1
Table of Contents
INTRODUCTION ............................................................................................
2
INTRODUCTION
Human trafficking has a history coterminous with that of society and has existed in
various forms in almost...
3
STATEMENT OF THE PROBLEM
The Victims of Trafficking with Special Reference to Human Rights.Press, police and
NGO reports...
4
OBJECT OF THE STUDY
This paper seeks to provide an analytical framework for designing more effective laws
against human ...
5
HYPOTHESIS
The available literature on trafficking mainly consists of reports of studies, conferences
and workshops cond...
6
listed as industrialisation and globalisations; economic crises, decline, disruption or
underdevelopment; economic polic...
7
RESEARCH METHODOLOGY
This study on trafficking in women and children (henceforward trafficking) in India is
pioneering a...
8
i. Trafficking for sex-based exploitation, i.e. for brothel based and non-brothel based
commercial sexual exploitation, ...
9
Sampling
The size of the sample varied from state to state. The sample, although stratified, did
not permit randomisatio...
10
CHAPTER – 1: INTRODUCTION
Human trafficking is prohibited in India yet India is a source, destination, and transit
coun...
11
“source, destination, and transit country.” The huge population and location seem to be
contributing factors to this st...
12
CHAPTER 2: GENERAL PROVISIONS IN CRIMINAL LAW WITH
RESPECT TO HUMAN TRAFFICKING
The general provisions dealt with in th...
13
CHAPTER 3: HUMAN TRAFFICKING AND LABOUR LAW
Apart from commercial sexual exploitation, human trafficking is also carrie...
14
CHAPTER 4: MISCELLANEOUS OFFENCES ASSOCIATED WITH
TRAFFICKING
This Chapter deals with forms of trafficking other than t...
15
CHAPTER 5: INTERNATIONAL LAW STANDARDS RELATING TO
HUMAN TRAFFICKING
It is relevant to understand the significance of i...
16
CHAPTER 6: THE VICTIMS OF TRAFFICKING WITH SPECIAL
REFERENCE TO HUMAN RIGHTS
The introductory chapter gives a broad ove...
17
CHAPTER 7: CONCLUSION
•There must be a clear line drawn between the trafficker and the victim. Victims must
not be furt...
18
ACRONYMS
AIR
App.
Bom
BOMLR
Cal
CARA
CEGAT
Cr. LJ
Cr. PC
Cri.
CSE
CWC
FIR
HC
IEA
IPC
ITPA
JJA
MCOCA
MLJ
MP
NCT
No.
Para...
19
BIBLIOGRAPHY
Books
S.N. NAME OF BOOK NAME OF
AUTHOR
PUBLICATION YEAR
01 CONSTITUTION OF INDIA PANDEY J.N. CENTRAL LAW A...
20
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, 2000
Convention on the ...
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  1. 1. 1 Table of Contents INTRODUCTION .......................................................................................................................2 STATEMENT OF THE PROBLEM ............................................................................................3 OBJECT OF THE STUDY ..........................................................................................................4 HYPOTHESIS ............................................................................................................................5 RESEARCH METHODOLOGY ..................................................................................................7 TENTATIVE CHAPTERIZATION .............................................................................................10 Chapter 1 : INTRODUCTION ..................................................................................................10 Chapter 2: GENERAL PROVISIONS IN CRIMINAL LAW WITH RESPECT TO HUMAN TRAFFICKING .........................................................................................................................12 Chapter 3 : HUMAN TRAFFICKING AND LABOUR LAW .....................................................13 Chapter 4 : MISCELLANEOUS OFFENCES ASSOCIATED WITH TRAFFICKING ...............14 Chapter 5 : INTERNATIONAL LAW STANDARDS RELATING TO HUMAN TRAFFICKING 15 Chapter 6 :THE VICTIMS OF TRAFFICKING WITH SPECIAL REFERENCE TO HUMAN RIGHTS ...................................................................................................................................16 CONCLUSION..........................................................................................................................17 ACRONYMS ............................................................................................................................18 BIBLIOGRAPHY ......................................................................................................................19
