17168 (group no. 18) toc final draft

Rajiv Gandhi National University of Law, Punjab
CROSSING BORDERS AND BOUNDARIES: CHILD TRAFFICKING AND ITS
DIMENSIONS IN THE SOUTH ASIAN COUNTRIES
Submitted By:
Sukhman Sandhu
Roll no: 17168 Group no: 18
Submitted To:
Dr. Ivneet Kaur Walia
Assistant Professor of Law

Crossing Borders and Boundaries: Child Trafficking and its Dimensions in the South Asian Countries
Abstract
Child trafficking is a global phenomenon, which is not limited to any geographical region or
country. It is a gross violation of children’s rights. It infringes upon the child’s physical and
mental integrity, which is central to the experience of human dignity, and poses a significant
threat to the child’s life. Every year, millions of Asian men, women, and even children, venture to
new pastures from the village to the city and sometimes to another country. They are driven by
poverty, social exclusion or civil unrest. Their goal is to survive and earn money for their
families. For many disproportionately women and children these journeys end tragically, as they
fall into the hands of traffickers.
Trafficking in women and children is reported to be on the rise in Asia. Although accurate figures
are hard to come by and that any estimates have to be treated with cautions, the United States’
State Department, for example, estimates that between 1 to 2 million people are trafficked
worldwide, including 150,000 from South Asia and 225,000 from Southeast Asia. In the scale of
organized crime, human trafficking ranks third behind drugs and arms smuggling.
Child trafficking for the purposes of prostitution, being the third most lucrative trade practice, is
widely entertained all over the globe following a demand-supply cycle. Latest statistics reveals
that despite the preventive measures taken by international and national bodies, the cumulative
demand for children for prostitution are increasingly being met by the cartels. Therefore, the
paper will try to substantiate the problem related to child trafficking for the purposes of
prostitution in the South Asian region with the help of statistical data and reports available in the
public domain. Further, the paper will analyze the existing international conventions and legal
frameworks, and help determine the loopholes for the same. In conclusion, the paper will provide
possible suggestions to help curb the menace.
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TABLE OF CONTENTS
1. INTRODCUTION 4
2. INTERNATIONAL INSTRUMETNS 6
3. INDIAAND CHILD TRAFFICKING 8
4. THE GLOBAL REPORT ON TRAFFICKING IN PERONS, 2020 11
5. SUGGESTIONS & THE WAY FORWARD 13
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1. INTRODUCTION
As migration increases and borders open more worldwide, child sex exploitation is a growing
concern. Larger populations and poor economic conditions create opportunity to exploit people
in sex industries , while international travel provides consistent demand and a sense of
1
anonymity to the practices. Sex tourism generates billions of dollars annually , and some
2
national economies are partially dependent upon illicit proceeds from sex, including those
relating to exploitation of children . Domestic and international laws have been established to
3
protect children in theory, but in reality the industries proliferate, some with the assistance of law
enforcement personnel.
Children, adolescents, and young adults are lured, coerced, and forced into sex industries
worldwide. This is an unpleasant topic to discuss, but it is a visible part of life in many tourist
districts in developing countries. The topic itself may invoke a person's deepest fears and touch
on some people's most aggressive psychological defenses. Child Sex Tourism (CST) and related
illegal practices have been part of growth industries in recent years, and as such the problems not
only affect the poorest people, but have been so pervasive as to impact the daily lives of the
middle and upper classes . Prior research on the subject implicates a growing number of
4
international patrons in larger sex tourism industries.
As border crossing regulations became more relaxed and intercontinental flight more affordable
to middle and lower classes through the latter half of the 20th century, a robust sexual services
industry emerged in the tourism sector, and that has continued to expand into the 21st century .
5
In developing countries, poverty is rampant, licit job opportunities are scarce and provide much
Adam R. Tanielian, Illicit Supply and Demand: Child Sex Exploitation in South East Asia, 8 NTU L. REV. 97
1
(2013).
Kelly Cotter, Combating ChildSex Tourism in SoutheastAsia, 37 DENV. J. INT'L L. & POL'Y 493 (2009).
