Trafficking

Trafficking

in persons

CASE ILLUSTRATION 1.0 Trafficking : Trafficking in Persons (TIP), is indeed a TIP of the iceberg like HIV / AIDS, this is yet another calamity that will, sooner than we can realise, stare into the eyes of the man squarely and will challenge the very existence of human dignity, pride and survival itself. TIP is the sibling of HIV/AIDS. For that matter, they complement each other, with each single, small and yet unidirectional and irreversible success of theirs. These siblings are now determined to lurk into your bedroom and snatch your child, snatch your wife, snatch your family bond. Read on ... you will agree.

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1.1 Sexual Exploitation : Sudha (15 years) in a village in West Godavari district, passed 10th class, was in two minds, whether to continue further education or not. The family was challenged with poverty at every step and there is rising expectation and competition to increase the life style in the village. Somasekhar, Sarpanch approached father of Sudha and encouraged him to talk to Sunitha in Mumbai, who can secure a good job for Sunitha in Mumbai. Around that time, Sunitha, who went away for employment to Mumbai 10 years back, came to the village for a festival visit. She was wearing costly dresses and came in a car. She was carrying cell phones, camera, and other gadgets. She was approached by the parents of Sudha to show her job opportunities. Sunitha promised a good job such as receptionist in a corporate office and gave one thousand rupees to the parents of Sudha. They were very happy that their daughter will also earn money and send some money home. After a week Sunitha & Sudha boarded the train and went to Hyderabad. Sunitha took Sudha to the house of Suraj in an autorickshaw. They stayed there for two days. Sudha overheard Sunitha telling Suraj that she is a virgin and there was some discussion about Rs.25,000/- or so. Sudha got apprehensive and accosted them as to what was happening. Suraj slapped her and hit her and tied her to a cot with a rope. For two days no food was given to her and she was beaten repeatedly. 2

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Suraj and Sunitha forcibly took Sudha in a car to Mumbai. On reaching the Mumbai, they were received by two men and taken in a separate car to a place which looked strange. Saroja, Madam of the den, was too happy to receive Sudha. She gave Rs.25,000/- to Suraj and the muscle men of Saroja simply bundled Sudha into a dingy room in the first floor. Sudha was dumbstruck, in a strange place, strange world, strange language, strange smell, strange voices, strange behaviour – away from HOME, helpless. As the evening approached, the place became busy, with lot of men arriving and taking away women into rooms. Sudha tried to escape but got caught and beaten by Saroja’s men who said Sunitha has sold her. That night Sudha was raped by seven men. The saga continued. She was forced to have sex six times a day. She could not escape and her living conditions were very bad. After nine months, she fell ill and she was taken to doctor, where she was detected as HIV +ve.

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1.2 Film Star : Shanthi (17 years) is the only daughter of an influential government officer in Central government. She is a brilliant student with excellent academic record and is currently attending tutorials to appear for EAMCET

Examination to

pursue higher education in Medicine. Her parents have lot of hopes on her and did everything possible to make her comfortable. But, Shanthi was having a secret desire to become a film star. She was regularly chatting on Yahoo.com with her friends and soon made few friends, who shared the same interest. Many of them, she does not know personally, are from Mumbai and shared exciting experiences of Bollywood, on the net. Shama is one such friend who, during a chat, told Shanthi that she knows directors who can give her a breakthrough to act in movies. To make her believe, Shama sent several photographs on the net showing herself and few of her friends in company of Film Stars. Shama praised Shanthi’s charm and beauty and told her that she will definitely get a chance to act in movies, if she comes to Mumbai. Believing Shama, Shanthi left for Mumbai without telling her parents and met Shama and her friends. For few days she had lot of fun visiting Five Star Hotels and going to Studios, watching film shooting. One day, Shama introduced Shanthi to one Asst. Director Mr. L.P. Maher Matondkar 4

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who promised Shanthi a chance and took her to a Flat where he keeps his junior artists. One night, the Asst. Director came with his friends, in fully drunken stage and insisted on having sex with Shanthi and other girls. While other girls obliged, Shanthi protested. Shama convinced Shanthi that this is common, otherwise the Junior Artists will not get a chance. Shanthi believed Shama and before she could realise, she was locked in a room and raped by L.P. Mehar and his friends. Shanthi was never given a chance to act in movies, but she was sexually exploited every night by at least half a dozen men. Shanthi was completely in Shama’s spell she still believed that she will get a chance to act in movies, some day. The Saga continued. Meanwhile, the parents of Shanthi made all hectic attempts to locate her. Finally, on receiving some information from Police in Mumbai, the parents left Hyderabad in search of their daughter in Mumbai. The Police took the parents to a shelter home where about 30 – 40 rescued girls were lodged. The parents went from room to room searching for their daughter and finally they located her. In the counselling that perused, Shanthi refused to recognise her parents and told Police to send her to jail so that, she can, some day, go back to Shama and the Asst. Director L.P. Mehar who will give her a chance in she will become a “Star” indeed!!! 5

movies and some day,

Trafficking

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1.3 Begging & Child Labour :

Sathyam, 8 years old, in Karimnagar was promised good clothes, food and education. His poor parents accepted. He was taken to Rajasthan by a construction company to do labour work carrying brick loads on his head. He does not know his salary, his work timings, where his workplace is located, cannot speak the local language nor can understand. The food that is given to him is neither adequate nor the type his mother used to serve back home. He found himself estranged memories of his Home, parents, siblings, village slowly started fading. Life offered no hope, nothing to look forward to.

1.4 Child Camel Jockeys “Th e t r af f i c kin g an d e x pl o i t at io n o f S o ut h As i an a nd African children as camel jockeys has increased in the Gulf States, which, with th e discovery of oil and the as sociated s u rge in w e al t h , t rans f o rm e d c ame l rac ing f ro m a traditional sports pastime to a multimillion dollar activity” (Trafficking in Persons Report, 2005)

Today, thousands of children, such as Salim (6 years), some as young as three or four years of age, are trafficked from Banglades h, Pakis t an, and ot h er po o r c ountries and s ol d into slavery to serve as camel jockeys. “These children live in an oppressive environment and endure harsh living conditions. They work long hours in hot temperatures, live in unsanitary conditions, receive little food, 6

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and are deprived of sleep so that they do not gain weight and increase the load on the camels. They are harassed by the handlers, who often beat them. Some are reportedly abused sexually. Many have been seriously injured and some have been trampled to death by the camels. Those who survive the harsh conditions are disposed of once they reach their teenage years. Having gained no productive skills or education, scarred with physical and psychological trauma that can last a lifetime, these children face dim prospects. They often end up leading destitute lives. Trafficked child camel jockeys are robbed of their childhoods -and of their future.” (Trafficking in Persons Report, 2005) 1.5 Sandhya, Soujanya, Suman and Subhan the victims of trafficking. They were cheated, tricked, coerced, forced and kept captive for exploitation. Either physical, mental or sexual.

***

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2.0 DEFINITION 2.1 “Human trafficking is the criminal and illegal trading of human beings for the purpose of exploiting their labour. It is defined by a movement (or migration) into a nonconsensual situation of exploitation (or harm) that results in the loss of control by an

individual over his or her situation.

Trafficking can occur within a country or across national borders. 2.2 The UN Trafficking Protocol of the Transnational Convention on Organized Crime (known colloquially as the “Palermo Protocol”) defines trafficking as : 

Movement ..... means ... purpose (MMP)

“The

recruitment,

transportation,

transfer,

harbouring or receipt of persons” (the movement). 

“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” (the means).



“For the purpose of exploitation” (the purpose).

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2.3 The Protocol notes that “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”.

(TAHA Report, 2006)

2.4 Trafficking in persons is a process and sequence of offences and not a single offence as many think. A single Plurality of offences

person’s trafficking involves not a single offence but, a series of offences committed by different people at different places and at different times. To that effect, if a single person is rescued, based on the statement of that victim / survivors several offenders involved in that racket can be booked, in different places under different criminal cases.

2.5 “The process of human trafficking begins with the abduction or recruitment of a person, through deceit, cheating, coercion, intimidation and use of force. 2.6 It continues with the transportation from the place of origin to the place of destination. In case of transnational trafficking in persons, the process includes the entry of the individual into another country. At times, the transportation can be within the same village also.

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2.7 This is followed by the exploitation phase during which the victim is forced into sexual or labour servitude. This often includes violence against the victim. 2.8 A further phase may occur that essentially involves the offenders. Depending upon the size and sophistication of the human trafficking operation, the criminal (organisation) may find it necessary to launder the criminal proceeds. There may be further links to other criminal offences such as the smuggling of migrants, weapons or drugs. 2.9 Human trafficking can hence be categorised in terms of the phase of the trafficking in persons process, i.e.: a) Recruitment; b) Transportation and potentially the illegal entry of the trafficked person; c) The exploitation phase; d) The subsequent phase of profit laundering.” (UNODC Trafficking in persons Global Patterns, 2006)

2.9.1 Thus, the definition of trafficking can be extended beyond MMP - Movement, Means and Purpose to another M, that is, Money (Profit) laundering. Finally, Trafficking has four components : -

Movement;

-

Means; 14

Trafficking

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Trafficking

-

Purpose; and

-

Money Laundering.

in persons

In short, MMPM. 2.10 The traffickers employ an array of methods to

enslave

trafficked persons: 

Kidnapping ;



Abduction ;



Rape and blackmail ;





Material inducements to parents; relatives, guardians so as to sell female family members; Deceit in the form of promises of well-paying, legitimate jobs, better quality of life, and more prosperous status;



Luring by declaration of love and fake marriage.



Employment prospects.



Etc.

2.11 Trafficking, Traffickers smuggle victims (like commodities). Migrants get themselves smuggled.

Smuggling

and

Migration

The “UN Smuggling Protocol of the Transnational Convention on Organised Crime defines smuggling as the procurement of illegal entry of a person into a State Party of which the person is not a national or permanent resident, against a financial or other material benefit. 16

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While the definition of trafficking contains the element of coercion, that of smuggling does not. Further, smugglers have a vested interest in not harming the person they are helping to migrate; A smuggler’s crime is against the State of destination, not against the migrant him/herself. The crime of a trafficker, on the other hand, is against the migrant, putting him or her into coercive or exploitative situations. The main profit in trafficking does not come from a one-off payment, but from the ongoing proceeds of keeping a person in slave-like conditions, and appropriating the money that is thus earned. Therefore, those who get trafficked are victims of a trafficker and those who get smuggled are clients of a

smuggler”

(TAHA Report, 2006)

2.12 In this, the discussion is restricted to the former one, i.e., victims of a trafficker.

** *

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3.0 COMMON MYTHS 3.1

Though the problem of trafficking is seriously challenging the peaceful existence of the human race, itself, there are several myths surrounding the subject, primarily arising out of lack of awareness, application of mind, seriousness and willingness to acknowledge the lurking danger. For

example, some of the

common myths are :

FACT

MYTH

1. Only women / girls are trafficked. 1. Men and boys are also subjected to trafficking 2. Only men traffic women. Women do not traffic women.

2. Traffickers deploy large number of women to cheat the victims

3. Only girls in the age group of 12 3. The fact is even girls and boys – 20 years are trafficked. of less than 8 years are also being trafficked. 4. Trafficking necessarily involves 4. Trafficking can take place transportation of the trafficked within the same Country, same person from one country (Place) State, same District, same Village and at times in the to another. same premises itself. 5. The persons who are trafficked, 5. The victims are tricked, cheated, coerced, forced, volunteer to get trafficked. beaten and intimidated.

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3.2 Several myths are ‘floated’ by the perpetrators / benefactors of Trafficking, often to frustrate the rescue-rehabilitate-reintegrate operations and to protect their own turf, particularly in commercial sexual exploitation cases. Some of them are : MYTH

FACT

6. “They (VOCSETS) enjoy sex. In 6. The victims are raped repeatedly and made to fact they are “nymphomaniacs” surrender to the new “FATE”. 7. “They are addicted to Alcohol, 7. The victims are “opiated” to accept and continue their new Drugs, Gutka etc”. “FATE”. They will easily come out of the newly acquired fad. 8. “They are addicted to luxurious 8. The living conditions are lifestyle – Air-conditioner (some), unhygienic and breed diseases. travel by Car, Biryani, Dress, CosThe additives are only to lure metics etc”. and attract the customers. 9. Since they are used to a luxuri- 9. Suitable rehabilitation will ous life, they refuse rehabilitareintegrate the victims. tion. 10. The persons who are trafficked, 10.The traffickers lay an when rescued and rehabilitated, inescapable net around the prefer to get retrafficked. victim whose kith and kin is vulnerable and manage to put pressure on the victim. 11. “Their behaviour is compulsively 11. The victims are beaten by suggestive and vulgar”. the Madams to acquire this behaviour patterns in the red light areas. The victims hate such behaviour.

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MYTH 12. “They earn lot of money”

in persons

FACT 12. All the money paid by the customers goes to the Madam, Traffickers and to pay for mamools to various agencies. The victims do not get any money, for themselves.

13. “They send lot of money to their 13.Since they do not have any families in the villages” money, there is no question of sending money home. 14. “They maintain good health and 14. They do not earn any money, but they certainly earn diseases beauty” and ailments. Quacks and not doctors attend on their medical needs and further deteriorate their plight. 15. “Their living conditions are 15.Living conditions are absohygienic” lutely unhygienic and breed all kinds of diseases including HIV / AIDS. 16. “They are medically attended to; 16. In times of sickness, they as they earn money for Madam” are attended by quacks whose medication further deteriorates the health of the victim. 17. With children there is no ques- 17. The consent of a child is of no consequence as children are illtion of consent. It is always coinformed of what awaits them ercion, threat or abuse, which is at the end by duping, trickery portrayed as consent. and fraud. The age of consent is thus vital.

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MYTH

FACT

18. The ‘problem’ is ‘out there’, it doesn’t affect me. It affects ‘other’ children not ours.

18. In fact, in this fast-paced world the Internet has brought the Paedophile stalking our children in our homes! Websites devoted to pornography are using children in abusive contexts. “Conspiracy of silence” may suck our own children, also.

19. Traffickers target only poor, starving children.

19.It may be any “unaccompanied” child who is made the target. The next child can be yours.

20. If I raise my voice, it will not happen to my children.

20.We, raising our voice alone is not adequate. We should raise the conscious of all around us.

