NOT SO FAQ

Not so Frequently Asked Questions

Yes! Human trafficking is present in almost all countries regardless of their;

  • Size (small or large countries)
  • Economic standing (rich or poor)
  • Technological advancement
  • Religious status (religious or secular)
  • Economic order (state ownership, liberal economy or mixed economy)
  • Political ideology (communist, liberal, democratic, socialist)
  • History of civilization (old civilizations as well as new nations)

It is often seen that the economically backward countries and politically disintegrated societies are high on supplying the trafficking victims, while the rich, stable, and technologically advanced countries are low on the supply and high on the exploitation of the trafficked victims.

In technical terms, change of place often happens in most of our normal life activities. If by change of place we mean across districts, states, nations and continents, then that is not the essential condition for human trafficking; although we often come across such shifts. The definitions use the term ‘Transfer’ which refers to the change of status or situation of the person subjected to trafficking, without the change of place.

Many young girls are employed in certain types of establishments and jobs in one position, and then with force or fraud, they are made to engage in an exploitative life. For example, girls and women who work in the cigarette industry for rolling beedis, or serve liquor in the ladies bar, or work as dancers in dance bars are soon pressurized to sell their body for sex without having to change their place of residence or work. This is what is suggested by the use of the term ‘Transfer’ in the definitions.

Human trafficking being a disguised heinous crime, it is impossible to have any reliable statistics on it. The data keeping and data management standards of different countries are extremely wide ranging. The definitions of trafficking followed by different countries are also different. The understanding of the people engaged in collecting and quoting statistics about human trafficking across countries and withing countries is widely different.

The official data that are maintained are that of reported incidence of the trafficking crimes. Many countries do not have the crime of trafficking codified in their law books. e.g. India introduced the term and offence ‘trafficking’ in its law book only in the year 2013.

All these factors make it impossible to have any reliable statistics about human trafficking. What get circulated in the name of statistics deserve to be aptly called as sheer ‘guesstimates’ and not even estimates.

When monetary and other incentives get attached with making higher guesstimates, the guesstimates tend to snowball and become bigger in volume.
It does not mean that the problem of human trafficking is any less serious or not alarming. The inability to record or count the crime does not discredit the overall perception that human slavery is not at all over and that it is being encountered rampantly. As no one has any data about the historical incidence of slavery and human trafficking making a well founded empirically established comparative statement on the incidence may not be possible. However, that does not discredit the overall concern expressed by different stakeholders that the incidence is rising.

To the extent the various stake holders across the world follow a common definition and make a responsible and verified statement about the incidence as witnessed by them there is a hope and a way to arrive at a better idea about the overall incidence.

Yes, the world has awakened to the alarming problem of human trafficking and numerous efforts are being made to combat trafficking and restore the dignity of the persons victimized by the trafficking crime.

The States of the world have in unity, and individually, passed laws, declared policies and Plans of Action to combat trafficking in persons. They have announced programmes and allocated financial and managerial resources to accomplish the anti trafficking agenda.

Many civil society organizations and committed individuals have contributed enormously to the anti trafficking cause. The civil society sector is on the forefront and has made great path-breaking contributions in various domains from prevention & protection to rehabilitation & repatriation.

Yes! In India there are laws against the aforementioned destination crimes such as the Immoral Traffic (Prevention) Act 1956, Bonded Labour Systems (Abolition) Act 1977, Transplantation of Human Organs (Amendment) Act 2011, the Bombay Prevention of Begging Act 1959, CARA Guidelines for adoption, Child Labour ( Prohibition and Regulation) Act, Protection of Children From Sexual Offences Act 2012, Devadasi Abolition Acts of some states, Indian Penal Code 1860, etc.

Sec 2 (g) of the Bonded Labour System (Abolition) Act 1976 defines bonded labour as follows;
(g) “bonded labour system” means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that,-

    • in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any document) and in consideration of the interest, if any, due on such advance,

or

    • in pursuance of any customary or social obligation,

or

    • in pursuance of an obligation devolving on him by succession,

or

    • for any economic consideration received by him or by any of his lineal ascendants or descendants,

or

    • by reason of his birth in any particular caste or community,

he would-
(1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or

(2) for the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or

(3) forfeit the right to move freely throughout the territory of India, or

(4) forfeit the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family or any person dependent on him,

and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor;

[Explanation.-For the removal of doubts, it is hereby declared that any system of force or partly forced labour under which any workman being contract labour as defined in clause (b) of subsection (1) of section 2 of the Contract Labour (Regulation and Abolition) Act, 1970 (73 of 1970), or an inter-State migrant workman as defined in clause (e) of sub-section (1) of section 2 of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (30 of 1979), is required to render labour or service in circumstances of the nature mentioned in sub-clause (1) of this clause or is subjected to all or any of the disabilities referred to in subclauses (2) to ( 4), is “bonded labour system” within the meaning of this clause].

