Immoral Trafficking of Women and Children in India
A Legal Analysis

Anisha Gupta, Faculty of Law (CLC), Delhi University.

Date : 11/05/2015 - Location : New Delhi

Immoral Trafficking of Women and Children in India: A Legal Analysis

Trafficking in human beings is not a new phenomenon. Trafficking in women and children for commercial sexual exploitation and other abusive purposes is rampant in India. Women, children and men have been captured, bought and sold in market places for centuries. Human trafficking is one of the most lucrative criminal activities. It is estimated by the United Nations (UN) that 1 to 4 million people are trafficked worldwide each year[1]. Trafficking in women and children is an operation which is worth more than $10 billion annually. The NHRC Committee on Missing Children has reported that about 12.6 million (Governmental sources) to 100 million (unofficial sources) are stated to be child labour; 44,000 children are reported missing annually, of which 11,000 get traced; about 200 girls and women enter prostitution daily, of which 20 per cent are below 15 years of age Bachpan Bachao Andolan v. Union of India and Ors. (Writ petition [C]no. 51 of 2006, Supreme Court of India, decided on 18th April 2011).

Trafficking of women and children for commercial sexual exploitation is one of the most inhuman issues existing in our society. Internal trafficking of women and children for purposes of sexual exploitation, domestic servitude, bonded labour, and indentured servitude is highly widespread across the country, either because their husbands deserted them, or have had broken marriages and are into trafficking through coercion and deception or due to traditional compulsions like Devadasi.[1] Indian women are subjected to several forms of sexual exploitation on the pretext of economic security.

According to estimates by the United States Government, trafficking involving one million people is going on across international borders every year.[1] India, along with Thailand and the Philippines, has 1.3 million children in its sex- trade centres. The children come from relatively poorer areas and are trafficked to relatively richer ones.[2] According to an International Labour Organization (ILO) estimate, 15 per cent of the country's estimated 2.3 million prostitutes were children, while the U. N. reported that an estimated 40 per cent were below 18 years of age. A large proportion of the women forced into sexual exploitation were tribal's and Dalits[3] Sixty per cent of prostituted women in Mumbai's red-light district areas are infected with Sexually Transmitted Diseases (STDs) and Acquired Immuno Deficiency Syndrome (AIDS). More than half of Mumbai's 1, 00,000 prostitutes are infected with Human Immune deficiency Virus (HIV).[4]

Within the country, women from economically depressed areas often move into the cities seeking greater economic opportunities, and once victimized, traffickers force or coerce them into the sex trade. In some cases, family members sell young girls into the sex trade to sustain their family. Extreme poverty combined with the low social status of women often result in the handover by parents of their children to strangers of what they believe is employment of marriage.

Many indigenous tribal women are forced into sexual exploitation. According to the Indian Centre for Indigenous and Tribal Peoples (ICITP), more than 40,000 tribal women, mainly from Orissa and Bihar, were forced into economic and sexual exploitation. Press reports indicate that children were routinely trafficked from Assam into Haryana and other North Indian states for sexual slavery under the pretext of entering into arranged marriages. Similar to this, many Dalit women also face the triple burden of caste, class and gender. Dalit girls have been forced to become prostitutes for upper-caste patrons and village priests. Hotel Priya v State of Maharashtra & Ors Decided on 6th May, 2011 [Bombay High Court].

Besides inter-state trafficking, inter-country trafficking from Nepal, Bangladesh and Ukraine has substantially promoted immoral trafficking in India.[1]

The National Commission for Women (NCW) reported that organized crime plays a significant role in the country's sex trafficking trade and that women and girls who were trafficked in the brothels frequently were subjected to extortion, physical beating or assault and torture, rape and sexual abuse, starvation, isolation in dark rooms, injuries, beating with hot iron rods, forced to use drugs and drink, multiple rape, mental torture, forced abortions, burning with cigarette butts and terrorised by gangs and criminals.[1]

Factors to fall into immoral trafficking

Several factors force women and girls to fall into trafficking. The socio-cultural domain is entangled with traditions, superstitions and male chauvinist concepts. These encourage discrimination against women. The caste system and lack of social awareness give rise to degrading social status of women and exploitative traditional practices like dowry and child marriage practice give a neglected status of the girl children. Other reasons include economic exploitation, unfair distribution of wealth, lack of economic justice, unequal land holding system, no role for women in economic decision, denial of women's rights to parental property, lack of training, skill education and employment. Similarly, lack of political commitment, i.e., issues related to women and children are not prioritised into the political programme. In addition, the lack of adequate laws for the protection and prevention of children who are victims of trafficking and selling complicate the situation. Ineffective implementation and enforcement of the laws and policies regarding the rights or women and children and lack of implementation of national, regional and international commitments on human rights issues are also responsible.

Legal Framework and Deficiencies

A study of gender reality over the years reveals how violence has always been used as a means to subjugate women and keep them in a position of subordination. Gender-based violence may take different forms and there may be distinctive patterns or manifestations of gender violence. Gender violence is present in all societies; it is a structural phenomenon embedded in the context of culture, socio-economic and emotional dependency. It is produced within class, caste and patriarchal social relations in which male power dominates. A narrow definition of violence may define it as an act of criminal use of physical force. But this is an incomplete definition. Violence also includes exploitation, discrimination, upholding of unequal economic and social structures, creation of an atmosphere of terror, threat, or reprisal and forms of religio-culture". Varsha Kapoor v Union Of India & Ors on 3rd June, 2010 Delhi High Court, http://www.indiankanoon.org/doc/1107375

International conventions exist to punish and suppress trafficking especially women and children[1] Trafficking is now defined as an organized crime and a crime against humanity. The convention being an international convention is limited to cross border trafficking but does not address trafficking within the country.