3.3 It is easy to see that these myths are circulated to deter well meaning people from making any attempts whatsoever in rescuing, rehabilitating or reintegrating the victims. 3.4 Similarly, the traffickers of children spread rumours that parents themselves sell their children. 

“Though, poverty forces some families to send their children to work away from home. Children, thus made more vulnerable, may then fall into the hands of traf fickers and exploiters. 21

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Lack of education and lack of knowledge of the realities of migration may make parents naive and gullible to traffickers’ tricks, truly believing their promises of a better future for the child and the family;



Parents may know that the job prospect awaiting their child is not great, but still ignore its actual inhumane and slave-like conditions;



Parents may in some cases ‘rent’ their children to someone who promises good returns and work elsewhere” (TAHA Report, 2006)

***

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I saw the angel in the marble and carved until I set him free.

... Michelangelo

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4. EXTENT AND MAGNITUDE 4.0 Extent of The Problem : About two million persons are trafficked every year

About two (twenty lac) million persons are trafficked every year all over the world. Owing to the clandestine nature of this illegal operation, no agency in the world is in a position to come out with an accurate figure. Web enabled globalisation is fuelling this menace leap in geometric progression. People are trafficked for many purposes.

4.1 Human trafficking is certainly a big business. According to an UN source, traffickers of people make annual profits of some $7 billion (Rs.31,500 crores)

in

prostitution alone. 4.2 Generally speaking, almost every country in the world has a trafficking problem. Countries can be divided Countries can be : a) Origin b) Transit c) Destination

roughly into countries of origin (usually the resourcepoor countries or countries that are politically or economically unstable); countries of destination (usually resource-rich developed countries, where demand is located); and transit countries (countries along a trafficking route, where traffickers have safe passage and harbor). Some countries, such as India, Thailand and Nigeria, are countries of origin, transit, and destination. 24

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4.3 Global Patterns:

From 127 countries to 137 countries

“Human trafficking is widespread – data taken from the United Nations Office on Drugs and Crime Database on Human Trafficking Trends document the trafficking of human beings from 127 countries to be exploited in 137 countries”. (UNODC Trafficking in persons Global Patterns, 2006) Therefore, it is a global phenomenon. 4.4 “Even though all human trafficking cases have their individual characteristics, most follow the same pattern : people are abducted or recruited in the country of origin, transferred through transit regions and then exploited in the destination country. If, at some stage, the exploitation of the victim is interrupted or ended, they can be rescued as victims of trafficking in persons and it is possible they might receive support in the country of destination. Either immediately or at some later point, victims might be repatriated to their origin country ; in some cases, relocated in a third country; or, as unfortunately too often still happens, are deported from destination or transit countries as illegal migrants, with no home ; vulnerable yet again ; sitting ducks to traffickers once again” (UNODC Trafficking in persons Global Patterns, 2006)

4.5 India, an Origin : India High on Origin

On a scale of five Very High, High, Medium, Low and Very Low India appeared at High as an Origin country, Medium as a Transit country, High as Destination Country. 26

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4.5.2 Similarly, the neighbouring countries figured as folllows : Country India Pakistan Nepal Bhutan Myanmar Bangladesh Sri Lanka Average

Origin High High High Low High High Medium High

Transit Medium Very Low Very Low High Very Low Very Low

Destination High High Very Low Medium Low Low Medium

4.6 It is easy to comprehend that India and its neighbouring countries are very high in origin; these countries are sending Push and Pull factors

trafficked human beings to the rest of the world. While the ‘Pull’ factor is in the Destination countries, it cannot be denied that there exists a “Push” factor in these developing countries in Indian Ocean, dealt as Vulnerable factors / groups in chapters 9 & 14. The presence of large number of predators (Traffickers) in these countries is a dangerous menace not only to these countries but the whole world. Therefore, there is a need for all the countries to unite on this front and put an end to this menace by adopting effective strategies both at Pull side as well as the Push side. ***

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5.0 THE CAUSES OF TRAFFICKING 5.1 “The causes of human trafficking are complex and often reinforce each other. Victims constitute the supply, and abusive employers or sexual exploiters (also known as sex buyers) represent the demand”. (Trafficking in Persons Report, 2005) The people who act as conduits to traffick persons are traffickers and represent Distribution. Typically, demand side and Distribution side gain economically and the supply side suffers from all angles.

THE TIP TRIANGLE

5.1.1

SUPPLY

DEMAND

Women and children

Customer/User/Buyer

DISTRIBUTION Trafficker 5.2 “The supply of victims is encouraged by many factors including : 



Poverty ... main causative factor

poverty ; attraction of perceived higher standards of living elsewhere ;



lack of employment opportunities ;



organised crime ;



violence against women ;



regional imbalance ;



economic disparities ; 29

Trafficking 

socially challenged ;



government corruption ;



political instability ; and



armed conflict.

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5.3 On demand side, factors driving trafficking in persons include the sex industry and the growing demand for Internet provides scope for expansion of trafficking

exploitable labour. Sex tourism and child pornography have become worldwide industries, facilitated by technologies such as the Internet, which vastly expand the choices available to “consumers” and permit instant and nearly undetectable transactions. Trafficking is also driven by the global demand for cheap, vulnerable and illegal labour. For example, there is great demand in some prosperous countries of Asia and the Gulf for domestic servants who sometimes fall victim to exploitation or involuntary servitude”.

(Trafficking in

Persons Report, 2005)

5.4 There is an insatiable demand from Middle east for “virgin” brides from Hyderabad City. Often the newspapers and media show a 16 years old bride being married off to a 70 year old Sheik. What happens after the marriage is anybody’s guess. How many times, she 30

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will be sold over and again is something that is just not possible to know. 5.5 “While virtually no country is totally sheltered from trafficking (either as receiving or sending), trafficking seems to be thriving when four conditions are met; 

a flawed system unable to prevent it from happen ing,



demand for trafficked persons,



opportunities for traffickers, and



a vulnerable pool of potential victims.

5.6 A flawed system is one in which adequate laws to Absence of will to prevent trafficking and inadequate laws ... allow trafficking to take place

prevent trafficking and protect victims are not in place or are not enforced; where corrupt

authorities

(including law enforcement agencies) allow trafficking to happen and may even benefit from it. It is also a system where migration policies are not consistent with labour market realities, that is, where the opening of border and the improvement of infrastructure and transportation have not led to a concomitant relaxation of restrictions on movement and migration for labour – thus exacerbating labour market imbalances and increasing the extent of irregular migration. 31

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5.7 Demand for trafficking can be defined by: 





Demand for low status, low paid workers; Demand for commercial sexual exploitation, particularly of children; Demand for labour in sectors in which nationals of the country are not willing to work for a variety of reasons, such as dangerous conditions of work.

5.8 Demand is often found in those types of work which can be characterized as “the three Ds”: 

dirty, Dirty



dangerous, or



degrading.

Dangerous Victims Job Degrading

5.9 Opportunities for traffickers exist when the act of trafficking is rewarded, when traffickers can act with impunity, or when it results in a low risk of consequences for traffickers. Increased border controls, and crackdowns on the smallest, poorest links in the migration chain, push people into more and more organised and dangerous forms of migration, thus adding to opportunities for traffickers. Lack of access to justice for victims and potential victims allows raffickers to operate with impunity. 33

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5.10 Vulnerability factors play a role in pushing people into the hands of traffickers. Some of these factors are:” 



( TAHA Report, 2006)

Regional imbalances force people to migrate and become vulnerable in the new places of living.

in persons Vulnerability factors push victim into the hands of traffickers

Shift from rural to urban areas in search of livelihood will make people dependent and gullible in the hands of exploiters.



“Poverty and economic disparities between countries, and regions encourage migration in search of survival or better opportunities;



Poverty and economic disparties are the chief reasons for trafficking

Limited job prospects for adults force them to leave, and unemployment of breadearners force their children to earn money;



Abusive family environments (sometimes influenced by alcohol and drug use) encourage children to leave home, thus putting them at risk of being trafficked;



Lack of education and lack of access to information regarding the realities of migration do not allow people to make informed choices;”

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( TAHA Report, 2006)

Trafficking 

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Lower ethnic groups and castes as in India, are denied access to education, health, land, employment, and legal services. Youth of these disadvantaged groups are vulnerable. They move to cities and towns in search of anonymity and equality. Soon they are sucked up by lurking traffickers.







“Armed conflict, civil unrest or war situations push refugees on the roads in situations of extreme vulnerability; Consumerism and the hunger for consumer goods, fuelled by indiscriminate messages for the media, create a desire for more money;” (TAHA Report, 2006) Regional imbalances, such as a decision of the State to construct a dam or revamp a Lake without a well thought through Resettlement and Rehabilitation (R&R) programme, uproots them economically and socially and throws them into an alien situation, making them vulnerable, for the first time. ***

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6.0 TYPES OF TRAFFICKING 6.1

Sexual exploitation is not the only end use of trafficking. Infact, there are several more end uses. Following are some of the end uses, though not exhaustive:

6.2 Labour 

Bonded labour



Domestic work



Agricultural labour



Construction work



Carpet industry



Garment industry



Film Industry



Fish/shrimp industry

6.3 Illegal Activities 

Begging



Organ trade



Drug peddling and smuggling



Weapon and explosive smuggling



Mercenaries and hired assassins



Faction Crime 36

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6.4 Sexual Exploitation 



Forced prostitution Socially and religiously (Devadasi) sanctified forms of prostitution



Sex tourism



Pornography (Pink and Grey, as well)



Transgender conversion and exploitation

6.5 Entertainment and Sports 

Circus



dance troupes



beer bars



Camel jockeys

6.6 For and through Marriage 6.7 For and through Adoption 6.8 As child soldiers or combatants in armed conflicts 6.9 Supply Side Apart from the end use categorisation, trafficking can also be categorised on the supply side. Contrary to general belief that only women are trafficked, children are also

trafficked

in large numbers, as the categories of end use mentioned above, themselves suggest. It is not uncommon for male 37

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persons also to be trafficked for some of the above mentioned end uses particularly for bonded labour, sexual exploitation and organ trade. 6.10 Vulnerability It is widely accepted amongst the social scientists that Vulnerable groups belonging to lower classes / castes become doubly vulnerable

irrespective of sex, it is vulnerability in society, that is the single largest cause for anybody to be trafficked. In societies that are divided on extreme forms of class, caste and other forms of human division, the perceived lower classes/castes form the vulnerable group. In times of political, economic and ethnic disturbances/ conflicts of considerable dimensions, several groups and communities get up rooted and displaced, often resulting in breakage of bonds, lack of economic source of livelihood etc. Under such circumstances, women and children belonging to the lower classes / castes become doubly vulnerable. ***

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7.0 7.1

in persons

TRAFFICKING AND CHILDREN

Given the criminal and the clandestine nature of the act, there is very little data on the extent of trafficking. Children are certainly the most vulnerable group to trafficking as : (1) They are children and others have more control on them, (2) They can be put to use in many money-earning activities as mentioned in the previous chapter.

7.2 “Child trafficking violates a child’s most fundamental rights as outlined in the Convention of the Rights of the Child. For all the complexities of trafficking, trafficked children are child slaves. Children who are exploited in this way are often: 

Forcibly removed from their home area;



Raped, abused physically and emotionally;



Treated cruelly;



Exposed to severe health risks;



Threatened and terrorised; 39

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

Deprived of their right to education;



Discriminated against;



Exploited economically;



Exposed to hazardous work and materials;



Forced to work long hours with no rest or recreation;



Receive low or no wages.

7.3 The commercial sexual exploitation of children is defined as follows; Any person under eighteen, male or female, engaging in sexual activities for money, profit, or any other consideration due to coercion or influence by any adult, syndicate or group. While some forms of trafficking do not involve commercial sexual exploitation, there are two major links between them: 

Commercial sexual exploitation is one of the possible purposes or possible outcomes of trafficking. In other words, trafficking will sometimes be the chain of criminal acts culminating in a child being brought into commercial sexual exploitation;”

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Trafficking 

in persons

Trafficking of children – moving them away from their normal context to other parts of a country or across borders – increases their vulnerability to commercial sexual exploitation – the so-called “incidental exposure”. Isolated from family, community and normal protection mechanisms, often unable to speak the

language and deprived of legal

status, children trafficked for any purpose are at high risk of sexual exploitation.

(TAHA Report, 2006)

7.4 “The Training Manual for Combating trafficking in Children brought out by the Inter-Parliamentary Union and UNICEF has identified the following impacts: 7.5

Impact of Trafficking on Children Trafficking abrogates a child’s right to a healthy childhood and a productive, rewarding and dignified life. Child trafficking victims are subjugated and physically abused by the perpetrators: traffickers, employers, pimps, madams, and ‘customers’. Trafficked children are often beaten and abused, and the violence occurs at all stages of the ‘trafficking cycle’. The impact of trafficking on children is both long term and short term. It results in impacts that are physical and psychosocial.

41

Trafficking

in persons

7.6 Emotional Impact 

They often feel betrayed, especially if the perpetrator was someone they had trusted





Children who have been trafficked have reported feelings of shame, guilt and low selfesteem. They are frequently stigmatised. They often feel betrayed, especially if the perpetrator was someone they had trusted. These factors as well as the experience itself can cause nightmares, sleeplessness, feelings of hopelessness and depression. Some children who have been trafficked turn to substance abuse to numb their psychic pain, others have attempted suicide.

7.7 Physical impact 

Myth : Sex with a virgin can cure HIV/ AIDS

Children trafficked into prostitution, sex tourism or pornographic activities are susceptible to contracting sexually transmitted infections, including HIV/AIDS. There is a dangerous and mistaken belief in India is that sex with a virgin can cure HIV/AIDS or other sexually transmitted infections. This has led to even higher demand for young girls. Many women and girls report that ‘customers’ pay more for sex without a condom, and they – especially girls – are rarely in a position to insist upon condom use. 42

Trafficking 

in persons

Children trafficked for labour, whether it is domestic work or any other industry or occupation, are vulnerable to physical as well as sexual violence. They are beaten, branded, deprived of food and other extreme forms of violence. They too are vulnerable to rape and sexual exploitation, and are at high risk of contracting HIV/AIDS.



Children trafficked for marriages are subjected to sexual and physical violence. There are instances in which they are subjected to forced labour in the marital home. Often, marriage is the first step towards further trafficking into prostitution.

