Introduction Human trafficking has a history coterminous with that of society and has existed in various forms in almost civilizations and cultures. Human trafficking is an egregious human rights violation that occurs throughout the world. A phenomenon initially understood only in the context of trafficking of women and children for sexual exploitation or prostitution has taken many more forms, some being internationally recognized as labour, organ trade and slavery, some others being specific to different visions and cultures such as trafficking of minors for marriage India or trafficking of girls through devadasi or jogin traditions, or for that matter, trafficking of children from the region to the middle east to serve as jockeys in camel races. |
The trafficking of human beings is a global business, generating huge profits for traffickers and organized crime syndicates, creating serious problems for governments of the countries involved in it. Human trafficking is trade that exploits the vulnerability of human beings, especially children, in complete violation of their human rights and makes them obj ects of financial transaction through use of force and duress, whether for the purpose of sex, labour, slavery or servitude. The issue of human trafficking over the past decade has reached epidemic proportions, because of unconventional means of commercial exploitation, pornographyetc. |
The trafficking of children for forced labour is a matter of grave concern in India. The Census of India in 2011 estimated that 4.3 million children were engaged in child labour. Government statistics indicate that over thousands of cases of trafficking for child labour were registered during 2011-12. According to the National Crime Records Bureau, a further hundred thousand children go missing in India every year, many of whom are also thought to be trafficked for labour.1 The National Commission for the Protection of Child Rights has estimated that of the children, who are trafficked, 92 per cent have not been rescued, 6 per cent have been rescued once, and 2 percent have been rescuedtwice.2 |
Research & Methodology This research paper is based on desk research and field interviews providing a detailed public policy research and analysis of the available Indian legislations and caselaw. Doctrinal Research The research paper conducted by researchers involves an extensive literature and policy review on the nature and scope of child trafficking in India, the law and policy steps India has taken to address child trafficking and the compliance of these laws and policies with the current legal framework. Researcher used a variety of sources, including India and International journals, reports by Ministry of Home Affairs, publication by academic institutions, scholarly articles, case law from the Indian Supreme Court and High Courts, domestic laws and other legislative documents. Field Research This research paper includes a section of empirical research in an around New Delhi, India where the researchers conducted a common interview script which involved formal and informal interactions with the officials from the Child Welfare Committee, Anti Human Trafficking Unit and various NGOs engaged in rehabilitation and advocacy efforts. Discussions were conducted in English andHindi. Top Child trafficking in India: Prevalence, Trends and Rootcauses Human Trafficking Trafficking is a generic term involving a process of movement. It is planned or unplanned economic activity, which involves displacement and movement of persons resulting in their exploitation. The agents/traffickers enjoy a symbiotic relationship with customers who prey on the helpless victims. The traffickers through various modus operandi take the persons through unknown and unfamiliar routes, to make retracting impossible, cutting off their roots, alienating and isolatingthem. Child Trafficking Broadly in the title “child trafficking” is clearly a human right abuse. Understanding some of the terms are important as firstly, the term “child” refers to any person less than eighteen years of age. Therefore, child trafficking is the movement of children from place to place through forced coercion or deception into situation of economic and sexual exploitation.3 Secondly, the term “human rights” may be defined as the rights relating to liberty, equality and dignity of the individual guaranteed by the Indian Constitution as embodied in the Fundamental Rights and the International Covenants. India, the world’s largest democracy with a population of over a billion, 400 million of which are children, remains unprotected. Child Trafficking flourishes in the dark gloom of poverty, distraction, inequity, corruption, scuttle hopes and broken dreams, deceit, trickery, violence, political conflict and criminality. Conservative estimates state that around 300,000 children in India are engaged in commercial sex.4 Child prostitution is socially acceptable in some sections of the Indian society through the practice of devadasi system. Devadasi system is banned by the Prohibition of Dedication Act of 1982. But even today this system is prevalent in Andhra Pradesh, Karnataka, Tamil Nadu, Kerala, Assam, MaharashtraandOdisha.5 Child trafficking is one of the worst forms of human rights violations. It affects millions of children worldwide. The United Nations estimates suggest that globally trafficking in women and children is an operation worth $10 billion annually.6 Types of Traffickers The traffickers are usually of two categories, the primary and secondary. The latter are the remote master operators, mafia-like who are invisible individuals but identifiable as stereotypes. They have connections in the corridors of power. In the eventuality of any attack on their hideouts, they shift and spread quickly but are never annihilated, down but never out. They use their power links to strike back at those who dared to attack. This way trafficking goes unabated and strengthens the risk-bearing capacity of the primaryagents. The Primary Traffickers7 The primary traffickers are the pimps and procurers, who move like hungry animals in search of prey. Armed with persuasive and marketing skills, these retailer-like figures procure children, knowing the subtler variation in preference among various types of demandsources. Male domination and Trafficking The male participation is very high in this as in other business worlds, negotiation, marketing and maneuvering their way through. The area is dominated by males in turn, such as the