No and Yes!
In general the Constitution of India gives the right to its citizens to move around freely in any part of the country.
Articles 19 (d) (e) and (g) give the following rights to the citizens of India;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or business.

The State is authorized to put some restrictions on the movement such as certain scheduled areas and army areas, etc.

There is a union law, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979, that governs the conditions of migrant workers across the states of India with a view to protect the workers.

With regards to the movement across the national borders, there are various country specific immigration procedures. Although the human movement across the countries of the SARC region have been made more liberal in recent years, strict procedures still govern the movement in most cases. There are no immigration procedures across the Indo Nepal Border whether for tourism or for employment. However, strict laws govern the movement between India and Pakistan.

Yes! It has been observed that children are the prime victims of sex tourism. In general, the sex tourists demand virgins due to a variety of myths surrounding the idea of sex with children. The fear of contracting HIV/AIDS through casual sex encounters has created huge demand for children and virgins in the sex trade as the tourist believe that they are least likely to be infected and least likely to infect others.

Tourism offers several benefits to a tourist; prominent among them for a sex tourist are novelty, near immunity against legal action, and most importantly facelessness or anonymity.

When the tourist is in a foreign land, the anonymity relieves him from several social and legal constraints, which he otherwise faces in his own country. As a Japanese proverb goes, “the traveler knows no shame” or as an European one states, “the farther I go from home the less moral I become”. He, thus, ventures in sexual experiments and attempts to gratify all his socially unacceptable sexual desires and fantasies.

Sex tourism consolidates racial discrimination and exploits other races, which the tourists think, are inferior. A variety of doctrines enable the tourists to justify the exploitation by saying that sex with children is acceptable in the culture of the society they are visiting.

In general, due to globalization and advancement in air travel technology overall tourism has increased. The tourism and entertainment industry grow hand in hand. With growth in tourism sex tourism, the demand for victims in the sex trade has also increased, which in turn has fuelled human trafficking.

There are various legal or policy approaches to the sex trade. They are as follows:

  1. Abolitionist approach: The abolitionists look at prostitution as a patriarchal misogynist practice which is full of violence against women and consider it as anti family and immoral phenomenon. It analyses prostitutes as the victims of trafficking and recommend that the trade must be abolished completely. The abolitionist had significant presence in Europe and USA.
  2. Regulationist approach: This approach presumes that prostitution cannot be abolished. If attempted to ban it may cause serious problems in the society. In doing so it implicitly presumes that prostitution has a certain utility and hence must be regulated with rules and inspection. Among the regulations the approach suggests periodic medical testing to keep the sexually transmitted infections under control. It also suggests close monitoring. With a view to avoid any clashes with groups of any incompatible view it also suggests zoning whereby the trade is kepr under geographic limitation. This in turn requires and thus the policy recommends licensing, registration and data maintenance.
  3. Actively Facilitating the sex trade (goes hand in hand with regulationist approach): The political regimes that were following the regulationist approach but who were also handling large scale migrant population like sailors and soldiers these being important pillars of their expansionist colonization programme passed laws and under the force of which set up redlight areas and recruited (practically trafficked) women in the port cities and inland cantonments in their colonies, e.g. Mumbai, Kolkata.
  4. Socially Legitimizing the sex trade: Most established and historical  civilizations had some or the other form of institutionalized prostitution under which the state, the civil society, communities and families came to accept and legitimize a form of prostitution as legitimate an required.
  5. Legalization approach: This is mostly misconceived and misinterpreted policy option which is being promoted by the sex traders and some pharmaceuticals who see big business in the sale of condoms, testing kits and anti retroviral drugs all in the field of HIV and AIDS. This policy incorporates other policy options like registration and licensing. It becomes instantly appealing to an uncritical reader as the word legalization or legal has a magical spell and makes one believe that something legal and legitimate is about to happen which si never the case. More about legalization in another note.
  6. Decriminalization of selling: Originally adopted by India in 1956 and then further strengthened in the year 1986 through an amendment of the ITP Act, the Indian law does not punish a woman selling her bodily sex by following the framework of limitations. In the 1990s Sweden adopted a policy of not penalizing the woman who sells her sex and actively punishing the buyer who buys sex. This approach became very famous all over the worlds as the Nordic model and after Sweden many other Nordic and other countries adopted it.
  7. Decriminalization of buying: This approach holds that a sex buyer is not to be punished. All such provisions in the existing law in any that penalize the buyer of sex are repealed.
  8. Decriminalization of the sex trade in general: This is a rising trend and its success is directly proportionate to the growing power of the sex traders. Under this approach, the state ensures that selling sex, buying sex, running of brothels, pimping on someone’s prostitution, soliciting in public, etc are not treated as punishable offences.
  9. Tolerationist approach: Public administrators and policy makers when haunted by certain myths and worried about the imaginary unmanageable consequences of abolishing the sex trade, openly for legitimacy sake declare an abolitionist policy but intentionally avoid taking any action against it and tolerate it to operate underground. Post independence, India has been adopting the tolerationist policy. In effect, there are large red light areas in every city, but the state does not disturb them. Post independence India has been following this approach.

