Trafficking does not mean prostitution. They are not synonymous. In understanding trafficking, one should delink it from prostitution. As per the existing law, Immoral Traffic (Prevention) Act 1956 (ITPA) prostitution becomes an offence when there is commercial exploitation of a person. If a woman or child is sexually exploited and any person gains out of the same, it amounts to commercial sexual exploitation (CSE), which is a legally punishable offence wherein the culpability lies against all exploiters. Trafficking is the process of recruiting, contracting, procuring or hiring a person for CSE. Therefore, trafficking is a process and CSE is the result. The ‘demand’ in CSE generates, promotes and perpetuates trafficking. This is a vicious cycle. Trafficking could also be a means for other types of violations such as for developing pornographic material, for promoting sex tourism, for sexual exploitation under the facade of bar tending, massage parlours etc, or even for exploitative labour where sexual abuse may or may not coexist.
ITPA envisages only trafficking for CSE. Commercial activity need not be in a brothel, but could also occur in places including a residential dwelling, a vehicle, etc. Therefore a police officer who is acting under ITPA has powers to take steps in all such situations where trafficking leads to or is likely to lead to CSE in any form, including those under the facade of massage parlours, bar tending, ‘tourist circuit’, ‘escort services’, ‘friendship clubs’, etc.
The definition of trafficking can be found in the various sections of ITPA. Section 5 speaks about procuring, taking and even inducing a person for the sake of prostitution. According to this section, even attempt to procure and attempt to take or cause a person to carry on prostitution amounts to trafficking. Therefore ‘trafficking’ has been given a broad scope.
A detailed definition of trafficking is available in the Goa Children’s Act 2003. Though it is focused on child trafficking, the definition is comprehensive. Under section 2 (z), “child trafficking” means “the procurement, recruitment, transportation, transfer, harbouring or receipt of persons, legally or illegally, within or across borders, by means of 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 giving or receiving payments or benefits to achieve the consent of a person having control over another person, for monetary gain or otherwise”.
The offence of trafficking, essentially, has the following ingredients:
- Displacement of a person from one community to another. The displacement could be from one house to another, one village to another, one district to another, one state to another or from one country to another. Displacement is also possible within the same building. An example will clarify the point. Presume that the brothel keeper controls several young women who are inmates and that one of the women has a teenage daughter staying with her. If the brothel keeper, by duress or bribe, manages to get the mother to agree to allow the teenager to be used for CSE, the teenager has been moved out of the ‘mother’s community’ and into the ‘brothel community’. This displacement is adequate to constitute trafficking.
- Exploitation of the trafficked person. The ITPA and related laws envisage sexual exploitation of the trafficked person. The process of exploitation may be manifest, as in a brothel, or latent, as in certain massage parlours, dance bars, etc, where it takes place under the facade of a legitimate commercial activity.
- Commercialization of the exploitation and commodification of the victim. The trafficked victim is exploited as if she is a commodity (see the detailed list of violations in the following chapter). The exploiters generate revenue out of the exploitation. They may share a part of the revenue with the victim too. The victim who is getting a share of the money generated is often ‘branded’ as an accomplice and arrested/charge-sheeted and even convicted. The trafficked victim, whose freedom even to think, let alone move out, is dictated by the exploiters, should never be treated as an accomplice. Even if she gets a share of the ‘earnings’, the fact that she has been trafficked to CSE does not alter her status as a victim.
The organized crime of trafficking
Human trafficking is a crime of crimes. It is a basket of crimes. In this basket one can dig out the elements of abduction, kidnapping, illegal detainment, illegal confinement, criminal intimidation, hurt, grievous hurt, sexual assault, outraging modesty, rape, unnatural offences, selling and buying of human beings, servitude, criminal conspiracy, abetment etc. Therefore, multiple abuse and abusers located at different points of time and place together constitute the organized crime of trafficking. A host of human rights violations like denial of privacy, denial of justice, denial of access to justice, deprivation of basis rights and dignity etc constitute other part of the exploitation. Therefore, there is no doubt that trafficking is an organized crime.
The trafficked person
In the context of ITPA (especially S.5 ITPA) and related laws, a trafficked person could be a male or a female of any age who has been trafficked for CSE in a brothel or any place where CSE takes place. ITPA provides punishment even for attempt to traffic a person. Therefore, even before the person is physically trafficked, the law comes into operation.
Child is a person who has not attained the age of 18 years. Any child who is vulnerable to trafficking is considered a “person in need of care and protection” under the Juvenile Justice (Care and Protection of Children)Act, 2000(JJ Act). Law enforcement agencies are duty bound to rescue such children, produce them before the Child Welfare Committee and extend all care and attention.
Regarding adults, the mere consent of the person does not exclude the possibility of trafficking. If the consent was obtained under duress, coercion, fear or any pressure, then the consent has no meaning and, therefore, all such instances amount to trafficking. Thus, even when an adult woman is ‘picked up’ from a brothel on the charge of ‘soliciting’, it cannot be presumed that she is guilty of soliciting unless and until the ‘mens rea’ (i.e., the intention) is investigated. A woman trafficked for CSE is a victim of CSE and not an accused.