Children trafficked for begging are maimed



Children trafficked for begging are maimed and tortured so that they can evoke sympathy. They too, are susceptible to physical and sexual violence. Children trafficked for begging are kept in a drugged state so that they do not escape.

7.8 Psychosocial impact Children who are trafficked typically suffer effects adverse to their social and educational development. 

Many have no family life and are forced to work at a young age. Without access to school or family support, and cut off from normal social activities, they fail to develop their 43

Trafficking

potential.

Trafficking is an attack on the selfhood

in persons

Also, under constant surveillance and

restriction, they have little contact with the outside world and often do not have the possibility to seek help. When they are victims of physical and emotional violence and abuse, the effects may be life threatening and long term. 

Normal development of an adolescent includes development of abstract thinking, views and beliefs about themselves, ability to think critically and ability to think creatively. All these aspects of development are impacted upon negatively in case of trafficked adolescents as they are faced with uncertainty and a feeling of helplessness; their identity is suddenly lost to the negative experiences of the abuse and trauma they suffer. Trafficking is an attack on the selfhood of the person and clearly affects how they perceive themselves.



Psychological and emotional growth too is seriously impaired.



The thoughts and feelings of a trafficked person are permanently affected by her/his traumatic experiences. There is complete loss of trust in others, leading to difficulty in forming relationships, which affects their rehabilitation. Withdrawal and isolation, disconnection from the world at large, indifference, dissociation, experimenting with 44

Trafficking

in persons

drugs and alcohol, a whole range of psychiatric disorders are some of the common effects on trafficked persons”. (Stop Child Trafficking – A Handbook for Parliamentarians Published by CACT, 2005)

7.9 Free and Compulsory education is THE solution : Every child has a right to be under the care and affection of the parents. Every child deserves a protected environment to learn A child the purpose of God, the beautiful nature. Every child aspires to out of school is be the worthy citizen of its country and be capable of a child contributing towards its national building. trafficked

Trafficking shatters away all that. A child out of school is a child trafficked. Compulsory education is one solution which will make any child outside a school, residential or otherwise, standout uglily. Such children can be sent back to the school, easily - if education is compulsory. Anybody, in custody of an ‘education - less’ child can be handed up. The developing nations should give the children opportunity to have access to residential schools and impart them rightful education; if only they care for posterity and have concern for safer world !!! 7.10 Rightly so ! Art. 21 (A) Constitution of India says “The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the state may, by law determine’’? 45

Trafficking

in persons

8.0 TRAFFICKING & HIV / AIDS 8.1 4.2 Crore HIV patients world-wide

The link between HIV/AIDS and TIP: “Approximately 4.2 Crore (42 million) people are living with HIV/AIDS worldwide. The global epidemic affects women and children who are trafficked for purpose of prostitution. Globally, women in prostitution and those who have been trafficked for prostitution have a high prevalence of HIV and other STDs. For example: In South Africa, HIV prevalence among women in prostitution is 70.4 percent. In Zambia it is 31 percent, 28.8 percent in Cambodia and 20 percent in Nepal, our neighboring country.

8.2 In addition, the HIV/AIDS epidemic may be spread by TIP carries HIV

human trafficking. Some experts have linked sex trafficking to the spread of the AIDS virus. HIV cannot be controlled without preventing TIP. 8.3 There is a strong and an inevitable linkage between

STDS are more common among women than men

trafficking in women and children and spread and contraction of HIV/AIDS. Trafficking of women and children for commercial sexual exploitation, which is also termed as “sex trafficking” puts them in the most vulnerable position to 46

Trafficking

in persons

contract HIV/AIDS and spread it if they are already infected. Since the trafficked victims are virtually enslaved, they have no bargaining power upon

condom use and are vulnerable

to dangerous sexual practices, most associated with transmission. STDS are more common among women than men, and children often contract STDs, HIV/AIDS sooner than adults. Trafficked women are more vulnerable to sexually transmitted diseases. This is further compounded by their inability to receive medical testing, treatment, counselling, prevention services, or other health care. 8.4 Trafficking and HIV : Dual Vulnerabilities Of the over 5 million people living with HIV/AIDS in the South Asia region nearly 80% are living in India. Gender, 4 Million people live with HIV/ AIDS in India

age and transmission via sex are key elements in the dramatic increase in the epidemic in the region. The fastest rate of new infections is in the age group 15-24, and the epidemic is expanding rapidly amongst women, many under 18 years of age. An estimated 35 per cent of the HIV-positive people in the region are women and girls. The numbers are growing as a result of their 47

Trafficking 

Socio-economic,



Cultural, and



Biological vulnerability to HIV/AIDS.

in persons

This vulnerability is rooted in the limitations (imposed by socioeconomic and cultural conditions) on the control that women have over their life circumstances and choices, including sexual circumstances. These same underlying factors also heighten the

vulnerability

of women and girls to being caught in the growing web of trafficking in the region, taking them into situations which remove the last vestiges of choice, violate their human dignity and security, and further increase the risk of exposure to HIV/ AIDS. 8.5 HIV/AIDS is mediated almost by the same set of factors that cause vulnerability to trafficking viz. 

Poverty and inequality



Limited and unequal access to services



Unsafe mobility



Gender and patriarchal norms 48

Trafficking 

Skewed power structures



Gender-based violence



Conflict ridden regions

in persons

8.6 The following news item report depicts how vulnerabilities are the same for trafficking as well as spread of HIV / AIDS. 8.7 India: Human Trafficking in the northeast fuelling HIV/ AIDS North eastern India has seven small States often refer to as seven sisters. These seven states are landlocked and are surrounded by China, Myanmar, Bangladesh & Bhutan. As many as 180 tribes cohabit in these states. Many of them embraced Christianity. Poverty and conflict are fuelling trafficking in these north eastern states. A good portion of these states is ravaged by armed insurgency, leading to violence, displacement of families, breakdown of families, unemployment, lack of means of livelihood etc. Several camps are being conducted in these states. Several women from these camps are going missing. Traffickers openly conduct recruitment drives in these relief camps. 49

Trafficking

in persons

8.8 A study in the North-Eastern India proves, beyond doubt, that vulnerability factors such as : 

Conflict protracted regions;



Low caste / low income families ;



Broken families;



Poverty and inequality

are common vulnerability factors for both (a) Trafficking; and (b) HIV / AIDS.

***

50

Trafficking

in persons

9.0 VULNERABLE GROUPS 9.1

“Women and children are the most vulnerable amongst the human beings, particularly those from marginalised sections of society and those from poor economic strata.

Women and Children are most vulnerable to Trafficking

Cascading discrimination, within and outside the household, lack of education, nutrition, health, skills and employment, apart from domestic and societal violence make them an easy prey for the traffickers. Therefore, they need special attention, more so, because nearly half of the world population compromises of women and 1/ 3rd are children. Statistics tell us that more girls, than boys, are even withdrawn from schools to assist in household management, family care along with their mothers and sometimes even to augment family income, reducing their opportunity for better education and jobs. This adversely affects their right to development – a recognised basic right.

Trafficking in women and children is a gross violation of human rights

9.2 Trafficking in women and children is a gross violation of human rights. It is the worst form of modern day slavery. Sexual exploitation of women and girls is an obscene threat to the dignity of a female. It indeed is a de-humanising concept to treat human being as commodities. The problem of trafficking in women and children is both real and present. One of the reasons why it has continued to flourish is the 51

Trafficking

in persons

efforts of the authorities to brush the problem under the carpet and not even admit of its existence. Unless we identify a problem, there is no way that steps can be taken to tackle the same”

(Keynote address of Anand A.S. Chief Justice, 2004)

9.3 Permanent vulnerable groups of India : India prides itself to be the birthplace of zero as a

numerical.

The wealthiest ethnic group is USA is Indian. India has many uniques. One such unique thing to India is caste system. India

follows

a caste system wherein citizens are classified, vertically, according to their births. This classification will remain with that citizen from birth, through his entire lifetime, at the time of his death and even after his death. In India, some are born in upper castes such as Brahmin, Kshetriya etc, and some are born in lower castes such as listed in Scheduled Castes and Scheduled Tribes. These divisions are : (a) vertical; Women and Children of these disadvantaged groups are doubly vulnerable

(b) water tight; (c) Impermeable; (d) Rigid; and (e) Deny mobility. 52

Trafficking

in persons

Typically, citizens born in lower castes are deprived, denied and disadvantaged on many fronts: (a) access to land ; (b) access to means of livelihood ; (c) access to education ; (d) access to money (loan) ; (e) access to accrued social status, and above all; (f) Human dignity. Disadvantaged, many of them, are vulnerable to the gigantic money machine called trafficking. Women and Children of these disadvantaged groups are doubly vulnerable. 9.4 Vulnerability : Dual Vs. Double 

Women and Children for various reasons, that are similar, are vulnerable to both :

(a) Trafficking; and (b) HIV / AIDS (c) Access to justice Therefore, Dual vulnerability

53

Trafficking 

in persons

Socially disadvantaged sections of society themselves are vulnerable; their women and children are more vulnerable. Therefore, doubly vulnerable. Trafficking

HIV / AIDS

(A) Women and Children in general

Vulnerable

Vulnerable

(B1) Disadvantaged sections of society

Vulnerable

Vulnerable

(B2) Women & Twice & Children Vulnerable of disadvantage sections

Twice Vulnerable

54

Dual vulnerability

Doubly Vulnerable

Trafficking

9.4.1

in persons

Types of Vulnerabilities to Trafficking :

S.No.

Type of Vulnerability

1.

Economic

Causes behind / Vulnerabilities to Trafficking



Poverty. Family that cannot meet basic needs, e.g., large number of dependents without assets; female-headed households;



Livelihood based on arduous labour, especially for women and girls;



High unemployment or long-term underemployment;



Sudden economic shocks, e.g., climatic, erosion, market-driven, change in prices of basic needs;



Indebtedness of family-girls living in communities where dowry payments required upon marriage that divert scarce resources;



Income disparities between rural/urban or between countries;



Indebtedness leading to bonded labour and other form of similitude;



Skewed distribution of means of livelihood;



Landless poor and lack of adequate wage earning employment programmes.

55

Trafficking 2.

Social/ Gover-



Social Structure : Rigid division of societies on caste lines which only few have access to law and other means of livelihood.



Security : Those living in violent or abusive families / households; living under conditions of civil unrest or war; children living without parents or guardians; street children;



Status : Women and Girls unable to control their lives or seeking other options outside their communities as conditions are limiting - often results in women choosing to remain in highly exploitative conditions following trafficking episodes;



Lack of ‘Free and Compulsory Education’ Policy.



Street children with no guardians;



Adolescent girls, adolescents in general;



Children from families in crisis (e.g., alcoholic parents, traumatised from war or civil conflict);



Single women with children (unmarried, divorced, widowed, or abandoned);



Single women (often traumatised through stigmatisation e.g., rape victim, suspicions regarding morality, etc.); and Women / Girl migrants - either alone or with families.

nance

3.

Lifecycle

in persons

56

Trafficking

in persons

Types of Vulnerabilities to Trafficking : S.No.

Type of Vulnerability

4.

Environmental

Causes behind / Vulnerabilities to Trafficking 

Long-term lack of sustainable livelihood from erosion, drought, etc.;



Sudden disaster victims, e.g., cyclones, earthquakes, floods; and



Improper R & R programmes.

(Guide for Integrating Trafficking Concerns into ADB Operations - April 2003)

***

57

Trafficking

in persons

10.0 THE SOCIAL COST OF TRAFFICKING : The victims/ survivors suffer a permanent and progressive psychological and physical harm.

“victims / survivors of human trafficking pay a horrible price. Psychological and physical harm,

including disease

and stunted growth, often have permanent effects. In many cases the exploitation of trafficking victim / survivors is progressive: a child trafficked into one form of labour may be further abused in another. Another brutal reality of the modern-day slave trade is that its victims are frequently bought and sold many times over - often sold initially by family members.

10.1 Victims forced into sex slavery can be subdued with drugs and subjected to extreme violence. Victims trafficked for sexual exploitation face physical and emotional damage from forced physical and emotional damage from forced sexual activity, forced substance abuse and exposure to sexually transmitted diseases

including HIV/AIDS.

Some victim / survivors suffer permanent damage to their reproductive organs. When the victim is trafficked to a location where he or she cannot speak or understand the language, this compounds the psychological damage caused from isolation and domination by traffickers”. (Trafficking in Persons Report, 2005)

58

Trafficking

in persons

10.2 89% of people trafficked into sex trade want to escape. 89% of people trafficked into sex trade want to escape

60 to 70% of women in sex trade have been raped. 70 to 95% have been physically assaulted, and 68% met the clinical criteria for post traumatic stress disorders.

10.3 “The Human Rights Dimension : Every child has a right to grow in a protected environment

Fundamentally, trafficking in persons violates the universal human right to life, liberty, and freedom from slavery in all its forms. Trafficking of children violates the inherent right of a child to grow up in a protective environment and the right to be free from all forms of abuse and exploitation.

10.4 Promoting Social Breakdown : Trafficking tears children from their parents and extended family

The loss of family and community support networks makes trafficking victims vulnerable to traffickers’ demands and threats and contributes in several ways to breakdown of the social structures. Trafficking tears children from their parents and extended family. The profits from trafficking allow the practice to take deep roots. On becoming a trafficking victim can lead vulnerable groups to look the other way, away from schooling and family structure, thereby defeating national programmes of primary education etc. The loss 59

Trafficking

in persons

of education reduces the vulnerable groups’ future economic opportunities and increases their vulnerability to being trafficked in the future. The lure of money will eventually influence some weak persons (weak link in the chain) of the vulnerable groups to become conduits of the Organised Traffickers. These “small time” pushers become both influential as well as hated persons in the vulnerable group. This leads to a serious suspicions, breakdown of Trust within the social group, thereby promoting social breakdown. 10.5 Fueling Organised Crime : The profits from human trafficking fuel other criminal activities. According to the US

TIP generates $ 10 billion bad money every year

Federal Bureau of Investigation, human trafficking generates an estimated $9.5 billion (Rs.42,750 crores) in annual revenue. It is closely connected with money laundering, drug trafficking, document forgery and human smuggling. 10.6 Public Health Implications :

Victims cannot escape physical, sexual and psychological trauma

Victims of trafficking often endure brutal conditions that result in physical, sexual, and psychological trauma. Sexually transmitted

infections, pelvic inflammatory

disease and HIV/AIDS are often the result of being used 60

Trafficking

in persons

in prostitution. Anxiety, insomnia, depression and posttraumatic stress disorder are common psychological manifestations among trafficked victim / survivors. Unsanitary and crowded living conditions, coupled with poor nutrition, foster a host of adverse health conditions such as scabies,

tuberculosis, and other communicable

diseases. 10.7 The link between HIV/AIDS and TIP : Approximately 4.2 Crore people are living with HIV/AIDS worldwide. The global epidemic affects women and children 4.2 Crore HIV patients worldwide

who are trafficked for purpose of prostitution. Globally, women in prostitution and those who have been trafficked for prostitution have a high prevalence of HIV and other STDs. For example: In South Africa, HIV prevalence among women in prostitution is 70.4 percent. In Zambia it is 31 percent, 28.8 percent in Cambodia and 20 percent in Nepal, our neighbouring country.

