Human Trafficking Legal Provisions and Government Responses

1. The trafficking of women, drugs and diamonds involve huge numbers of individuals and groups, there is a higher degree of transnationalism and trade patterns are very complex. There are thousands of human traffickers operating independently within relatively hierarchical groups and exploit tens of thousands of women and girls often in cross border operations that violate countries sovereignty. Under international law governments are obligated to protect their citizens from being trafficked through policies and programmes that aim at prevention and protection of victims.

2. A review of the laws and provisions of various countries provides an impression of the growing awareness and recognition of the issues relating to trafficking across the world. Most of these countries have made efforts to amend their existing laws or to introduce new legislation in consonance with international instruments.

3. Most European countries and US have adopted legislation against human trafficking. The same holds good for South and South East Asian countries including India and her neighbours. Infact in March 1998 in recognition of International Women’s Day President Clinton issued an Executive Memorandum on Steps to Combat Trafficking that pledges to combat ‘trafficking in women and girls with a focus on areas of prostitution, victim assistance and protection, and enforcement.’ The role that various government agencies will play is also outlined.

International Framework of Laws

An overview of select protocols and conventions that regulate trafficking at the international level is listed at Appendix E- International Framework of Laws Related to Trafficking.

Regional Legal Instruments

The framework of law in countries of South Asia is listed at Appendix F- Legal Framework in South Asian Countries.

India – Initiatives to combat trafficking

4. Prevention and com bating Trafficking of Human Beings has received the highest priority in India and as the problem is multi dimensional, we have adopted a multi-pronged strategy to address the issue. India’s approach to combating trafficking is holistic, participative and inclusive and is not just restricted to primary or direct intervention against trafficking but seeks to eradicate the menace through empowering the potential victims.

4.1 Constitutional and Legal Framework to address Trafficking

4.1.1 India has a fairly wide framework of laws enacted by the Parliament as well as some of the State legislatures in addition to the various constitutional provisions. These are listed in Appendix G –Legal Framework to Address Trafficking in India.

4.1.2 The premier legislation to tackle trafficking for commercial sexual exploitation is the Immoral Traffic (Prevention) Act, 1956. The Act is being amended in order to further strengthen the various provisions.

Salient features of the amendments to ITPA

Re-defi ne the age of the child from 16 to 18 years.

Deletion of sections, which re-victimize the victims.

In-Camera proceedings in Courts to safeguard privacy of victims.

Enhanced punishment for traffi ckers, brothel keepers, pimps etc.

Punishment for persons who visit brothels for commercial sexual exploitation.

Defi nition of ‘traffi cking’ adopted from the UN Protocol.

Setting-up of Centre and State nodal authorities in the States for preventing and combating offence of traffi cking through coordination, investigation, rescue, rehabilitation, judicial support, research and training.

4.2 International Commitments

4.2.1 India is a signatory to a number of international instruments such as the Convention on the Rights of the Child (CRC) and its Optional Protocols; Convention on Elimination of all Forms of Discrimination against Women (CEDAW); UN Convention against Transnational Organized Crime with it’s UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplementing above Convention and Millennium Development Goals.

4.2.2 It is also part of major SAARC initiatives for South Asia which include—SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution; SAARC Convention on Regional arrangements for Promotion of Child Welfare in South Asia; SAARC Charter where trafficking issues are to be addressed at regional level.

4.3 Institutional Mechanisms

India has a federal set up where law enforcement and public order are primarily State subjects. However, the Central Government too shares responsibility with the States for tackling organized crime such as commercial sexual exploitation rests with the Ministry of Women and Child Development, while the Ministry of Labour deals with all matters related to labour. The Ministry of Home Affairs is responsible for ensuring the enforcement of the various legislations related to the criminal activity of trafficking An example of Centre State collaboration is the high-level Central Advisory Committee to Combat Trafficking for Commercial Sexual Exploitation to deliberate on various aspects on trafficking and recently has formulated Blue Print for Action in the area of Inter-State Rescue Protocol, Prevention, Rehabilitation, Health, Legislation and Management Information System.

The Ministry of Social Justice has taken initiatives to prepare a user-friendly system for speedy and effective restoration of missing, abducted/kidnapped and runaway children to their families. As there is a direct linkage between missing persons and trafficking. Therefore, a concerted effort to address the issue of missing women and children will be of immense use and help in preventing and combating trafficking.

The Government of India has also set-up autonomous organizations such as National Human Rights Commission, National Commission for Women and National Commission for Protection of Child Rights, which seek to protect the rights of women and children.

Policies and Protocols

National Plan of Action to Prevent and Combat Human Trafficking with special focus on Children and Women was formulated in 1998, with the objective of mainstreaming and re-integrating women and child victims of commercial sexual exploitation in to the community.

The National Plan of Action for Children, 2005 commits itself to ensure that all rights of all children up to the age of 18 years are protected.

