HUMAN RGHTS AND GENDER JUSTICE

JUDICIAL VIEW ON HUMAN TRAFFICKING

HUMAN TRAFFICKING … CURSE TO HUMANITY By Sadhana

The concept of human trafficking denotes a trade in something that should not be traded in. To be born poor in our world is to be born vulnerable and in danger of exploitation. So many people around the world are being trafficked for labour and sexual exploitation each year. Trafficking is a lucrative industry and also the fastest growing source profit or organised crime. Those persons who suffered, are held against their will through acts of coercion and forced to work or provide services to the trafficker or others and amounts to a brutal butchering of their invaluable right to have education, right to live a normal human life, right to liberty and security, etc.

Human trafficking outside India, although illegal under Indian Law, remains a significant problem. People are frequently illegally trafficked through India for the purpose of commercial sexual exploitation and forced/bonded labour. Human trafficking in India results in women suffering from both mental and physical issues include disorders such as PTSD, depression, anxiety, HIV, TB and other STDs. India has “serious human right concerns”. Civil society group face harassment and government critics face intimation and lawsuits. Free speech has come under attack both from the state and interests groups. Human trafficking happens because of simple concept with the traffickers believe in that human body is expendable, reusable “commodity”. A society that fails to grow and preserve the human dignity, on the other hand the Indian Judicial has very conscious of that simple fact is amply reflected in the orders and the judgements that the courts has handed down in line with the contemporary times to ensure that the every Indian human being gets a fair shot at the kind of life they dreams for themselves hence in the case BACHPAN BACAHO ANDOLAN vs. UNION OF INDIA (2014) 16 SCC 616 supreme court directed that if a missing child is not recovered within four months from the date of filing of the first information report, the matter may be forwarded to the anti-human trafficking unit in each state in order to enable the said unit to take up more intensive investigation regarding missing child.

The proposed paper seeks to trace the history of judicial verdicts that formed the sociological, jurisprudential and legislative bedrock on which the rights of the human in India stand today. This paper focused on judicial pronouncements and how they shaped the legal framework for the effective protection of humans.

However, despite consistent and largely effective judicial interventions, there is a lot remain to get achieve for humans. The proposed paper also makes brief recommendations to achieve the aforesaid goals.

 

• INTRODUCTION

 

Human trafficking is a crime against the person because of the violation of the victim’s rights of movement through coercion and because of their commercial exploitation. Human trafficking is the trade in people, especially women and children, and does not necessarily involve the movement of the person from one place to another. It is a form of modern slavery-a multi-billion dollar criminal industry that denies freedom to 20.9 million people around the world. And no matter where you live, chances are it’s happening nearby. From the girl forced into prostitution at a truck stop, to the man discovered in a restaurant kitchen, stripped of his passport and held against his will. All trafficking victims share one essential experience: THE LOSS OF FREEDOM.

New Delhi:  More than 8,000 cases of human trafficking were reported in India in 2016, while 23,000 victims, including 182 foreigners, were rescued during the year, according to National Crime Records Bureau data.

In case PRERNA vs. UNION OF INDIA & OTHERS the petition highlights the government’s failure to implement set laws regarding the rescue and rehabilitation of trafficking victims. In last a favorable decision by the Supreme Court will be a big step in addressing a legislative gap in efforts to eliminate trafficking on a national level. Thereby saving many  women and children from a life of sexual servitude by providing them with the protection, assistance and skills they need to start a new life.

 

• INDIA ANTI HUMAN TRAFFICKING PORTAL

 

In India, the trafficking in persons for commercial sexual exploitation, forced labor, forced marriages and domestic servitude is considered an organized crime. The Government of India applies the Criminal Law (Amendment) Act 2013, active from 3 February 2013, as well as Section 370 and 370A IPC, which defines human trafficking and “provides stringent punishment for human trafficking; trafficking of children for exploitation in any form including physical exploitation; or any form of sexual exploitation, slavery, servitude or the forced removal of organs.