These are wild unsubstantiated and illogical figures which keep snowballing. Quoting figures even when they are completely unsubstantiated is a rampant practice among scholars, policy makers, activists, and mass media representatives because there is a blind belief that once jacked up with figures, the claims get broader acceptance.

The prevalent practice of uncritically accepting any kind of statistics is mostly responsible for that.

One must note that no one has taken any scientific or logical exercise to arrive at such global continental or regional figures. Undertaking such exercise is a herculean task in every respect. The data gathering and maintenance systems of different countries are greatly different. Many countries especially poor countries do not have such data management systems. The concepts, definitions and term needed in such exercise have not been properly articulated let alone operationalized. The laws of different countries being different an action that is illegal in one country is lawful in another country. The information available at the legitimate official data keeping systems like the NCRB in India, suffers from all these ailments. When it comes to the scanty but authentic statistics, it is only a collection of the police station records of registered complaints of crime. There is no logical way to extrapolate the real incidence on the basis of the registered incidence. The misplaced popularity of statistics and the misplaced way of believing in a phenomenon only if it is supported by figures appears to be a major and rampant weakness of this field. That should not come in the way of anyone who makes such a claim on the basis of one’s field level or firsthand exposure and observations stating that the phenomenon is serious and large.

In human trafficking, the person trafficked (victim) is unaware of the exploitative destination to which she is being taken or the exploitative intention or plan of the person trafficking her. Human trafficking also occurs intra-country i.e. where the passport, immigration and customs laws are not applicable. Illegal immigration means voluntarily crossing national borders by violating the immigration laws (also passport, customs laws) in order to illegally enter a foreign territory with or without the awareness or intention to do so. A person migrating illegally may not end up in exploitation while a person trafficked does end up in an exploitative situation.

It is not a legal technical term. In the domain of human trafficking and anti-human trafficking work, it refers to the situation of restoring a victim (mostly a rescued victim) to its own family or community (i.e. essentially its primary relations). It could be through restoration or through repatriation (i.e. across a nation). Reunion is not always a positive action. It is a mixed package. Replacing a rescued victim in the same situation that had failed to protect it from getting trafficked may be problematic. Similarly, if the members of the primary relations themselves are involved in actively trafficking the victim or have knowingly been negligent then it may result into dumping the victim into a dangerous situation potent with trafficking possibilities.

A brothel is a place where commercial sexual exploitation takes place. Sec 2 (a) of the ITP Act defines brothel as follows;
(a) “brothel” includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes;
A brothel is thus any place or conveyance where commercial sexual exploitation takes place. Thus, a garden, a playground, a railway bogie, a truck, car can also be termed as a brothel.

Sometimes persons are deceived, misinformed, misguided, lured, coerced, frauded, forced into selling their own organs. Sometimes their organs are taken away without their knowledge or consent and sold in the human organ market. For example, a person approaching a doctor or medical facility is wrongfully made to believe that he has an illness and requires surgery or hospitalization. In reality, however, his kidney is taken away and sold. A number of human beings who are either ignorant and/or desperately in need of money agree to part with their organs for a nominal amount while the trafficker and the organ trade operators earn huge profits. Someway some persons in need of medical treatment or surgery unknowingly walk into such traps and lose their organs. It is business of some persons to look out for such vulnerable, needy and ignorant persons and get them to the rackets who harvest their organs.

First let us understand what is surrogacy.