National Policy for Empowerment of Women, 2001 aims to bring about the advancement, development and empowerment of women.

Protocol for Pre-rescue, Rescue and Post-rescue Operations of Child Victims of Trafficking for the Purpose of Commercial Sexual Exploitation provides guidelines for enforcement agencies and NGOs involved in the rescue of victims from their place of exploitation, medical and legal procedures to be followed and rehabilitative measures to be provided to the victims.

Protocol on Prevention, Rescue, Repatriation and Rehabilitation of Trafficked and Migrant Child Labour aims to ensure smooth rescue, repatriation and rehabilitation of trafficked and migrant child labour.

A blue print of action in interalia the following areas has also been developed:

Protocol on Inter-State Rescue and Post-rescue Activities Relating to Trafficked Persons providing guidelines to the State Governments on the inter-state rescue operations, the modalities involved, precautions to be undertaken and responsibility of various stakeholders in providing services to the rescued victim.

Prevention of Trafficking of Women and Children – It provides for various steps to be undertaken to prevent trafficking of women and children for commercial sexual exploitation and includes formation of adolescent groups and community vigilance groups, anti-trafficking regional networks, appropriate interventions that should be taken up in brothel areas to prevent second-generation prostitution, special measures targeting those communities traditionally involved in commercial sex work and rehabilitation of women who have become old to carry on the profession and are in need of care and protection.

Rehabilitation of Victims of Traffi cking – It provides for action points related to areas of rehabilitation such as care and support programmes, community based rehabilitation, custody of victims, education and skill building of victims and their ultimate rehabilitation in the society.

Human Trafficking Management Information System (HTMIS) provides a format for enforcement agencies to collect data on trafficked victims and traffickers.

Programmes and Schemes

The Ministry of Women and Child Development runs Shelter homes (Swadhar and Short Stay Homes) for women in difficult circumstances. These also cater to rescued trafficked victims and provides for shelter, food, clothing for women and children, counseling, clinical, medical, legal and other support, training and economic rehabilitation and helpline facilities.

A relatively recent sheme known as ‘Ujjawala’ (Radiance of light) is a Comprehensive Scheme for Prevention of Trafficking and Rescue, Rehabilitation and Re-integration of Victims of Trafficking and Commercial Sexual Exploitation.

Dhanalakshmi, is a conditional cash transfer scheme for girl child with insurance cover linked to various milestones in a girls life. It is expected that the scheme would ensure that the girl child is not only born but also that she is enrolled and retained in school which would decrease her vulnerability to traffi cking, child labour, child marriage etc.

The ‘Integrated Child Protection Scheme’ (ICPS) scheme aims to provide for children in conflict with law and children in need of care and protection improved institutional care, quality non-institutional, adoption and alternative care, counselling and family support, training and capacity building, CHILDLINE services ,child tracking system and website for missing children.

While programs and schemes to rehabilitate and reintegrate victims of trafficking are no doubt important, the mechanisms to prevent the occurrence of trafficking or to create an enabling environment to prevent trafficking is equally if not more important. This is particularly important as trafficking is essentially a developmental issue.

Economic Empowerment of women Poverty makes women and children vulnerable to trafficking. Hence poverty alleviation programs feature high in the list to combat trafficking and at the same time achieve economic empowerment. India has embarked on massive poverty alleviation and income generation programs where women beneficiaries are significantly involved. The National Rural Employment Guarantee Scheme ensures at least 100 days of guaranteed wage employment in a financial year with 30% reservation for women beneficiaries. Support to Training and Employment Programme for Women provides updated skills and new knowledge to poor and asset less women in the traditional sectors such as dairy development, animal husbandry sericulture, handloom and social forestry.

The Self Help Group (SHG) movement and linking such groups to credit facilities especially micro credit facilities is effectively used in India for both poverty reduction and a conduit for routing a wide range of social development messages and schemes.. The scheme of Swayamsidha Priyadarshini etc are some such schemes based on mobilization of women into Self-Help Groups. The Rashtriya Mahila Kosh an exclusive micro credit agency for women which provides credit to poor and asset-less women in the informal sector.

Social and Political Empowerment of Women

Economic empowerment of women cannot deliver desired outcomes unless judiciously combined with social and political empowerment. Education was made a Fundamental Right through the 86th Constitutional Amendment. Universalization of Elementary Education, namely the Sarva Shiksha Abhiyan, has a pronounced gender focus, and creates an enabling environment for encouraging more and more girls to attend schools with various incentives. The National Rural Health Mission aims to improve the availability of and access to equitable, affordable and effective health care to rural people especially poor women and children.

To tackle discrimination in the provision of adequate and timely nutrition the National Nutrition Mission addresses the problems of malnutrition in a holistic manner. The Food and Nutrition Board of the MWCD has regional centers and community food and nutrition education units for mass awareness, nutrition education etc. for women and children.