2
About Child Sex Exploitation, WORLD VISION (2009), http://www.worldvision.org/resources.nsf/main/
3
SexExploitation.pdf ( last acceded on May 13, 2021).
Tanielian, supra note 1.
4
Afrooz Kaviani Johnson, International Child Sex Tourism: Enhancing the Legal Response in South East Asia, 19
5
INT'l J. CHILD. Rts. 55 (2011).
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less income when compared to black market professions including prostitution. Illicit trades
often provide higher revenues and profit margins for people desperate or misfortunate enough to
work in them.
Citizens of wealthier nations visit destinations like those in the South East Asian Nations and
obtain various goods and services, including sex, for relatively low prices. Unscrupulous brothel
owners and procurers may create markets for child sexual services or merely supply a pre-
existing demand. Studies have shown that sales and consumption of such services in the Asian
region are prevalent. Some consumers, like those from the North American, may travel halfway
6
around the world to satisfy their urges and fantasies, or they may engage in opportunistic
encounters which were otherwise unplanned.
What is known about the sex industry is limited, as is the case with all of black markets . These
7
economies operate in secret, staffed by transients and they are not easily studied given the largely
criminal and generally immoral nature of illicit trades. The child sex industry is more shrouded
in secrecy and illusion than the adult trade, although the practice is present through recorded
history. Child sex exploitation (CSE) is most frequently involved in CST, and represents a
breakdown in community and family structure.
With the emergence of fields of psychology and modem forensics, experts have been able to
understand the processes through which CSE and CST proliferate and succeed, but the ratio of
interested professionals to community members and organized crime affiliates is still rather low.
Leaders have yet to find a way to treat these ills of civilizations which are saturated with poverty,
fear and disorder.
The high monetary value of any sex trade attracts criminals from associated and ancillary
industries. Some procurers specialize in offering child sex workers while others enter child
markets from adult markets due to financial opportunities abundant in CSE. With high levels of
demand on the spot and forecasted for the future, procurers can more easily rationalize engaging
Ibid.
6
Cooter, supra note 2.
7
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in and patronizing human trafficking rings to establish consistent supplies of child sex workers.
Enterprising foreign customers may also aspire to import sex slaves or other sex workers into
their home countries where high profits are available . Poorer nations have been the foci of
8
intergovernmental cooperation on prevention and reduction of international sex tourism, which is
frequently associated with CST and CSE. In spite of increasing attention to its associations with
CST, adult sex industries are thriving and patrons are exceedingly daring in their shady doings.
2. INTERNATIONAL INSTRUMENTS
The UN Convention on Rights of Children (1992)
The Convention is the most widely ratified human rights treaty in history. It has inspired
governments to change laws and policies and make investments so that more children finally get
the health care and nutrition they need to survive and develop, and there are stronger safeguards
in place to protect children from violence and exploitation. It has also enabled more children to
have their voices heard and participate in their societies .
9
Despite this progress, the Convention is still not fully implemented or widely known and
understood. Millions of children continue to suffer violations of their rights when they are denied
adequate health care, nutrition, education and protection from violence. Childhoods continue to
be cut short when children are forced to leave school, do hazardous work, get married, fight in
wars or are locked up in adult prisons . And global changes, like the rise of digital technology,
10
environmental change, prolonged conflict and mass migration are completely changing
childhood. Today’s children face new threats to their rights, but they also have new opportunities
to realize their rights.
Rahman, Shaikh Azizur. “Indian Children Stolen for Adop︎on.” The Na︎onal. Abu Dhabi Media, 29 June 2010. Web.
8
Feb. 2016.
Convention on the rights of the child, available at https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
9
(acceded on May 11, 2021).
Ibid.
10
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The hope, vision and commitment of world leaders in 1989 led to the Convention. It is up to
today’s generation to demand that world leaders from government, business and communities
end child rights violations now, once and for all. They must commit to action to make sure every
child, has every right.
The United Nations Convention against Transnational Organized Crime (2002)
It is the main international instrument in the fight against transnational organized crime. It
opened for signature by Member States at a High-level Political Conference convened for that
purpose in Palermo, Italy, on 12-15 December 2000 and entered into force on 29 September
2003 .