visa and passport offices, police stations, railways and transport authorities and employees, taxi and auto drivers, rickshawallahas to facilitate trafficking. The bait: lure of money Other culprits of planned trafficking are the family and community guardians- fathers, mothers, brothers, the expansive aunt-uncle institutions in the villages, village elders and teacherswithinfluenceoverthefamilies- thepoorerthefamilythemoretheinfluence. Trapped victims Unplanned trafficking occurs when children run away from homes mostly due to family disturbances, or use of various sorts including glamour of the film world or city life. This usually begins a chain of events which lead to them being trafficked. In this modus operandi, no sharing of booty is involved, no payment to guardians, no waste of time in persuasion of families and no faces recognizable. They descend from nowhere and disappear into nowhere. It is executed in the shortest time with maximum profit. Causation Factors: Vulnerability Factors: According to the Justice Verma Committee Report8 on Human Trafficking, an attempt has been made to quantify the qualitative information collected by the committee which gives a clear picture on account of Vulnerability present among the victims who fall for trafficking. These can be divided into five categories namely: (a) vulnerability because of poverty; (b) vulnerability because of domestic violence; (c) vulnerability because of lack of education; (d) vulnerability because of child marriage; and (e) other vulnerabilities (which included vulnerability because of caste and the culture of dowry). Here, combating with one of the components will not suffice the brunt of causation as the other factor of vulnerability may dominate, therefore, a diverse comprehensive efforts and a holistic approach are needed to address the vulnerabilities ofchild. Economic Factors: The growing demand for cheap labour in high growth countries has given rise to a growing market for irregular migration processes and trafficking as an outcome of this mismatch between demand and supply conditions in the global market.9 Thereby a large global labour force with little or no legal safety and the precautionary measures has been thrown up with the opening of the global markets and the processes of globalization. In India due to poverty parents sell their children to traffickers. Harmful cultural practices, child marriages, single, widowed, abandoned women, second wives through bigamous marriages make such women extremely vulnerable. Desertion by one or the other parent leaves children uncared and abandoned thereby increasing their probability of being victims of trafficking.10 Child marriage is sometimes the route for a child to be trafficked for sexual purposes. The demandforcheaplabourdrivestraffickingandthesupplyincludepovertyandthedesireto earn a living or help support the family, lack of education and schools, cultural, attitudes toward children and girls in particular and inadequate local laws andregulations.11 Organised Human Trafficking in Child Trafficking in human beings, as an organised crime, would cover (a) Kidnapping and abduction, (b) forced labour including bonded labour, (c) trafficking in women and children for various illegal activities, and (d) illegal movement - intra-state, inter-state and trans- border of humanbeings.12 Reports of International Labour Organisation (ILO)13 show that in the Asia Pacific region, illicit trafficking in women and children is mostly apparent in developing countries like Nepal, Bangladesh, The Philippines, Thailand, Malaysia and Vietnam. There is an escalation of children being trafficked from the villages to the carpet industries of Mirzapur and slaughter- houses in certain parts of Maharashtra, as reported by certain NGOs.14 Carpet industries need children for weaving due to their nimble fingers. Same dexterity is the reason for the requirement of children in slaughterhouses where they are utilized to clean the alimentary canal by inserting their fingers inside and getting the stuff ready for sausages. Tanneries in Vellore in Tamil Nadu employ children for training, as the stink that emanates from the leather is something the adult cannot tolerate. Moreover, Organises gangs indulge in children trafficking for forced labour and bonded labour activities. It has been seen in a recent case also that persons engaged in trafficking runs an orphanage as a camouflage to organise sexual orgies, using boys in the age group of 5 to 15.15 Several foreigners used to visit such orphanage for this purpose. They develop pornographic material from the sexual acts and transfer them to several parts of theworld. Trafficking in women and girls, as defined by the UN General Assembly 1994, is “the illicit and clandestine movement of persons across national and international borders, largely from developing countries, with the end goal of forcing women and girl children into economically oppressive and exploitative situations for the profit of recruiters, traffickers and crime syndicates”16However, migration could be with or without consentas several children often give consent to migrate within or outside their country and this consent could have been obtained under threat, coercion, deceit, etc. Therefore, consent has no meaning. The problem of trafficking stems from deep gender inequalities that are reinforced by human rights violations and poverty in developing and less developed countries. Globalisation, Liberalisation and feminisation of poverty have aggravated the situation. Forms of Organised Child Trafficking in India According to various reports the organised child trafficking can be categorised broadly in two forms:17 Sex-based Non-sex-based
The former category includes trafficking for prostitution, commercial sexual abuse, paedophilia, pornography, cyber-sex, and different types of disguised sexual exploitation. Non sex based trafficking could be for different types of servitude, like domestic labour, industrial labour, adoption, organtrans plant, camel racing, marriage related rackets etc. The forms and purposes of child trafficking may be:18 Bonded labour; Domestic labour; Agricultural labour; Employment in construction activity; Carpet industry; Garment industry; Fish/Shrimp Export; Other sites of work in the formal and informal economy.
Trafficking can also be for illegal activities such as;19 Begging; Organ trade; Drug peddling and smuggling.
Child trafficking can be to aid entertainment in sports: Circus/dance troupes; Camel jockeying.