  2. 2. 2 INTRODUCTION Human trafficking has a history coterminous with that of society and has existed in various forms in almost all civilizations and cultures. It is a trade that exploits the vulnerability of human beings, especially women and children, in complete violation of their human rights. It makes human beings objects of financial transactions through the use of force, duress or deception, for various purposes, chief among them for commercial sexual exploitation and for exploitative labour. It is well established that trafficking in persons is a multi-dimensional form of exploitation. The exploitation may be for many reasons - prostitution, other sexual exploitation, forced labour, begging, forced marriages, adoption, transplantation of human organs, etc. It raises important questions of human rights protection especially of vulnerable sections like women and children. It is an organized crime extending beyond boundaries. There is a need world over to strengthen mechanisms to combat trafficking. In this context a series of initiatives have begun involving key groups like police, prosecution, judiciary, NGOs, etc. in order to ensure that response to trafficking is made effective. Although there are a number of studies dealing with trafficking, they generally focus on specific aspects like prostitution, pornography, child trafficking, etc. It was thus imperative to have a comprehensive look at all substantive legal provisions which had a bearing on human trafficking. This document aims at looking afresh at the legal framework relating to trafficking. It analyzes legislations relevant to trafficking and looks at important cases dealing with specific points of law. Since the main target group is the law enforcement and justice delivery systems, including police, prosecutors and judiciary, analysis of legal provisions have been done from this perspective. Additionally, vulnerable sections such as women and children and the protection of their human rights have also been addressed. Gaps in terms of definitions and interpretations have also been discussed where ever relevant. Scope This Synopsis makes an effort to: 1. Collate legal provisions relating to trafficking - domestic as well as cross border. 2. Analyze the existing framework on the substantive law on trafficking. 3. Look at ancillary legislations which may have a bearing on trafficking. 4. Study major court decisions which could help in using substantive provisions on trafficking and related areas. 5. Understand trafficking as an organized crime and look at legal provisions in domestic law which could help tackle this problem. 6. Look at the roles played by different stakeholders within the legal framework. 7. Identify international standards on trafficking and also on organized crime.
  3. 3. 3 STATEMENT OF THE PROBLEM The Victims of Trafficking with Special Reference to Human Rights.Press, police and NGO reports on trafficking had given a clear and unequivocal indication that buying and selling of women and children for sexual and non-sexual purposes was an expanding activity and involved gross violation of human rights. What was even more worrisome was the indication that India was fast becoming a source, transit point as well as a destination area for traffickers. A substantial body of newspaper reporting as well as reports of voluntary agencies suggested that apart from Nepal, Bangladesh and the poverty-stricken districts within India, trafficking from the Commonwealth of Independent States (CIS) countries was also on the increase. This was a significant pointer towards the complex, organised nature of the crime. The commonplace understanding of trafficking as akin to ‘prostitution’ was one of the major reasons why the human rights violations inherent in trafficking were never understood. This called for demystification of the term. The complexity of the phenomenon, its multidimensional nature, its rapid spread and the confusion surrounding the concept made the need for a deeper comprehension of trafficking a top priority. The reasons for its persistence and rapid proliferation were not very clear. Thus, there was an urgent need for a greater understanding of the various aspects of the phenomenon.
