NOT SO FAQ

Not so Frequently Asked Questions

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 absolutely essential condition of human trafficking; although we often come across such shifts. The definitions of human trafficking use the term ‘Transfer’ as an act that 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 to serve liquor in the ladies’ bar, or work as dancers in dance bars are soon pressurized to sell their bodies for sex without having to change their place of residence or work. The term ‘transfer’ in the definition refers to this change.

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 or inegalitarian countries and politically disintegrated societies are high on supplying trafficking victims, while the rich, stable, and technologically advanced countries are low on the supply and perhaps high on the exploitation of the trafficked victims.

Human trafficking, being a disguised heinous crime, makes 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 from one another. The understanding of the people engaged in collecting and quoting statistics about human trafficking across countries and within countries too is widely different.

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

All these factors make it impossible to have any reliable statistics about human trafficking. What gets circulated in the name of statistics deserves to be aptly called sheer ‘guesstimates’ and not even estimates. When monetary and other incentives get attached to making higher guesstimates, the guesstimates tend to snowball and become bigger in volume along the way.

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 all over the world without exception. As no one has any measurable data about the historical incidence of slavery and human trafficking, making a well-founded empirically established comparative statement on the incidence is not possible. However, that does not discredit the overall concern expressed by different stakeholders that the incidence is rising.

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

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 statistics is mostly responsible for such abuse of statistics.

One must note that no one has taken any scientific or logical exercise to arrive at such global, continental, or regional statistics about the turnover of the trafficking business. Undertaking such exercise is a herculean task in every respect. The data gathering and maintenance systems of different countries are greatly different and do not dovetail with one another. Many countries especially the poor countries do not have such data gathering and management systems. The concepts, definitions, and terms 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 an argument only if it is backed up by figures appear to be a major and rampant weakness of this field. However, that should not come in the way of anyone who makes such a claim on the basis of one’s field level or first-hand exposure and observations stating that the phenomenon is serious and large.

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 programs 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.

Yes! In India, there are specific 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 Prohibition of Child Marriage Act -2005, the Bombay Prevention of Begging Act 1959, CARA Guidelines for adoption, Child Labour (Prohibition and Regulation) Act 2016, Protection of Children From Sexual Offences Act 2012, Devadasi Abolition Acts of some states, the Indian Penal Code 1860, etc.

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 in putting the victim into a dangerous situation potent with trafficking possibilities.

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 a certain 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 an incorrect use of the terms. 

i) During the ‘Search’ and ‘Rescue’ operations, under the law especially under the ITP Act 1956, apparently victim girls and young women (or apparently victim persons) 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 lawfully ‘rescued’. Hence, they are not taken into ‘custody’ or ‘remand’. 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 lawful supervision of social caretakers 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 apparently offenders are arrested too. These are from the categories of traffickers, pimps, brothel keepers, 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 labor trafficking by the police through search operations popularly called ‘raids’. After the rescue and raid, they are placed in institutional care for a variety of purposes like protection, shelter, nutrition, health services, social inquiry, 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 investigation or 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 caregiving 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.

When a complaint is filed or lodged at a police station, the police are expected to do 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 an investigation, the police are required to record the statements of the complainant (in our context, a trafficking victim).

Often, we come across the term ‘interrogation’ to describe the process in which the police ask 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’ or recording of statement.

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. Decriminalization repeals provisions against procuration, recruiting, inducing for prostitution, detaining, 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 traffickers, recruiters, brothel keepers, brothel managers, pimps, seducers, premise owners/ providers, etc. 

The second category decriminalizes the person whose bodily sex is sold (mostly the prostituted woman). It seeks not to consider the person as an offender whose bodily sex is sold. 

Many sex trade related laws provide for the arrest and punishment to the prostituted women (or persons) when they are found soliciting for the customers in public places thereby supposedly causing public nuisance or annoyance. These are sometimes the situations of conflict of rights. And although the law considers this as an offence it does not seek to punish the said person. That is also a part of the decriminalization process.

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, a car can also be termed as a brothel. There could be non-brothel based trafficking but there can’t be non-brothel based sex trade.

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 belongs. 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 usage is also incorrect!

Correct:

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

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

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.




Globally, there are various legal policy approaches to the sex trade. They are as follows:

  1. The Abolitionist approach: The Abolitionists look at prostitution as a patriarchal misogynist practice that is full of violence against women and consider it as an inherently exploitative, anti-family, and immoral phenomenon. It analyses prostitutes as the victims of trafficking and recommends that the trade must be abolished completely. The abolitionist had a significant presence in Europe and the USA.
  2. The Regulationist approach: The Regulationist approach presumes that prostitution cannot be abolished. The approach believes that if the prostitution trade is banned, suppressed, or abolished it may have serious repercussions leading to disorder in society. In doing so the approach implies that prostitution has a certain utility and hence must be regulated with rules and inspection and not abolished. Among the regulatory measures, this approach suggests periodic medical testing to keep the women ‘clean’ and the sexually transmitted infections (STIs) under control. It also suggests close monitoring of the prostitute women. With a view to avoiding any clashes with groups of any incompatible view it also suggests zoning whereby the trade is kept limited to certain geographical zones. 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 program passed laws and under the force of those laws 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 and needed.
  5. Legalization approach: The Legalization approach 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 is never the case. More about legalization in another note.
  6. Decriminalization of selling sex: Originally adopted by India in 1956 under the Suppression of Immoral Traffic Act and then further strengthened in the year 1986 through an amendment of the Immoral Trafficking (Prevention) 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 world as the ‘Nordic’ model and after Sweden, many other Nordic and other countries have adopted it.
  7. Decriminalization of buying: This approach holds that a sex buyer or sex trader is not to be punished. All those provisions in the law that penalize the buyer of sex should be 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 policymakers when haunted by certain myths and worried about the imaginary unmanageable consequences of suppressing or abolishing the sex trade, openly for legitimacy sake formally declare an abolitionist policy but intentionally avoid enforcing it in letter and spirit and tolerate its underground operations. 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.

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 and not to restrict their movement.

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 has 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, India and Tibet with whom we share land borders, and between India and Sri Lanka where we share a water border.

 

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 the business of some persons to look out for such vulnerable, needy, and ignorant persons and get them to the rackets who harvest their organs.

Surrogacy is a medico-social arrangement under which a 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 fetus for a 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 fetus for a 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 fetus under the gestational surrogacy or provides her egg under the traditional surrogacy, remains pregnant for a 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 an arrangement for providing financial returns to the surrogate mother for her pregnancy or for relinquishing the claims over the child delivered by her and for handing over the child.

When a woman is procured, received, recruited, harbored, 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 is an integral and noble part of human society that deals with the health of humans and other living beings. However, evolving medical drugs and administering them to living human beings is a risky affair full of hazardous potentialities. Their effects on living beings 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 (living being)  to whom the drug is administered. Every such medical drug thus has to go through a series of trials before it is declared as a drug with known and acceptable counter effects. Almost always the fatal and undesirable effects of a drug being researched are identified by conducting trials of that drug on guinea pigs and such other animals. Once its positive and negative effects are understood and brought under maximum control after a series of trials on animals 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 required clinical trials. For this purpose, human beings are encouraged to volunteer who takes an informed decision with a fair understanding of the apportionment of the responsibility, corrective action, and damage compensation. That is an ideal situation.

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 the trials. Second, when those human beings subjected to such clinical trials are procured, received, recruited, harbored, transported, transferred, made available 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 for the trial. Their apparent consent to go through this is not a ‘freely given informed consent’.