Abstract
The unfortunate and unprivileged humans – women and children – upon whom immeasurable, unfathomable and grave excesses, atrocities and aberrations take place daily by perpetrators of the crime. They survive in the darker, drearier side of Human Rights violations. Young girls are trafficked into prostitution; young boys are trafficked into forced labour and sodomisation. Young women are also abducted and trafficked as domestic workers, unorganized labourers or sex workers. The rights of these tortured and trafficked women and children form an essential part of Human Rights Jurisprudence which still lies in the neglected sphere. Female children are subjected to various types of sexual abuse, including rape, molestation, etc. In the fight against trafficking Government organizations, Non-Governmental Organizations, Civil Society, pressure groups, international bodies – all have to play an important role. Law cannot be the only instrument to take care of all problems.
Introduction
The unfortunate and unprivileged humans – women and children – upon whom immeasurable, unfathomable and grave excesses, atrocities and aberrations take place daily by perpetrators of the crime. They survive in the darker, drearier side of Human Rights violations. Young girls are trafficked into prostitution; young boys are trafficked into forced labour and sodomisation. Young women are also abducted and trafficked as domestic workers, unorganized labourers or sex workers. The rights of these tortured and trafficked women and children form an essential part of Human Rights Jurisprudence which still lies in the neglected sphere. Female children are subjected to various types of sexual abuse, including rape, molestation, etc.
Definition of Trafficking
Oxford English Dictionary defines Traffic as “trade, especially illegal (as in drugs)”. Merriam-Webster Dictionary defines Human Trafficking as: “organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labour)”
*ADVOCATE AND NOTARY PUBLIC, SAI LAW ASSOCIATES, PRESIDENT, MAYURAM BAR ASSOCIATION, MAYILADUTHURAI – 609 001 TAMILNADU.
In a landmark judgment of “Raj Bahadur v. Legal Remembrance”[1], the Calcutta High Court defined trafficking in human being as selling and buying of men and women like goods and includes trafficking in women and children for immoral or other purposes.
The legal definition of “severe forms of trafficking in persons” as defined in the “U.S. Trafficking Victims Protection Act, 2000” is: Sex trafficking in which a commercial sex act is inducted by force, fraud, or coercion, or in which the person inducted to perform such an act has not attained 18 years of age.”
Judicial Attitude for Prevention of Trafficking In Women and Children
The cases decided by the Supreme Court in the first quarter century after Independence in India have focused mostly on punishment perspective of traffickers and less on rescue and rehabilitation perspective. However in later years, a shift in the judicial response to the growing menace of immoral trafficking is noticed, where Courts have emphasized more on the rehabilitation aspect of the victims of the prostitution including inmates of Protective Home etc.,
In Kamalabai Jethamal v. State of Maharashtra[2], the Bombay High Court which had set aside the order of acquittal of the appellant and sentenced her to undergo one year rigorous imprisonment and evicted her form the premises which she was occupying as tenant. The main charge against the appellant was that she supplied girls for prostitution to a named person and kept/managed a brothel at a named place. She lived on the earnings of prostitution and procured women for this purpose. The police laid a trap and sent two named persons to complete the assigned job, later these persons were used as witnesses and the entire evidence produced before the High Court was including recovery of given money showed that the appellant under Section 3 of the SITA. Hence the appeal was dismissed.
In Krishnamurthy Alias Tailor Krishnan v. Public Prosecutor[3], Madras, the Supreme Court observed that circumstances about the place and the person keeping it can be nothing else then the place was being used as a brothel and the person in charge was so keeping it. Dismissing the appeal the court further observed that ‘it is not necessary that there should be evidence of repeated visits by persons to the place for the purpose of prostitution. A single instance coupled with the surrounding circumstances is sufficient to establish both that the place was being used as a brothel and that the person alleged was so keeping it’.