Shri R.P.N. Singh, India’s Minister of State for Home Affairs, launched a government web portal, the Anti-Human Trafficking Portal, on 20 February 2014. The official statement explained that the objective of the online resource is for the “sharing of information across all stakeholders, States/UTs [Union Territories] and civil society organizations for effective implementation of Anti Human Trafficking measures.” The key aims of the portal are:

• Aid in the tracking of cases with inter-state ramifications.
• Provide comprehensive information on legislation, statistics, court judgements, United Nations Conventions, details of trafficked people and traffickers and rescue success stories.
• Provide connection to “Track child”, the National Portal on Missing Children that is operational in many states.

 

• UNDERSTANDING THE CONTEMPORARY FORMS OF SLAVERY

 

Child Soldiers

Child soldiering is a manifestation of human trafficking when it involves the unlawful recruitment or use of children – through force, fraud, or coercion – as combatants or for labor or sexual exploitation by armed forces. Perpetrators may be government forces, paramilitary organizations, or rebel groups. Many children are forcibly abducted to be used as combatants. Others are unlawfully made to work as porters, cooks, guards, servants, messengers, or spies. Young girls can be forced to marry or have sex with male combatants. Both male and female child soldiers are often sexually abused and are at high risk of contracting sexually transmitted diseases.

Sex Trafficking

When an adult is coerced, forced, or deceived into the sex trade – or maintained in the sex trade through coercion – that person is a victim of trafficking. All of those involved in recruiting, transporting, harboring, receiving, or obtaining the person for that purpose have committed a trafficking crime. Sex trafficking also can occur within debt bondage, as women and girls are forced to continue in prostitution through the use of unlawful “debt” purportedly incurred through their transportation, recruitment, or even their crude “sale” – which exploiters insist they must pay off before they can be free. It is critical to understand that a person’s initial consent to participate in prostitution is not legally determinative: if they are thereafter held in service through psychological manipulation or physical force, they are victims of trafficking.

In case VISHAL JEET vs. UNION OF INDIA H’onble Supreme Court issued directions 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.

Forced Labour

Also known as involuntary servitude, forced labor may result when unscrupulous employers exploit workers made more vulnerable by high rates of unemployment, poverty, crime, discrimination, corruption, political conflict, or cultural acceptance of the practice. Immigrants are particularly vulnerable, but individuals also may be forced into labor in their own countries. Female victims of forced or bonded labor, especially women and girls in domestic servitude, are often sexually exploited as well.

Forced Child Labour

Most international organizations and national laws recognize children may legally engage in certain forms of work. There is a growing consensus, however, that the worst forms of child labor, including bonded and forced labor of children, should be eradicated. A child can be a victim of human trafficking regardless of the location of that nonconsensual exploitation. Indicators of possible forced labor of a child include situations in which the child appears to be in the custody of a non-family member who has the child perform work that financially benefits someone outside the child’s family and does not offer the child the option of leaving.

In case BANDHUA MUKTI MORCHA vs. UNION OF INDIA & OTHERS exploitation of the child must be progressively banned, other simultaneous alternatives to the child be evolved including providing education, health care, nutrient food, shelter and other means of livelihood with self respect.

Bonded Labour

One form of force or coercion is the use of a bond, or debt. Often referred to as “bonded labor” or “debt bondage,” the practice has long been prohibited under U.S. law by the term peonage, and the Palermo Protocol requires its criminalization as a form of trafficking in persons. Workers around the world fall victim to debt bondage when traffickers or recruiters unlawfully exploit an initial debt the worker assumed as part of the terms of employment. Workers also may inherit debt in more traditional systems of bonded labor. In South Asia, for example, it is estimated that there are millions of trafficking victims working to pay off their ancestors’ debts.

In case of  NEERAJA CHAUDHARY vs. STATE OF M.P. it became the duty of court to see that the legislative provisions regarding their rehabilitation are properly implemented and these poor and miserable persons are allowed to enjoy the benefit which the law and constitution of land afford to them.