Girl-Child Prostitution Under the patriarchal system, there has been always a need for sexual satisfaction of one’s requirement outside the family and in these days of consumerism and infection the less infected that is lesser the age, the better it seems to be and hence the demand for younger girls. The organised trafficking network run by professional experienced individuals account for greatest number of individuals bought, transported and sold within and outside India. Family members of the girls destined for the flesh market also execute a sizable percentage for the total trafficking operation.20 Most of the victims are children of families who have migrated to cities in search of jobs. Tourism is another major cause of child trafficking and prostitution in this era of globalisation. Mumbai and Goa have earned the notoriety of being centres for paedophilic commerce in India and the availability of plenty of young children has been a major draw for Indian and foreign tourists alike. The fear of AIDS has contributed to the involvement of minor girls in the business because demand for virgins has increased exponentially with fear of infection. There is also the myth that young girls in their pre- puberty cannot be infested with AIDS. According to a study conducted by National Human Rights Commission, they found that India was fast becoming a source, a transit point, and destination for traffickers in children for sexualpurposes. Child Labour Legally, children in India are allowed to do light work, but they are often trafficked for bonded and domestic work, in industries and to the countries abroad. They are often forced to work, in the use of contraption that bound them to be unable to escape and then forced to submit to control. Those forced into labour lose all freedom, being thrown into workforce, essentially becoming slaves, and losing their childhood. According to UNICEF21, 12.6 million children are engaged in hazardous occupations. Only 10% ofhuman trafficking is international, while almost 90% is interstate. Nearly 40,000 children are abducted every year of which 11,000 remain untraced according to a report by NHRC.22 There is an estimated 300,000 child beggars in India. And, every year 44,000 children fall into the clutches of the gangs. A leading case on child labour and exploitation that came forward was Bandhua Mukti Morcha v Union of India23, supplied with an alarming data where it was found that children ranging between 5 to 12 years having been kidnapped from the village in Patna were taken to village Bilwari in Mirzapur District of U.P for being engaged in carpet weaving centres. The commission/committee visited 42 villages and found inall884loomsengaging42%oftheworkforcewiththechildrenbelowtheageof14years. Therefore the question which arose was whether the employment of children below the age of 14 years is violative of Article 24 and whether the omission on the part of the state to provide welfare facilities and opportunities deprives them of constitutional mandates contained in Articles 45, 39(e) and (f), 21, 14 etc.24 Top Role of Institutions in control of Child Trafficking Child Welfare Committee As per Sec 27 of the Juvenile justice (Care and Protection) Act25 2015 State governments are required to establish a CWC or two in every district. The CWC usually sends the child to a children’s home while the inquiry into the case is conducted for the protection of the child. Children’s homes are government funded institutions that provide temporary shelter, food and clothing to children in need of care and protection. Children in the homes are meant to receive basic educations and life skills. The CWC meets and interviews the child to learn his/her background information and also understand the problem the child is facing. The probation officer (P.O) in charge of the case must also submit regular reports of the child.26 The purpose of the CWC is to determine the best interest of the child and find the child a safe home and environment either with his/her original parents or adoptiveparents. The CWC also has powers to hold people accountable for the child such as in the case of child labour, the employers are fined or made to the give bonds to the children. CWC also has the power to transfer the child to a different CWC closer to the child’s home or in the child’s state to dispose of the case and reunite the child with his family and community. In the case of the individual child sexual abuse, reporting the abuse can be difficult, since it is often a family member or a known adult that is the abuser. The CWC will instruct the local police station to file report against the abuser(s) under the IPC clause. Non Government Organizations NGOs have played important role in the achievement of successful policy and implementation of programs run by the government to combat trafficking of children and women into all intolerable forms of business. They have taken lead and supported initiatives, and their constant demands have motivated and drawn state and public attention to children and women issues of all kinds.27 Despite their limited resources, funding, training, and access to information, most NGOs take the lead in combating trafficking through awareness by workshops, songs, drama, poems, meetings, leaflets and posters mostly in the rural areas. In ourcountry NGOs are doing acommendable job in the field of spreading awareness, employment and literacy. Welfare is government’s task but undertaken by NGOs within limited scenario of funds and space. NGOs are getting involved in liberating children from the clutches of the traffickers and their harshemployers. Anti Human Trafficking Unit (AHTU) 22nd January 2007 marked watershed in the response to the human trafficking in India. This was the launch of first Anti HumanTrafficking Unit (AHTU) in India in Andra Pradesh. The officer in charge of AHTU is a police officer usually of the rank of Dy. SP (Deputy Superintendent of Police), who has been notified by the State Government as a Special Police Officer (SPO) u/s. 13(1) ITPA. She/he will be in command and control of the functioning of AHTU, having responsibility and accountability to attend to all activities of anti-human trafficking (AHT), including prevention, protection and prosecution. As a dedicated and specialized task force, mandated to attend to the problem in its entirety, the functions of AHTU include thefollowings:28 Undertaking all activities in preventing and combating human trafficking. Protection and rehabilitation of victims, which includes care and attention to victims during rescue and post-rescue situations providing referral services (like that of counsellor), providing empowerment, programmes and such other support services, undertaking steps for restoration/repatriation of the traffic persons, preparing the victims for the various challenges in the process of justice delivery. Maintaining a database of all offenders and suspected offenders, including those who are arrested, charge- sheeted and convicted and maintaining dossiers against them, maintaining surveillance on their activities and taking appropriate and timely action. Networking with the police officials at other places. Trafficking of human beings, being borderless crime, requires simultaneous activities at the source-transit-demand areas. Therefore, the police agencies at these places have to be necessarily working together. The AHTU maintains the list of police nodal officers (PNO) and the governmentnodalofficers(GNO)ofallstates, includingtheircontactnumbers, addresses, e-mails etc. The officer-in charge of AHTU is responsible for leasing with the appropriate officials at the appropriate time. Networking with NGOs: This is a fundamental mandate of AHTU, as the synergy of police and NGOs constitutes the core of AHTU. It is for the police to select the appropriate NGOs and associatet hem. The yard stick forthe selection is as follows: Facilitate more NGOs to join AHTU. Ideally three NGOs would be a better option. The advantage here is that if one NGO is not able to come up at short notice, the services of the second NGO could be taken, especially during urgent requirements. NGOs associated with police training are preferred. As a corollary, the NGOs that are selected for AHTU should be involved in the training of police officials and prosecutors. This would facilitate better understanding and camaraderie among them.