  4. 4. 4 OBJECT OF THE STUDY This paper seeks to provide an analytical framework for designing more effective laws against human trafficking. Trafficking is a modern-day equivalent to slavery. It is a phenomenon which is gaining momentum and is now the third largest form of organised crime after trafficking in arms and drugs. Even though the crime of human trafficking for any purpose is both under-recorded and under-reported, the 2004 Trafficking in Persons (TIP) report estimated at least 600,000 to 800,000 women and children are trafficked across international borders every year, the majority being trafficked into commercial sexual exploitation. Prevention of trafficking has to be a combined effort of both governmental and non- governmental agencies. The Government must make certain that good quality education, opportunities of employment and income generation programmes are put into operation to provide good quality life to highly susceptible persons. It should carry out routine programmes to educate and sensitize parents, teachers, and community workers about trafficking. Government should include gender centered education curricula in schools and introduce subjects of child sexual abuse and trafficking. Police advocacy is an important intervention that has to be fine-tuned. Awareness is the magnanimity and prevalence of the problem has to be done at the level of National Planning Commission, politicians and bureaucrats too, Involves interventions at various levels to combat the initiation of trafficking. Prevention
  5. 5. 5 HYPOTHESIS The available literature on trafficking mainly consists of reports of studies, conferences and workshops conducted by international and domestic non-governmental organisations (NGOs). National and regional level studies are fewer in number compared to the literature available at the state level. The recent importance accorded to trafficking on the international agenda is responsible for the rise in the number of ongoing research studies on trafficking in India. The Indian Constitution prohibits all forms of trafficking under Article 23. The Suppression of the Immoral Traffic Act, 1956 (amended to the Immoral Traffic Prevention Act) was in response to the ratification of the International Convention on Suppression of Immoral Traffic and Exploitation of Prostitution of Others in 1950 by India. Trafficking has been an area of concern since the early 20th century. Issues of conceptual clarity The literature on trafficking devotes a considerable amount of space to defining the phenomenon. The numerous definitions available reflect the lack of clarity and consensus on what precisely constitutes trafficking. Over decades, the concept itself has evolved; to include many more attributes and features than it began with. Vulnerability factors In the literature surveyed there seems to be broad agreement over the factors that lead to trafficking. However, there is uncertainty about precise role played by them. While some reports view these factors to be the root causes of trafficking, others state that ‘they merely exacerbate the vulnerability of marginalised and disadvantaged groups and render them increasingly more amenable to a variety of harm’. Personal circumstances Low levels of literacy, awareness and information are also risk factors. Economic deprivation due to various reasons and its associative conditions are among the most important factors that lead to vulnerability. Almost all the studies and reports under review found that a high percentage of trafficked people belong to lower income groups. Structural factors Environments lacking livelihood options or economic opportunities, with the accompanying pressures to work and earn, make peoples’ lives on ongoing ‘battle for survival’. The structural factors influencing and determining these circumstances are
  6. 6. 6 listed as industrialisation and globalisations; economic crises, decline, disruption or underdevelopment; economic policies like privatisation, liberalisation, promotion of sex tourism, withdrawal of subsidies and commercialisation of agriculture; the consequent erosion of subsistence agricultural practices, loss of traditional livelihoods and inflation. Labour demand and policies also influence vulnerability. In a global market, women and girls are increasingly being hired as service a provider, which puts them at risk (ibid.). Some of the political factors listed are conflicts, disruption and instability; immigration policies, human rights violations, and the gaps between government rhetoric and practice. Poor governance, limited law enforcement or implementation of labour standards also creates vulnerabilities. Environmental calamities and disruptions may also put people at risk.
  7. 7. 7 RESEARCH METHODOLOGY This study on trafficking in women and children (henceforward trafficking) in India is pioneering and exploratory. It attempts to explore an ostracised, murky, underground world. The methodology has, therefore, responded innovatively in devising and evolving instruments and strategies of research. It is not surprising that reliability and authenticity of existing data is a matter of concern. The broad objectives of our study follow from this major concern. These are: a. To understand the trends and patterns of trafficking, and the structural and functional mechanism that reproduces and reinforces the processes that perpetuate the phenomenon. b. To analyse the roles and functions of the formal and voluntary agencies that were involved in containing and combating this phenomenon. c. To prepare a comprehensive database. d. Since the study was conceived in a human rights perspective and sponsored by NHRC, the project also took upon itself an active advocacy role of orientation and training directed towards relevant agencies. It also involved awareness generation among the vulnerable sections and the target audience. Framework of Study - Areas of Investigation Trafficking is a complex, multidimensional phenomenon, with a variety of – often inter- related – aspects covering large geographic spaces. It is not possible to address