Involuntary Domestic Servitude

A unique form of forced labor is the involuntary servitude of domestic workers, whose workplaces are informal, connected to their off-duty living quarters, and not often shared with other workers. Such an environment, which often socially isolates domestic workers, is conducive to non-consensual exploitation since authorities cannot inspect private property as easily as they can inspect formal workplaces. Investigators and service providers report many cases of untreated illnesses and, tragically, widespread sexual abuse, which in some cases may be symptoms of a situation of involuntary servitude.

Trafficking of children

Trafficking of children involves the recruitment, transportation, transfer, harboring, or receipt of children for the purpose of exploit commercial sexual exploitation of children can take many forms, including forcing a child into prostitution or other forms of sexual activity or child pornography. Child exploitation may also involve forced labour or services, slavery or practices similar to slavery, servitude, the removal of organs, illicit international adoption, trafficking for early marriage, recruitment as child soldiers, for use in begging .

Traffickers in children may take advantage of the parents’ extreme poverty. Parents may sell children to traffickers in order to pay off debts or gain income, or they may be deceived concerning the prospects of training and a better life for their children. They may sell their children into labor, sex trafficking, or illegal adoptions. Sex trafficking has devastating consequences for minors, including long-lasting physical and psychological trauma, disease (including HIV/AIDS), drug addiction, unwanted pregnancy, malnutrition, social ostracism, and possible death.

In case PUBLIC AT LARGE vs. STATE OF MAHARSHTRA & OTHERS the H’onble Supreme Court stated that a roper cell be created by women and child welfare department of the state of Maharashtra in order to rehabilitated the victim of trafficking in society.

Forced marriage

A forced marriage is a marriage where one or both participants are married without their freely given consent. Servile marriage is defined as a marriage involving a person being sold, transferred or inherited into that marriage, “Child trafficking for forced marriage is simply another manifestation of trafficking and is not restricted to particular nationalities or countries”.

A forced marriage qualifies as a form of human trafficking in certain situations. If a woman is sent abroad, forced into the marriage and then repeatedly compelled to engage in sexual conduct with her new husband, then her experience is that of sex trafficking. If the bride is treated as a domestic servant by her new husband and/or his family, then this is a form of labor trafficking.

Labour trafficking

Labour trafficking is the movement of persons for the purpose of forced labor and services. It may involve bonded labor, involuntary servitude, domestic servitude, and child labor. Labor trafficking happens most often within the domain of domestic work, agriculture, construction, manufacturing and entertainment; and migrant workers and indigenous people are especially at risk of becoming victims. People smuggling operations are also known to traffic people for the exploitation of their labour, for example, as transporters.

Trafficking for organ trade

Trafficking in organs is a form of human trafficking. It can take different forms. In some cases, the victim is compelled into giving up an organ. In other cases, the victim agrees to sell an organ in exchange of money/goods, but is not paid (or paid less). Finally, the victim may have the organ removed without the victim’s knowledge (usually when the victim is treated for another medical problem/illness – real or orchestrated problem/illness). Migrant workers, homeless persons, and illiterate persons are particularly vulnerable to this form of exploitation. Trafficking of organs is an organized crime, involving several offenders:

• the recruiter
• the transporter
• the medical staff
• the middlemen/contractors
• the buyers

Trafficking for organ trade often seeks kidneys. Trafficking in organs is a lucrative trade because in many countries the waiting lists for patients who need transplants are very long.

 

• CONSEQUENCES

 

Traffickers use physical, emotional, and psychological abuse to control and exploit their victims.

For victims

Sex trafficking victims face threats of violence from many sources, including customers, pimps, brothel owners, madams, traffickers, and corrupt local law enforcement officials. Raids as an anti-sex trafficking measure have the potential to help, and also to protect sex trafficked victims. Because of their potentially complicated legal status and their potential language barriers, the arrest or fear of arrest creates stress and other emotional trauma for trafficking victims. Victims may also experience physical violence from law enforcement during raids. The challenges facing victims often continue of course, after their experience of “rescue” or removal from coercive sexual exploitation. In addition to coping with their past traumatic experiences, former trafficking victims often experience social alienation in the host and home countries. Stigmatization, social exclusion, and intolerance often make it difficult for former victims to integrate into their host community, or to reintegrate into their former community. Accordingly, one of the central aims of protection assistance, is the promotion of (re)integration. Too often however, governments and large institutional donors offer little funding to support the provision of assistance and social services to former trafficking victims. As the victims are also pushed into drug trafficking, many of them face criminal sanctions also.