The program for Integrated Child Development Services is the largest child care program where children below 6 years and their mothers are provided nutritional and immunization health inputs. In this process, the programme enables an in-built tracking system to ensure the well-being and safety of the beneficiaries. Adolescent girls are highly prone to many forms of violence and abuse especially trafficking . Specific interventions for the welfare of these girls is undertaken through Nutrition Programme for Adolescent Girls where under-weight girls are provided with additional food grains per month. Similarly the Kishori Shakti Yojana program aims at holistic improvement of these girls and equipping them with vocational skills so that they can be gainfully engaged.

Political empowerment-India’s concern for safeguarding the democratic rights and privileges of women finds its best expression in the Constitution of India with provisions which empower the State to make affirmative discrimination in favour of women. In a significantly gender empowering measure, the 73rd and 74th Amendments to the Constitution, enabled a 1/3rd reservation of seats for women in the local governance or Panchayat Raj Institutions in the rural and urban areas. These special measures ushered in nearly 1 million women in the electoral fora and decision-making bodies.

Gender Budgeting -To ensure that all facets and sectors of the economy are gender sensitive the Government has initiated the process of Gender budgeting which encompasses incorporating a gender perspective and sensitiveness in all sectors – be it economic or social.

Training and Capacity Building

As the tasks for combating trafficking is to be performed by multi stakeholders, the government has laid stress on training and capacity building of different stakeholders such as NGOs, police, Social Workers, Medical Officers, Judiciary and Counselors with comprehensive resource material and communication strategies.

Cross border

One of the concerns of the Government of India is the problem associated with cross-border trafficking. The Regional Task Force of SAARC for implementation of the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution met for the first time in New Delhi on 26th June, 07 in New Delhi. The decisions taken in the SAARC Meeting included sharing best practices, setting up a toll free phone number for use of victims, capacity building and training programmes, wherever possible harmonizing national legislations to tackle trafficking and development of Standard Operating Procedures (SOP) for operationalising the Convention, including repatriation of victims.

To address the issue of cross-border trafficking between India and Bangladesh, the Ministry of Women and Child Development in collaboration with Ministry of Home Affairs, Ministry of External Affairs, UNICEF and Bangladesh Counterparts are in the process for formulating and finalizing a victim friendly Roadmap and Joint Plan of Action for safe, humane and quick repatriation of trafficked victims. Under this, both Indian and Bangladesh have identified that their respective Ministry of Home Affairs would be the focal point for repatriation of trafficked victims. The roadmap and joint plan of action would include§streamlining procedures and processes for safe and quick repatriation of cross border victims to and from Bangladesh;

develop uniform checklists/ proformas /guidelines/protocols/case management systems for identification/ registration /interviewing; make appropriate provisions for the care and maintenance of children during the repatriation process; promote exchange of technical skills, especially of skill training/capacity building; set up safe, secure transit points /transit camps at border with adequate physical facilities.

Given the seriousness of the trans-border trafficking scenario on the borders, interface has been organised between the law-enforcement officials, NGOs, etc. at various places. For example, a meeting are held between Indian officials and the appropriate authorities in Nepal and Bangladesh.

Holistic Approach to Trafficking

To formulate a more holistic policy and program for trafficking in persons which will incorporate all forms of trafficking (such as sexual exploitation, child labour, bonded labour, organ trade etc) and enable an integrated approach to tackle the problem, the MWCD in collaboration with Ministry of Home Affairs, National Human Rights Commission and National Commission for Women is formulating an ‘Integrated Plan of Action to Prevent and Combat Trafficking of Human Beings, with special focus on Women and Children’.

International Cooperation

You will all agree that International collaborations, co-operations and sharing of knowledge and information are key to address the global ramifications of trafficking. In all our efforts, our UN partners have been very proactive.

The UNODC GIFT programme aims in the South Asia Region to heighten the awareness on the various facets of trafficking. The ‘Delhi Declaration’ as a collaborative effort between GOI and UNODC has avery strong commitment to protect all children from sexual exploitation and stringent measures against sex selection and violence against the girl child, evolve a synergistic approach in dealing with trafficking issues, reduce demand for prostitution, use of child labour, forced labour and to strengthen the collaborative efforts of NGOs, local Governments, and other institutions to prevent all forms of trafficking.

In conclusion, it can be stated that the Union Government and the state governments have taken several initiatives to address the various issues related to the trafficking of women and children. The Plan of Action by the Union Government and their monitoring of the implementation of the programmes in the states have made a notable impact in addressing several aspects of prevention, protection and prosecution. There is clearly an undercurrent of gender discrimination and consequent exploitation in human trafficking. This can be addressed only if the issue of gender is integrated with schemes, programmes and policies in all the relevant sectors. Counter-trafficking measures, especially those relating to prevention and rehabilitation, should be integrated with the policies and programmes of all the related departments. Only such a holistic approach can, in the long run, provide the required empowerment to women and children, especially those in vulnerable circumstances, and equip them with safe livelihood options, rights awareness and guarantee against exploitation.