10.8 In addition, the HIV/AIDS epidemic may be spread by TIP carries HIV

human trafficking. Some experts have linked sex trafficking to the spread and mutation of the AIDS virus. They believe that sex trafficking is aiding the global dispersion of HIV 61

Trafficking

in persons

subtypes. HIV cannot be controlled without preventing TIP. 10.9 Erosion of Government Authority : Many governments struggle to exercise full law enforcement authority over their national territory, particularly where corruption is prevalent. Armed conflicts, natural disasters, and political or ethnic struggles can create large populations of internally displaced persons, who could be vulnerable to trafficking. Human trafficking operations further undermine government efforts to exert authority, threatening the security of vulnerable populations. TIP includes big money parallel economies that weakens legitimate governments. This is more so in small and developing economies” Report, 2005)

***

62

(Trafficking in Persons

Trafficking

in persons

11.0 INDIAN SCENARIO “India is the cradle of human race, the birth place of India : Source, transit and destination country

human speech, the mother of history, the grand mother of legend and the great grand mother of tradition” - Mark Twain India is an Origin, Transit and Destination

country for

women, men, and children trafficked for the purposes of sexual and labour

exploitation. Indian men and

women are trafficked into situations of involuntary servitude in countries in the Middle East and children may be forced to work as beggars or camel jockeys. Bangladeshi women and children are trafficked to India or trafficked through India en route to Pakistan and the Middle East for purposes of sexual exploitation, domestic servitude, and forced labour. Nepalese women and girls are trafficked to India for sexual exploitation, servitude, and forced labour.

domestic

India is also a growing

destination for sex tourists form Europe, the United States, and other Western countries. India is also home to millions of

victims of forced or bonded labour.

1 1 .1 Indian Contribution to Trafficking : During a survey, interviews of over 4000 persons were conducted of different stake-holders. Amongst the 63

Trafficking

in persons

survivors (Victims) of commercial sexual exploitation 52% of victims are from deprived sections Nearly half of the victims of CSE were exploited before they reached 16 years of age

it was revealed that: 

51.7% were from deprived sections of society.



The age at first sexual experience of 41.35% was between 7-15 years.



The age of entry into commercial sexual exploitation before they reach the age of 18 was 61.7% with 45.6% of those who had been sexually exploited even before they reached the age of 16.

11.2 From amongst the clients interviewed it was found that : 

82% Clients were married with wives waiting for them at homes

10% were student and 82.3% were married below the age of 35 years, having wives at home;



Only 67.9% used condoms and 32.1% did not go for any safe sex measures either,



82.6% of those interviewed stated that they had never encountered police in brothels, which just explains the poor law enforcement against abusers.

11.3 The data collected by interviewing 852 police officials out of the total 4006 persons revealed some shocking facts : 64

Trafficking 

in persons

40% of the police officials were not aware of the issue of trafficking.

only 6.6% Police Officers are sensitised



54.8% police officials gave no priority at all to trafficking while 25.3% gave it low



priority.

The reporting on trafficking was only of 40% cases and the 60% of the cases go unreported.



Only 6.6% of the police officials had undergone some sort of training/sensitisation on the issue.

11.4 Comprehensive Only 82 and 1,051 conviction in 2004 for sexual exploitation and child labour offences

statistics

on

trafficking-related

investigations, prosecutions, convictions, and sentences are not available. Available statistics show 195 prosecutions and 82 convictions obtained for offences related to trafficking for sexual exploitation in 2004. An estimated 2,058 prosecutions and 1,051 convictions for child labour offences in 2004.

11.5 India being both a destination and a transit zone for 30% of CSE victims are below 18 years of age

traffickers is faced with the problem of tackling inter-state as well as international trafficking. A

survey sponsored

by the Central Social Welfare Board (CSWB) in 1991 in six metropolitan cities of India indicated that the population of women and children victims of commercial sexual 65

Trafficking

in persons

exploitation is between 70,000 to 1,00,000. It also reveals that about 30% of them are below 18 years of age. 11.6 As many as 24,179 in the last 3 years were reported missing Where are have they gone ? .... 24, 179 missing persons

in the country. As many as 7134 persons for the same period, were reported missing from Delhi, 2485 from West Bengal, 2014 from Tamil Nadu, 1840 from Haryana & Kerala, 1671 from Orissa, 1344 from Maharashtra, 1157 from Uttar Pradesh, 1080 from Andhra Pradesh. Now, the question is where have they gone and what is the possibility of they being trafficked, detained and exploited - sexually or physically. ***

66

Trafficking

in persons

12.0 ADEQUACIES OF INDIAN LAW ON TRAFFICKING 12.1 There are as many as 200 Criminal Acts in India or

Law Enforcement Agencies have done very little to contain trafficking

perhaps more covering almost all types of crime under the Sun. There is not one, but many Laws, Acts, Sections, Rules and Regulations to invoke, if only, somebody is serious to tackle the menace of Trafficking.

12.2 The issue, here, is not of inadequacy of Law. The issue is lack of heart and will to call a spade a spade. 12.3 Millions of Indian Citizens (how about you ?) continue to feign ignorance of this problem. Millions have brushed it under the carpet. Only few thousands have discovered, with unfathomable cost, after IT occurred to the children in their own Kith and Kin. Yet, the carpet is still there !!! 12.4 Administration, particularly Law Enforcement Agencies have done very little to cause any dent on this menace; inspite of the following draconian laws and legal framework : 12.5 Constitution of India 12.5.1 Article 15 (3), 23 and 39 of the Constitution of India clearly establish every citizen’s right to freedom from exploitation of all forms. 67

Trafficking

in persons

Article 15 (3) and Article 39 (f) are to be read together. 12.5.2 “Art. 15 (3) : Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth : The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Nothing in this article shall prevent the State from making any special provision for women and children”. 12.5.3 “Art. 21 : No person shall be deprived of his life, or personal liberty except according to procedure established by law. Life: (1) Right to life, enshrined in Art.21 means something more than survival, or animal existence 

(State of Maharashtra v. Chandrabhan, AIR 1983 SC 803 (paras 1, 20 : (1983) 3 SCC 387. It would include the right to live with human dignity.



(Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746 (para 3) : (1981) 1 68

Trafficking

in persons

SCC 608; Olga Tellis v. Bombay Corpn, AIR 1986 SC 180 (paras 33-34) : (1985) 3 SCC 545. (2) It would, thus, include (a) The right of a person not to be subjected to ‘bonded labour’ 

(Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 (para 10): (1984) 3 SCC 161) or to unfair conditions of labour



(Peoples’ Union v. Union of India, AIR 1982 SC 1473; (1982)

3 SCC 235.

(b) The right of a bonded labourer to rehabilitation after release. The State shall provide free and compulsory education



(Neeraja Chaudhary v. State of M.P., AIR 1984 SC1099 paras,1, 5,11): (1984) 3 SCC 243.

(c) Right to livelihood by means which are not illegal, immoral or opposed to public policy 

(Olga Tellis v. Bombay Corpn, AIR 1986 SC 180 (paras 33-34) : (1985) 3 SCC 545). 69

Trafficking

in persons

(d) Right of Women to be treated with decency and proper dignity: It is a basic right of a female to be treated with decency and property dignity and the search of a woman by a person other than a female officer is violative of it. (State of Punjab v. Baldev Singh (1999) 6 SCC 172 (para 13) AIR 1999 SC 2378. 12.5.4 Art. 21 (A) : The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law determine. 12.5.5 Article 23 prohibits Traffic in human beings and other similar forms of forced labour. 12.5.6 Article 39 : Certain principles of policy to be followed by the State: The State shall, in parti-cular, direct its policy towards securing. “·that the citizens, men and women equally, have the right to an adequate means of livelihood; 

that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength; 70

Trafficking 

in persons

that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral”

12.5.7 Articles 21, 21(A) and 23 and the case laws thereof makes the following Fundamental Rights : (a) Right to life; free from bonded labour, immoral and illegal means of livelihood; (b) Right to Rehabilitation ; (c) Right to free and compulsory education; (d) Right to be free from Trafficking 12.5.8 The last two rights are solutions for each other. 12.6 The Indian Penal Code, 1860 The Indian Penal Code (IPC) deals with a range of criminal offences and provides for criminal liability and prosecution of offenders. It is the main criminal law of the country. The following offences as defined in IPC are applicable to Trafficking : 71

Trafficking

Sl.No. Section of IPC 1.

195-A

in persons

Brief description Threatening any person to give false evidence: Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;

And if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced. Procedure The offence is cognizable, non-bailable, non-compoundable and triable by Court by which the offence of giving false evidence. 72

Trafficking

Sl.No.

Section of IPC

in persons

Brief description

2.

319 to 329

Simple and grievous hurt

3.

339, 340-346

Wrongful restraint and wrongful confinement

4.

350 and 351

Criminal force and criminal assault

5.

370

6. 7.

371 361,362 and 363

Import/export/removal/buying/ selling /disposing/accepting/ receiving/detaining of any person as a slave. Habitual import/export/buying/ selling/trafficking/dealing in slaves Kidnapping and abduction

8.

365

Kidnapping/abduction for wrongful confinement

9.

367

Kidnapping/abduction for slavery or to subject a person to grievous injury

10.

416 and 420

Fraud, cheating by personation, cheating.

11.

465, 466, 468 and 471

Forgery and using forged documents as genuine.

12.

503 and 506

Criminal intimidation

13.

360

Kidnapping and / or abduction for export 73

Trafficking

Sl.No.

Section of IPC

in persons

Brief description

14.

363

Kidnapping from India

15.

366-B

Importation of girl from a foreign country

16.

17.

Abetment of any of the offences listed under IPC is punishable under Chapter V of the Code. 34,35,37,120A and 120B

Deal with criminal conspiracy and can also be applied.

12.7 Vulnerable groups belonging to Scheduled Castes and SchedSC/ST Atrocities Act 1989

uled Tribes were discussed in chapter 9. Provisions of SC / ST (Prevention of Atrocities) Act, 1989 are very much available and should be pressed into, when the victims belong to these vulnerable groups, over and in addition to the other laws. In the same spirit, the Protection of Civil Rights Act, 1985 is also available.

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in persons

Victim Protection : 12.6.1 For the sake of victim protection Sections 195 A IPC and 437 (3) Cr.P.C. can be used effectively. (A) Section 195-A IPC : Threatening any person to give false evidence: Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; And if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.

Procedure The offence is cognizable, non-bailable, non-compoundable and triable by Court by which the offence of

giving false evidence.

(B) Section 437 (3) Cr.P.C. When a person accused or suspected 75

Trafficking

of the

in persons

commission of an offence punishable with

imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI, or Chapter XVII of the Indian Penal Code (45 of 1860), or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), 2[the Court shall impose the conditions : (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter; (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. and may also impose, in the interests of justice, such other conditions as it considers necessary.

76

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in persons

12.7 Bonded Labour (Abolition) Act, 1976 The Bonded Labour Act is a special legislation which not only penalises the persons who advance debt and extract work under the bonded labour system but also has a penal provision under two specific conditions : a) Those who abet the offence (Say, Trafficker) and; b) For omission or failure to restore possession of property to bonded labour. 12.8 Interstate Migrant Workman’s Act, 1979. The Act makes it mandatory for the firm to get registers, if inter-state migrants are to be employed. 12.9 The Juvenile Justice (Care and Protection of Children) Act, 2000 The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJA) is a special legislation for children and defines a ‘child’ as a person up to 18 years of age. It deals with two categories of children. (a) those in need of care and protection; and (b) those in conflict with law. 77

Trafficking

in persons

Trafficked children are treated as children in need of care and protection under the JJA.

The juvenile

The Act recognises certain offences against children as special offences. These clearly address trafficking of children in general as well as for begging and labour. These include:

justice law provides both institutional and noninstitutional measures of rehabilitation



Cruelty against a child by a person having charge of such child, including assault, abandonment, exposure, willful neglect or procuration of a child for any of these acts, in a manner that is likely to cause mental or

of trafficked children, including placement in foster care, adoption and sponsorship.

physical suffering to the child (Section 23); 

Employing, using or causing a child to beg (Sec.24 (I);



Abetment of the employment or use of a child for begging by a person having charge of such child (Section 24 (2));



Procuring a child for hazardous employment, keeping such child in bondage and withholding the child’s earnings for one’s own use (Section 26).

The juvenile justice law provides both institutional and noninstitutional measures of rehabilitation of trafficked

children,

including placement in foster care, adoption and sponsorship. 78

Trafficking

in persons

12.10 Under the ITPA, girls who are caught for soliciting become offenders. If they are minors, under the JJA, they become children in conflict with law. In such cases the girls will, and have to, go through the legal process of trial including bail, evidence, cross-examination etc, in the Juvenile Justice Boards set up under the JJA specifically to deal with children who commit crimes. This is an inherent contradiction within the JJA that can only be rectified if the ITPA is amended to treat all girls into prostitution as victims rather than offenders, even if they are found soliciting. 12.11 Children (Pledging of Labour) Act, 1933 declares any agreement by a parent or guardian to pledge the labour of a child below 15 years of age for payment or benefit other than reasonable wages, to be illegal and void. It also provides punishment for such parent or guardian as well as those who employ a child whose labour is pledged. 12.12 The Bonded Labour System (Abolition) Act, 1976 prohibits forcing a person into bonded labour for debt repayment. The act extinguishes all debt agreements and obligations. It prohibits creation of any new bondage agreement and discharges bonded labourers from all debts 79

Trafficking

in persons

for which they were bonded. Compelling a person to render bonded labour is punishable under the law. This includes punishment for parents who pledge their child or other family members to work as a bonded labourer.