Psychological

Short-term impact – psychological coercion

The use of coercion by perpetrators and traffickers involves the use of extreme control. Perpetrators expose the victim to high amounts of psychological stress induced by threats, fear, and physical and emotional violence. Tactics of coercion are reportedly used in three phases of trafficking: recruitment, initiation, and indoctrination. During the initiation phase, traffickers use foot-in-the-door techniques of persuasion to lead their victims into various trafficking industries. This manipulation creates an environment where the victim becomes completely dependent upon the authority of the trafficker. Traffickers take advantage of family dysfunction, homelessness, and history of childhood abuse to psychologically manipulate women and children into the trafficking industry.

One form of psychological coercion particularly common in cases of sex trafficking and forced prostitution is Stockholm syndrome. Many women entering into the sex trafficking industry are minors whom have already experienced prior sexual abuse. Traffickers take advantage of young girls by luring them into the business through force and coercion, but more often through false promises of love, security, and protection. This form of coercion works to recruit and initiate the victim into the life of a sex worker, while also reinforcing a “trauma bond”, also known as Stockholm syndrome. Stockholm syndrome is a psychological response where the victim becomes attached to his or her perpetrator.

The goal of a trafficker is to turn a human being into a slave. To do this, perpetrators employ tactics that can lead to the psychological consequence of learned helplessness for the victims, where they sense that they no longer have any autonomy or control over their lives. Traffickers may hold their victims captive, expose them to large amounts of alcohol or use drugs, keep them in isolation, or withhold food or sleep. During this time the victim often begins to feel the onset of depression, guilt and self-blame, anger and rage, and sleep disturbances, PTSD, numbing, and extreme stress. Under these pressures, the victim can fall into the hopeless mental state of learned helplessness.

For victims of specifically trafficked for the purpose of forced prostitution and sexual slavery, initiation into the trade is almost always characterized by violence Traffickers hunt down their victims and employ practices of sexual abuse, torture, brainwashing, repeated rape and physical assault until the victim submits to his or her fate as a sexual slave. Victims experience verbal threats, social isolation, and intimidation before they accept their role as a prostitute.

For those enslaved in situations of forced labor, learned helplessness can also manifest itself through the trauma of living as a slave. Reports indicate that captivity for the person and financial gain of their owners adds additional psychological trauma. Victims are often cut off from all forms of social connection, as isolation allows the perpetrator to destroy the victim’s sense of self and increase his or her dependence on the perpetrator.

Long-term impact

Human trafficking victims may experience complex trauma as a result of repeated cases of intimate relationship trauma over long periods of time including, but not limited to, sexual abuse, domestic violence, forced prostitution, or gang rape. Complex trauma involves multifaceted conditions of depression, anxiety, self-hatred, dissociation, substance abuse, self-destructive behaviors, medical and somatic concerns, despair, and revictimization. Psychology researchers report that, although similar to posttraumatic stress disorder (PTSD), Complex trauma is more expansive in diagnosis because of the effects of prolonged trauma.

Victims of sex trafficking often get “branded” by their traffickers or pimps. These tattoos usually consist of bar codes or the trafficker’s name or rules. Even if a victim escapes their trafficker’s control or gets rescued, these tattoos are painful reminders of their past and results in emotional distress. To get these tattoos removed or covered-up can cost hundreds of dollars.

