Frequently asked questions
Human trafficking is a term used for an act that has been historically identified as an act of exploitation and has been criminalized. Off late, there has been a rise in the number of state nations and international bodies that are condemning and criminalizing the act in their books of law.
Often the term trafficking is used to mention Human Trafficking but such a conflation may not be quite correct as historically human societies have also mentioned about, and criminalized drug trafficking i.e. trafficking mostly of narcotics. These days you come across terms like child trafficking, bride trafficking, etc. These references are to the social role that is subjected to trafficking. Sometimes the term trafficking is also used as sex trafficking, trafficking for organ trade, trafficking for hostilities, trafficking for shadow entertainment, etc. Here these terms refer to the purpose or end result of trafficking.
Trafficking, in short, is the procuring, buying, selling, pawning, pledging, moving, transporting, storing, confining of persons for illegal and criminal purposes with force, fraud, deception, coercion, and such other criminal or inappropriate means. Persons are trafficked for commercial sexual exploitation (conventionally called prostitution), servitude, bondage, forced labor, organ harvesting and organ trade, and such other exploitative purposes. Trafficking is carried out for the gain, profit or benefit of someone other than the person subjected to trafficking and at the cost of the person so subjected.
Mostly illegal, criminal, and unethical means, starting from the lure, deception, drugging, criminal force, wrongful confinement, kidnapping/abduction, etc. are used to accomplish this movement.
The means used for trafficking may not always be so naked. Abusing someone’s vulnerability, powerlessness, weakness, abuse of one’s authority over another person, are also the means.
Human trafficking thus has three components- namely the Act, the Means and the End Purpose
the Act – procuring, buying, recruiting, taking, receiving, harboring, transporting, transferring, a person
the Means – force, fraud, deception, coercion, buying, drugging, wrongfully confining, kidnapping/abducting, and such other criminal means
the Purpose or Destination – the purpose is to exploit the trafficked person for the gain, profit or benefit of someone other than the person subjected to trafficking and at the cost of the person so subjected. Some of the common destinations of human trafficking are; sex trade, bonded or forced labor, organ harvesting, and trade, slavery, slavery-like conditions, servitude, illegal adoption (baby-selling), mail bride, human sacrifice, child soldiers. The activities indicated in the point on purpose above are actually the crimes to which the person is subjected at the destinations hence they should be aptly called the destination crimes.
The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the “Palermo Protocol”) defines human trafficking as:
- “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
- The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
- The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
- “Child” shall mean any person under eighteen years of age.
The principal criminal law of India the Indian Penal Code-1860 for the first time in the year 2013 vide an amendment adopted the UN definition in Section 370 with slight modification.
Section 370 in The Indian Penal Code
(1) whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbors, (d) transfers, or (e) receives, a person or persons, by (i) using threats, or (ii) using force, or any other form of coercion, or (iii) by abduction, or (iv) by practicing fraud, or deception, or by abuse of power, or (vi) by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received, commits the offence of trafficking.
Traditionally prostitution and slavery have been the two major destination crimes of human trafficking. The Indian Penal Code 1860 had a provision against slavery in its Section 370 and 370A. Later in the year 2013 first vide an Ordinance and later by an amendment in the IPC the provision against slavery was replaced by a definition against human trafficking. There were provisions against bonded labor and child labor in the laws. In the year 1976, a Union law against the bonded labor system was passed which effectively covered the offences of trafficking for forced labor. In the year 1986, the law against child labor was made effective.
In the year 2018, a central law against trafficking was passed in the Lower House of the Indian Parliament but the same was not passed in the Upper House before the Parliament was dissolved. Hence to date (as of 2020) in India, there is no single law against human trafficking per se.
As of 2020, there are laws and/or authoritarian provisions against the destination crimes of human trafficking such as commercial sexual exploitation, forced labor, labor exploitation Human organ harvesting and trade, Adoption, Surrogacy, Beggary, etc. Some of them also cover some elements of trafficking for that destination crime.