all the areas simultaneously. Broadly, our study focuses on: the crime of trafficking and the responses engaged in preventing and countering it. The study of the existing anti- trafficking law the Immoral Traffic (Prevention) Act, 1956 (ITPA) was also a focal area. Given this, the stages in the process of trafficking were comprehensively examined. The events in a trafficking chain from the source areas to their destinations, including the factors that caused re-trafficking, were carefully followed. The role played by the demand factor in trafficking for different purposes, which had received scant attention earlier, was also studied in detail. This was primarily examined from the ‘client’ angle of the commercial sexual exploitation ‘sector’. The sources and scale of profitability from this ‘sector’ were also examined to find out the motivations behind the demand – the causal mechanism that reproduces the system. The study took into account the perspective of all the trafficked persons, whether they were being subjected to commercial sexual exploitation or other kinds of abuse. The present study encompasses the major areas of trafficking. Trafficking in its manifestations, can be broadly categorised as:
  8. 8. 8 i. Trafficking for sex-based exploitation, i.e. for brothel based and non-brothel based commercial sexual exploitation, pornography, paedophilia, sex tourism, mail-order bride system, disguised sexual abuse in the garb of massage parlours, beauty parlours, bartending, friendship clubs, etc. and ii. Trafficking for non-sex-based exploitation, including a vast area of servitude, slavery and exploitation, which were commonly seen in bonded or forced labour; domestic servitude, industrial servitude, servitude in the entertainment industry (e.g. camel racing, circuses, etc.) drug peddling, begging, adoption, trading in human organs, trafficking for false marriages, and other similar exploitative practices. Prevention, protection and prosecution were the three main areas covered in our second objective. This involved critical examination of the existing legal framework for combating trafficking, including constitutional provisions, national and international laws, conventions and protocols. Special emphasis was laid on analysing the Immoral Traffic Prevention Act, 1956 (ITPA), with a view to search for the lacunae that could contribute to the ongoing discussion and reformulation of the law. The next logical step was to move from identification of lacunae in the law to the law enforcement process and the role of the police and other enforcement agencies in protection and prosecution. Focus group discussions were held to understand the role of judicial officers, prosecutors, doctors and others concerned. Consultation Meetings Once the research partners were selected, the first task at hand was to identify the exact locations in the concerned states where field work was to be carried out and the specific issues of the concerned state/UT/city, which needed to be focused on. This was necessary because of the large population and diversity between the various states. These research sessions helped to gain a comprehensive understanding of the trafficking scenario in the country and also to imbibe the human rights perspective that was called for in the proposed research. Moreover, methodology depends upon the problem and the field situation. In this case, both were sensitive in nature. Carrying out the research Sources of data Both primary and secondary source data were used. Primary data was obtained through canvassing interview schedules, focus group discussions, case studies and non- participant observation. Secondary sources were provided by formal and voluntary institutions.
  9. 9. 9 Sampling The size of the sample varied from state to state. The sample, although stratified, did not permit randomisation. This was in view of the criminal nature of trafficking. The researchers were given freedom for purposive selection of the relevant units of their sample. They adopted both purposive and convenience sampling. Units of inquiry Interview schedules were developed for each of the following seven categories of respondents: (1) Survivors (rescued trafficked victims of CSE), (2) Trafficked non- rescued victims of commercial sexual exploitation, (3) Traffickers, (4) Brothel owners, (5) Clientele, (6) Rescued trafficked child labourer, and (7) Police officials. Different schedules were necessitated by the vastly different roles played by these categories. Stratification principle for the units of inquiry Some principle of stratification was applied in the unique circumstances that defined the field. Since the traffickers were the most elusive category, snowball sampling was the primary method of selection. The selection of sample is diagrammatically represented on the following page. In view of the sensitive nature of the data to be collected from the respondents, the interviewers were given adequate orientation to facilitate their work. Secondary data Material was collected from published and unpublished sources. Interaction with NGOs and law enforcement agencies in different states also provided a lot of valuable information. Moreover, the research involved critical study of the legal provisions and judicial pronouncements. Data on missing persons The literature review gave us enough indication about a strong linkage between missing persons and trafficking. Since no central agency had all the required data, extra efforts had to be made to get data from the individual states about the details of persons (sex and age disaggregated), who are reported missing and those among them, who could not be traced. Analysis of Data Once the data had been collected from the partners, codebooks were developed, based on the responses in the interview schedules. Thereupon, the data in all the schedules, which had been duly filled in, were coded. The coded data was processed using the SPSS package. The task included feeding in the data, verification, computation, validation and presentation of tables to facilitate data analysis and interpretation.