Punishment for parents who pledge their children

12.13 Child Labour (Prohibition and Regulation) Act, 1986 The Child Labour Act of 1986 has adequate provisions for the freeing and rehabilitation of children found in forced labour conditions, but carries provisions for criminal sentences of a maximum of only three years. Similarly, the Abolition of Bonded Labour Act of 1976 provides adequate protections for victims of bonded labour but carries only a maximum sentence of three years’ imprisonment. 12.14 The Child Marriage Restraint Act, 1929 restrains the solemnisation of child marriages by laying down the minimum age of marriage for both boys and girls. 12.15 The Andhra Pradesh Devadasis (Prohibition of Dedication) Act, 1988 and the Karnataka Devadasi (Prohibition of Dedication) Act, 1982. Over the years, religious practices like the Devadasi tradition and the Jogin or Matamma 80

practices, whereby young girls

Trafficking

in persons

are dedicated to gods and goddesses, have come to be misused by temple priests and influential people in their forcing them into prostitution or

villages for

trafficking them for

prostitution. In the states of Andhra Pradesh and Karnataka, legislations like the Andhra Pradesh Devadasis (Prohibition Young girls of vulnerable sections are dedicated to gods and goddesses for sexual exploitation of influential persons

of Dedication) Act, 1988 and the Karnataka Devadasi (Prohibition of Dedication) Act, 1982 were brought into force to put an end to such religious, social and customary prostitution rampant in these states. These legislations ban customary dedication of girls to gods and goddesses and stipulate punishment for those who perform, promote, abet, and take part in the dedication ceremony. Both these laws do not contain any provisions specific to trafficking and prostitution as such. However, while making out a legal case they must be applied in order to ensure that all persons responsible for ‘dedicating’ young girls and hence abetting the crime of trafficking can be brought to book. Some landmark judgments of the Supreme Court of India (e.g. Vishaljeet v. Union of India 1990 and Gaurav Jain v. Union of India 1997) have influenced government policies, programmes and schemes, as well as law enforcement with 81

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in persons

respect to trafficking in women and children and their commercial sexual exploitation. 12.16 The Narcotic Drugs and Psychotropic Substances Act, 1985 This law declares illegal the production, possession, transportation, purchase and sale of any narcotic drug or psychotropic substance and makes the person, addict/trafficker liable for punishment. Use or threat of use of violence or arms by the offender, use of minors for the commission of offence, commission of the offence in an educational institution or social service facility are some of the grounds for higher punishment. 12.17 The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 Under this law, people who use children for drug trafficking can be booked as abettors or conspirators to the act. The sections on kidnapping and abduction in the IPC can always be used to book a case where children have been enticed or kidnapped to consume, sell or smuggle drugs.

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12.18 Young Persons Harmful Publications Act, 1956 prevents the dissemination of certain publications that are harmful to young persons. 12.19

The Information Technology Act, 2000 amongst other

things stipulates that publishing, or transmitting, or causing to be published, pornographic material in electronic form shall be punishable (Section 67). 12.20

The Transplantation of Human Organs Act, 1994 makes

removal of human organs without authority and commercial dealing in human organs criminally liable. 12.21

The Legal Services Authorities Act, 1987

Legal aid, though avilable, is yet to become popular with the victims. The Legal Services Authorities Act, 1987 lays down the entitlements to legal services. Section 12 of the Act provides the criteria for giving legal services. 12.22

The Immoral Traffic (Prevention) Act, 1956,

unfortunately does not define trafficking per se. Though, it does refer to trafficking for the purpose of prostitution, at length, it does not refer to other types and forms of trafficking. This is a serious lacuna. The Act does not clearly define.

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(a)

The acts amounting to trafficking; and

(b)

The act that promote trafficking.

in persons

However, the act does provide powers to law enforcement agencies to ; (a)

close a brothel ;

(b)

cancel the licence of hotel;

(c)

externment of offenders; and

(d)

Eviction from a premises used as a brothel.

(e)

The Act is not only a penal Act, but also delineates various welfare steps such as (i) rescue; (ii) intermediated custody; (iii) protective homes, etc.

(f)

But the punishment under the Act is not adequate to deter the offenders.

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12.23

“SALIENT POINTS OF ITP ACT, 1956 *

Section of Law) (ITPA)

Sec.3 Keeping a brothel or allowing any premise to be used as a brothel

in persons

Application

 When the place is a brothel  When the person owns or keeps or manages or occupies or acts / assists in keeping or managing the brothel.

Sec.4 Living on  When the Person is above 18 years of age the earnings of  Source of income is prostituting others, even if prostitution part of the income comes from this source.  or that the person is living with a prostitute  or that the person is habitually in the company of a prostitute.  or exercises control over the prostitutes by way of aiding, abetting, compelling  of acts as a tout or pimp on behalf of the prostitute

Sec. 5 Procuring, inducing or  Procures or attempts to do the same (with or withtaking persons out consent) for prostitution  Induces a person (with intention) to prostitute  Takes or attempts to take a person for prostitution  Causes or induces a person to prostitute

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Section of Law) (ITPA) Sec. 6 Detaining a person in premises where prostitution is carried on

in persons

Application

   

Detaining anybody with or without consent In any brothel Or any place with intention for sexual exploitation If there was consent, whether it was under duress, coercion, force, lure, deceit etc.

Sec.7 Prostitu-  Existence of brothel or place of exploitation tion in or in the  That it is located within a notified area or within two hundred metres from a place of worship / eduvicinity of cational institution / hostel / hospital / nursing home public places or any such area notified by the Commissioner of Police or the District Magistrate or Sub Divisional Magistrate  Graver punishment if the detained person is a child / minor  If the offence takes place in a hotel, the license is liable to be suspended / cancelled.  Liability extends to the keeper of a public place, the tenant, lessee, occupier or manager of the premises and the owner, lesser or landlord or their agents, provided they had the knowledge / intention.

Sec. 9 Seduction of a person in custody

 Any person who has the custody or charge or care of any person or a position of authority over another person  Causes or aids or abets the seduction for prostitution of that person

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Section of Law) (ITPA) Sec.18 Closure  of brothel and eviction of offenders from  the premises

in persons

Application A Judicial Magistrate convicting a person u/s.3 or 7 ITPA can order closure of the brothel and eviction of the offenders (without any further notice) If an DM/SDM receives information from police or otherwise (could be NGO too) that any room / house / place in a public place (as defined u/s 7) is being run or used as a brothel or as a place to carry on prostitution



Issue notice to the owner lesser / landlord / agent / tenant / lessee / occupier / person in charge of the place / house / hostel etc.



Show cause within 7 days of the receipt of notice



As to why the place should not be attached for improper usage



The Magistrate has to hear the person



If satisfied thereafter, direct eviction within 7 days.



Direct that further letting out requires prior approval



Orders passed by the court / Magistrate is not appealable nor stayable nor can be set aside by any court.



Enhanced punishment, if the victim is a child.



Lease / agreement regarding the house becomes void and inoperative on conviction” (Hand Book for Law Enforcement Agencies in India)

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in persons

12.24 State Laws Goa is the only state that has framed a law to deal with offences against children, including child Children’s Act, 2003 not only

trafficking. The Goa

defines ‘child trafficking’ but

also provides punishment for abuse and assault of children through child trafficking for different purposes such as labour, sale of body parts / organs, adoption, sexual offences of paedophilia, child prostitution, child pornography and child sex tourism. Airport authorities, border

police, railway

police, traffic police, hotel owners, have all been made responsible under the law for protection of children and for reporting offences against children. 12.25 Thus, we find that the Law Enforcement Agencies in India are equipped and armed with plethora of laws, though unconnected and disjointed, to tackle the menace. Law is not wanting, Enforcement is wanting. 12.26 Therefore, in different situations the following Acts can be applied :

88

Trafficking

89

in persons

Trafficking

90

in persons

Trafficking

91

in persons

Trafficking

92

in persons

Trafficking

93

in persons

Trafficking

94

in persons

Trafficking

95

in persons

Trafficking

96

in persons

Trafficking

97

in persons

12.31, 12.32 & 12.33

Trafficking

98

in persons

Trafficking

99

in persons

Trafficking

100

in persons

Trafficking

101

in persons

Trafficking

in persons

13.0 INADEQUACIES OF INDIAN LAW ON TRAFFICKING 13.1 Trafficking, as an issue, troubled the minds of the Law makers, world over, ever since 1904. In 1904, one of the first international Conventions “International Agreement for the Suppression of the White Slave Traffic 1904” was held. 13.2 Ever since, as many as twenty three international conventions were held, on the subject. 13.3 “The U.N. Convention of the suppression of the Traffic in persons and of the Exploitation of the Prostitution of others 1949” is definitely the watershed of legal regime, to the extent, India as a country, is concerned. This convention is a compilation of four previous international conventions - 1904, 1910, 1921 and 1933. 13.4 Act 104 of 1956 now called as “The Immoral Traffic (Prevention) Act, 1956 was passed after the 1949 U.N. Convention. 13.5 The Act was twice amended, once in 1978 and later in 1986. No amendments were made, after 1986, though eight important international conventions and eight more regional conventions took place after 1986; passing several resolutions; which matter a lot to the

Indian Law. To that extent, the Indian Law on

Trafficking has remained plastic after 1986. 102

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in persons

13.6 To start with the ITP Act, though uses the word “Trafficking” in its title, does not define “Trafficking.” The U.N. protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children 2000 defined ‘trafficking in persons’ in Article 3(a). Since, ITPA 1956 was not amended after 2000, the critical aspect of defining Trafficking legally is missing, thereby giving rise to lot of confusion. 13.7 Recommended Changes In ITP Act : 13.7.1 Firstly, the Act should define “Trafficking” per se. The following definition may be adopted. Any person or persons or Organisation or body or Syndicate or Criminal Gang or Organised Gang or Company or Establishment which: Movement -

Recruits, Transports,

-

Transfers,

-

Harbours,

-

Provides, or

-

Receives person, or

-

Confines, or 103

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in persons

- Restrains person(s) or abets any of the above; Using any means, other than legal, such as : - Threat, Means

- Force, - Coercion, - Abduction, - Intimation, - Fraud; for Employment, Placement : Studies etc, - Deception; Marriage, Adoption etc, - Abuse of Power, Abuse of Vulnerability, - Giving or receiving of payments or benefits to achieve the consent of the victim or abets any one of the above; For the purposes of exploitation of any nature, including ; Labour:

Purpose



Bonded Labour;



Domestic work;



Agricultural labour;



Construction work,



Carpet industry; 104

Trafficking 

Garment industry;



Film industry;



Fish/shrimp industry

in persons

Illegal Activities 

Begging



Organ trade



Drug peddling and smuggling



Weapon and explosive smuggling



Mercenaries and hired assassins



Faction Crime

Sexual Exploitation

Purpose



Forced prostitution



Socially and religiously (Devadasi) sanctified forms of prostitution



Sex tourism



Pornography (Pink and Grey, as well)



Transgender conversion and exploitation

Entertainment and Sports 

Circus



dance troupes 105

Trafficking 

beer bars



Camel jockeys



For and through Marriage



For and through Adoption



in persons

As child soldiers or combatants in armed conflicts or abets any one of the above; and / or

deals in any illegal manner, with the money gained by involving in any one of the above mentioned acts is said to have trafficked. 13.7.2 Secondly, it should be explicitly stated that the ‘victim / survivors are not to be prosecuted, should be protected, rescued, rehabilitated and reintegrated. 13.7.3 A law student would have sat down to lay down the process of Trafficking, clearly listing out the various activities, acts, omissions and commissions that would amount to conducting and encouraging Trafficking. Then weave the legal terms around them to define the offender. Such as (only illustrative and not exhaustive) : 13.8

Acts of Trafficking in Persons - It should beunlawful for any person to commit any of the following acts:

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in persons

(1) To recruit, transport, transfer, harbor, Confines, Restrains, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labour, bonded labour, slavery, involuntary servitude, debt bondage; begging smuggling of drugs, smuggling of weapons and chemicals, any illegal activity; (2) To introduce or match for money, profit, or material, economic or other consideration, any person to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labour, bonded labour, slavery, involuntary servitude, debt bondage, any illegal activity; (3) To contract marriage, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labour or slavery, involuntary servitude, debt bondage, any illegal activity; (4) To undertake or organize tours and travel plans 107

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in persons

consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography, sexual exploitation, any illegal activity; (5) To maintain or hire a person to engage in prostitution or pornography, or any illegal activity; (6) To adopt or facilitate the adoption of persons for the purpose

of

prostitution,

pornography,

sexual

exploitation, forced-labour, slavery, involuntary servitude, debt bondage, any illegal activity; (7) To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said

person;

(8) To recruit, transport or adopt a child to engage in armed activities in India or abroad, or any such illegal activity; (9) To cheat, deceive, a vulnerable person into sexual exploitation; as in false promise to marry; or as is done in Devadasi System and other social and religiously sponsored form of prostitution. (10) To hire, recruit, transport, bound a vulnerable person 108

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in persons

to commit crime such as faction crime, rival warfare, hired assassins and armed warfare; (11) To abduct, transport, adopt a person and ‘convert’ that person as a transgender for the purpose of begging and servitude. (12) To recruit, transport, transfer harbour, provide, or receive a person and confine such person under coercion, threat or use of force or intimidation for labour in construction, carpet, garment, film, fish/prawn, tiles and other such organised and unorganized industry. OR (13 To - Recruits, Movement

- Transports, - Transfers, - Harbours, - Provides, or - Receives person, or 109

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in persons

- Confines, or - Restrains person(s) or abets any of the above; Using any means, other than legal, such as : - Threat, Means

- Force, - Coercion, - Abduction, - Intimation, - Fraud; for Employment, Placement : Studies etc, - Deception; Marriage, Adoption etc, - Abuse of Power, Abuse of Vulnerability, - Giving or receiving of payments or benefits to achieve the consent of the victim or abets any one of the above; For the purposes of exploitation of any nature, including; 110

Trafficking

in persons

Labour: 

Bonded Labour;



Domestic work;



Agricultural labour;



Construction work,



Carpet industry;



Garment industry;



Film industry;



Fish/shrimp industry

Purpose

Illegal Activities 

Begging



Organ trade



Drug peddling and smuggling



Weapon and explosive smuggling



Mercenaries and hired assassins



Faction Crime

Sexual Exploitation Purpose





Forced prostitution Socially and religiously (Devadasi) sanctified forms of prostitution 111

Trafficking

in persons



Sex tourism



Pornography (Pink and Grey, as well)



Transgender conversion and exploitation

Entertainment and Sports 

Circus



dance troupes



beer bars



Camel jockeys



For and through Marriage



For and through Adoption



As child soldiers or combatants in armed conflicts or abets any one of the above; and / or

deals in any illegal manner, with the money gained by involving in any one of the above mentioned acts is said to have trafficked.

