By Puja Kaushal, Dr. Ram Manohar Lohiya National Law University, Lucknow.
“Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.”
In general sense, if a 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 commercial sexual exploitation. 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.
Immoral Traffic Prevention Act, 1956 (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.
Definition of Trafficking: 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.
ESSENTIALS OF TRAFFICKING
- Displacement of community from one place 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.
- 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. 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
Child 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 children, 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.
MAGNITUDE OF THE PROBLEM OF CHILD TRAFFICKING
In India, the National Crime Records Bureau (NCRB) that comes under the Ministry of Home Affairs produces data on crimes reported to the police. It is the most authentic government source for information on crime. In its latest publication titled “Crime in India”, data has been compiled for certain offences against children as mentioned in the Indian Penal Code (IPC). These are – procuration of minor girls for inducement to force or seduce, to illicit intercourse etc.; selling and buying of girls for prostitution – the three crimes that directly fall within the ambit of child trafficking. Procuration of minors does not always happen through cash transaction, whereas selling and buying cannot and does not happen without cash transaction.
Clearly, it is difficult to assess the magnitude of child trafficking because:
- Most cases go unreported.
- There is no one law to address the issue.
- Even when there are legal provisions addressing different forms of child trafficking, data is not always compiled in terms of cases that are reported under each of these provisions.
- Compilation of data by Government Sources is limited to certain IPC crimes and some special laws that are central legislations only.
NEED FOR CONTINUED RESEARCH AND ADVOCACY
While research on the issue has developed considerably, given the magnitude of the problem and its complexity, there is a need for continuous and ongoing empirical research and analysis of the factors contributing to migrant child labour and to trafficking. There is a need to study the established as well as emerging areas that send out their children for employment and known and lesser known sectors and industries that employ migrant child workers. Attention from the State, NGOs and activist groups has often led to the diversion of child workers from one industry to another and to recruiters sourcing labour from other parts of the country. Thus, it is a continually changing situation that needs constant attention and study.
There are certain research questions or issues which I had come across while making an ample research with respect to the topic concerned. The concerned issues and questions are answered below:
- How do traffickers recruit their victims?
- Traffickers recruit their victims by offering potential victims false promises, traffickers paint a rosy picture of a better life, such as a good job, educational opportunity or marriage. If a potential victim falls for the false promises, the trafficker transports the person to another place or country for exploitation. The person becomes a victim of human trafficking.
- What effect does trafficking have on victims?
- Often, victims do not even have basic control over their daily decisions such as when to sleep, eat or rest. Their lives are at the mercy of the traffickers who subject the victims to physical violence, repeated rape, torture, forced drug use, forced abortions and psychological manipulation. Victims risk contracting sexually transmitted infections such as HIV & AIDS. The trafficking experience is traumatic and damages the physical, mental and social well being of a person.
- Who can become a victim?
- Even though anyone can be trafficked, traffickers target vulnerable people. Factors that cause vulnerability include lack of economic opportunities, poverty, unemployment, domestic violence and child-headed homes as a result of parents dying from AIDS related illnesses. Although men, women and children are all vulnerable, young women are particularly vulnerable as forcing them into prostitution financially benefits the traffickers. Human trafficking is driven by demand and supply, if there is a demand for forced sexual services or forced labour, traffickers use all means to meet those demands by targeting vulnerable people who are unaware of the harm and false pretenses under which they are recruited.
- Who makes the travel arrangements?
- A trafficker usually makes all the travel arrangements and pays for all the costs such as transport, visas, tickets, meals and housing. This makes it easy for the trafficker to control the victim through debt bondage. If a victim is trafficked from one country to another, a trafficker may bribe state officials to get the right travel documents quickly.
- Who are the traffickers?
- It is difficult to tell. Traffickers may come from the same poor socio-economic background as their victims. They appear to be successful business people able to offer their victims better opportunities. Sometimes even parents are involved in the trafficking of their children. Traffickers try to appear trustworthy. The financial gains involved allow for a wide variety of criminals to participate as recruiters, mules and aids in this crime.
During the course of the project, the widespread lack of awareness at the local community level concerning trafficking laws and procedures for reporting trafficking cases emerged as a significant obstacle both to the prosecution of traffickers and to the overall legal protection of victims. Based on this and other lessons learned, IDLO and SANLAAP decided to pilot a second phase of the project. Phase II (March – June 2011) focuses more intensively on community-level sensitization on legal aspects of trafficking, with the aim to ensure that communities are aware of basic anti-trafficking laws and procedures and are able to use them to realize their rights and prevent instances of trafficking. It includes a legal awareness program for female Self Help Groups’ members in the four districts and legal trainings for youth leaders. In reflection of the project‘s focus on legal empowerment of girls, Phase II also includes legal awareness camps for girls residing in shelter homes in the project districts.