  10. 10. 10 CHAPTER – 1: INTRODUCTION Human trafficking is prohibited in India yet India is a source, destination, and transit country for men, women, and children trafficked for the purposes of forced labor and commercial sexual exploitation. Women and girls in India may be trafficked due to cultural practices such as devdasi system though banned or due to poverty. There are again many women willingly migrate to Middle East, Europe and The United States to work as domestic labor and low skilled laborers, who are sometimes defrauded by placement agencies and sometimes trafficked within India and abroad and kept in conditions of servitude with characteristics such as withholding payment of wages confiscation of travel documents, non profits to middlemen with bonded labor to pay off the profits/charges etc. Bonded labor within is also a serious problem. Trafficking in persons Report 2010 also points out that ninety percent of these trafficked belongs to the most disadvantaged groups. It also carried evidence of NGO reports on duping of girls from North East India, M.P., Bihar, U.P. and West Bengal with promises of jobs and then forced them into prostitution as well as forced marriages. Brides are in high demand in the states of Haryana and other states due to the low sex ratio causes by sex selection abortions. Internal forced labor may constitute India’s largest trafficking problem; men, women, and children are held in debt bondage and face forced labor working in brick kilns, rice mills, agriculture, and embroidery factories. Children are subjected to forced labor as factory workers, domestic servants, beggars, and agriculture workers, and have been used as armed combatants by some terrorist and insurgent groups and estimated annual turnover of Human trafficking in India is near about Rs. 20 billion. India is also a destination for women and girls from Nepal and Bangladesh trafficked for the purpose of commercial sexual exploitation. Nepali children are also trafficked to India for forced labor in circus shows. Indian women are trafficked to the Middle East for commercial sexual exploitation. The numbers are very large, though precise figures are lacking and need to be tackled urgently. By its very nature, human trafficking is something that is not publicly identified, so how can quantify how much corruption is taking place? I am not sure that there is a real answer to that question. You cannot measure what you cannot see. We have no doubt that human trafficking takes place wherever someone sees there is a need for cheap labor, sex, and money; therefore it exists in every country in the world. Many organizations around the world have taken on extensive research projects to attempt to identify the scope of the problem, none have been completely successful. Most all of the reports have been questioned as to reliability and accuracy, as should be expected due to the reason above. With that being said, multiple reports point to India as a
  11. 11. 11 “source, destination, and transit country.” The huge population and location seem to be contributing factors to this statement. It is less liking that someone would be caught trafficking among the population. The number of borders India shares with its neighbors adds to the problem. China, Nepal, Bangladesh, and Pakistan all have been identified as countries with a significant amount of human trafficking. It is also arguable that many industries in India require manual labor, which is also a factor. The Trafficking in Persons Report published by the United States’ Department of State identifies India as a country having both labor trafficking and sex trafficking issues. The number of persons trafficked is estimated to be in the millions. Again, these are very vague statistics as no organization has actually been able to quantify the problem. Looking for more data on the subject, I did find a second report published by the United Nations Office on Drugs and Crime (UNODC) that ranks India as a country of high origin for human trafficking. This same report also ranks India as a high destination country. A high origin country means that people from India are trafficked to other countries, while a destination country would refer to people from outside India being brought into the country and harbored there. From these reports, it is safe to conclude that there is a problem in South Asia, including the country of India. India is on the “Tier 2 Watch List”, while the worst of countries are on the Tier 3 List. If indeed India does of the world’s largest labor trafficking problem, then it should have been included on the Tier 3 List along with the other 16 countries on that list. Nonetheless, I do feel confident that India does have a significant problem to be placed on the Tier 2 Watch List. The Trafficking Victim Protection Act of 2000 is the U.S. law that was created to attempt to combat human trafficking. It lays out the criteria for which “list” a country will be placed on. A country on the Tier 2 Watch List, also known as the “Special Watch List,” is a country where the number of victims of this crime is significant or is significantly increasing, the government of the country has not produced concrete evidence to demonstrate their combat towards the severe forms of trafficking over the prior year, and the country is making significant efforts to comply with the minimum standards. India has been on this list for four consecutive years, including 2007. The specific reason given for this is that the Indian government has not recognized the country’s huge bonded labor population. Non-governmental organizations (NGOs) estimate that between 20 million to 65 million bonded laborers are held in India. Another reason is that the government has not take action to prosecute or punish three government officials that were found to be involved in trafficking-related corruption.