Psychological reviews have shown that the chronic stress experienced by many victims of human trafficking can compromise the immune system. Several studies found that chronic stressors (like trauma or loss) suppressed cellular and humoral immunity. Victims may develop STDs and HIV/AIDS. Perpetrators frequently use substance abuse as a means to control their victims, which leads to compromised health, self-destructive behavior, and long-term physical harm. Furthermore, victims have reported treatment similar to torture, where their bodies are broken and beaten into submission.

Children are especially vulnerable to these developmental and psychological consequences of trafficking due to their age. In order to gain complete control of the child, traffickers often destroy physical and mental health of the children through persistent physical and emotional abuse. Victims experience severe trauma on a daily basis that devastates the healthy development of self-concept, self-worth, biological integrity, and cognitive functioning. Children who grow up in constant environments of exploitation frequently exhibit antisocial behavior, over-sexualized behavior, self-harm, aggression, distrust of adults, dissociative disorders, substance abuse, complex trauma, and attention deficit disorders. Stockholm syndrome is also a common problem for girls while they are trafficked, which can hinder them from both trying to escape, and moving forward in psychological recovery programs.

Although 98% of the sex trade is composed of women and girls there is an effort to gather empirical evidence about the psychological impact of abuse common in sex trafficking upon young boys. Boys often will experience forms of post-traumatic stress disorder, but also additional stressors of social stigma of homosexuality associated with sexual abuse for boys, and externalization of blame, increased anger, and desire for revenge.

HIV/AIDS

Sex trafficking increases the risk of contracting HIV/AIDS. The HIV/AIDS pandemic can be both a cause and a consequence of sex trafficking. On one hand, child-prostitutes are sought by customers because they are perceived as being less likely to be HIV positive, and this demand leads to child sex trafficking. On the other hand, trafficking leads to the proliferation of HIV, because victims, being vulnerable and often young/inexperienced, cannot protect themselves properly, and get infected.

 

•  ANTI-TRAFFICKING INITIATIVES

 

One of the organizations taking the most active part in the anti-trafficking is the United Nations. In early 2016 the Permanent Mission of the Republic of Kazakhstan to the United Nations held an interactive discussion entitled “Responding to Current Challenges in Trafficking in Human Beings”.

One of the current efforts being done to combat human trafficking is an app called TraffickCam. This app was created by the Exchange Initiative and researchers at Washington University. TraffickCam was launched on June 20, 2016 and enables anyone to take photos of their hotel rooms, which then gets uploaded to a large database of hotel images. Since human trafficking victims are often found in hotel rooms for online advertisements, law enforcement and investigators can use these photos to help find and prosecute traffickers.

Anti-trafficking awareness and fundraising campaigns constitute a significant portion of anti-trafficking initiatives. The 24 Hour Race is one such initiative that focuses on increasing awareness among high school students in Asia. The Blue Campaign is another anti-trafficking initiative that works with the U.S. Department of Homeland Security to combat human trafficking and bring freedom to exploited victims.

In case of BACHPAN BACAHO ANDOLAN vs. UNION OF INDIA  supreme court directed that if a missing child is not recovered within four months from the date of filing of the first information report, the matter may be forwarded to the anti-human trafficking unit in each state in order to enable the said unit to take up more intensive investigation regarding missing child.

 

• LANDMARK RULINGS OF THE COURTS IN INDIA ON COMBATTING HUMAN TRAFFICKING

 

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. The court while exercising its jurisdiction for enforcement of fundamental rights has given various landmark judgements for the strengthening government 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 Some of the various proactive landmark judgments related to combating Human trafficking are provided below:

 

• Guidelines for Inter Country adoptions laid down to check trafficking through adoption rackets-

 

IN LAXMI KANT PANDEY VS UNION OF INDIA

The Supreme Court while supporting inter-country adoption stated  it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the child, great care has to be exercised in permitting the child to be given in adoption to foreign parents so, the court has laid down procedures to check and monitor inter country adoptions so that the children don’t end up trafficked.