Surrogacy is a medico-social arrangement under which one woman agrees to undergo the pregnancy, labor, and delivery of a child, to relinquish the claim over the child, and to hand over the child for another person who is not her spouse and who either cannot or chooses not to undergo the pregnancy, labor, and delivery for that child;

Gestational surrogacy is a medico-social arrangement under which one woman agrees to provide the embryo (the fertilized egg) or egg which is then fertilized, and another woman agrees to carry the foetus for full term, to deliver the child, to relinquish the claim over the child, and to hand over the child to the first woman;

Traditional surrogacy is a medico-social arrangement under which a woman agrees to provide her own egg which is fertilized by insemination or artificial insemination by the sperm of another man who is not her spouse, to carry the resultant foetus for full term, to deliver the child, to relinquish her own claim over that child, and to hand over the child to that man;

Surrogate Mother is the woman who enters the medico-social arrangement of surrogacy to carry the foetus under the gestational surrogacy or provides her egg under the traditional surrogacy, remains pregnant for full term, delivers the child, relinquishes her own claim over that child and hands over the child to another person who is not her spouse;

Intended Parent/s is/are either the woman who agrees to provide her own fertilized egg (embryo) or unfertilized egg to be placed in the surrogate mother’s uterus and to claim the child on delivery under gestational surrogacy or the man who provides his sperm under the gestational or traditional surrogacy arrangement;

Altruistic Surrogacy is surrogacy in which there is no arrangement for providing financial returns for the surrogate mother for her pregnancy or for relinquishing the claim over the child delivered by her;

Commercial surrogacy is surrogacy in which there is arrangement for providing financial returns to the surrogate mother for her pregnancy or for relinquishing the claim over the child delivered by her and handing over the child.

When a woman is procured, received, recruited, harboured, transported, transferred, made available as a surrogate mother by using illegal means like force, fraud, deception, coercion, or by making use of her vulnerability, or by abuse of one’s power over her or by obtaining her consent by offering money etc in order to serve as a surrogate mother then it becomes a case of human trafficking for surrogacy.

Medicine (or medical drugs) is an integral and noble part of the health of human beings as also other living beings. However, evolving medical drugs and administering them on living human beings is a risky affair. Their main effect could be dangerous or even fatal. Many medical drugs serve the main purpose of curing a certain condition of ill health but can have several other undesirable effects on the person to whom the drug is administered. Every such medical drug thus has to go through a series of trials before they are declared as drugs with known and acceptable counter effects. Almost always the fatal effects of a drug being researched are identified by conducting trials of that drug on guinea pigs and such other animals. In the end once its positive and negative effects are understood and brought under maximum control the drugs are actually tried on human beings under controlled conditions. These are called clinical trials of drugs on human beings. No drug can be introduced in the market unless it passes through the clinical trials. For this purpose real human beings are encouraged to volunteer who take an informed decision with a fair understanding about the apportionment of the responsibility, corrective action and damage compensation.

At least two known situations link up clinical human trials with human trafficking. One, when the rigorous procedures and protocols are knowingly circumvented by those conducting these trials. Second, when those human beings subjected to such clinical trials are procured, received, recruited, harboured, transported, transferred, made available as a surrogate mother by using illegal means like force, fraud, deception, coercion, or by making use of their vulnerability, or by abuse of one’s power over them or by obtaining their consent by offering money etc in order to serve as human guinea pigs and their consent is not an ‘informed consent’.

Decriminalization of the sex trade is the process or the policy of repealing those provisions in the criminal law that criminalize (declare as punishable offences) certain actions integral or ancillary to the sex trade and thus invite punishments. It repeals provisions against procuration, recruiting, inducing for prostitution, brothel keeping, brothel managing, pimping, soliciting, providing finance or infrastructure for the sex trade etc.

There are two main classes of decriminalization of sex trade — one that repeals penal provisions against the perpetrators of the sex trade such as trafficker, recruiter, brothel keeper, brothel manager, pimp, seducer, premise owner/ provider, etc. The other class decriminalises the person whose bodily sex is sold (mostly the prostituted women). Most laws have a provision that provides for the arrest and punishment to the women when they are found soliciting for the customers in public places thereby supposedly causing public nuisance or annoyance.

There are certain occupations which facilitate human trafficking. They create vulnerabilities, exacerbate them and thus make a person/persons available for getting trafficked. They are situations that erode, breakdown or weaken the protective mechanisms of the state and the civil society and facilitate the traffickers’ access to potential victims. E.g. rural agricultural market yards, beedi-making industry, fish processing industry, ladies bars, dance bars, erotic dancers, etc.

There are certain situations which facilitate human trafficking. They create vulnerabilities, exacerbate them and thus make a person/ persons available for getting trafficked. They are situations that erode, breakdown or weaken the protective mechanisms of the state and the civil society and facilitate the traffickers’ access to potential victims. Some examples of this are- natural disasters like floods, cyclones, earthquakes. Religious fares, Melas, rallies, rebellion, organized hostilities, alcohol and drug parties, rave parties are some more such situations.

