FEMINIST STUDIES AND LAW RELATING TO WOMEN/SEXUAL OFFENCES/LAW RELATING TO CHILDREN AND JUVENILES

E-mail this Comments Print Article

TRAFFICKING OF WOMEN AND CHILDREN : A Culture of Silence
by Divya Malhotra*

Cite as : 2005 PL WebJour 1

Introduction

In the past decade the volume of human trafficking has increased to the extent that today it is the third-largest form of transnational illegal trade after arms and drugs. The objective of such trafficking of women and girls is the commercial sexual exploitation. Indeed trafficking involves worst forms of human rights abuses including emotional, physical and sexual violence with bleak possibilities of rescue or reintegration.

Present situation

Though there is no concrete study or data on the number of women and children who are victims of sexual exploitation for commercial purposes and trafficking, it is estimated to be over one million in India alone. Research done on child prostitution1 reveals that: *

Incidence of child prostitution through abduction is estimated 40%. *

The percentage of Devdasis in Mumbai brothels is 15-20%, in Nagpur, Delhi and Hyderabad 10%, in Pune 50%, in urban centres around Belgaum district up to 80%. *

About 50% of children come into prostitution after incidence of rape. *

About 8% of children come because of incidence of incest. *

About 10% are children of prostitutes. *

About 5% are children of dalit and tribal families where prostitution is a cultural and customary practice. *

About 5% to 10% girls are married off and sold in prostitution. *

5% come from broken homes, desertion by husband or family. *

2% because of natural disasters.

The problem of trafficking of women and children for the purpose of sexual exploitation is prevalent at various levels—local, inter-district, inter-State and cross-border. Commercial exploitation of women and children takes place in various forms including brothel-based prostitution, sex tourism, entertainment industry and pornography in print and electronic media. Trafficking for commercial exploitation of women and children has resulted not only in violation of right, but also has adverse physical, psychological and moral consequences for the victims.

In a study commissioned by the Government of India and UNICEF, in 1998, researchers found that 83% of sex workers came from regions with "low developmental indicators, limited economic opportunities and ineffective developmental interventions". Trafficking is a multidimensional problem encompassing a whole range of economical, social and cultural issues, which are varied and highly complex. Most of the victims have been trafficked with promises of jobs, better career prospects and marriage. Some are abducted forcibly. Some girls are often sold by friends or relatives, sometimes even by their own parents out of greed or desperation. Although parents' complicity in this degrading occupation is difficult to understand, cultural indoctrination and financial desperation are clear motivating factors as apart from trafficking, certain other forms of prostitution are prevalent e.g. Joginis, Mathammas, Dommaras and Basavis.

Indian law

The right against exploitation is a fundamental right guaranteed by the Constitution of India under Article 23, traffic in human beings, "begar" and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law, Article 39 specifically obligates the State to protect children from exploitation. The provisions of both of these articles have been incorporated into the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) and the Immoral Traffic in Persons (Prevention) Act of 1986 (ITPA), an amendment to SITA. ITPA supplemented by the Indian Penal Code (IPC) prohibits trafficking in human beings including children and lays down severe penalties. The Juvenile Justice Act, 1986 provides for care, protection, treatment and rehabilitation of neglected and delinquent juveniles including girls. The enforcement of ITPA, IPC and the Juvenile Justice Act is the responsibility of the State Government.

Abuse and non-implementation of law

There has been a failure to implement the aforesaid legislation, which has caused and continues to cause severe injury and prejudice to the victims of prostitution. The legislative deficit is coupled by callousness displayed by the State authorities having failed and neglected to accept responsibility and discharge their duty as mandated by law.

In this context, while commenting on the existing legislation, Justice V.R. Krishna Iyer had said2:

"The police officer cannot be moral guardian of the Indian citizen, that judges trying this class of cases, unless specially trained or put through courses, prove to be judicial obstacles rather than social justice vehicles. The masculine lethargy at every stage is writ large."