In Bai Radha v. State of Gujarat[4], the Supreme Court while dismissing the appeal observed that a search which is to be conducted under SITA 1956 must comply with the provisions contained in Section 15, but it cannot be held that if a search is not carried out strictly in accordance with the provisions of that section the trail is rendered illegal.
In Upendra Baxi v.State of U.P[5] a letter which was treated a writ petition brought to the notice of the Apex Court the Conditions in which girls/women were living in the Government Protective Home at Agra, were being denied their right to live with basic human dignity in that Protective Home. Several directives were issued by the Court inter-alia; include setting up of a Board of Visitors.
The Supreme Court of India has passed two important judgments on the subject of rescue and rehabilitation programmes and the commercial sexual exploitation of women and children in India.
The Apex Court shoed its great concern about immoral trafficking in Vishal Jeet v. Union of India,[6] by observing that prostitution always remains a running sore in body of civilization and destroys all moral values. This case has brought into sharp focus the miseries of many more victims being exploited by the highly organized profession of prostitution. In Vishal Jeet’s case Justice S.Ratnavel Pandian recalled that parents owing to acute poverty and unbearable miseries sold their teen-aged female children for paltry sum hoping that they would be engaged in household duties or manual labour but subsequently pimps or brokers in the flesh trade and brothel keepers forcibly land them into flesh trade. The Court observed this malady is not only a social but also a socio-economic problem and, therefore, the measures that are to be taken in that regard should be more preventive than punitive. The Supreme Court further issued some remedial and preventive directions to all State Governments and Union terriorities to setup Advisory Committees within the respective zones.
In the case of Gaurav Jain v. Union of India,[7] the plight of prostitutes and fallen women in the flesh-trade and their progeny was highlighted. In this case the Supreme Court of India was concerned more with the rehabilitation aspect than with prevention of the crime. The Court emphasized on the review of the relevant law in this behalf, effective implementation of the scheme to provide self-employment, training in weaving, knitting, painting and other meaningful programs to provide the fallen women the regular source of income by self-employment or after vocational education or the appropriate employment or after vocational education or the appropriate employment generating schemes in Governmental Semi-Governmental or private organizations.
Feeling stunned and horrified at the agony of the female child and the manner of their being traded like commodity, the Apex Court gave precious piece of judicial legislation for evolving a procedure to prevent illegal sale of children in the grab of adoption by child welfare agencies in Laxmikant Pandey v. Union of India[8]. In this leading case the court issued several directions regarding adoption of Indian Children by foreign parents.
Prajwala v. Union of India[9] is case which has come up before the Apex Court in the form of public interest litigation wherein the question of protection of women has been raised in the context of Immoral Traffic (Prevention) Act, 1956. The Supreme Court showed concern for creating a monitoring agency to have a look on the activities of Protective Homes and desired that National Legal Services Authority should also be made a party to the petition. In this case, the observations, of the Apex Court as well as the submissions of the Solicitor General exhibit of fair amount of concern towards victims of trafficking and their rehabilitation.
In the Supreme Court in State of Maharashtra v. Mohammad Sajid Husain,[10] held that in cases involving such as one punishable under section 376 of IPC and Section 5 of ITPA, should be investigated thoroughly by the investigating agency and victims who are lured or coerced for immoral trafficking should be accorded protection. This case brings about some new hopes for this discarded and neglected segments of the society, Justices S.B. Sinha and H.S. Bedi speaking for the bench stated that if the accused had taken a girl to hotel, Government, guest house or even on occasions to his own apartment and staring behaving indecently with her and even if the prosecutrix -girl was a girl of easy virtue, made statement there after implicating the respondent accused as such and gave statements under 164 of Cr.PC and her evidence should not be rejected out rightly.
In Supreme Court of India in Majappa v. State of Karnataka[11] held that if the accused appellant had kidnapped a girl of 13 years age from her house and had sold her to a brothel house for the purpose of prostitution. In these circumstances he is surely liable under section 316-A, 372 and 373 IPC. Further the accused, which used to engage her daily for prostitution against her wish, be accorded deterrent punishment as it is an offence under section 5 of Immoral Traffic (Prevention) Act, 1956. There should therefore be proper rehabilitation and reintegration programmes for those who return to their homes.