Yes, the world has awakened to the alarming problem of human trafficking and numerous efforts are being made to prevent and 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 at the forefront and has made great path-breaking contributions in various domains from prevention & protection to rehabilitation & repatriation.
Anyone who is vulnerable and available and by trafficking whom profits can be made by the trafficker carries the risk of getting trafficked. Infants are trafficked for illegal adoption, organ harvesting, and organized beggary. Children get trafficked for all these purposes as well as for the labor sector. Young people get trafficked for labor sector exploitation, sex trade, shadow entertainment, etc. Young women also get trafficked as common or temporary brides. Old people get trafficked for organ harvesting. People of every religion, political system, age, race, creed get trafficked. Poor people, unsupported and unprotected person/people of poorer countries, people belonging to the lower social strata, people who are victims of war, ethnic cleansing, disasters are most susceptible to getting trafficked.
Human trafficking is carried out with the end purpose of subjecting the person trafficked to a life of exploitation for the profit of person/s other than that person but at the cost of the person who is trafficked. The life of exploitation varies and includes, although it is not limited to prostitution, slavery, servitude, bonded labor, indentured labor, organized beggary, human organ harvesting, and trading, mail brides, adoption/baby-selling rackets, illegal commercial surrogacy/ baby farming camel jockeying, etc.
All the above-mentioned activities may be aptly called ‘the destination crimes’. The activities named as destination crimes are prohibited by law in most countries. In India, there are separate laws to address each type of destination crime.
Migration is a relatively permanent shift of abode by a person, family, or a group of people. Historically, the term migration has been used to indicate a voluntary shift of abode for betterment in life. The Indian women routinely migrated out of their village, district, or state or in some cases even across the country as a result of marriage. It is known as marital migration. In India due to the imbalanced growth of educational facilities, the student population also migrated to places having facilities of better or higher education. In other cases, more important jobs made people leave their place of origin and shift to newer places, often permanently. They all had an element of voluntarism and the purpose of the betterment of life.
Historically, persons, families, and groups of people also shifted their abode due to certain unavoidable situations like war, organized violence (riots, ethnic cleansing), famines, droughts, disasters like earthquakes, forest fires, and tsunamis, an outbreak of epidemics, industrial depression, project displacement, or personal mishaps like marital desertion, abandonment, kidnapping, etc. This category lacked voluntarism strikingly. Hence, it is better described as forced migration, eviction, uprooting, displacement, or stress migration. The element of voluntarism makes migration distinctly stand out from the second category of shift namely eviction.
Trafficking is not the same as migration since the element of consent or voluntarism is missing. In some cases, the element of voluntarism is apparent but closer analysis shows that the consent is for the apparently fair plan suggested by the trafficker as a part of his larger game of deception.
When trafficking is interpreted as migration the crime inherent therein is made invisible or trivial which is incorrect and unfair.
Trafficking and migration are however closely related. Unsafe migration often easily glides into trafficking. While some people make the conceptual error some others do it purposely as they have an interest in the destination crime of human trafficking such as labor exploitation, sex trade, etc.
Yes! Trafficking is different from prostitution.
Trafficking refers to a set of acts such as procuring, buying, selling, moving, transporting, etc. of a person through deception, coercion, force, fraud, compulsion, etc. to exploit the person. Prostitution is one of the ways of exploiting the trafficked person. Speaking strictly legally prostitution is the commercial sexual exploitation of a person. Trafficking is the act of making such a person available so that she can then be prostituted.
Commercial Sexual Exploitation is an appropriate term or label for what is traditionally and conventionally, yet inaccurately, referred to as prostitution. It is an act;
- that is carried out in an organized manner
- of sexual exploitation of a person
- that involves an exploiter
- in which sexual exploitation is effected singularly or in an organized manner
- for the profit of the exploiter and at the cost of the victim
- which provides to the buyer access to the sexual faculties of the exploited person
- where a person’s sexuality is sold to any customer who pays for it.
Exploitation is an essential characteristic of the term Commercial Sexual Exploitation
Commercial in the label indicates the commoditization of a human being or its faculties and presupposes production/ collection (procurement), storage, transport, packing, labeling, display, advertisement, sale, retail outlet, sales manager, and commission of the same.