National Human Rights Commission The Protection of Human Rights Act, 1993 has been passed pursuant to the directive under Article 51 of the Constitution and International Commitments and also emerging approach of the international community towards human rights. However, there has been a growing concern in the country and abroad about issues relating to human rights. The Indian Parliament has enacted the Protection of Human Rights Act, 1993 and accordingly it also provided for the establishment of National Human Rights Commission by the Union Government.29 The Commission paid particular attention to the rights of the most vulnerable i.e. the woman and children, especially the girl children who are victims of trafficking in prostitution. The NHRC is fully committed to the cause of anti- trafficking. Several initiatives have been made in this direction. The NHRC has taken a multi-dimensional approach to the problem of trafficking with emphasis on the following aspects.30 On prevention: Review and amend relevant laws to prevent trafficking in prostitution and violence against child. Strengthen national, social and economic policies and programmes to Safeguard child vulnerable to trafficking and violence. Develop special modules of sensitization for personnel maiming homesf or women, police officials, border police officials, health personnel and NGO’s to prevent and combat trafficking and violence against child. Initiate gender sensitive public information campaigns to raise awareness about the nature and degree of human rights abuses experienced by woman and child who are trafficked and subjected to violence.
On protection: Review, amend, strengthen and monitor implementation of laws, policies and programmes to protect the rights of trafficked women and child as well as those being subjected to violence of different kinds, bearing in mind that the different types of perpetrators and ages and circumstances of victims require different legal and programmatic responses.
Top Legal Framework The founding fathers of the Constitution have bestowed the importance of the role of the child in its best for development. Dr. Bhim Rao Ambedkar in his wisdom projected the rights of children in the Directive Principles including the children as beneficiaries. Their deprivation has deleterious effect on the efficacy of the democracy and the rule of law. |
The Indian Constitution places primary responsibility on the State to ensure that children’s needs are met and their human rights fully protected.31 Articles 23 and 24 safeguard all children below the age of 14 from being in factories, mines and any other hazardous employment and give the child a right not to be used in “forced” or” bonded” labour.32 |
Article 39(e) of the Constitution enjoins that the State shall direct its policy towards securing the health and strength of workers, men, and women; and the children of tender age will not be abused; the citizens should not be forced by economic necessity to enter a vocations unsuited to their age or strength.33 Article 39(f) enjoins that the State shall direct its policy towards securing that children are given opportunities and facilities to developing a healthy manner and in condition of freedom and dignity and the childhood and youth are protected against exploitation and against moral and material abandonment.34 Article 45 mandates that the State shall endeavour to provide free and compulsory education for all children until they complete the age of 14 years.35 Article 24 of the Constitution prohibits employment of children in factories below the age of 14years.36 |
Article 21 mandates that No person shall be deprived of his life or personal liberty except according to the ‘Procedure Established by Law’ which this court has interpreted to mean ‘Due Process of Law’.37 Article 51-A enjoins that it shall be the duty of every citizen to develop scientific temper, humanism and the spirit of inquiry and to strive towards excellence in all spheres in individual and collective activities so that the nation constantly rise to high levels of endeavours and achievement.38 Unless facilities and opportunities are providedto the children, in particular handicapped by social, economic, physical or mental disabilities, the nation stands to lose the human resources and good citizen. |
The various provisions that act in combating child trafficking in India are as follows: |
Juvenile Justice ( Care and Protection of Children) Act,2015 The Immoral Traffic (Prevention) Act, 1956 The Indian Penal Code with several sections dealing with specificoffences The Children Act of 1974- which provides for penalties for allowing children to work in brothels and causing or encouraging seduction orprostitution. Young Persons Harmful Publication Act, 1956 The Child Labour (Prohibition and Regulation) Amendment Act,2016
The country’s flagship National Child Labour Project (NCLP) was created in 1988 to “suitably rehabilitate children withdrawn from employment.” Other programs were subsequently created to provide complementary services to children not in areas covered by the NCLP: the Sarva Shiksha Abhiyan (SSA) or Education for All program, the Scheme for Working Children in Need of Care and Protection, and the Integrated Child Protection Scheme(ICPS).39 |
Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2017 The above bill is India’s first law to tackle human trafficking that is likely to be taken to Parliament for approval in the February session 2018. The bill proposes life imprisonment for repeat offenders, special courts and dedicated police units. It also proposes a jail term of at least a year and a fine of Rs. 1 lakh for those who abet trafficking or fail to protect a victim; and seven years and Rs 2 lakh fine for the owner or manager of a property that has been used for the crime. United Nations Convention and Protocol The UN Trafficking Protocol provides a comprehensive framework for addressing the trafficking of persons internationally and domestically. The Protocol’s definition of human trafficking delineates the wide variety of conduct constituting the crime of trafficking persons. Under this definition, a person is guilty of the crime of human trafficking if they satisfy three components: (1) an act (e.g., transportation, or receipt of persons), (2) by a specifiedmeans(e.g., threat or use of force or other forms of coercion, abduction, fraud, etc.), (3) resulting in “exploitation,” as defined by the Protocol. Exploitation is defined as “including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or similar practices, servitude, or the removal of organs.”40 The crime of human trafficking of adult victims therefore consists of at least one such act, a means and an exploitative purpose. However, for trafficking of minor-child victims, the second requirement (i.e., the “means” requirement) is waived. Therefore, a person is guilty of child trafficking if he or she commits one of the proscribed actions for purposes of exploitation, regardless of the means by which that act is committed. The consent of the victim is irrelevant where any of the means included in the definition has been employed or the victim is a child. The UN Trafficking Protocol obligates States to criminalize trafficking in persons, to take steps to prevent human trafficking, and to assist, protect and repatriate victims of human trafficking safely. In 2011, the Government of India ratified the United Nations Convention against Transnational Organised Crime (UNTOC) and its three supplementing Protocols. India is also a signatory to the UN Convention on the Rights of the Child (CRC).41 These international normative frameworks require the Government to integrate the following principles into its rescue and reintegration response: protection of rights of the child, best interest of the child, protection of the child, equality and non discrimination, avoidance of harm, non- criminalization of the child, respect for the views of the child, right to confidentiality, and right to information. The SAARC convention of 2002 has been ratified by all countries. The aim of the convention is to promote cooperation amongst Member states to effectively deal with various aspects of prevention, interdiction, and suppression of trafficking in women and children, repatriation and rehabilitation of victims of trafficking.42 The convention specifically addresses the issue of international criminal networks trafficking women and Child for prostitution using SAARC countries as countries of origin, transit and destination. At the global level, UNICEF advocates for ratification and enforcement of international laws that protect children, such as the International Labour Organisation’s (ILO) Convention No. 182 that prohibits the worst forms of child labour43, the protocol to prevent, suppress and punish trafficking in persons especially women and children, and the protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. An Optional Protocol to the CRC, on the sale of children, child prostitution and child pornography (2000)44, which entered into effect in January 2002, explicitly relates to the prostitution and trafficking of children, although it does not attempt to define trafficking further. Laws through Judicial Judgements Bachpan Bachao Andolan vs Union of India and Others (2011 )45 Defined the crime of “Trafficking” for the first time in India Prohibited employment of trafficked children in circuses Lead to India ratifying the Palermo Protocol, 2000 (The Protocol to the Convention Against Transnational Organised Crime) on the 5th ofMay,2012. Detailed guidelines brought out for the enforcement of the Juvenile Justice (Care and Protection) Act,2000. Defined Missing Children as, “a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance.” In all cases of missing children compulsory registration of FIR was ordered under the presumption of the crime of kidnapping or trafficking unless proven otherwise from investigation. Even after recovery of the child, police would investigate the case to look into the possibility of any linkage with trafficking. Computerized Network to be developed and linked to all districts which will be a data base for missing children. All cases of crimes against children to be compulsorily investigated, either under Section 154 or 155, after getting the required permission from the magistrate. No child may be put in a children’s home/ shelter home without producing them before a child welfare committee and proper procedures as per the Juvenile Justice Act.
PUDR v. Union of India46 “Any factor that deprives a person of alternatives and compels him to choose a particular course of action isforce” “Where a person provides labour or service to another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the word’ forced labour’as described in Article 23 of the Indian Constitution”. Bandhua Mukti Morcha vs Union of India47 Whenever it is shown that a labour is made to provide forced labour, the court would raise a presumption that he is required to do so in consideration of an advance or other economic considerations received by him and is, therefore, a bonded labour. Bonded labourers must be identified and released and on release, they must besuitablyrehabilitated.