Traffickers and other exploiters
- Trafficking is an organized crime. There are several persons involved at several places, starting with (a) place of recruitment, (b) places of transit and (c) places of exploitation. Therefore, the list of exploiters includes the following:
- The brothel in charge and other exploiters in the brothel, or the final place of exploitation, which would also include:
- The brothel “madam” or the person in charge of the ‘dance bar’ or ‘massage parlour’ or such other place where exploitation takes place.
- The ‘managers’ and all other dramatis personae in such places.
- The hoteliers or persons in charge of hotels, etc where exploitation takes place. This includes keepers of places/vehicles used as a brothel (S.3.1 ITPA), persons who allow premises to be used as a brothel (S.3.2 ITPA), persons who detain victims in brothels and other places of exploitation (S.6 ITPA), and those who allow public places to be used for prostitution (S.7.2 ITPA).
- The “customer” or “clientele”, who is the abuser of the trafficked woman, is undoubtedly, an exploiter. He is the one who perpetuates ‘demand’ and CSE and is, therefore liable under ITPA and other laws. (See para 3.2.3 for details). # The financiers: All those who finance the various processes involved in trafficking are part of the nexus. This may include those who finance recruitment, transportation, stay, accommodation, and even those who indulge in money lending and borrowing at the brothels. The abettors: All those who abet or support the exploitation or any process involved in trafficking are triable under ITPA (sections 3, 4, 5, 6, 7, 9 ITPA, read with Chapter V of IPC dealing with abetment of offences).
- Those who are living on the earnings of CSE: Any person who knowingly lives, wholly or partly, on the earnings of prostitution is liable (S.4 ITPA). This includes all those who have a share in the illegal benefits derived from the exploitation. The financiers who lend or collect money from the brothels (or hotels) and do business out of such transaction are also liable under this section. The hotelier who profits from the exploitation of girls is undoubtedly an accused u/s 4 ITPA.
- The spotter, the recruiter, the seller, the purchaser, the contractor, the agent or anybody acting on their behalf.
- The transporters, the harbourers and those who provide shelter are also part of the racket.
- All conspirators: In nearly all trafficking situations, several persons conspire at the various stages involved in the process of exploitation, thereby constituting a case of conspiracy. If there is a meeting of minds, followed by an overt act in pursuance thereof, the law of conspiracy (S120 B IPC) is attracted. According to the ITPA, those who conspire to allow any premises to be used as a brothel (S. 3) or those who live on the earnings of exploitation, even partly (S.4), or those who procure or induce or take the person for prostitution (S.5) are all considered conspirators.
Source: Portal Content Team
Human trafficking is the third largest profitable industry in the world. Child trafficking unlike many other issues is found in both developed and developing nations. Trafficked children are used for prostitution, forced into marriage, illegally adopted, used as cheap or unpaid labour, used for sport and organ harvesting. Some children are recruited into armed groups. Trafficking exposes children to violence, abuse, neglect and exploitation. According to UNICEF a child victim of trafficking is "any person under 18 who is recruited, transported, transferred, harboured or received for the purpose of exploitation, either within or outside a country". Trafficking is one of the hardest crimes to track and investigate hence data is hard to obtain. The latest figures estimate that 1.2 million children are trafficked worldwide every year. Child prostitution has the highest supply of trafficked children.
India is a source, destination, and transit country for trafficking for many purposes such as commercial sexual exploitation. Majority of the trafficking is within the country but there are also a large number trafficked from Nepal and Bangladesh. Children are trafficked to Middle Eastern countries for sport such as camel racing. There are no national or regional estimates for the number of children trafficked every year. But 40% of prostitutes are children, and there is a growing demand for young girls in the industry. Child Trafficking
NGOs estimate that 12,000 - 50,000 women and children are trafficked into the country annually from neighbouring states for the sex trade. Thousands of girls are trafficked from Bangladesh and Nepal. 200,000 Nepalese girls under 16 years are in prostitution in India. An estimated 1,000 to 1,500 Indian children are smuggled out of the country every year to Saudi Arabia for begging during the Hajj. Child Trafficking Andhra Pradesh, Karnataka, West Bengal and Tamil Nadu have the largest number of people trafficked. Intra state/inter district trafficking is high in Rajasthan, Assam, Meghalaya, Bihar, Uttar Pradesh, Andhra Pradesh, Karnataka, Tamil Nadu and Maharashtra. Delhi and Goa are the major receiver states. Trafficking from north eastern states is high but often over looked. In 2008, 529 girls were trafficked from Assam alone. Child Trafficking
There is a rising demand for live-in maids in urban areas. This has resulted in trafficking of girls from villages in West Bengal, Jharkhand and Chhattisgarh to live under extremely poor conditions first in "placement agencies" and later in the employers homes. Placement agents keep the girls in small unhygienic rooms packed together. They are often made to do the placement agent's household work and subjected to sexual abuse. Smita a sixteen year old girl was taken from her village in Jharkhand and subjected to various forms of sexual abuse and exploitation at the hand of her employers including rape. When rescued her parents refused to take her back since she had been tainted by rape. Falling sex ratios in Haryana and Punjab has led to a need for trafficking of brides from villages in Orissa, Jharkhand, Bihar, Assam and West Bengal, who have been sold off by the parents. Jyoti, age fourteen, was sold and married to a 40-year old man for Rs 15,000 in order to produce a mail heir
Immoral Traffic Prevention Act, 1986
- In 1950 the Government of India ratified the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. In 1956 India passed the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA). The act was further amended and changed in 1986, resulting in the Immoral Traffic Prevention Act also known as PITA. Immoral Traffic Prevention Act, 1986 PITA only discusses trafficking in relation to prostitution and not in relation to other purposes of trafficking such as domestic work, child labour, organ harvesting, etc. The following is an outline of the provisions in this law that pertains to children below the age of 18.