11
The Convention is further supplemented by three Protocols, which target specific areas and
manifestations of org anized crime: the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children; the Protocol against the Smuggling of Migrants by
Land, Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, their Parts and Components and Ammunition. Countries must become parties to the
Convention itself before they can become parties to any of the Protocols .
12
The Convention represents a major step forward in the fight against transnational organized
crime and signifies the recognition by Member States of the seriousness of the problems posed
by it, as well as the need to foster and enhance close international cooperation in order to tackle
those problems . States that ratify this instrument commit themselves to taking a series of
13
measures against transnational organized crime, including the creation of domestic criminal
offences (participation in an organized criminal group, money laundering, corruption and
UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE
11
PROTOCOLS THERETO, available at https://www.unodc.org/documents/middleeastandnorthafrica/organised-
crime (accused on May 12, 2021).
Ibid.
12
Ibid.
13
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obstruction of justice); the adoption of new and sweeping frameworks for extradition, mutual
legal assistance and law enforcement cooperation; and the promotion of training and technical
assistance for building or upgrading the necessary capacity of national authorities.
3. INDIAAND CHILD TRAFFICKING
Constitutional Perspective & Judicial Discourse
The constitution of India explicitly prohibits trafficking of human beings and forced labour, and
makes both offenses punishable under Article 23(1) of Indian Constitution. Article 23(1)
provides that ‘Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in accordance
with law’
The Supreme Court and the various High Courts have been taking up cases for strengthening of
the Institutional Machinery and various statutory agencies mandated by various laws. It has also
been monitoring various scheme of rehabilitation for trafficked victims. The court while
exercising its jurisdiction for enforcement of fundamental rights has given various landmark
judgements for the strengthening govt response in combating trafficking.
The Supreme Court has also set up various panels and committees to ensure that there are
various monitoring mechanism in place for the enforcement of rights of trafficked victims and
also to ensure Implementation of the law. Apart from this the courts have also been creating
mechanism for victim protection and various guidelines for victims rights in terms of court
procedure. The Supreme Court has also stepped in and issued guidelines to tackle the problem of
missing children. Some of the various proactive landmark judgement related to combating
Human trafficking are provided below:
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The judiciary has interpreted the aforesaid laws, in following landmark cases. It was
categorically stated in Public at Large v. The State of Maharashtra and Ors by H'onble High
14
Court of Bombay that the traffic in children is not confined only to what larger scale than
innocent Members of this House may be aware - in what is known as White Slave traffic,
namely, the buying and selling of young women including minor girl for export or import, from
one set of countries to another; and their permanent enslavement or servitude to an owner or
proprietor of the establishments of commercialized. In addition to this it was held by H'onble
Supreme Court that a proper cell be created by Women and Child Welfare Department of the
State of Maharashtra in order to rehabilitated victim of trafficking in society.
On the same thought of line, it was observed in the Prerana v. State of Maharashtra and Ors15
that children who are being likely to be grossly abused, tortured or sold for the purpose of sexual
abuse or illegal acts they will have to be produced before the Child Welfare Committee.
Furthermore, the H'onble High Court of Bombay gave directions to state for Rehabilitation these
victims of trafficking. In Vishal Jeet v. Union of India , H'onble Supreme Court issued directions
16
to the state Government for setting up rehabilitate homes for children found begging in streets
and also the minor girls pushed into 'flesh trade' to protective homes.
It was pointed out by H'onble Supreme Court in Bandhua Mukti Morcha v. Union of India and
17
others exploitation of the child must be progressively banned, other simultaneous alternatives to
the child should be evolved including providing education, health care, nutrient food, shelter and
other means of livelihood with self-respect. In Gaurav Jain Vs. Union of India and others
18
direction were given to Government by the by H'onble Supreme Court to rehabilitate children
and child prostitutes after conducting in depth study of matter .Furthermore juvenile homes
should be used for rehabilitating child prostitutes.
1997 (4) BomCR 171.
14
2003 BomCR Cri.
15
1990 AIR 1412.
16
1984 AIR 802.
17
AIR 1997 SC 3021.