112

13.8 (14) MPP - OTD Matrix

Trafficking

113 in persons

Trafficking

114

in persons

Trafficking

115

in persons

Trafficking

116

in persons

Trafficking

in persons

13.8.1 The ITP Act, 1956 does not define Trafficking, per se. The above thirteen trafficking Acts can be in troduced in the Act to complete the definition of the Criminal Act. 13.9 Acts that

Promote Trafficking in

Persons

:-

The following acts which promote or facilitate trafficking in persons, should be unlawful : (1) To knowingly sell, lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons ; (2) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, or any brochure, flyer, or any propaganda material that promotes trafficking in persons; (3) To facilitate, assist or help in the exit and entry of persons from/to the country at international and

local airports,

territorial boundaries and seaports who are in possession of unissued, tampers or fraudulent travel documents for the purpose of promoting trafficking in persons; (4) To confiscate, conceal, or destroy the passport, travel 117

Trafficking

in persons

documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; (5) To knowingly benefit from, financial or otherwise, or make use of, the labour or services of a person held to a condition of involuntary servitude, forced labour, or slavery. 13.9.1 Acts as mentioned in 13.9 (1) and (5) do find a place in the ITP Act, others do not. They should be inserted. 13.10 Legal Protection to Trafficked persons : The

Trafficked

persons should be recognised as victims of the act or acts of Trafficking and as such should not be

penalized for crimes

directly or indirectly related to the acts of trafficking. The victims should be entitled to the victim / witness protection program of the country (Please see 12.6.1). 13.10.1 Under Section 8 of the ITP Act, the victims are prosecuted. This section should be deleted. 13.10.2 The recently amended Sections 195 A IPC and 437 (3) Cr.P.C. are handy to provide protection to the

victims.

13.11 Penalties : The following penalties also should be 118

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in persons

enumerated : (1) If the offender is a corporation, partnership, association, club or establishment the penalty shall be imposed upon the management, and/or any responsible officer who participated in the commission of the crime or who knowingly permitted or failed to prevent its commission; (2) Any government officer who issued or approved the issuance of travel exit clearances, passports, registration certificates, counselling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, should be held administratively liable, without prejudice to criminal liability under this Act. The concerned government official or employee should, upon conviction, be dismissed from the service and be barred permanently to hold public office. His/ her retirement and other benefits should likewise be forfeited; and (3) No offence amounting to Act of Trafficking should be punished with an imprisonment of less than seven years. 119

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in persons

Infact, the punishment should range between seven to fourteen years. (4) All offences amounting to Act of Trafficking should be punished with imprisonment and (as well as) seizure, forfeiture and auction of all the assets (including money) believed to be earned by the offender on Trafficking and the amount should be put in a Rehabilitation Fund (Rehab Fund). 13.12 Rehabilitation Fund (Rehab Fund) – All fines imposed under this Act and the proceeds of properties Key StrategyRehab Fund

forfeited and confiscated should accrue to a Rehabilitation Fund to be administered and managed by the Government to be used exclusively for programs that will prevent acts of trafficking and protect, rehabilitate, reintegrate trafficked persons into the mainstream of society. Such programmes shall include, but not limited to, the following;

a)

Provision for mandatory services such as: To ensure recovery, rehabilitation and reintegration into the mainstream of society, concerned government agencies should make available the following services to trafficked persons: 120

Trafficking

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(i)

Emergency shelter or appropriate housing;

(ii)

Counseling;

(iii)

Free legal services which shall include information

about the victims’ rights and the procedure for filing complaints, claiming compensation and such other legal remedies available to them, in a language understood by the trafficked person; (iv)

Medical or psychological services;

(v)

Livelihood and skills training; and

(vi)

Educational assistance to a trafficked child.

Sustained supervision and follow through mechanism that will track the progress of recovery, rehabilitation and reintegration of the trafficked persons should be adopted and carried out. (b)

Sponsorship of a national research program on trafficking and establishment of a data collection system for monitoring and evaluation purposes ;

(c)

Provision of necessary technical and material support services to appropriate government agencies and non-government 121

Trafficking

in persons

organisations (NGOs); Faith Based Organisation (FBOs) ; (d)

Sponsorship of conferences and seminars to provide venue for consensus building amongst the public, the academe, government, NGOs and international organisations; and

(e)

Promotion of information and education campaign on trafficking;

(f)

Running of Rescue Homes

13.13 All the above recommendations will make the ITP Act comprehensive and stronger. ***

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14.0 EFFECTIVE STRATEGIES TO COMBAT TRAFFICKING: 14.1 The prosecution part of the offender has been extensively dealt in the previous and the subsequent chapter. In this chapter, I would like to segregate the prosecution ‘P’ and Concentrate on the other two ‘Ps’ – which revolve around the victim. In reality also, one needs to segregate the offender and the victim and treat them altogether differently. 14.2 The two ‘Ps’ revolving around the Victim are :

PROTECTION

PREVENTION VICTIM

a) Prevention

PROSECUTION OF OFFENDER (TRAFFICKER)

b) Protection

14.3 Prevention and protection are proactive programmes of the States to ensure that the victims’ vulnerability is decimated and they are protected against retrafficking, once they are rescued. 14.4 On the prevention side the following steps, depending on the local conditions, may be taken up, in appropriate combinations :

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PROTECTION Rescuing, Rehabilitation & Reintegration Co-ord’n State/District/FBOs/NGos Dedicated agencies in the Govt.

PREVENTION Publicity Education Vulnerable groups

PROSECUTION Co-ord’n MHA/CBI/CID/SsP SITs involving states on the Source / Transit / Destination Maps

14.4.1 Recognising and resolving the vulnerability factors: As discussed earlier, in 5.11, 6.10, 8.4, and 9.0 the following are the most vulnerable groups : (a) Women (b) Children (c) Women and Children amongst lower classes / castes. (d) Women and Children in communities disturbed and uprooted by civil disorders, infrastructure projects, migrations etc. Recognize the vulnerability factors

The most important step is to recognise the presence of such vulnerabilities. This is the starting point. A State which is reluctant to recognise these vulnerabilities is likely to be condemned to move in circles without being able to zero in on the actual causative factors. 124

Trafficking Identify the vulnerability factors

in persons

After recognising and identifying the vulnerable groups specific social and economic empowerment programmes should be chalked out and launched with abundance of energy, zeal and money. The empowerment programmes should necessarily

include primary education, primary

health and employment opportunities including skill upgradation and wage earning capacities. It is very important to emphasise here the presence of Vulnerable Areas

geographically vulnerable areas such as the bordering villages of Nepal, Myanmar and Bangladesh with India. Several villages in different States such as Andhra Pradesh, Bihar, Orissa and U.P. etc. Apart from the vulnerable areas, there are vulnerable

Vulnerable groups

groups, typically belonging to the low caste communities. It is not difficult to visualise that such vulnerable low caste communities located in the vulnerable regions become doubly vulnerable. Therefore, the need for mapping the vulnerable areas and the groups.

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126

in persons

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in persons

14.4.2 Mapping of vulnerable areas and groups: Every State should conduct an immediate exercise of mapping the vulnerable areas and the vulnerable groups. Every effort should be made to identify the vulnerable groups within the vulnerable areas, so that, preventive steps can be taken up on war footing basis on the vulnerable groups within the vulnerable areas. 14.4.3 Free and Compulsory Education as a key preventive tool:

Since,

children are the most vulnerable group

and in any case it is the responsibility of the State, A child out of school is a child trafficked

a) to ensure “facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment” (Art.39 (f) Constitution of India); and b) “the State shall, …. make effective provision for securing the right to work, to

education and to public assistance in

cases of unemployment …, and in other cases of undeserved want” (Art.41 Constitution of India). 14.4.3.1 “Give them schools or they will be child labour It is good that different methods of learning are being 127

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in persons

innovated with commendable results. But what about more than a crore children who are in the age group of 6-14 years who are not able to even enter a school? A child out of school is child labour. He or she is not out of school because, as is generally believed, the

parents want the child to work

and fetch some pennies. The brutal reality is that there is no accessible functioning school. A National Meet on Abolition of Child Labour and Right to Education, held in New Delhi, August 25-26, 2006, heard voices outraged at the apathy of the government from representatives from 17 States who have been working for Give them schools or they will be child labour

children’s Right to Education and abolition of child labour. They were unanimous that “there is an explosive demand for education”. The poor parents are indeed making enormous sacrifices as they regard education as the only way in which they can seek dignity. Pity is that those in the establishment continue to argue that the poor cannot send their children to school because they depend on their children’s income. This is an uninformed if not biased view. The government’s Sarva Siksha Abhiyan is for children only up to class five. Where on earth are they supposed to go after that ? One whole decade of investment in primary education generated enormous demand but the system never 128

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in persons

cared to anticipate that there children would want to continue in school after class five. So they get dropped out to join the labour force. The government thinks fifth class is good enough for the poor and the ‘model bill’ aims to reach them merely up to class eight. Prof. Krishna Kumar, director, NCERT, was anguished that even after 100 years of what Gokhale had started, “ we are still discussing the issue of education and we are nowhere near that goal of achieving education for all. “The Constitution states that any child till 14 years is to be given free and compulsory education but it is being restricted only to children in the age group of 6-14 years. If you want a child to be in school from 5-8 years it is not possible. The Right to Education bill must be re-written and the age category from 6-14 years should be changed to 0-14 years because “by the time the child reaches 6 years he/she

either dies

or get into child labour to keep alive.” “Are we a civilised society ?” asked Prof. Yash Pal, former chairperson UGC. “No country in the world denies its children education. The middle class is the main problem in our society today and that is the reason why problems like child labour and illiteracy continue to breed and perpetuate.” Swami Agnivesh reiterated that any child who is not in school is a child labour. He stressed that The Bonded Labour Act of 1976 should be enforced. 129

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in persons

There was unanimity on abolition of all forms of child labour and children’s right to education up to class ten. The 250 million children in the 6-14 years age group and 160 million children in 0-6 years age group are the responsibility of the nation which the Union government chooses to ignore. In fact some sordid attempts are being made by the Centre to pass on the responsibility to the States. Children’s Right to Education must conform to the over-40-year old Kothari Commission recommendations of the Common School. Says Shanta Sinha, “I know that children hidden, invisible, unnoticed and uncared for are listening and waiting to see if at least now adults would help them in their liberation through education.” Adults, are you listening ?”

(L.C. Jain, Article on “Give them

Schools or they will be Child Labour”–Deccan Chronicle 3rd Sept., 2006)

- L.C. Jain , 3rd Sept. 2006 - Deccan Chronicle 14.4.3.2 The States should make all arrangements, residential Free and Compulsory education to Children

schooling where required, to ensure that the children are provided and ensured with compulsory education, including regionally appropriate vocational training, until the age of 18. This will ensure the requirement and physical presence of the children either in the parental 130

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in persons

homes or residential schools until the age of 18. This will prevent the abduction, transport, sale or purchase of children for various types of trafficking. It will be easy to identify and locate any missing child. 14.4.4 Public Awareness campaigns : Faith based organisations, community based organisations, non-governmental organisations and media should be provided with data and money to carry on a “Movement” based awareness campaigns to alert the vulnerable sections against the exploitations and to make them aware about their rights. 14.4.5 Mapping of Demand Areas : The Demand Areas such as Red Light areas, Industries using child labour, bonded labour etc, should be mapped and published. Law enforcement agencies should name the individuals, groups, syndicates and companies directly or indirectly involved in trafficking. 14.4.6 Public Exposure campaigns: All those involved in trafficking particularly the influential people should be named and shamed by giving press statements, posters and all events such as arrests,

seizure of property, convictions

should be given wide publicity. 14.4.7 Training to Government Officials : All the connected Ministries, Departments should be brought to a common platform and sensitised. It is very common that the networking within the departments, forget about networking 131

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in persons

between Departments and NGOs, does not take place in the fashion the networking takes place between the

syndicates

involved in trafficking. 14.4.8 Networking NGOs and GOs: Therefore, all the concerned NGOs and Government Officials should take effective steps to identify and curb the trafficking. This is not possible if they are not jointly sensitised, brought to a common platform and networked for a common purpose with a convergence of goals and objectives. 14.4.9 Cultural issues and Value System in Vulnerable Groups : Faith Based Organisation (FBOs), Non-Governmental Organisations (NGOs) should be exhorted to : (a) Form community vigilance committees (CVC) who are empowered to do community policing, to the extent, they should be encouraged to hold : (i) monthly cultural programmes clearly depicting the plight of trafficked victims and their families. (ii) conduct rescue operation on the traffickers in their neighbourhood. (iii) Prefer complaints in the local Police stations. (iv) Participate in the prevention, protection and prosecution side of the PPP triangle. (b) Conduct monthly Workshops / Seminars/Roadshows to : 132

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in persons

(i) target the youth and sensitise them (ii) address the family members (vulnerable) about the role, responsibility each member of the family should play to prevent trafficking in their family. (c) Oppose socially, culturally and religiously sponsored prostitution and other forms of exploitation and inform the district administration from time to time.

133

134





Madam

Brokers

Teachers

Village elders

Siblings

Aunt / Uncle

Parents

Direction of Trafficking

Campaign

Awareness

Public

Barrier One

R E HAB

FUND

Value System (CVCs)

Issues and

Cultural

Barrier Two

Treatment of Vulnerable Groups

Policing

Community

Barrier Three

No. of arrows indicate the quantum of Trafficking Repeated ‘Barriers’ will help in preventing / reducing Trafficking

Groups

Vulnerable

14.4.9.1

Trafficking in persons

Trafficking

in persons

14.4.10 Socially & Religiously sponsored practices such as Devadasi should be countered by suitable legislation such as Devadasi (Prohibition of

Dedication) Act, 1982 of

Karnataka. 14.4.11 Community Policing : Police should take the Village Defence Squads (VDS) or the Community Vigilance Committees (CVCs) into confidence and attach a Head Constable or a Police Constable to each of them to take immediate action, as well, instill confidence in them that they are not alone when helpless. 14.4.12 CVCs, FBOs, NGOs and Police should be networked: 14.4.13 It is necessary to take the above pro-active steps to prevent trafficking leap frog.