- The act defines child as any person who has completed eighteen years of age. The first section of the act has provisions that outline the illegality of prostitution and the punishment for owning a brothel or a similar establishment, or for living of earnings of prostitution as is in the case of a pimp. Section five of the act states that if a person procures, induces or takes a child for the purpose of prostitution then the prison sentence is a minimum of seven years but can be extended to life. To ensure that the people in the chain of trafficking are also held responsible the act has a provision that states that any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purpose of prostitution if guilty of trafficking. In addition any person attempting to commit trafficking or found in the brothel or visiting the brothel is punishable under this law.
- If a person if found with a child it is assumed that he has detained that child there for the purpose of sexual intercourse and hence shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh rupees. If a child is found in a brothel and after medical examination has been found to have been sexually abused, it is assumed that the child has been detained for the purpose of prostitution.
- Any person committing prostitution in public with a child shall be punishable to seven year in prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh rupees. If prostitution of a child is being committed with knowledge of an establishment owner such as a hotel the license of the hotel is likely to be cancelled along with the given prison sentence and/or fines.
- Any child found in a brothel or being abused for the purpose of prostitution can be placed in an institution for their safety by a magistrate. Landlords, leasers, owner, agent of the owner who unknowingly previously rented their property to a person found guilty of prostituting a child, must get approval from a magistrate before re-leasing their property for three years after the order is passed.
- In 2006, the Ministry of Women and Child Development proposed an amendment bill that has yet to be passed. The amendment does not really concern any of the provisions related to the child but has many important consequences for the right of women sex workers.
For More Informatio:
- The Immoral Traffic (Prevention) Act, 1956 (93.2KB)
- The Immoral Traffic (Prevention) Amendment Bill, 2006 (14.5KB)
Initiatives to combat trafficking of Women and Children
The Ministry of Women and Child Development (MWCD) in an attempt to stop the trafficking of women and children has undertaken a number of initiatives.
- National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children 1998, was formulated with the aim of mainstreaming and reintegrating victims of trafficking.
- Central Advisory Committee (CAB) was constituted to advise on methods and tactic to address the problem.
- Pre-rescue, Rescue and Post-rescue operations of child victims of trafficking for the purpose of Commercial Sexual Exploitation protocol was published as guidelines for all stakeholders
- The MWCD in collaboration with NIPCCD and UNICEF has developed three manuals for 'Judicial Handbook on combating Trafficking of women and Children for Commercial Sexual Exploitation'; 'Manual for Medical Officers for Dealing with Child Victims of Trafficking and Commercial Sexual Exploitation'; and 'Counselling services for Child survivors of trafficking'.
- Ministry of Home Affairs has set up of a dedicated nodal Cell in the MHA for prevention of trafficking. The cell is responsible for providing state governments with the necessary research, studies and information.
- The ministry organises workshops for NGOs on issues relating to trafficking of children for commercial sexual exploitation. A special module for counsellors of trafficked victims has been formulated.
- Suggested amendment of the Immoral Traffic (Prevention) Act, 1956 to widen its scope, focus on traffickers, human rights of victims and focus on proper implementation.
- Training to all stake holders such as police, government officials, etc. to better understand the situation and hence respond properly to a suspicious activity or person.
- The MWCD runs Shelter based homes Short Stay Homes, Swadhar Homes for women in difficult circumstances
- Three pilot projects were implemented i)Pilot project to combat trafficking women and children for commercial sexual exploitation under the sanction of tradition ii) Pilot project to combat trafficking of women and children for commercial, sexual exploitation in source areas and iii) Pilot project to combat trafficking of women and children for commercial sexual exploitation in destination areas. The projects are in the process of being converted into a full scheme.
- With the Ministry of External Affairs, MWCD has endeavoured to create special task forces to combat cross border trafficking.
- Tackle trafficking of women and girls by addressing issues of poverty, illiteracy, lack of access to education and schools, lack of vocational skill and employment opportunities, prevalence of age old evil practices like child marriages, low status of women and girls in society etc.
Source: CHILDLINE India Foundation