the IOM, 11 countries in central and North America have been working under the Pueblo Process since 1996 to combat trafficking. Costa Rica, Honduras, Mexico, the United States of America and others have agreed to launch joint training initiatives and simultaneous joint action and exchange of information on the entry of migrants who have been victims of trafficking and smuggling. Governments must also be more sensitive to the plight of trafficked victims, especially to their need for protection. The evidence of trafficked women and children is vital to effectively clamp down on the traffickers. Laws that protect them will make it easier for victims to come forward. Perhaps one of the most important need is prompt prosecution of traffickers. The US, for example, passed the Victims of Trafficking and Violation Protection Act in 2000, which has increased the penalty for trafficking to upto 20 years of imprisonment, similar to that for rape.

In India, during 1996 and 1997, 8,189 and 9,076 cases respectively were registered under the ITPA. However, almost 47 per cent of the cases were reported from Tamil Nadu. This shows that in most other states, few cases of immoral trafficking are being registered and a low priority is being accorded to this crime. Given the nexus between corrupt officials and brothel-keepers, there are the occasional bursts in police activity in which the prostitutes, but not the pimps and customers, are arrested.

The National Law School of India has prepared a draft bill called the “prohibition of immoral trafficking and empowerment of prostituted women bill, 1993”, as an alternative to the existing legislation. This bill contains provisions for healthcare for prostitutes, association of local non-governmental organizations in the maintenance and management of protective homes. It also provides proposes punishment of customers. But it requires a lot of political will to incorporate these much-needed changes into the revised legislation.

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