  12. 12. 12 CHAPTER 2: GENERAL PROVISIONS IN CRIMINAL LAW WITH RESPECT TO HUMAN TRAFFICKING The general provisions dealt with in this chapter may form the foundation for prosecution of cases of trafficking, whatever be the purpose of such trafficking. These provisions need to be coupled with those specifically attracted based on the purpose of trafficking and the surrounding circumstances of the case. The General Provisions are primarily provisions of the Indian Penal Code (IPC). However, it also includes provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which can be used if the victim belongs to the Scheduled Castes or Tribes and the offender does not, as well as the provisions of the Juvenile Justice Act, 2000 which are applicable if the victim (or even the offender) is a child. Sr. No. Indian Penal Code, 1860 Section A Kidnapping/Abduction B Wrongful Restraint & Wrongful Confinement C Acts Done in Furtherance of Common Intention D Abetment E Criminal Conspiracy F Criminal Force/ Assault G Cheating H Criminal Trespass I Criminal Intimidation J Rape K Unnatural Offences L Hurt M Causing Miscarriage N Attempt to Commit Offences O Slavery The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Punishment for Offences of Atrocities The Juvenile Justice (Care & Protection of Children) Act, 2000 A Cruelty B Begging C Intoxicating, etc. D Exploitation of Child Employee E Alternate punishment 359-368 339-348 34 107-120 120A,120 B 349-356 415-418 441 503-509 375-376 377 319-338 312-318 511 370-371 3 23, 27 24 25 26 28
  13. 13. 13 CHAPTER 3: HUMAN TRAFFICKING AND LABOUR LAW Apart from commercial sexual exploitation, human trafficking is also carried out for purposes of labour, i.e., for compulsory/ debt/ bonded/ forced or exploitative labour. It is also common for men, women, and children to be trafficked through fraud - i.e., through promises made by an agent for work in domestic labour or other ‘lucrative’ work. After luring the victims to a place distant from home, the victims suddenly find themselves in an exploitative situation where the work is often very different from what had been described originally to them. Very often the work conditions are poor and the remuneration far below prescribed laws. This Chapter establishes the links between the crime of trafficking and the extant specific labour legislations, which can be used by law enforcement officials in the course of dealing with trafficking crimes. Here, it is important to note that labour for the purposes of our discussion includes both labour and services. Trafficking offences are punishable by sentencing those found guilty in accordance with a range of criminal laws. These laws will be applicable regardless of the purpose for which trafficking is undertaken. Thus, those who traffic men, women and children for forced/ exploitative labour too will be made liable for trafficking under criminal laws. However, several labour legislations may also be effectively utilized since they contain several provisions with respect to protection to victims of trafficking by providing standards of labour welfare. Thus, the remedy is two pronged - punish the traffickers and protect the rights of victims. Special provisions in labour enactments, which have a bearing on trafficking and with safety and welfare enactments, are dealt with in this segment, relevant provisions of the legislations have been analyzed and decided case laws have been mentioned where ever applicable. The core provisions with regard to human trafficking in domestic legislation are contained in Constitutional guarantees. The Constitution of India prohibits traffic in human beings, begar and other forms of forced labour. Forced labour is a wide expression, which would be attracted whenever a person is compelled to give his labour or service, even though remuneration is paid for it. The same would be the result where the labourer is obliged to work at wages less than the minimum wage.