18
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Law Prohibiting Trafficking of Children
The Indian Penal Code, 1860
The India Penal Code, 1860 contains various provisions related to child trafficking. For instance,
criminal penalties for kidnapping, buying or selling a minor for prostitution, abduction(including
for the purpose of compelling marriage), unlawful compulsory labour, importing/procuring girls
and buying or selling a person for slavery.
The immoral traffic prevention Act, 1956
It is the main legal instrument addressing the trafficking of human beings. The Act is focused on
trafficking for the purpose of prostitution. The prime objective has been to abolish traffic in
women and girls for the purpose of prostitution as an organized means of living.
The child labour (Prohibition and Regulation) Act, 1976
This Act prohibits the employment of children in the specific occupation which is set forth in
Part A of the schedule of the Act. As per the Act, no child can work for more than three hours and
the interval of rest for atleast a hour is stipulated. The Juvenile Justice (care and protection of
children) Act, 2000
The main focus of this Act is to provide for proper care, treatment and protection of child’s
development. Section 29 of the Act, empowers state governments to constitute child welfare
committee. Section gives these committees the ultimate authority to dispose the cases, Under
Section 34, state government can establish and maintain children’s homes for the care and
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protection of children independently and Section 39 is the prime objective of the children’s home
or shelter is the restoration and protection of childhood.
4. THE GLOBAL REPORT ON TRAFFICKING IN PERONS, 2020
Female victims continue to be particularly affected by trafficking in persons. In 2018, for every
10 victims detected globally, about five were adult women and two were girls. About one third of
the overall detected victims were children, both girls (19 per cent) and boys (15 per cent), while
20 per cent were adult men .
19
Traffickers target victims who are marginalized or in difficult circumstances. Undocumented
migrants and people who are in desperate need of employment are also vulnerable, particularly
to trafficking for forced labour . Criminals trafficking children target victims from extremely
20
poor households, dysfunctional families or those who are abandoned with no parental care. In
low-income countries, children make up half of the victims detected and are mainly trafficked for
forced labour (46 per cent) .
21
In higher income countries, children are trafficked mainly for sexual exploitation, forced
criminality or begging. As with previous economic crises, the sharp increase in unemployment
rates brought about by the COVID-19. The pandemic is likely to increase trafficking in persons,
particularly from countries experiencing the fastest and most persistent drops in employment.
Job seekers from these countries are likely to be more willing to take high risks in the hope of
improving their opportunities.
Global Report on Trafficking in Persons, 2020, available at https://www.unodc.org/documents/data-and-analysis/
19
tip/2021/GLOTiP_2020_15jan_web.pdf (acceded on May 12, 2021).
Raj, Dr. Pushkar. The Story of the Poor Who Lost Their Children. Rep. People’s Union for Civil Liber︎es, Feb.
20
2007. Web. Mar. 2016.
Ibid.
21
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The most vulnerable groups, even in wealthy nations, are those suffering the most during the
Pandemic Recession. Evidence suggests low earners have been hit the hardest by spiking
unemployment. As unemployment rates rise, increasing numbers are likely to be trafficked from
the poorest communities to those parts of the world recovering faster. Child victims of trafficking
for sexual exploitation (mainly girls) are identified in every part of the world, but largely
concentrated in Central America and the Caribbean and East Asia.
As with trafficking for forced labour , countries with lower GDP per capita typically detect
22
more children than adults among detected victims of sexual exploitation compared to countries
that record a higher GDP per capita. This is confirmed even among countries parts of the same
subregion. The age profile of the victims of trafficking for sexual exploitation changes according
to the national income.
Among children, girls aged between 14 and 17 years old appear to be particularly targeted . This
23
age pattern seems to be part of broader patterns of sexual and gender based violence that results
in teenage girls also being particularly targeted as victims of other crimes, from bullying to
sexual violence and murder. Girls’ risk of death as a result of violence increases from early to
late adolescence and the first incident of sexual violence occurs most often between the ages of
15 and 19.
N Pieper, M Segrave & R N Moore, ‘Editorial: What’s In A Name? Dis︎nguishing Forced Labour, Trafficking and
22
Slavery’, An︎-Trafficking Review, Issue 5, 2015, pp. 1-9, www.an︎traffickingreview.org (Accesed May 13, 2021).