14.5 Protection 14.5.1 The first step of Protection is Rescue

14.5.2 Rescue should be followed with providing of physical safety of victim 135

Rescue

14.5.1.1

Rehabilitation

PROTECTION CHART

Reintegration

Trafficking

136 in persons

Trafficking

in persons

14.5.3 Human Rights of the Victims during the Rescue operation and after, should be well protected. 14.5.4 The Rescued victims should be kept out of bound, of the offenders / Traffickers 14.5.5 Legal Aid should be provided to the victims. 14.5.6 Medical care should be provided immediately after rescue operation.

137

Kept out of bonds of Traffickers

14.5.6.1

138

Aid

Legal

Medical Care

Physical Safety

Rescue

Protect Human Rights of the Victims Rehabilitation Programme

Psychological Counselling

POST - RESCUE CARE

Trafficking in persons

Trafficking

in persons

14.5.7 The victims were subjected to years of trauma. Immediately after rescue, they should be allowed to go through an elaborate and detailed psychological counselling processing, perhaps for a month or two. 14.5.8 All the above are possible only if there is a strong network of NGOs, FBOs, Police. Therefore, networking is a conscious ‘movement’ oriented

action and should be done.

14.5.9 Rescue should be followed by Rehabilitation. Rehabilitation is best valid if it is in the victims interest and suit micro managerial skills of the victim either acquired or natural. Hence, plenty of time should be spent with the victims to access the aptitude, skills and ability to manage small and petty vocation on their own. A dosage of skill upgradation of about six months will be an added advantage, which is likely to give confidence, awareness of rights and understanding of market dynamics. 14.5.10 However, all the rescued victims may not be in a

position

to undertake small and / or petty business on their own. Therefore, there can not be a simple, routine and generalised formulae of rehabilitation such as “a buffalo and a calf”. The rehabilitation package should be customised to suit each victim or group of victims. 139

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in persons

14.5.11 Therefore, some of the rescued victims may have to be rehabilitised with “Wage Employment Programs”rather than “Asset Owning Programmes” (AOPs). Wage Employment Programms (WEPs), by design, require an organisation to run them. These organisations can be Faith Based Organisations (FBOs), Non-Governmental Organisations (NGOs), Government Organisations (GOs) etc. The Wage Employment Programms (WEPs) can be (a)

road laying;

(b)

desiltation of tanks, wells etc.

(c)

cottage industry;

(d)

printing;

(e)

paper mache, toys etc.

140

141 Land

Cottage industry

Sweet shop

Communication kiosk

Shop

Asset Owning Program

Assessment of victims aptitude and skill set

14.5.11.1

Skill upgradation

REHAB FUND

Building Houses

Constructing Schools

Digging Wells

Laying Roads

Desiltation of tanks

Wage Employment Programme

Reassessment

STEPS OF REHABILITATION

Start a new SHG

Join an existing SHG

Self-Help Groups

Trafficking in persons

Trafficking

in persons

14.5.12. It is not common to find rescued victims belonging to the same village or habitation. If it happens, they can be clubbed together and hand-holded to form Self-Help Groups (SHGs) to take up either Wage Employment Programms (WEPs) or Asset Owning Programmes (AOPs). In case, they are not in sufficient number or in solitary, they can be clubbed or admitted into existing Self-Help Groups SHGs of the village. 14.5.13. It is easy to comprehend that all the above is possible, on a sustainable basis, only if there is (a) Networking and strong coordination with governmental agencies, and (b) adequate money is made available (from Rehab Fund) (See13.12) 14.6 Reintegration : is the most difficult part of protection of victim. Reintegration involves many places and parties who either played direct or indirect role in the trafficking of the same person, in the same settings. Many a time, the family members played ‘conspiracy of silence’. Their guilt will resurface with much more ugly face with the resurfacing of the victim.

The ‘brokers’ are still lurking in the

neighbourhood. The presence of a ‘trafficked 142

rescued -

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in persons

reintegrated’ girl in the village hits them in their face as an insult, and challenges their writ every moment. It is against all such forces, perhaps few more, that the reintegration has to take place. This calls for family counselling, community support, help of FBOs, CVCs and SHGs.

143

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14.7 Prosecution : 14.7.1 Collection and sharing of data:

It is essential for all

the law enforcement agencies at Origin, Transit and Absence of data is a serious handicap

Destination to collect, document and share information about trafficked victims, traffickers and end users. One of the biggest handicaps in law enforcement of trafficking is absence of data and information. There exists, not a single law enforcement agency in the world that can spare information with atleast 25% accuracy. 14.7.2 Data with respect to the Demand side should be collected and raids and rescue operations should be conducted. This data can be compiled by the law

Information at Destination

enforcement agencies located in the same place where the ‘demand’ market is located. Such information about ‘Demand’ markets should be shared with all, perhaps with a central Control Room, such as CBI in India, Interpol internationally. Law enforcement agencies will be sending data about missing persons to these agencies located in ‘demand’ markets. So that, identification of individual at the time of rescue operation will become easy.

144

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in persons

14.7.3 There is scant data regarding the routes adopted by the Traffickers. All details about the modus operandi adopted by each gang including the

Origin - Transit - Destination

along with all the players and their contact numbers should be collected, so that a syndicate can be busted comprehensively, instead of doing it in bits and pieces. 14.7.4 While breaking the nexus of the syndicate groups, all efforts should be made to seize their properties such as Rehab Fund

buildings, hotels, houses, vehicles, jewellery etc. They should be confiscated and auctioned. The auction proceeds should be pooled into a Fund called ‘Rehabilitation Fund’ - Rehab Fund, which can be utilised for rescue and rehabilitation purposes. 14.7.5 There is a need for shift in paradigm while presenting the various players in the menace. The shift is that the victims are not to be touched, harassed, arrested or prosecuted, any more. The traffickers and others who benefit economically from the menace should be arrested, prosecuted and their properties seized. 14.7.6 One Victim – Several FIRs In Criminal Jurisprudence, it is common to see that the set of victims, offenders, offences and hence criminal cases 145

Trafficking

in persons

booked do not change. Unlike in most cases, in the case of Trafficking, the victim is same but the offenders keep changing. Different offenders commit different types of offences on the same victim – at different places, different conditions and at different times; continuously. Many legal experts argued with me that on the basis of the statement of the victim, only one FIR (case) should be registered, as it is a continuous offence. I strongly and stoutly disagree with them. Take the example of our poor Sudha (See Chapter 1.1) who was subjected to Commercial Sexual Exploitation. Sudha’s case study is picked up here for its simplicity in description. The actual cases are much more complex and involve lot more people (offenders). The following table illustrates the legal web around the miseries showered on Sudha :

146

Somasekhar, the Sarpanch  Selling a Minor for the purpose of prostitution (Sec.372 IPC)

OFFENCES COMMITTED AND SECTION OF LAW

147  Procuring, inducing or taking of a person for the purpose of prostitution (Sec.5 (iii) ITP Act)

 Living on the earnings of the prosti-tution of others (Sec.4 (ii) ITP Act)

 Breach of contract to attend on and supply wants of helpless person (Sec.491 IPC)

 Cheating (Sec.420 IPC)

ORIGIN

 Procuring, inducing or taking of a person for the purpose of prosti-tution (Sec.5 (iii) ITP Act)

 Selling a Minor for the purpose of prostitution (Sec.372 IPC)

 Cheating (Sec.420 IPC)

Sunitha

Village in West Godavari

OFFENDER (S)

PLACE

14.7.7

Trafficking in persons

OFFENCES COMMITTED AND SECTION OF LAW

OFFENDER (S)

PLACE

 Word, gesture or act intended to insult the modest of a woman (Sec.509 IPC)

 Criminal intimidation (Sec.506 IPC)

Sunitha Voluntarily causing hurt (Sec.323 IPC) Wrongfully restraining any person (Sec.341 IPC) Assault or criminal force to woman with intent to outrage her modesty (Sec.354 IPC) Procuration of minor girls for illicit intercourse (Sec.366-A IPC) Wrongfully concealing or keeping in confinement kidnapped or abducted person (Sec.368 IPC) Buying Minor Girls for the purpose of prostitution (Sec.373 IPC)











Suraj 

Hyderabad

TRANSIT

Trafficking

148

in persons

OFFENCES COMMITTED AND SECTION OF LAW

OFFENDER (S)

PLACE Sunitha Criminal intimidation (Sec.506 IPC) Word, gesture or act intended to insult the modesty of a woman (Sec.509 IPC) Procuring, inducing or taking of a person for the purpose of prostitution (Sec.5 (iii) ITP Act)





Suraj 

Hyderabad

TRANSIT

Trafficking

149

in persons

Sunitha

Suraj

Saroja

MUMBAI Musclemen

Selling a  Voluntarily  Voluntarily Minor for causing hurt causing hurt the purpose (Sec.323 IPC) (Sec. 323 IPC) of prostitu Wrongfully tion  Wrongfully restraining any (Sec.372 restraining any person (Sec.341 IPC) person IPC) (Sec. 341 IPC)  Living on  Assault or crimithe earn Assault or nal force to ings of the criminal force woman with prostito woman with intent to outrage tution of intent to her modesty others outrage her (Sec.354 IPC) (Sec.4 (ii) modesty ITP Act) (Sec.354 IPC)  Procurement of minor girls for illicit intercourse (Sec.366-A IPC)

OFFENCES COMMITTED  Living on  the earnAND SECTION OF LAW ings of the prostitution of others (Sec.4 (ii) ITP Act)

OFFENDER (S)

PLACE

DESTINATION

 Rape (Sec. 376 IPC)

Clients

Trafficking

150

in persons

OFFENCES COMMITTED AND SECTION OF LAW

OFFENDER (S)

PLACE Sunitha

Suraj  Criminal intimidation (Sec.506 IPC) Word, gesture or act intended to insult the modesty of a woman (Sec.509 IPC)

Musclemen

151 (Sec. 506 IPC)

 Selling a Minor for the purpose of prostitution  Living on the (Sec.372 IPC) earnings of the prostitution of  Buying Minor Girls others (Sec.4 for the purpose of (ii) ITP Act) prostitution  Detaining a (Sec. 373 IPC) person in a brothel (Sec.6  Criminal intimi(iv) ITP Act) dation

 Wrongfully concealing or keeping in confinement kidnapped or abducted person (Sec.368 IPC)

Saroja

MUMBAI

DESTINATION

Clients

Trafficking in persons

OFFENCES COMMITTED AND SECTION OF LAW

OFFENDER (S)

PLACE Sunitha

Suraj

152  Living on the earnings of the prostitution of others (Sec.4 (ii) ITP Act)

 Running or managing of a brothel or the allowing of premises to be used as a brothel (Sec.3 (i) ITP Act)

 Word, gesture or act intended to insult the modesty of a woman (Sec.509 IPC)

Saroja

MUMBAI

DESTINATION

Musclemen

Clients

Trafficking in persons

OFFENCES COMMITTED AND SECTION OF LAW

OFFENDER (S)

PLACE Sunitha

Suraj

153  Detaining a person in a brothel (Sec.6 (iv) ITP Act)

 Procuring, inducing or taking of a person for the purpose of prostitution (Sec.5 (iii) ITP Act)

Saroja

MUMBAI

DESTINATION

Musclemen

Clients

Trafficking in persons

Trafficking

in persons

14.7.8 Thus, we find that though victim is same, several offences were committed on her at different places (sometimes states) by different people. In the instant case it is easy to see that three cases should be registered – one at Origin, one at Transit and the third at Destination. Therefore, though the victim is the same, it calls for three different cases (FIRs) at different places; where different IOs will investigate and file charge sheets in different Courts. There is not double jeopardy involved. Perhaps, if convicted, the network which is spread over three different locations is behind the bars – simultaneously. Networks should be broken and that is the prime concern, anyway. ***

154

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in persons

15.0 PARADIGM SHIFT To be effective, anti-trafficking strategies must target all the three sides of triangle, a) the supply side b) the Distribution side–the traffickers, and c) the demand side – the owners. 15.1 Traditionally, the law enforcement agencies have been Traditionally, the victims have been prosecuted and harassed

targeting the sex workers (victims) and

arresting them in

large numbers and prosecuting them. Very little has been done to prosecute the perpetrators of this evil. The organised criminals and the Syndicates continue to have their sway on the victims, continue to make tonnes of money, continue to make a mockery of this law of the country. PITA act now provides an opportunity to crack down on these perpetrators, aptly using sections 3, 4, 5 & 6 of the act.

155

Trafficking

SUPPLY

in persons

DISTRIBUTION

Women and children

Trafficker

Protect and Rehabilitate

Secs.3,4,5,6 of ITP Act

Identify Vulnerable Groups Economically empower the DEMAND Customer/User/Buyer Name and shame them

15.2 Thus, in the supply , demand and distribution Victims should not be prosecuted

triangle,

the present strategy demands a shift to the distribution, which needs to be broken down to crack the network. The network of the traffickers should be crippled. 15.3 Regarding traffickers, law enforcement must vigorously prosecute traffickers identify and plug trafficking routes

Traffickers, and not victims should be prosecuted

through better intelligence gathering and coordination. The clarity should be there in the entire enforcement agencies that the victim is not the problem. The problem is the traffickers, the pimp, the madam and the pusher. Therefore, prosecution should be against traffickers and not against the victim. 15.4 Thus, the first paradigm shift is, on the prosecution side - Go after the offender (Trafficker) and not the Victim. 156

Trafficking

15.5





Supply side provide economic opportunities to vulnerable groups



in persons

On the supply side, The conditions that drive trafficking must be dealt with through programs that alert communities to the dangers of trafficking, Improve and expand educational and economic opportunities to vulnerable groups,



Promote equal access to education,



Educate people regarding their legal rights, and



Create better and broader life opportunities.



Launch massive publicity and awareness programmes.