Justice Iyer advocates active involvement of social welfare organisations in justice-delivery mechanism.

"Active participation in the very legal process will go a long way in socialising the legislation without isolating as a purely police-magistrate esoterica.3"

He also advocates for a radical reform of the existing law. In this context he says:

"Khaki is ill-equipped and the robes too unrealistic. New tools must be fashioned if the law is meant to be more than a paper tiger.4"

In Vishal Jeet v. Union of India5 there was a PIL against forced prostitution of girls, Devdasis and Joginis, and for their rehabilitation. The Supreme Court held that despite stringent and rehabilitative provisions under the various Acts, results were not as desired and, therefore, called for evaluation of the measures by the Central and State Governments to ensure their implementation. The Court called for severe and speedy legal action against exploiters such as pimps, brokers and brothel owners. Several directives were issued by the Court, which, inter alia, included setting up of a separate Zonal Advisory Committees, providing rehabilitative homes, effectively dealing with the Devdasi system, Jogin tradition, etc.

In Gaurav Jain v. Union of India6 the Supreme Court passed an order, directing inter alia, the constitution of a committee to make an in-depth study of the problem of prostitution, child prostitutes and children of prostitutes, and to evolve suitable schemes for their rescue and rehabilitation. Taking note of the fact that

"children of prostitutes should, however, not be permitted to live in the inferno and the undesirable surroundings of prostitute homes" (SCC p. 119, para 1),

the Apex Court issued directions to ensure the protection of human rights of such persons. The Court also desired that the ground realities should be tapped with meaningful action imperatives, apart from the administrative action which aims at arresting immoral traffic of women under the ITP Act through inter-State or Interpol arrangements and nodal agency like CBI is charged to investigate and prevent such crimes.

In 1998 the Central Government, pursuant to the directions issued by this Court in Gaurav Jain case6 constituted "Committee on Prostitution, Child Prostitutes and Children of Prostitutes and Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children". In 1998 in a report containing an action plan7, which highlighted the problems in addressing issues of commercial sexual exploitation, detailed recommendations were made with a view to arrest the systematic problem, including issues relating to law enforcement and legal reforms.

Most of the components of the Action Plan have to be implemented at the district level, constituting district-level Committees. The District Committees shall set up an anti-trafficking squad in every district headed by an officer not below the rank of Deputy Superintendent of Police. They shall protect the rights of trafficked persons by providing them with an effective legal remedy, legal protection, non-discriminatory treatment, and restitution, compensation and recovery.

Anti-trafficking measures must not, in the name of "protecting" all women from harm, deprive any women of any of her human rights as the principles of non-discrimination and the universality of human rights are fundamental and non-derogatory. The abovestated provisions, as well as others, are intended to ensure that trafficked persons are not treated as criminals but as victims of crime who have suffered serious human rights abuse. Unfortunately, most Governments continue to treat trafficked persons as illegal migrants and criminals, thereby further victimising the victims.

As regards the judiciary, a recent publication of UN says8:

"The judiciary is one of the most important sectors that need to be sensitized on gender issues and violations of rights of women due to trafficking. An analysis of the attitude of judges reveals a protectionist approach in their judgment of criminal cases against trafficking."

The sensitive judges and trial magistrates have ensured victim-friendly ambience in the court, to the extent possible. The proceedings in the court need to be monitored so that even the defence does not indulge in revictimisation and traumatisation of the victims. It is important to note that even when the matter reaches courts witnesses generally turn hostile making it very difficult for the prosecution and the victims to avail justice9

The report of DWCD10 mentions:

"The judiciary is accused of playing a role in secondary victimization, by its mode of questioning during court procedures, the long tedious legal processes and legal system is seen to be forbidding for victims who seek justice rather than detering those who commit injustice."