 

• Release Certificates to be provided to Bonded Labour who are Liberated-

 

SANTHAL PARGANA ANTYODAYA ASHRAM VERSUS STATE OF BIHAR AND OTHERS

The Collector should issue a release certificate to each of the persons so released. Each of the released bonded labourers shall be paid a sum of Rs.3000-00 by way of interim relief.  The released bonded labourers must be rehabilitated by the State government on a permanent basis. Implementation of the rehabilitation programme should not wait on account of the pendency of the present proceeding in the apex Court. The State government will submit within 2 weeks from the date of receipt of the order a report setting out the permanent rehabilitation programme formulated by them for scrutiny and approval by the Court.

 

• NHRC made the Nodal Agency for Monitoring the Rehabilitation of Bonded Labours in the Country-

 

PUBLIC UNION FOR CIVIL LIBERTIES V. STATE OF TAMIL NADU & OTHERS

The Apex Court directed that the National Human Rights Commission (NHRC) should be involved in monitoring the pace and progress of implementation  of the law, national policy and programme of action as also directions of the apex Court issued from time to time. The NHRC is monitoring the bonded labour situation in the country.

M C MEHTA VS STATE OF TAMIL NADU

In this Public Interest Litigation the Supreme Court laid down various measures which needs to be taken in order provide support to the child labour and his family. The Court said from each offending persons employing child labour their premises needs to be sealed and they be asked to provide fine of Rs 20,000 which will be used for the Rehabilitation of the Child victim

 

• Coordination Committee at the Central Government Level formed to Frame the National Plan of Action.

 

GAURAV JAIN V. UNION OF INDIA

In this case it was clearly stating the violation of Right to Life of trafficked victims the Supreme Court ordered the Union Government to form a Committee to frame the National Plan of Action and to implement it in mission mode.

 

• Crimes of violence upon women need to be severely dealt with

 

STATE OF KARNATAKA V. KRISHNAPPA

While overruling the reduction of sentence by the High Court in case of sexual offence the Supreme Court stated “The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act.

 

• Sealing of Brothel will ensure in curbing organised crime-

 

GEETA KANCHA TAMANG  VS STATE OF MAHRASHTRA

While denying the release of a women trafficker, on mercy grounds, who had served 14 months imprisonment the court stated that the first aspect that the Court has to consider for such a heinous crime is that trafficking in persons is prohibited under Article 23 of the Constitution of India. It is, therefore, the Fundamental Right of every Indian citizen not to be trafficked. Such act constitutes the grossest violence of the Human Rights of the victim child.

 

• High Court of Haryana and Punjab Orders for Registration of FIR in cases of missing Persons

 

LAWYERS FOR HUMAN RIGHTS INTERNATIONAL

This Punjab and Haryana High Court direction came while disposing of a bunch of public interest litigations (PIL) filed by NGOs World Human Rights Protection Council and others. The NGOs had sought directions for formulating special cells at state/district level in which specially trained police officials should be posted for only dealing with missing persons’ cases. The bench also directed authorities to comply with directions issued by the Supreme Court dated November 14, 2002, in case of “Hori Lal vs Commissioner of Police, New Delhi.”The apex court’s judgment had issued comprehensive guidelines for the investigation officers in missing children cases like publishing photographs of children in print media and telecasting it through electronic media within a week of receipt of complaints and pasting the photos at prominent places. Reward for giving clue in a missing girl’s case should be announced within a month of girl’s missing report.The police commissioner/IG/DIG concerned would find out the feasibility of establishing multi-task force for locating girl child or women, the apex court directed.

 

• CONCLUSION

 

Judiciary is working hard to curb human trafficking from its grass root level. Courts have a particular role to play in establishing process and procedure that ensure victim safety and apply a trauma-informed-response to all victims rather than a punitive response that punishes victim-defendants for action taken not of their own free will. This approach is not only about linking victims to service but also about adopting practices throughout the court system to emphasize attention to safety over fear and punishment. The problem of trafficking cannot be handled in isolation but this problem can only be stopped if the kingpins are too arrested, and in order to do this courts have to be very strict for making their rules regarding trafficking of human.

Author Sadhana 
College: Banasthali Vidyapeeth

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