15.6 Thus, the second paradigm shift is on the

supply side,

instead of harassing the victims now, the much required shift is to rescue them,

protect, rehabilitate and

reintegrate them. It involves, identification of the target groups and economically empowering them and there by calls for a strong will and huge budget. A Rehab Fund (Para 13.12) should be instituted to make the above possible. 15.7 The 3rd paradigm shift is on the demand side, where in a customer / user/ buyer should be targeted, arrested, named publicised and shamed. 157

Trafficking

15.8

in persons

PARADIGM SHIFT EARLIER

NOW

1.

Victims

Arrested, Harassed, Prosecuted

Rescue, Protect, Rehabilitation and Reintegrate

2.

Traffickers

Sparingly prosecuted

He is the main culprit. Arrest & Prosecute, Seize his property

3.

Customer

Not touched

Name & shame, Arrest, Prosecute

4.

Trafficking Networks

Not touched

Expose them. Crush them. Cripple them.

5.

Ill gotten money

Not seized

Should be seized, forfeited.

6.

Rehab Fund

None existed

Build one. Use it for funding and rewarding NGOs involved Rescue, Protection, Rehabilitation and Reintegration

7.

Vulnerable Area

-

Map them

8.

Vulnerable Groups

-

Map them

9.

Empowerment programme

Not focussed

Design and implement focussed and meaningful programmes

158

Trafficking

159

in persons

Trafficking

in persons

Conclusions And Recommendations 15.10 About two million persons are trafficked every year, worldwide. 127 countries traffick persons to 137 countries. Countries can be - Origin, Transit or Destination. Typically, the poorer nations are the Origin countries. 15.11

Vulnerability factor such as poverty, lack of education etc; Demand for ill-gotten money; and Flawed Systems of governance are prime causes of Trafficking.

15.12 Trafficked Victims are exploited - Physically, mentally and / or sexually. They are subjected to exploitation such as Forced (bonded) labour, Commercial Sexual Exploitation, Illegal activities, Entertainment and sports, Organ Trade, Adoption, Child soldier and many more. 15.13 Children are the most Vulnerable group. Impact on such children is emotional, physical, sexual and

psychosocial;

magnitude is very high and often irreversible. They invariably carry a perennial threat of contracting HIV/AIDS. 15.14 Free and compulsory education, is the only solution to keep children safe. 15.14.1 About 42 million persons, worldwide, are living with AIDS. The vulnerability factors for both Trafficking and AIDS are the same. 160

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in persons

15.15 Women and Children are most vulnerable to trafficking. Socially disadvantaged groups are highly vulnerable and women and children of socially disadvantage groups are doubly vulnerable. 15.16 India is a very High, Origin Country. Law enforcement in India, so far, has been very very poor. 15.17 There are plethora of Laws in India that can be

applied to

prevent trafficking. Application is wanting. 15.18 However, inadequacies in law are also plenty. Even the ITP Act does not define ‘Trafficking’ and is not exhaustive and comprehensive.

Paras 13.7 to 13.13 are important

recommendations to make the Act stronger. 15.19 There is an urgent need to get focussed on ‘Prevention’. Vulnerable Groups and Vulnerable Areas should be mapped. Vulnerable Groups should be empowered with the help of Asset Owning programmes (AOPs) and Wage Employment Programmes (WEPs). 15.20 Education should be made free and compulsory.

Article

21(A) of Indian Constitution should be strictly implemented. 15.21

Massive Public Awareness Programmes should be launched to sensitise the parents, siblings, etc, of vulnerable groups using Faith Based Organisations (FBOs) and Non-Governmental Organisations (NGOs). 161

Trafficking

in persons

15.22 Adequate care should be taken during and after the Rescue Operation to de-traumatise the victim (s). 15.23 Assessment of aptitude and skill and perhaps skill upgradation should precede Rehabilitation package. An array of packages including Asset Owning Programmes, Wage Employment Programmes, Self-Help Groups can be considered for Rehabilitation Programmes. 15.24 A Rehab Fund in place, will make all the above,

possible

and feasible. 15.25 Children have no place in the streets. At that tender age they should be in protected environs. Article 21 (A) of Indian Constitution has promised them a safe and secure right to education. In fact, children were promised Free education by the Constitution. But, it is not happening. Statistics lie. Still, about 25 % children of this country, contrary to the statistical claims, are outside schools waiting to be hunted by the lurking Traffickers.They need to be given protection.the best place is The School.Hence,my mnost important recommendation is : to provide FREE AND COMPULSORY EDUCATION TO ALL CHILDREN ***

162

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16.0 COORDINATION 16.1 Prevention requires coordination at National and State level where electronic and print media is effectively used to reach the millions of Indians particularly the vulnerable groups. 16.2 Protection requires coordination between the state governments, district administration, Faith Based Organisations (FBOs), Non-Governmental Organisations (NGOs), corporate bodies. Budget requirement is huge and implementation requires focused, special exclusive agencies on a dedicated basis and not the same old agencies which implement one hundred and odd other things. Creation of a Rehab Fund will go a long way. 16.3 Vulnerable areas should be mapped immediately. Vulnerable social groups within the vulnerable areas should be identified without any further loss of time. Special projects should be launched with Officers on Special Duties (OSD) with swaying powers and budget for each of these vulnerable areas/ vulnerable groups akin to the ITDA concept with a clear cut sub plan. 16.4 The prosecution requires a close coordination between Interpol, Ministry of Home affairs, CBI, State CIDs and state police. Special Investigation Teams (SIT) should be formed involving the districts / states on the source – transit – destination map of the country. 163

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16.5 After all about 2 million (twenty lakhs) persons are trafficked every year, world wide. The effort suggested above is not only worthwhile, but is essential and necessary. Right now !! History was rewritten on 18th August 2006. How common is it to find all the Honorable judges of Supreme Court as well as all the High Courts of the country in one place, at the same time, for three days. Unbeleivable !!!!.But it happened. Thanks to the vision and efforts of Honorable Justice Mr Y K Sabharwal and Honorable justice Mr K G Balakrishnan, National Legal Services Authority (NALSA) conducted a highly professionally organized conference on “Mandating Equality and Rights of Justice to Survivors of Social Discrimination and Gender Violence, Trafficking & HIV/AIDS” (bold mine).The proceedings were conducted with all sincerity and seriousness. Not only it involved all the Judicial Officers of the country from Supreme Court to the Taluka level courts, but also representatives from Executive and Legislature which included several IAS and IPS officers, NGOs and even Chief Ministers !!! 16.6 Unfortunately, such a concerted act of coordination was not put up by others, after that. Judiciary has demonstrated its grave concern. Its time for Executive and Legislative to respond. 16.7 After all,about 2 million persons are trafficked every year,worldwide. The recommendations suggested in this book are essential and necessary.Without any further delay !!! *** 164

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in persons

References 1 (A) Anand, A.S. Chief Justice. 2004. Justice for Women, Concern and Expression, 2nd ed : Universal Law Publishing co.Pvt. Ltd. 1 (B) Key Note address at National Seminar on Trafficking in Human Beings by Dr. Justice A.S. Anand, Chairperson, NHRC, on 27th October, 2005 at India Habitat Centre. 2.

Anti-Trafficking – Law, Rules and Local Instruments – USAID/Solidarity Center / TUCP – Anti-Trafficking Project.

3.

Asian Development Bank, 1996. TA 5681-REG: Cooperation in Employment Promotion and Training in the GMS, approved in April, 1996.

4.

Bajaj, Nawal, Child prostitution in South Mumbai : Experimenting with unorthodox methods of control, in SVP National Police Academy Journal, Vol. 56 No.2: July-Dec.2004.

5.

Balaji Pandey and Others. 2003. Trafficking in Women in Orissa : Institute for Socio-Economic Development, Bhubaneswar.

6.

Bhat, Aparna. 2003, Supreme Court on Rape Trials : Combat Law Publications (P) Ltd., New Delhi.

7.

Childline India Foundation. 2003. Child Trafficking, Issues and Concerns. 165

Trafficking

in persons

8.

Coomaraswamy, Radhika. 2001. Addendum Report to the Human Rights Commission regarding Mission to Bangladesh, Nepal and India on the issue of trafficking of women and children (October-November 2000).

9.

Constitution of India

10. Department of Social Defence, Govt. of Tamil Nadu. 2003. A Reference Manual on combating Trafficking in Tamil Nadu. 11. ECOSOC, UN. 2003. Combating Human Trafficking in Asia: A Resource Guide to International and Regional Legal Instruments, Political Commitments and Recommended Practices. 12. ECPAT International.2000. Professional Policing : A Handbook for Better Police Investigation Technique to Combat Crimes Against Children. 13. Gracy Fernades and Cecily Stewart Ray. 2002. Raids, Rescue and Rehabilitation: College of Social Work, Mumbai. 14. Guide for Integrating Trafficking Concerns into ADB Operations – April 2003 15. ILO East Asia Multidisciplinary Advisory Team. 1997. Cooperation in Employment Promotion and Training in the Greater Mekong Subregion. Final report submitted to ADB under TA 5681-REG. 16. INTERPOL. 2002. Manual For Investigation. The Interpol 166

Trafficking

in persons

Working Group on Trafficking in Women for Sexual Exploitation. 17.

Jose Vetticattil and Sunitha Krishnan. 2002. The Shattered Innocence : Prajwala, Hyderabad.

18.

Minutes of GMS Mid-Term Review cum Senior Officials Meeting, 30-31 May, 2001, Bangkok, Thailand. Available: http://www.adb.org/ Documents / Events/ Mekong/ Proceedings/mtr.asp.

19.

Nair P.M. 1998. Procedures in the Investigation of cases of Child Abuse-New Trends. The Indian Police Journal, Vol. XLV No.3.

20.

Nair P.M. 2000, Gender-sensitive Procedures in the Investigation and Prosecution of Crimes Against Children. The Indian Police Journal Vol. XLVII, No.7.

21.

Nair P.M. 2002, Combating organised crime : Konark Publishers, Delhi.

22.

Nair P.M. 2002, Combating Trafficking in Women and Children. CBI Bulleting (April), Vol. VI No.3.

23.

NHRC. 2002, Information Kit on Trafficking in Women and Children

24.

Patkar, Pravin and Priti. 2002. Frequently Asked Questions on CSE and Trafficking. 167

Trafficking

in persons

25.

Patkar, Pravin and Priti. 2004. Home Investigation Report.

26.

Saarthak and UNIFEM. 2002. The Sounds of Silence : A Manual for Forming Therapeutic Relationships : Saarthak, New Delhi.

27.

Sanlaap. 2002. A Handbook for Better Police Investigation Techniques to Combat Crimes Against Children.

28.

Skeldon, R.2000/1. Trafficking: A Perspective from Asia, International Migration, Special Issue.

29.

Stop Child Trafficking - A Handbook for Parliamentarians – Published by CACT 2005

30.

Trafficking in Persons Report – June 2005- The Dept. of State U.S.

31 . UNODC Trafficking in Persons Global Patterns - April 2006 32.

TAHA Report on Prevention of Trafficking. HIV & AIDS in Women and Girls (Fast Fact about Trafficking).

33.

Trafficking in Women and Children in India – PM Nair, IPS – Published by Oriental Longman Pvt. Ltd., New Delhi 2005

34.

Trafficking Women and Children for Sexual Exploitation Hand book for Law Enforcement Agencies in India – PM Nair, IPS – Published by UNIFEM, New Delhi - 2005

168

Trafficking

in persons

35.

U.S. Department of Justice, National Institute of Justice. Eye Witness Evidence : A Guide for Law Enforcement.

36.

1997. TA 5751-REG: Prevention and Control of HIV/AIDS in the GMS, approved in September, 1997.

37.

1998. TA 5794-REG: Study of Health and Education Needs of Ethnic Minorities in the GMS, approved in December, 1999.

38.

1998. Handbook on Resettlement: A Guide to Good Practice.

39.

1999. TA 5856-REG: Legal Literacy for Supporting Governance, for $500,000, approved on 24 August, 1999.

40.

1999. TA 5881-REG: Preventing HIV/AIDS Among Mobile Populations in the Greater Mekong Subregion, approved in December, 1999.

41.

2000.TA 5958-REG: Roll Back Malaria Initiative for the Greater Mekong Subregion, approved in December, 2000.

42.

2000. TA 5970-REG: Small-Scale RETA for Drug Eradication in the GMS,

43.

2000. Loan No.1763-BHU: Road Improvement Project, for $9.6 million, approved on 3 October, 2000.

44.

2000. Promoting Good Governance, ADB’s Medium-Term Agenda and Action Plan. 169

Trafficking

in persons

45.

2000. Chantavanich, Supang, with Allan Beesey and Shakti Paul.2000. Mobility and HIV/AIDS in the Greater Mekong Subregion. Report submitted to ADB under TA 5881-REG.

46.

2000. Long-Term Strategic Framework of the Asian Development Bank (2001-2015), Sec.M17-01. 21 February, 2000.

47.

2001. Country Strategy and Program Update (2002-2004), Nepal.

48.

2001. Country Strategy and Program Update, Bangladesh.

49.

2001.Fighting Poverty in Asia and the Pacific: The Poverty Reduction Strategy of the Asian Development Bank(R17999)

50.

2001. Handbook on Poverty and Social Analysis- A Working Document.

51.

2001. Loan No.1839-IND: Western Transport Corridor Project, for $240 million, approved on 20 September, 2001.

52.

2001. Loan No.1870-IND: West Bengal Corridor Development Project, for $210 million, approved on 11 December, 2001.

53.

2001. Loan No.1897-PAK, for $243.2 million, and Loan No.1898-PAK,for $86.8 million, approved on20 Dec. 2001.

54.

2001. Moving the Poverty Reduction Agenda Foreward in 170

Trafficking

in persons

Asia and the Pacific. The Long-Term Strategic Framework of the Asian Development Bank (2001-2015). 55.

2001. TA 6010-REG: South Asia Subregional Economic Cooperation II, for $500,000, APPROVED ON 13 December, 2001, approved in December, 2000.

56.

2001. TA 6008-REG: Gender and Governance Issues in Local Government, for $600,000, approved on 4 December, 2001.

57.

2002. 5948-REG: Synthesis Paper: Combating Trafficking of Women and Children in South Asia.

58.

2002. 5948-REG: Supplemental Study on Legal Frameworks Relevant to Human Trafficking in South Asia.

59.

L.C. Jain, Article on “Give them Schools or they will be child labour” - Deccan Chronicle 3rd Sept. 2006.

60.

India Human Trafficking in the Northeast fuelling HIV/ AIDS - Report - 17th May 2006 GMT - Source : IRIN ***

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