  14. 14. 14 CHAPTER 4: MISCELLANEOUS OFFENCES ASSOCIATED WITH TRAFFICKING This Chapter deals with forms of trafficking other than trafficking for commercial sexual exploitation and trafficking for forced labour which have been discussed in previous chapters. For instance, trafficking for adoptions and for marriage invoke provisions of personal law along with criminal law and other protective provisions such as in the Juvenile Justice Act, 2000. Many of the provisions detailed in this Chapter may need to be looked at in conjunction with other provisions in other Chapters. • Adoption and Trafficking • The Hindu Adoptions and Maintenance Act, 1956 • The Guardians and Wards Act, 1890 • CARA (Central Adoption Resource Agency) Guidelines • Juvenile Justice Act, 2000 • Transplantation of Human Organs and Trafficking • The Indian Penal Code, 1860 • Transplantation of Human Organs Act, 1994 • Organized Crimes and Trafficking in Human Beings • Trafficking for the Purpose of Marriage
  15. 15. 15 CHAPTER 5: INTERNATIONAL LAW STANDARDS RELATING TO HUMAN TRAFFICKING It is relevant to understand the significance of international law so as to appreciate its applicability to the crime of trafficking. International legal instruments may be ‘charter based’ or ‘treaty based’. Charter based instruments are those that have been drafted as a result of the resolutions and decisions of the UN system, for example, the UN Charter and the Universal Declaration of Human Rights. These instruments are monitored by charter-based bodies such as the Commission on Human Rights, which meets for six weeks each year in Geneva. The other kind of international legal instruments are agreements or covenants signed by State Parties, and these act as a commitment by these respective State Governments to abide by the provisions of that treaty or agreement. Some of these instruments are the Civil and Political Rights Convention, the Economic, Social and Cultural Rights Convention, the Child Rights Convention, etc. There are some important ways in which a State Party may show its acceptance of a treaty. The first is that of signing the treaty at a time when the treaty has been passed and a period is reserved for signatures. The next is that of ratification, at which stage, State Parties may ratify the whole convention or may ratify with reservations or conditions on specific Articles that they cannot comply with citing reasons. The third is that of accession by State Parties to a treaty. Those parties who have not signed the treaty previously may do so after the period which was open for signatures. Ratification by a State Party of any agreement makes it binding on that State to report to Committees and treaty monitoring bodies about what progressive steps it has taken for the realization of the rights contained in that treaty. The Constitution states that the State shall endeavour to foster respect for international law and treaty obligations. In India, the mode of legislative ratification is being followed. This means that where the Government of India has ratified any Convention, all attempts are made to ensure that the provisions of that Convention are enshrined in domestic legislation that should be passed. This position is different from the United States where, if the Government ratifies any convention, the provisions of such a convention become enforceable with immediate effect. The nature and scope of obligations of a State under international human rights law depends on the type of legal system a State belongs to. Under a ‘monist’ regime, obligations under international human rights law are as binding as, if not more superior to, the national constitutional obligations. Under a ‘dualist’ regime, as in India, obligations are not directly binding unless there is an explicit measure, through enactment of a statute, to internalize these obligations.
  16. 16. 16 CHAPTER 6: THE VICTIMS OF TRAFFICKING WITH SPECIAL REFERENCE TO HUMAN RIGHTS The introductory chapter gives a broad overview about the initiatives and activities undertaken by various stakeholders to prevent and combat trafficking in human beings. Most of these initiatives and activities have come out with their own recommendations and Plans of Action. The result being that we all are working in isolation rather collectively on the same issue. In order that these recommendations/Plans of Action are properly acted upon, the Ministry of Women and Child Development, Ministry of Home Affairs, National Human Rights Commission and National Commission for Women have decided to work in unison and draw up the Victims of Trafficking With Special Reference to Human Rights. This, we feel, would guide and facilitate uniform action on the part of all concerned so that trafficking is eliminated from its roots. The Integrated Plan of Action outlined below consists of action points grouped under: • Ensuring Human Rights Perspective for the Victims of Trafficking • Preventing Trafficking • Emerging Areas of Concern in Trafficking – Their Patterns and Trends • Identification of Traffickers and Trafficked Victims • Special Measures for Identification and Protection of Trafficked Child Victims • Rescue of Trafficked Victims Especially in Brothel-Based and Street-Based Prostitution with Special Focus on Child Victims • Rehabilitation, Reintegration and Repatriation of Trafficked Victims with Special Focus on Child Victims • Cross-Border Trafficking: National and Regional Cooperation and Coordination • Legal Framework and Law Enforcement • Witness Protection and Support to Victims • Training, Sensitization, Education and Awareness • Methodology for Translating the Action Points into Action
  17. 17. 17 CHAPTER 7: CONCLUSION •There must be a clear line drawn between the trafficker and the victim. Victims must not be further penalized, and a distinction must be made between trafficking on the one hand, and prostitution or unsafe migration on the other, even if laws relating to border controls have been breached by such persons. •Rescue of trafficked victims should go along with effective rehabilitation and must be done in a gender sensitive way. The survivors of trafficking should have the right to exercise independent agency, rather than being compelled to do whatever the State thinks is best for them. •Civil remedies like torts claims and compensation must be created and enforced against traffickers or employers. •States must commit finances for more and better schemes to rehabilitate victims. •Witness protection must be explored to create an atmosphere free from fear within which a victim can testify. Anti-trafficking trainings must continue with renewed vigor for different implementing agencies. Trainings must be done continuously and at three levels- Basic/ Qualification Training Trainings to in-service personnel, and Trainings for those deputed to anti-trafficking squads/ police/ border controls •Employment and recruitment agencies must be closely monitored. •There must be greater awareness at all stages of source, demand and transit, and whistleblowers must be protected. •Corruption among the police, border officials and other government personnel must be addressed more firmly. •Community initiatives must be strengthened in order to ensure greater awareness on trafficking. Generating of labor opportunities locally and enforcement of labor standards nationwide will reduce the vulnerability of labor to trafficking.