Save the Childhood Foundation vs. Union of India and others48 Action Plan on Elimination of Child Labour by NCPCR (further adapted by Delhi, Uttarakhand, Rajasthan, Bihar, Punjab, Karnataka, etc.) All law enforcement agencies must work together, with specific roles and responsibilities assigned to Police, Labour Department, Department of Social Welfare, M.C.D, Department of Health, Department of Education, etc. Recovery of fine of Rs. 20,000 as arrear of land revenue immediately and does not require conviction. Compulsory registration of cases in all child labour rescues Cancellation and suspension of license
Child Labour Mehta vs. State of Tamil Nadu49 The inspectors appointed under section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs. 20,000 which sum could be deposited in a fund to be taken as Child labour Rehabilitation-cum-Welfare. Top Difficulties with Current Legal and PolicyFrameworks This empirical study reveals that Indian policy and legal frameworks to combat child trafficking for currently fail to protect the rights of vulnerable children or to address the endemic causes of their abuse. Despite well-intentioned attempts at protection and intervention, several over arching factors contribute to systemic failure sinser vice provision. |
The visit to Anti-Human Trafficking Unit, Sector 18, Rohini, Delhi and Child Welfare Committee, Sewa Kutir, Kingsway camp, Delhi, made the research on child trafficking to reach a milestone where we as research students discussed the various actions taken by the administration to curb the menace of trafficking. On a avid interaction with the officers we were able to summarise the drawbacks and the problems of the operations. Hereby, we were also able to conclude remedial measures that can increase the efficiency and effectiveness of the legislatures and administration. |
Organisational Failures There is a lack of clear accountability and the transparent at the macro level for the overarching coordination of this multi-staged challenging process. The AHTUs lack clear guidelines, adequate supervision and monitoring, and necessary resources, undermining their efficient work. There is lack of inter-agency coordination because there is no established protocol for regular communication between relevant implementing partners, stakeholders do not work together to implement the child’s rescue and reintegration plan in a holistic manner. In 2014, the Ministry of Home Affairs launched an online human trafficking portal to coordinate efforts of state and national government agencies. This has yet to have a significant impact on these coordination failures. The lack of training is another crucial issue identified. Lack of standardized training programs for implementing partners, that include information about the different responsible partners for service provision, the content of policy requirements, and standards for implementation. As a result, personnel administering services to trafficked children lack a thorough and reliable grasp of relevant policies and regulations; and they frequently fail to take advantage of resources that could be utilized to promote more effective interventions. Weak Policy Frameworks In addition to implementation failures, it has also identified several deficiencies in the wording and structure of Indian policy and legal frameworks themselves. Poorly structured NGO-Government partnerships Much of the rescue and reintegration work is conducted by the non-profit sector, which, though usually a committed and innovative provider of services for trafficked children, is not sufficiently integrated with government entities to provide the level of consistent, transparent or sustainable care needed over the long term. Innovative non-profit initiatives are not adequately supported or scaled into state policy. Equally, non-profit initiatives that do not meet acceptable standards for working with vulnerable children are not subject to independent monitoring orevaluation. Failure to carry out rescue operations in consistent rights protective manner There is clear and detailed standard operating protocols for rescue operations are lacking for the trafficked children. As a result, there is a failure to allocate precise responsibility and leadership for the planning and execution of operations. Children are sometimes transferred following rescue to environments that are not child-friendly, such as police stations. There are no guidelines specifically tailored to rescue operations carried out before children reach the site of exploitation. The inappropriate use of police stations as a holding site for trafficked children, protection deficits, inadequacies in shelter settings, and serious communication problems resulting from a failure to address language issues that arise during these operations. Failure to provide adequate reintegration services Long- and short-term reintegration plans for trafficked children, which integrate the different necessary services and ensure their provision, are not developed or implemented. Key stakeholders are unaware of existing reintegration policies and individual services are provided in an isolated manner. Rescue and return to a “family” situation is considered sufficient, but this does not address the many complex needs of children who have been trafficked for labour. Insufficient Human and Financial Resources Rescue and reintegration services could undoubtedly benefit from larger and more consistent funding support. This is particularly necessary to support bridge schools, income generation projects for families, health services for families and rescued children, government and non- profit shelters, legal services to secure compensation and effective prosecution of abusive traffickers and employers, and independent monitoring and evaluation of programs. This study encouragingly suggests that inadequate resources are not the principal barrier to effective intervention. Rather, resources are ineffectively allocated, with the result that opportunities for protection and sustainable reintegration are squandered. For example, funding to compensate children and their families post-rescue rarely reaches intended beneficiaries. Lack of Centralized Information System Creating targeted and effective anti-trafficking policy, failures of information sharing between agencies also present problems for the creation of long-term, integrated reintegration plans. A central reporting system would reduce confusion by replacing the wide variety of case reporting forms used by police, medical practitioners and social workers with one centralized system. The Ministry for Women, Children and