International law

Over the years, trafficking in human beings has become a global phenomenon. It has reached epidemic proportions, leaving no country immune to it. The International Organisation for Migration estimates that the global trafficking industry generates up to US $ 8 billion every year.

A variety of international instruments, which address this problem, already exist. This includes the "Convention on Suppression of Trafficking in Persons and the Prostitution of others", "Convention on the Elimination of All Forms of Discrimination against Women", "Convention on the Rights of the Child", "the Platform for Action of the Fourth World Conference on Women and the Beijing Platform of Action, 1995", "the Declaration and Agenda for Action Adopted by World Congress Against Commercial Sexual Exploitation of Children" held at Stockholm in 1996 which focused the attention of national governments, international media, parliamentarians, NGOs and others to serious threat to the life of poor women and girls in all the countries of the world. The Government of India has initiated several steps as a follow-up of these conventions and declarations. Five years after the First World Congress at Stockholm, a Second World Congress against Commercial Sexual Exploitation of Children was held at Yokohama, Japan from 17 to 20 December, 2001. Its aim was to review developments as a follow-up process to strengthen the commitment to protect children from sexual exploitation and abuse. Asian Development Bank (ADB) recently completed its project, in consultation with the Governments of India, Bangladesh and Nepal, to assess the magnitude of the problem and to devise methods to combat trafficking in women and children in South Asia11

In December 2002, India became a signatory to the "UN Convention against Transnational Organised Crime (UNTOC)", which includes the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. By becoming a participant in the convention, a global instrument which advocates international and national action against organised crime, the Government of India has given a clear mandate to confront the evils of trafficking of women and children12

International human rights instruments impose duty upon the States to respect and ensure respect for human rights law, including the duty to prevent and investigate violations, to take appropriate actions against the violators and to afford remedies and recovery to those who have been injured as a consequence of such violations. Nonetheless, as yet, few States have fulfilled their obligation to implement these commitments or to provide adequate human rights protection to trafficked persons. States have a responsibility to provide protection to trafficked persons pursuant to the Universal Declaration of Human Rights (UDHR) and through ratification or accession to numerous other international and regional instruments.

According to Article 1 of the Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others (the Trafficking Convention), India is obligated to any person who:

"(1) procures, entices or leads away, for the purpose of prostitution, another person, even with consent of that person;

(2) exploits the prostitution of another person, even with the consent of that person."

Article 2 calls for the punishment of any person who

"keeps or manages, or knowingly finances or takes part in the financing of a brothel".

The Government of India has incorporated most of the standards of international law into its domestic law but it still needs improvement in order to comply with international conventions. However, the deficiency lies not so much in the absence of a good law but in its lack of implementation and susceptibility to cultural manipulation.

Conclusion

A perusal of India's domestic legislation leaves one with the impression that the problem of sexual exploitation is well addressed, but since trafficking requires multilateral responses, State must deploy multidisciplinary and multilevel strategies to combat the sophisticated networks operating throughout the world. States and non-governmental organisations must work together to ensure that traffickers are never able to find a "safe haven" anywhere in the world. Without such concerted and coordinated efforts, trafficking will never be stopped or even minimised. Though many critics will argue that the society needs to do its duty in enacting sound legislations but unless and until citizens sensitise themselves, little can be done about it.

So far whatever measures have been taken have not been effective to the vision envisaged in most of the legislations. The Government of India's action plan of 1998 to combat trafficking and commercial sexual exploitation of women and children has not delivered the desired results, the plight of victims calls for strong legal action against traffickers, clients, brothel owners and all other exploiters. Programmes should be planned and executed after taking into account reliable and relevant database on the trends and dimensions in supply zones, destinations, high-risk groups, etc. It is essential that prevention strategies be targeted at both supply and demand areas. Unless the demand is contained, trafficking cannot be stopped.

The fact that the rights to development and to life with dignity are fundamental human rights has to be driven home and appreciated not just by the legal and executive agencies but by the society as well.