  18. 18. 18 ACRONYMS AIR App. Bom BOMLR Cal CARA CEGAT Cr. LJ Cr. PC Cri. CSE CWC FIR HC IEA IPC ITPA JJA MCOCA MLJ MP NCT No. Para PUDR Punj. Rev. SAARC SC SCC Sec. SPO TPO u/s. UNODC UP v. WP All India Reporter Application Bombay Bombay Law Reporter Calcutta Central Adoption Resource Agency Customs Excise and Gold Control (Appellate) Tribunal Criminal Law Journal Criminal Procedure Code Criminal Commercial Sexual Exploitation Child Welfare Committee First Information Report High Court Indian Evidence Act, 1862 Indian Penal Code, 1860 Immoral Traffic (Prevention) Act, 1956 Juvenile Justice (Care and Protection of Children) Act, 2000 Maharashtra Control of Organised Crime Act, 1999 Maharashtra Law Journal Madhya Pradesh National Capital Territory Number Para Paragraph People’s Union for Democratic Rights Punjab Revision South Asian Association for Regional Cooperation Supreme Court Supreme Court Cases Section Special Police Officer Trafficking Police Officer Under Section United Nations Office on Drugs and Crime Uttar Pradesh Versus Writ Petition
  19. 19. 19 BIBLIOGRAPHY Books S.N. NAME OF BOOK NAME OF AUTHOR PUBLICATION YEAR 01 CONSTITUTION OF INDIA PANDEY J.N. CENTRAL LAW AGENCY ALLAHABAD 2008 02 CRIMINOLOGY & PENOLOGY PRANJAPEY N.V. CENTRAL LAW AGENCY ALLHABAD 2010 03 OUR CONSTITUTION KASHYAP S.C. ------- 2006 04 INTRODUCTION TO CONSTITUTION BASU D.D. WADHWA PUB. NAGPUR 2004 05 CONSTITTUION OF INDIA BAXI P.M. UNIVERSAL LAW AGENCY DELHI 2009 06 INDIAN CONSTITUTIONAL LAW JAIN M.P. LEXIS NEXIS PUB. 2005 Research Article 1. Research Study on Human Right Violation of Victims of Trafficking... 2. Human trafficking will not end until it ends in India 3. Human trafficking in India - 4. Human Trafficking - STOP Trafficking and Oppression of Women... 5. Human Trafficking Facts, Statistics, Truth, Research papers, reports... 6. Wither Childhood? Child Trafficking in India 7. Preventing and Combating the Trafficking of Girls in India ... – IDLO International legislation Protocol against The Smuggling of Migrants by Land, Sea and Air, Supplementing The United Nations Convention against Transnational Organized Crime, 2000 ILO Forced Labour Convention, 1930 ILO Abolition of Forced Labour Convention, 1957 ILO Minimum Age Convention, 1973 ILO Worst Forms of Child Labour Convention, 1999 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000 United Nations Global Initiative to Fight Human Trafficking (UN GIFT)
  20. 20. 20 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 Convention on the Rights of the Child, 1990 United Nations Office on Drugs and Crime Global Report on Trafficking in Persons, 2009 Coalition Against Trafficking in Women-International (CATW) Indian Legislation The Constitution of India, 1949 Indian Penal Code, 1860 Bonded Labor Abolition Act, 1976 The Juvenile Justice Act, 1986 The Child Labor Act, 1986 Immoral Trafficking Prevention Act (ITPA) 1956 Websites 1. legalserviceindia.com 2. mylaw.net 3. indiankanoon.com 4. lawyersclub.com 5. manupatra.com 6. lexusnexus.com 7. lawkhoj.com 8. supremecourtofindia.org 9. mylawnet.com

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