Ibid.
23
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5. SUGGESTIONS AND THE WAY FORWARD
Child Trafficking is a very heinous Crime that not only violates human right but also child right
and the dignity of the child at the same time. It is a crime that disgrace the entire humanity and is
complex problem which requires very effective and stringent mechanism to control it. The Govt.
of each/every nation is putting all out efforts to combat child trafficking. They are not lacking in
their responsibility to put measures to fight against the crime.
But traffickers always find new device/means of trafficking the child as it is most profitable
business. This is the only reason that inspite of various legislative provisions introduced at both
Nationally/Internationally, child trafficking is very much prevalent across the globe. The anti-
trafficking measures need to be spread throughout the globe especially in trafficking prone area,
both rural and urban.
Poverty, Education and unemployment are the major factors behind the trafficking of children.
Hence, there is need to introduce effective and stringent legislative provisions for the upliftment
of poverty and for providing compulsory education to all children and steps should also be taken
to reduce unemployment.
Therefore, the Govt. of every country needs to play important role for introducing strict different/
various laws. Only introducing the laws will not solve the problem, there is need for proper
implementation of the laws as well. Moreover the education of child has to be made compulsory
for all children and their parents should take the responsibility for providing education to their
own child. Thus, In order to fight against trafficking government, and non-government
organization, civil society, pressure groups, International bodies, all have to play an important
role. Law alone cannot take care of all problems.
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Suggestions:
• India has not ratified the Trafficking Protocol and should make it a priority to do so. With
respect to existing legislation, the Penal Code’s prohibition on selling or buying a minor for
purposes of prostitution fails to include many other activities related to trafficking prohibited
by the Trafficking Protocol, such as recruiting, harbouring, transporting, transferring or
receiving trafficked children.
• Additionally, while the Indian Penal Code prohibits importing a foreign girl for purposes of
illicit sex, this provision offers no protection for girls from India or boys from any country. It
should also be noted that trafficking in children for purposes other than those stated above is
not criminalised, while the Trafficking Protocol defines trafficking in children and its related
acts for the purpose of exploitation, such as but not limited to prostitution, forced labour or
slavery.
• Indian legislators have proposed amendments to the Immoral Traffic Prevention Act that would
more specifically define and prohibit trafficking, but they have not yet been enacted as law.
There are also a number of cases currently pending before the Indian Supreme Court that could
strengthen the law in this area. Appropriate and effective implementation of existing laws is
essential in order to effectively protect children and remains a problem.
• State Advisory Committees must be made functional in all States to allow for the effective
implementation of India’s Plan of Action to Combat Trafficking and Commercial Sexual
Exploitation of Women and Children. Action planning at the state level should also be
expedited. The budget allocated for National Plan of Action implementation at both levels
must be increased. Child trafficking unfortunately remains a low priority issue for government
and state actors, who have shown little political will to seriously address this problem.
• The Government must increase efforts to identify trafficking victims among at-risk groups
such as children arrested for prostitution and illegal migrants, and at the same time improve the
prosecution and conviction of trafficking offenders. It is also important to establish a child-
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friendly legal process where victims of trafficking are not criminalised or punished in any way,
but are provided with proper legal counsel and guardianship.
• The Indian Government must recognise trafficking of boys for prostitution as an issue. In
India, adolescents and young males with feminine gender construction are victims of social
stigma and gross human rights violations. Sexual exploitation of children and young people is
often viewed as being limited to girls. Consequently, the prostitution of boys is little
understood, despite its existence in India. Legislation is required to ensure that boy children are
also protected. This should be followed up with police training to ensure appropriate
implementation of the law.
• To draft and submit the India country-report on the Optional Protocol on the sale of children,
child prostitution and child pornography (Optional Protocol). The Optional Protocol was
ratified by India in August 2005 and the country report was due to be submitted on August
2007.
• Law Enforcement Agencies need to be aware of the Special Act ITPA and understand
trafficking as not just a single crime or criminal activity but as multiple crimes committed
(referred to under the ITPA as the “Basket of Crimes”) on the child and accordingly prosecute
such cases.
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