The paradigm shift in the judicial response to the growing menace of human trafficking is as follows :
Punishment Perspective
Preventive Perspective
Rehabilitation Perspective
Kamalabai Jethamal v. State of Maharastra (1962)
(Judgment based on Punishment Perspective)
Vishal Jeet v. Union of India (1990)
(Judgment based on Preventive Perspective)
Gaurav Jain v. Union of India (1997)
(Judgment based on Rehabilitation Perspective
Majappa v. State of Karnataka (2010)
(Judgment based on 100% Rehabilitation Perspective)
New Bill on Anti – Trafficking in India 2016
The Ministry of Women and Child Development released the draft “Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 on 30th May 2016. This bill is the main law proposed for protection of trafficked victims in India. The main provisions of the bill are as follows.
- The Bill contained 41 sections and 12 chapters which aimed at prevention, protection and rehabilitation of trafficked victims in India.
- The bill provided for District Anti – Trafficking Committee to be constituted in every district to perform functions and duties in relation to prevention, rescue, protection, medical care, psychological assistance, skill development and need based rehabilitation of victims. The Committee shall consist of the District Magistrate or District Collector as Chairperson, two social workers, one representative from District Legal Services Authority and District Officer of Social Welfare or Women and Child Development Department of concerned State Government as Member Secretary. It shall meet atleast once in three months.
- The bill also provided for State Anti-Trafficking Committee to perform functions and duties as that of District Anti-Trafficking Committee and it shall consist of Chief Secretary as Chairperson, Secretary to the Department of Women and Child, Secretary to the State Home Department, Secretary to the State Labour Department, Secretary from the State Health Department, Director General of Police of the concerned State, Secretary of the State Legal Services Authority and two social workers as members.
- The bill also provided for Central Anti-trafficking Advisory Board headed by the Secretary Ministry of Women and Child Development and representatives from the concerned Ministries, State/Union Territories and members from Civil Society Organisations. The board shall oversee the implementation of the Act and advise the appropriate Government on matters relating to prevention of trafficking, protection and rehabilitation of victims.
- The bill provided for Constitution of a Special Agency for investigation of offences under the provisions of the Act. It also provides for protection homes for shelter, food, clothing and medical care to the rescued victims. Provisions for Special Homes for long-term institutional support for the rehabilitation for the victims also finds a place in the bill. The Registration of Protection Homes and Special Homes in mandatory under the above said bill. The bill also provided for registration of placement agencies.
- The bill provided for framing of specialized schemes for victims especially for women engaged in prostitution or any other form of commercial sexual exploitation, to enable them to come forward and reintegrate into mainstream society, in a manner as may be prescribed. The bill provided for punishment which may extend to one year or with a fine of Rs.1,00,000/- or both for persons contravening the provisions of the Anti-trafficking bill. The punishment in certain cases for extended to 3 years or with fine upto Rs.50,000/- or both. The offences under this bill are cognizable and non-bailable. The bill also provided for confiscation, forfeiture and attachment of property of accused by the special court.
- The bill provided for Constitution Special Courts that too a Court of Session has to be notified by the State Government in consultation with the Chief Justice of the High Court to act as Special Court. The bill also provided for appointment of Special Public Prosecutors.
- The bill provided for a Investigating Officer who should be a Police Officer of the rank of Gazetted Officer. The bill provided for creation of Anti-Trafficking Fund for welfare and rehabilitation of victims.