Development, under the ICPS, is developing a system for child protection data management and reporting as well as a tool for monitoring the implementation of all its child protection schemes. Stakeholders surveyed did not display knowledge of this new system or its impact. Top Recommendations Verma Committee Recommendation This Committee extensively discussed and recommended on laws and policies related to sexual offences, the committee explicitly recognized that any report on sexual offences will be incomplete without deliberation on Human Trafficking. The committee was deeply concerned with the fact that efforts and accountability in cases of missing children were completely lacking and these cases were mostly dealt like ‘lost and found situation of inanimateobj ects’. The committee referred to the definition of human trafficking given in the Trafficking Protocol and recommended for its adoption.50 The committee emphasized that the definition links tradition offences under the IPC with the human trafficking offences. The committee recommended for synergy between different legislation and to provide protection to the children under Juvenile Justice Act. The committee further recommended for special investigating and prosecuting agency as well as special court.51 It also prescribed rigorous punishment for the commission of the offence of trafficking and more severe punishment when victim is more than one person or trafficking involved minor victims. General Recommendations On Government Front The Central and State Government needs to lay more stress on employment and income generation schemes for vulnerable families, along with vocational training and education in the source areas of trafficking. All States should have a specific monitoring mechanism a task force/core committee to look into the issue of trafficking and NGOs should necessarily be a part of this Committee. The Government should carry all time bound collaboration with the High Commissions and Embassies as and when needed. Processes and system need to be put in place for the regularization and registration of inter-state migration. Juvenile Boards and Committees need to be formed across all districts in each of the states in the country. Religious and cultural practices leading to prostitution have been banned but the monitoring of the proper implementation of law has to be done by the Government. SAARC Convention should be translated in action. More working women’s hostels and shelter homes should be established in district all over the country with the vulnerable districts getting the top priority. More Counselling and vocational training centres should be set up for proper reintegration of the victims of trafficking. Pre test and Post test counselling of suspected HIV positive victims should be made mandatory in all Government and NGO Homes. ensure economic survival mechanism of women in the ruler areas Article 14alternate opposite should we introduce .It has been experienced you, often that those who can no longer attract customers by themselves comma in order to ensure the income, turn into traffickers of brothel madams does those who had
been the victim of violence become the perpetrators of exploitation. this with vicious circle need to be broken. Investigation of missing children needs to be done in the source areas by the Panchayat, which is the nearest formal body, which can identify trafficking. Programmes like Support to Training and Employment Programme (STEP) needs to be started with immediate effect in the vulnerable areas of the country, especially the ruler pockets. The Indian Government needs to have bilateral agreements with other countries in order to facilitate a safer repatriation processes.
On Judiciary Front Some laws related to trafficking ought to be amended or new laws should be introduced so that people who commit trafficking can be convicted. Also labour laws need to be amended to protect the rights of women and children as labourers. The task of amending the ITPA was given to National Law School and the Institution has already done the needful. There is need to prioritize on it and implement the same. Buying and selling of minors, fake marriages and forced prostitution (372, 373, 366A) should be heavily punished. Sometimes parents or nearest kin are involved in the crime and they should be punished too. There should be speedy recovery of cases trafficking and all others. Fast Track Court has been established but we need to separate court to deal with cases of trafficking. Push back system should be abolished and new laws for repatriation need to be implemented so that the Bangladesh and Nepal Nationals may go back to their country safely. Children should not be charged under 14 Foreigner Act. Instead, they could be produced before the Child Welfare Committee. The Juvenile Justice Act 2000, which has not yet been implemented, should be done immediately. Members of the Judiciary should be sensitized on laws and various landmark judgements passed by the Supreme Court on the issue trafficking. Positive interaction should be there while working with these cases with the NGOs. Public Prosecutors in every court dealing with cases of trafficking should be sensitized to object the bill pleas of traffickers, madams and pimps. A special cell to deal with trafficking cases should be formed immediately.
On Police Front ITPA (the special National Act to combat trafficking) is rarely used by the police and needs to be put to practice much more. Provision of punishment of police should be there if they failed to give charge sheet within 90 days. A rescue committee comprising of the police, NGOs, social activists, members of the Judiciary should be formed in cities where brothels exist, to probe into the matter further. In all the states, special police officers have to be recruited and notified under ITPA. Also, it has to be ensured that these Police officers are sensitized and equipped with all the relevant information. Members of the police should be sensitized on laws and various landmark judgements passed by the Supreme Court on the issue of trafficking. They should also be most sensitive in handling cases of women and young girl children in trafficking. Police should be aware of using trafficking related laws while filing the case making relevant investigation necessary and easier for the prosecution of the trafficker.
On BSF Front BSF should be more active regarding the porous border and should be accordingly sensitized regarding cross border migration and trafficking. Officials should be working closely with the NGOs who are working on the repatriation of foreign Nationals.