The term prostitution was conventionally understood as a solo act of selling of her bodily sex by a woman. Hence colloquially the term prostitution in itself did not convey exploitation.
Traditionally the term prostitution did not indicate or imply the presence or role of any person other than a woman i.e. the seller of her bodily sex and a male buyer. The term prostitution did not convey the reality accurately but wrongly projected the woman as an independent solo actor acting on her own accord, for her own profits by selling her own bodily sexuality.
Neither the traditional understanding of the term prostitution nor the pre-1986 legal definition of prostitution takes cognizance of the criminal organization of the sex trade or of the role of the procurers, traffickers, managers, brothel keepers, pimps, and financiers.
The term Commercial Sexual Exploitation (CSE) covers the reality far more accurately as compared to any other terms, which have been used to refer to the phenomenon under discussion.
No! As explained in question no 01, Human Trafficking refers to acquiring human beings by criminal means and inducting them into a variety of exploitative purposes or destination crimes. Thus, they are not the same as destination crimes. Sex trafficking is different than sex trade. The former is carried out for the latter. More clearly, human trafficking is not the same as slavery or bonded labor, while they are distinct they are also very close to one another.
In most cases of human trafficking, the victim is shifted from his/her place of origin to the destination place where she is exploited. In some cases of sexual exploitation, the exploiters travel long or short distances and visit the countries and foreign places where they can sexually exploit victims without much risk or fear of the law. This phenomenon is termed sex tourism. Today, a substantial part of business and entertainment tourism includes sex tourism. Some places have emerged as the world capitals of sex tourism e.g. Bangkok in Thailand, Amsterdam in the Netherland, and Goa in India.
No! Domestic tourism is as much a reality as international tourism.
No! We often hear some people stating that prostitution per se is not illegal in India OR prostitution per se is legal in India. Both these interpretations of the law are wrong. To understand the issue correctly one has to first understand what is meant by the term prostitution. It is significant that the Indian law – the Immoral Traffic (Prevention) Act -1956 – when revised in 1986, adopted a very progressive and clear definition of prostitution. Sec 2(f) of the ITP Act states;
“Sec 2 (f) “Prostitution” means the sexual exploitation or abuse of persons for commercial purposes and the expression “prostitute” shall be construed accordingly”
It is important to note that the law ITPA 1956 defines prostitution as commercial sexual exploitation and penalizes the actors who commit, cause, or facilitate it. It is only logical that the same law cannot consider prostitution as a lawful activity. Similarly, no other law in India gives legal permission to prostitution.
The term sex trade is yet another term that is used for prostitution or commercial sexual exploitation. The sex trade is not permitted under any law in India.
The third conventional (pre-1986 revision of the ITPA) usage of the term prostitution is – prostitution as an act of a female selling her bodily sex to a man. This was not a punishable act although there was no positive or supportive recognition of this act as the woman’s right. And many other factors attached to such sale such as making it an organized sex trade, running a brothel, soliciting in public or near certain prohibited areas, etc were made punishable.
When prostitution is defined as commercial sexual exploitation as mentioned above (Sec 2(f) of ITP Act) the law provides to penalize the following acts;
- Procuring someone for prostitution- Sec 5
- Detaining (variously) someone for prostitution- Sec 6
- Running or managing a brothel- Sec 3
- Giving one’s premise for running a brothel
- Living on the earning of someone’s prostitution (the woman’s child below the age of 18 years is exempted)- Sec 4
- Giving one’s premise for selling of sex by a woman all by herself and alone-Sec 7
- Soliciting for prostitution in a radius of 200 meters from a hospital, an educational institution, a place of worship, and such other places prescribed by the government from time to time.- Sec 7
- Soliciting in a public place (mostly) by a woman whose bodily sex is on sale-Sec 8
- Soliciting in a public place (mostly) by a pimp-Sec 8
- Seducing someone to get into prostitution-Sec 9
When we put a variety of laws together and find the quintessential position of law on prostitution, one can safely state that in India: If an adult (not below 18 years of age/offence under IPC, POCSO and ITPA) person (including a man, not just a woman) alone (not two or more persons together/that will make the place a brothel and punish it under ITP Act) sells her/his bodily sex (not pornographic material/offence under IPC, ITA, POCSOA) to a person in her private (neither in public places nor in prohibited places/offence under ITP Act and respective State Police Acts) premise which is not within a distance of 200 meters from a place of worship, educational institution or a hospital to a (heterosexual or same-sex) partner is not a punishable offence in India.