Critique of Anti-Trafficking Draft Bill – 2016
Experts in the field of Criminology and Victimology in India claim that the Anti-Trafficking Draft Bill is toothless and it has got crucial gaps. The bill has the terms of Prevention, Protection and Rehabilitation in its name itself. But, unfortunately nowhere in the bill these terminologies had been defined. The bill is silent above the mode of prevention of trafficking. Regarding protection point of view, the bill failed to clarify whose protection and from whom and how. The bill bears the term rehabilitation but fails to clarify what would rehabilitation include. The bill speaks about trafficking of persons, but, the term trafficking was nowhere defined in the bill. The bill provides for setting up of special agencies to tackle human trafficking, but there is no description of Constitution and formation of special agencies. The bill provides for creation of Anti-Trafficking Fund but lacks explanation of utilization of such funds. The bill requires more consultations with states and experts.
Preventive Measures
- A high level of legal reforms are needed for combating this menace. An exclusive enactment like that of the S. Trafficking Victims Protection Act, 2000, may be thought of to attend the ills of trafficked women and children in India.
- Trafficking for commercial sexual exploitation of women and children is a fundamental violation of the rights of women and children. The problem of trafficking requires essentially human rights perspective for its eradication as it’s violating the rights and dignity of the victims. The women and children who have been trafficked mostly suffer various forms of exploitation.
- Children in Observation homes should not be made to stay long, and as long as they are there, they should be kept occupied and made them aware of humane virtues. The violation of the rights of the children of tender age has become a very disturbing factor for their proper growth, Welfare and protection.
- Since good number of Mathadishs (priests) of the Ashrams has been involved in child abuse at a large scale, serious efforts need to be made the Government on war footing to streamline these Ashrams and save the children from their clutches. Those Ashrams which are found to be involved in such shameful, and nefarious activities, should be taken over by the Government forthwith.
- Prevention as a strategy to combat trafficking has to focus on areas of sensitization and awareness among the public – especially, the vulnerable pockets of trafficking.
- Prevention of human trafficking requires several types of interventions such as role of state, role of NGOs, role of Media and awareness and advocacy at the policy level.
- Protective Custody, as a means of dealing with victims of trafficked should be reconsidered. The victims of human trafficking should not be detained and the stay should be voluntary.
- Proper training programmes should be organized to train the police forces and sensitize the judges and trial magistrates. The proceedings in the court need to be monitored so that even the defence does not indulge in revictimisation and traumatisation of the victims. To combat trafficking in humans the training should consist of raising on the issue as well as development of investigative skills for the police officials.
- The rehabilitative measures given to the victims of trafficked women and trafficked children subjected to sexual exploitation are intended to ensure that trafficked persons are not treated as criminals but as victims of crime who have suffered serious human rights abuse.
- A recent UN report says: “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 of protectionist approach in their judgment of criminal cases against trafficking.
- The report of the Department of Women and Child Development (DWCD) 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;”
- The Government must launch media campaigns that promote children’s right and elimination of exploitation and other forms of child labour. Wide publicity may be given regarding the legal, penal provisions against trafficking and the modus operandi’ of the traffickers through radio, television, etc., The media should transmit appropriate message to ensure that the victims learn that they are not alone;
- Exclusive forums may be established to support voluntary organizations working in the field to restrict further exploitation of the trafficked victims.
- Proper implementation should doe by the Government with a monitoring mechanism of the principles contained in the convention of Rights of women and children.
- At school level, institutions should be encouraged to include trafficking in their curriculum.
In the fight against trafficking Government organizations, Non-Governmental Organizations, Civil Society, pressure groups, international bodies – all have to play an important role. Law cannot be the only instrument to take care of all problems.
[1]. AIR 1953 Cal 522
[2]. AIR 1962 SC 1189
[3]. AIR 1967 SC 567
[4]. AIR 1970 SC 1396
[5]. AIR 1987 SC 191
[6]. AIR 1990 SC 1412
[7]. AIR 1997 SC 3021
[8]. AIR 1984 SC 469; (1987) 1 SCC 67
[9]. 2005 (4) SCALE 517(2)
[10]. (2008) 1 SCC 213
[11]. [2010] 9 SCC 334.