Incorrect: – Very often it is found reported in the mass media that in a police raid X number of girls have been arrested or taken into custody or they have been placed in remand for Y number of days. Often by ‘girls’ the reference is made to the victims of the sex trade. The use of the words arrest, custody and remand tend to imply that, in the eyes of the law, these girls are offenders or accused and hence arrested, or taken into custody or remand. That is incorrect use of the terms. 

Correct:

i) At the time of ‘Search and Rescue’ operations, under the law especially under the ITP Act 1956, some girls and young women are ‘rescued’ from the sex trade. They are considered as the victims of the crime of sex-trafficking. They are not considered as ‘offenders’ or ‘accused’ and hence are not arrestedThey are rescued. Hence, they are not taken into ‘custody’. The latter term is also often used when the person is a suspect or an accused. The word ‘remand’ is used to the physical possession of the accused person by the investigating police and jail authorities.

When the person rescued is a minor (below 18 years of age), he/she is taken into protective custody and kept in a stay under the supervision of social care takers and not of the police or jail authorities. It is thus a ‘protective custody’ and not arrest, custody or remand.

ii) Of course, at the time of search and rescue operations, under the law especially under the ITP Act 1956, some men and women are arrested too. These are from the categories of traffickers, pimps, brothelkeepers, brothel-managers, or even customers as they are considered to have violated the law and thus committed an offence.

Incorrect – Children, young adults and adult women are sometimes rescued from sex trafficking or labour trafficking by the police through search operations popularly called as ‘the raids’. After the rescue, they are placed in institutional care for a variety of purposes like protection, shelter, nutrition, health services, immediate victim assistance, long-term rehabilitation plan etc. Individuals thus placed are, however, found reported in the media, in reports and also by the administration of these institutions erroneously as the ‘inmates’ of the institution. By historical usage, the term ‘inmate’ implies a convict undergoing the sentence of imprisonment or an accused who is under trial. It is incorrect to use the term inmate to refer to the rescued victims living in an institution.

Correct –  Such rescued persons placed in the residential care-giving facilities are to be correctly referred to as the ‘residents’ of that shelter and not as the inmates. Sometimes, such institutions put serious limits on the entry and exit of such rescued persons the stated purpose of which is the protection of the person and the fear of an arrested person running away from the custody of the police or the jail.

Incorrect  –
When a complaint is filed or lodged at a police station, the police is expected to do a preliminary checking of the veracity or genuineness of that complaint, especially prior to registering an FIR. While registering an FIR as well as while initiating investigation, the police is required to record the statements of the complainant (in our context, a traffic victim).
Often, we come across the term ‘interrogation’ to describe the process in which the police asks several questions to the complainant/victim. Interrogation is an incorrect term to describe the process. Interrogation is a process used by the investigating authorities for getting information and obtaining clues to investigate the crime by asking questions to an accused or a suspect. Often, this process is forceful and intimidating. Victims are not accused and hence they are not to be interrogated!

Correct
The correct term to refer to the inquiry conducted by the policemen by asking questions to a victim/complainant is ‘interview’.

Use of the terms ‘Repatriation’ & ‘Restoration’

Incorrect
One does come across an incorrect use of the term ‘repatriation’ to refer to the physical shift of a person, especially a victim, from one part of a country to another part, for example, from one state to another state within India, particularly to the state to which the person officially belonged to.
It is an incorrect use of the term!

One also comes across the use of the term ‘restoration’ when a child in need of care and protection (CNCP) is shifted from an institution in one state to another institution in another state of India.
This is also incorrect!

Correct:
The word ‘repatriation’ is meant to be used only across countries, in modern times, across the nation-states.

Repatriation is the process of shifting a victim of crime or a social victim from one country, which is a foreign country for that person, to the country to which the person politically and officially belonged to.

Shifting a CNCP ‘within a country’ from one state to another is not repatriation! Shifting such a child from one state to another state — both states being in India — is more appropriately called transfer. It is appropriate to use the term ‘transfer’ when such a child is shifted from one institution to another, whether in the same state or another.

The essence of restoration, as stated under the JJ Act, 2015, is the shift of such a CNCP “to his parents, guardian or fit person, as the case may be, after determining the suitability of the parents or guardian or fit person to take care of the child, and give them suitable directions.” Thus, restoration is not shifting a CNCP from one institution to another institution in the state from where the CNCP is believed to have come from or belonged to. It essentially means placing a child in an ‘open society’ that resembles a caring and capable person, family and community but not an institution.