Unlike in Bangladesh, where a woman above 18 years of age can submit her request before a court of law and get a license to sell her bodily sex to a man, India does not have any such provisions for explicit and positive recognition for selling one’s bodily sex.
Yes! Just as one has the freedom or right to do a certain act (in this case selling one’s bodily sex), that person also has the responsibility to not cause annoyance to the public or violate anyone’s rights in exercising one’s right. Just as the person has certain rights, the other people and the society in general, too have certain rights and there are areas of conflict of rights. One’s right to sell one’s bodily sex is limited by the related rights of the other persons in society.
ITPASection 7 (a) ensures that a member of the public, people in serious situations, and children and youth of impressionable age are not involuntarily exposed to the acts of prostitution, indecent exposure, or soliciting.
ITPA Sec. 20 ensures the rights of the residents to not get exposed to or annoyed by the activities related to prostitution including the frequent thoroughfare of strangers who visit the premise with an intention to sell and buy sex and empowers the respective magistrate to have the woman evicted from the place after due inquiry.
Sec 8 (a) states,
“Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not-
(a) by words, gestures, willful exposure of his person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts endeavours or to attract the attention of, any person for the purpose of prostitution;…
shall be punishable on first conviction with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both
Although these are offences the law does not aim to give harsh punishment to the person mostly a woman for the violation of the above provisions. Sec 10-A states,
Sec. 10A. Detention in a corrective institution
(a) a female offender is found guilty of an offence under section 7 or section 8, 39[***]; and.
(b) the character, state of health and mental condition of the offender and the other circumstances of the case are such that it is expedient that she should be subject to detention for such term and such instruction and discipline as are conducive to her correction, it shall be lawful for the court to pass, in lieu of a sentence of imprisonment, an order for detention in a corrective institution for such term, not being less than two years and not being more than five years, as the court thinks fit.
All this goes to indicate that the law;
- does not aim to penalize the woman (a female offender) whose bodily sex is sold.
- does not aim to penalize the woman for violation of Sec 7 and Sec 8.
- does aim at penalizing the organized sex trade and sex traders
The spirit and the text of progressive social legislation in itself are not sufficient to bring about the desired change. For its implementation, it grossly depends upon the political and administrative will which reflects in the creation of budgetary provisions and enforcement back up. The people and forces entrusted with the responsibility of implementing a law belong to the same unjust society which creates, sustains, and thrives on social victimization and trafficking for exploitation. It requires growing plurality in the society as against concentration of power and wealth, commitment to equality and human rights, strategic interventions, and tireless efforts to bring about the desired change. In India, the laws against labor class exploitation of children, slavery, evil social traditions of sexually exploiting the girls of certain marginalized communities, and the systems of temple-based commercial sexual exploitation like the Devadasi system are very old but mostly not implemented.
Legalization of the sex trade means the process or the policy of giving a positive legal recognition to the sex trade. Once legalized the various components of the sex trade (procuration, recruiting, brothel keeping, pimping, soliciting, advertising, etc.) become official commercial activities and can become eligible to such benefits as bank loans, official infrastructure, state protection etc. It also gets subjected to a variety of taxes and regulations which are inevitable to any official commercial activity. The persons engaged in the activity (sex trade) are recognised by a variety of categories like workers, supervisors, managers and so on.
Those who seek protection to the sex traders seek decriminalization of the first type. Those who seek to protect the prostituted women (persons) demand decriminalization of the second type.