The malady of prostitution is not only a social but also an economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive. This devastating malady can be suppressed and eradicated only if the law-enforcing authorities in that regard take very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers.

In spite of the stringent and rehabilitative provisions of law contained in the Constitution of India, 1950; The Immoral Traffic (Prevention) Act, 1956; The Indian Penal Code, 1860 and The Juvenile Justice Act, 2000; it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived demanding an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring the most rational measures to weed out the vices of illicit trafficking. Vishal Jeet v Union Of India (AIR 1990 SC 1412).

Article 23 of the Constitution of India which is a Fundamental Right and which has been put under the caption 'Right against exploitation' prohibits 'traffic in human beings and beggar and other similar forms of labour' and provides that any contravention of Article 23(1) shall be an offence punishable in accordance with law. The expression 'traffic in human beings' is evidently a very wide expression including the prohibition of traffic in women for immoral or other purposes.

Article 35(a) (ii) of the Constitution reads that "Notwithstanding anything in this Constitution, Parliament shall have, and the legislature of a State shall not have, power to make laws for prescribing punishment for those acts which are declared to be offences under this part. The power of legislation, under this article, is given to the Parliament exclusively, for, otherwise the laws relating to fundamental rights would not have been uniform throughout the country. The power is specifically denied to the state legislatures.

In implementing of the principles underlying Article 23(1), The Suppression of Immoral Traffic in Women & Girls Act, 1956 (SITA) has been enacted under Article 35 with the object of inhibiting or abolishing immoral traffic in women and girls.

In this connection, it is significant to refer to Article 39 which relates to 'Directive Principles of State Policy' under Part IV of the Constitution. Article 39 particularizes certain objectives. Clause (f) of Article 39 was substituted by the Forty- Second Amendment Act, 1976. One of the objectives under Clause (e) of Article 39 is that "The State should, in particular, direct its policy towards securing that the tender age of children are not abused". One of the objectives under Clause (f) is that "The State should, in particular, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material abandonment". These objectives reflect the great anxiety of the Constitution-makers to protect and safeguard the interests and welfare of the children of our country. The Government of India has also, in pursuance of these constitutional provisions of Clauses (e) and (f) of Article 39, evolved a national policy for the welfare of the children.

It will be apposite to make reference to one of the principles, namely, principle no. (9), formulated by the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1959. The said principle reads:

"The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form."

Before the adoption of SITA, there were enactments in some of the states for suppression of immoral traffic, but they were not uniform, nor were they found to be effective. With the growing danger in society to healthy and decent living with morality, the world public opinion congregated at New York in a convention for suppression of traffic in persons for exploitation for immoral purposes. Pursuant to the signing of that convention on May 9, 1950, our Parliament has passed an Act called "Suppression of Immoral Traffic in Women and Girls Act, 1956 which is now changed as "The Immoral Traffic (Prevention) Act, 1956" to which certain drastic amendments were introduced by the Amendment Acts of 46 of 1978 and 44 of 1986. This Act aims at suppressing the evils of prostitution in women and girls and achieving a public purpose viz, to rescue the fallen women and girls and to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society.

Besides the above Act, here are various provisions in the Indian Penal Code, 1860 such as Sections 366-A (dealing with procreation of minor girl), Section 366-B (dealing with offence of importation of girl from foreign country), Section 372 (dealing with selling of minor for purposes of prostitution etc.) and Section 373 (dealing with 367 the offence of buying minor for purposes of prostitution etc.).

The Juvenile Justice Act, 2000 which provides for the care, protection, treatment, development and rehabilitation of neglected or juveniles in conflict with law contains a specific provision namely Section 12 which empowers a police officer or any other person or organization authorized by the State Government in this behalf to take charge of any neglected juveniles and bring them before the board constituted under this Act. The board under Section 33 has to hold an enquiry and make such orders in relation to the neglected juveniles as it may deem fit.

Changing the Law

The Immoral Traffic (Prevention) Amendment Bill, 2006 was introduced in The Lok Sabha on May 22, 2006. The Bill has been referred to the Parliamentary Standing Committee on Human Resource Development.

The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic (Prevention) Act, 1956 to combat trafficking and sexual exploitation for "commercial purposes". The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending the trial. The term "trafficking in persons" has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution. The Bill constitutes authorities at the centre and state level to combat trafficking.

While prostitution is not an offence, practising it in a brothel or within 200 m of any public place is illegal. There seems to be a lack of clarity on whether prostitution ought to be a legitimate way of earning a living if entered into by choice.

Possible Strategic Interventions

The trafficking of women and children seems to be a journey from marginalization to stigmatization and ostracism via exploitation and torture. This paper in its conclusion would like to provide certain suggestions in order to combat trafficking.

International organizations should support research institutions and non-governmental organizations to undertake state-specific research into the trafficking phenomenon in order to disseminate credible information for public consumption.

Both State Government and the Central Government should be assisted to train, equip and empower personnel who are charged with overseeing the in and out migration of its people with the aim of protecting them against the nefarious activities of the traffickers.

The government should be well equipped to provide better rehabilitation facilities to women during natural disasters. The problem of trafficking does not end with the return of the survivors. There should, therefore, be proper rehabilitation and reintegration programmes for those who return to their homeland.

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