Trafficking is a complex issue which demand multi-faceted responses. The problem is deeply rooted in the socioeconomic, political and cultural context of a country. While laws and policies exists to counter trafficking in children but they are not effective. A greater political will, better and outcome-oriented implementation, and adequate allocation of resources are required for ensuring effectiveness of laws and policies. Besides, concrete measures need to be taken for the socio-economic development of the people. Top Conclusion Human Trafficking is indeed a modern form of slavery. It includes the most inhuman of practises which goes against the very ideals of life of dignity of a free man as envisaged in UN charter. It is also seen as a large threat to the security and integrity of a country. Hence, every measure must be made in lines of a multi sartorial approach by successive governments to wipe out this menace from the face of this planet. Child Trafficking should be looked in holistic manner. Focused vision and holistic approach will go in long way in tackling problem of human trafficking. Identifying the source area, developing sources and contacts in these areas, identifying the middleman can be effective tools of effective enforcement. Vulnerability mapping of the demand area like hotel industry, domestic servant industry, catering industry and various other similar industries where cheap labour is employed figure strongly. The victim’s rehabilitation is most important tool in controlling the ‘second trap’ and it must be subjected to counselling, notifying victim to the Employment Exchange, Employment rehabilitation, and social rehabilitation. |
Combating trafficking is challenging due to many complexities and variations. It requires joint efforts at various stages of its operation. The failure of law enforcement agencies to prosecute criminals underscores the need to develop a set of uniform regional standards across the country and rights available to all victims of trafficking so as to protect their human rights and prosecute traffickers. The coordination and collaboration between all government departments, states, between governmental organisations and NGOs and neighbouring countries is crucial and important to combating trafficking. The initial challenge lies in changing the mindset of the key protagonists, such as civil societies, enforcement agencies and the judiciary. There is an urgent need in terms of social awareness through videos, posters, brochures, websites about how, when and why of trafficking in children. The empowerment of functionaries’ involved in trafficking and systematic crime investigation through committed and trained investigating officers and border security officials with communication of actions in countries will go a long way in punishing traffickers. Trafficking is a microcosm of many of the complex social issues facing global society today, which include gender disparities, economic inequality, cultural imperialism, and corruption. This human rights challenge of the 21st century can’t be fought by individuals alone, but by all around the world jointly with relentless effort and determination. |
1 Visiting Faculty, Department of Law, BVIMR, Bharatiya Vidyapeeth University, Delhi 2 Advocate. 3 The protection of Human Rights Act, 1993. 4 Dr. Deepti Srivastava, “Child Trafficking- A Human Right Abuse"54 TIPJ 69 (2007). 5 Ibid. 6 Supra note 3 at 4. 7 Bhamathi, “Interstate Trafficking of Women and Children- A SAARC Perspective” CBI Bulletin (April, 2008). 8 SarfarzKhanAhmed, “HumanTrafficking, JusticeVermaCommitteeReportandLegalReform:An Unaccomplished Agenda” 56 JILI 575(2014). 9 Nandita Baruah, “Trafficking in Women and Children In South Asia- A Regional Perspective” available at: www.empowerpoor.org/../Trafficking%20in%20South %20Asia.pdf(Last visited 27 10 2016). 10 Ibid. 11 Id. at 7. 12 P.M Nair, “Combating Organised Crime” Konark Publication, Odisha, 7th edn., (2012). 13 Dr. Deepti Srivastava, “Child Trafficking- A Human Right Abuse” TIPJ 69 (2007). 14 Id. at 12. 15 Ibid. 16 Ibid. 17 Bachpan Bachao Andolan v. Union of India, AIR 2011 SC 3361. 18 Ibid. 19 Ibid. 20 S. Sridevi Goel, “Girl Child Prostitution-Indian Scenario” CBI Bulletin (April 1999). 21 Supra note 17 at 8. 22 Ibid. 23 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 804. 24 Constitution of India, 1950. 25 Juvenile Justice (Care and Protection) Act, 2015. 26 Dr. Nilima Mehta, “Child protection and juvenile justice system: For children in need of care and protection” CHILDLINE India Foundation (2008). 27 RoleofNonGovernmentalOrgamsationsmConfrontingTraffickinginIndia, India, availabl e at: http://:www.iasir.net(last visited October 30,2016) 28 Dr. P.M Nair, “Community policing on Human trafficking: Integrated Anti-Human Trafficking unit (AHTU) in India” 45 TIPJ 9-16 (2008). 29 National Human Rights Commission, India, available at: http://:www.nhrc.mc.m (last modified October 30, 2016). 30 Id. at 20. 31 Supra note 24 at 10 32 Ibid. 33 M.P Jain, Indian Constitutional Law (Lexis Nexis, New Delhi, 7th edn., 2014). 34 Ibid. 35 Ibid. 36 Ibid. 37 Ibid. 38 Ibid. 39 Ministry of Home Affairs, India, available at: http://:www.mha.nic.in (last visited November 1,2016). 40 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, India, available at: http://www.osce.org/odihr/19223(last visited November 1,2016). [hereinafter UN Trafficking Protocol]. 41 United Nations Protocol, Supra note 39 at 16. 42 CommentsonSAARCConventiononPreventingandCombatingTraffickinginWomenandCMdren for Prostitution, 2002, India, availableat:http://:www.fwld.org.np/csaarc.html(lastmodified November 2, 2016). 43 Supra note 12 at 7. 44 Ibid. 45 Supra note 17 at 8. 46 People’s Union for Democratic Rights and Others v. Union of India, AIR 1982 SC 1473. 47 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 804. 48 Supra note 26 at 11. 49 M.C Mehta v. Union of India, AIR 1997 SC 699. Top |