The act of human trafficking is made of three parts, the actions, the criminal and unethical means used and the end purpose of inducting the trafficked person into a life of exploitation. The actions involve receiving, recruiting, harbouring, transporting, transferring etc. Although the physical transportation of the victim is not an indispensable element of trafficking in most cases trafficking does involve the physical shift of a person to a place of exploitation better accessible for the exploiter.
As different from human trafficking it is sometimes said that in sex tourism the exploiter moves instead of the victim. Human trafficking also occurs wherein the exploiter shifts his place and reaches out to the place of the victim. E.g. some American men tourists take a flight and land on the shores of Thailand or Cambodia under the garb of entertainment or business tourism. Criminals in the destination countries (includes India) traffic children and women, run fake orphanages or shelter facilities or sex rackets and facilitate the access of these tourists to those children and women for the exploitative sexual encounter.
People undertake tours for a variety of purposes like business, entertainment, pilgrim, adventure, medical treatment etc. It is held that considerable part of tourism is comprised of sex tourism. Tourism offers anonymity or facelessness as one goes to places where he/she is not known by face. In such situations the external as well as the internal restrictions go slack and a person finds it easier to indulge in sexual encounters. Tourists are almost always in a much better financial position than the victims and as consumers they largely dictate the terms of the trade. To meet their demands vulnerable individuals (young adult women and children) are trafficked in the destination areas. Sex tourism is not always necessarily or only international. Considerable sex tourism takes place within India.
Of late, several reports from Vietnam, Cambodia and other poor countries indicate that traffickers and exploiters run fake and makeshift orphanages where children who are not necessarily orphans but certainly vulnerable or even children living on and off the streets are temporarily gathered to act as the orphan residents of the orphanages and are made available to sex tourists against payment so that the tourists can sexually exploit those children. It is portrayed as a charitable activity for the noble charitable intentions of the tourists. It is an organized crime in the sense that the hospitality industry like hotels and tour operators are deeply involved. They make such offers to potential tourists which makes it easier for them to identify sex tourists. Some hotels have printed pamphlets and booklets that serve as the menu card for choosing the type of orphanage. The hotels operating hand in gloves with the orphanage owners/managers work out the payment and the physical tours. Once the season is over the or intermittently in between the resident children are disbanded and are brought back when the tours arrive.
These orphanages are often illegal unregistered or thrive as the state regulatory mechanisms are slack or corrupt.
Vulnerable children, children living without any adult positive supervision, children living on and off the streets are trafficked to act as orphans in such orphanages. Sometimes they are kept captivity for a very long period.
Rehabilitation is of various types. For the moment let us focus on economic rehabilitation. The purpose of a sound and sustainable economic rehabilitation of a victim is to provide such livelihood skills to the victim whereby the person can become self employed by way of running a small enterprise such as a beauty care unit or a vegetable or catering service and thus financially self-reliant. Alternatively or additionally, the person is given sustained employability. The term sustainable is critical here.
In the past the activities covered under economic rehabilitation were limited, archaic and insensitive to the market conditions such as making incense sticks, wax candles, rebottling of phenyl, or chalk making or at the most, teaching small time tailoring.
These days young adults (boys and girls) are sought by food chains who give them barely two days training, a smart uniform, a cap, a cell phone and place them in a food outlet in an airconditioned Mall. This attracts these children who even cut their formal education short to join. However, the skills given being extremely specific and limited when the enterprise slumps there are few alternatives to these young adults. In such situation the plight of the victims who are without a family support system gets compounded making them further desperate and vulnerable.
Many civil society organizations have in the last decade or more evolved several success stories of sustainable economic rehabilitation such as fashion designing, beauty care, hospitality workers like housekeeping, catering and linked them with the corporate sector. The established gloomy picture of eco rehabilitation is now changed and there is light at the end of the tunnel.
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 the 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.
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.
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.
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,
- in pursuance of any customary or social obligation,
- in pursuance of an obligation devolving on him by succession,
- for any economic consideration received by him or by any of his lineal ascendants or descendants,
- by reason of his birth in any particular caste or community,
(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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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, policymakers, 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.
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.
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 arrested. They 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.
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!
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’
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!
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.