STATUS OF WOMEN TRAFFICKING AND PROSTITUTION

To deny people their human rights is to challenge their very humanity.-

Nelson Mandela

It's a basic human right to live with dignity and have rights protected. But since time immemorial, plight of women hasn't changed. They have always continued to suffer from aggression, violence, exploitation, discrimination,     etc.     In    ancient    history, women      is    glorified as devi or goddess. But in reality this glorification is found to be mere mythical. Indian women have been long suppressed and dominated by patriarchal society. They are forced to follow rigid and obscene customs. There are various kinds of crime committed against a women, sometimes even before birth.

One such crime is trafficking. It's a serious crime and grave violation of human rights. Human trafficking in India is illegal but it still poses a serious threat and remains a significant problem.

Meaning:

Trafficking means illegal trade. Human trafficking means trading of humans. Trafficking can occur within a country or may involve movement across borders. Women, men and children are trafficked for a range of purposes, including forced and exploitative labour in factories, farms and private households, sexual exploitation, and forced marriage. Trafficking affects all regions and most countries of the world. [1] Prostitution is said to be the oldest among professions in world of human beings and is rampant throughout the world.

The development of definition of trafficking is necessary in order to combat the problem and be effective in preventing trafficking. Trafficking, in the dictionary is described as an illegal trade in a commodity & in case of trafficking in persons, the commodity is human beings.

Art.3, paragraph (a) of UN Trafficking in Persons Protocol states that trafficking in persons:

shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. [2]

Sex trafficking means exploitation of women and children, within national or across international-borders, for purposes of forced sex-work. Commercial sexual exploitation includes pornography, prostitution and sex trafficking of women and girls, and is characterized by exploitation of a human being in exchange for goods/money. Some sex trafficking is highly visible, like street prostitution but many trafficking victims remain unseen. Adult women make largest group of sex-trafficking victims, followed by girl children, however a small percentage of men and  boys are trafficked into the sex industry as well.

Historical Background:

In order to understand the phenomenon of 'trafficking in persons', it's of utmost importance to trace the historical development of the concept. Earliest type of global trafficking began with African Slave Trade. It was the    first    known    international    flow    of     human     trafficking. The term traffic was first used to refer the so-called 'white slave trade' in women around 1900. Trade of white women from Europe to Arab and Eastern states as concubines/prostitutes was a concern for men, women, and governments of European countries.

At this time, traffic meant movement of women for an immoral purpose i.e., prostitution. Initially, this definition required crossing of country borders, but by 1910 it changed to traffic in women within national boundaries. Traffic in women was seen as related to slavery, but also to closely linked to prostitution.[3] The problem of trafficking can also be traced back to the time of Greek City states. Its history is full of attempts on the part of the States to regulate, control and to limit certain sections of the society and certain kind of activities like prostitution.[4]

International Aspect:

Trafficking has become the worst kind of social disease in world which has turned epidemic. Trafficking after drugs and arms trade is third largest organized crime across the world.[5] To fight with this evil, various

conventions and declarations have been made by different international and regional organizations.

The earliest measure to combat international traffic in women was adoption of International Convention for the Suppression of the White Slave    Traffic    signed     at     Paris     on     4th     May     1910.[6] Art.1 and 4 of International Labour Organization Forced Labour Convention   (1930)   prohibits   trafficking   for   immoral   purposes.[7]

The Geneva Convention on the prohibition of the traffic in women and children signed on 11th October 1933 promised to prosecute criminals who kidnap for purpose of prostitution abroad women or girls under 21 even with their consent.This convention was replaced by United Nations Convention for the Suppression of the Traffic in Persons, and of the Exploitation of Prostitution of Others, signed on 2nd December 1949.

The most important international instrument is the Palermo Protocol, a supplement to UN Convention against Transnational Organized Crime (2000). Art.5 of the Protocol requires States to criminalize trafficking, attempted trafficking, and any other intentional participation or organization in a trafficking scheme.[8] CEDAW, 1979 requires States to take all appropriate measures to suppress all forms of trafficking in women and exploitation of prostitution of women.[9]

In Madhu Kishwar v. State of Bihar[10] in this case the Supreme Court considered the provisions of CEDAW and held the same to be an integral scheme of the Fundamental Rights and the Directive Principles.

In the 9th SAARC Summit (May 1997) the member nations took initiatives to take proper administrative and legislative measures to combat problem of trafficking of children and women in the region.[11]. In the  11th Summit of the Heads of State of SAARC held at Kathmandu from January 4th-6th 2002, a Convention on preventing and combating Trafficking in Women and Children Prostitution was adopted.[12]

The second most common form of trafficking is forced-labor. Trafficking often occurs from less developed countries to more developed countries, where people are rendered vulnerable by virtue of poverty, conflict or other conditions. The U.S. State Department estimates that between 600,000 and 800,000 persons were trafficked across national borders worldwide between April 2003 and March 2004. 80% of these were female, 70% of who were trafficked for sexual exploitation. [13]

Nature and Extent of Trafficking:

Trafficking in persons is one of the worst forms of crime in modern day civilization. Globally more than 20.9 million people are its victims, majority of them being girls and women susceptible to sexual exploitation.[14] Women trafficking have become an important issue transcending borders, affecting countries all over the world. They are being trafficked for various kinds of purposes which are derogatory in nature. With the increasing use of new information technologies especially the internet this problem has altogether gained a new dimension.

Mostly women fall prey for trafficking but even children and even men of varying ages fall prey to this crime. Anyone can be a human trafficker. He can work alone or with a small or a large group. Frequently traffic is someone that the victim knows on a personal basis, such as a family member, friend, our community member.[15] Poverty and economic deprivation; the gap between the rich and poor within countries and between different regions has especially made women more vulnerable to trafficking.

Women as a Victim of Trafficking Prey of the Business

Trafficking is simply exploitation of vulnerability. Structural causes of trafficking are a complex process of linkages between poverty and gender discrimination, globalization, culture, migration and feminization of poverty that increase vulnerability of women and girls, stimulating push factors and demand in specific sectors.[16] The traffickers take advantage of this vulnerability and lure them to solve their problems. These victims are promised work in domestic or service industry but instead are usually taken to brothels.

What Makes Women Vulnerable To Trafficking and Sexual Exploitation?

Poverty can be termed as the catalyst for sexual exploitation of women. Traffickers look for vulnerable people and therefore easier to exploit. Women experience a higher vulnerability to trafficking because they make up a disproportionate number of those who are poor, and they are often portrayed as objects of sexual gratification.

But poverty isn't alone the root cause of this heinous crime. The contributing factors which fuelled up the flourish of the industry are summarized below:

• Poverty and deprivation leading to internal conflicts in developing countries
• Frequently excluded from mainstream economic and social systems, such as employment, higher education, and legal & political parity.
• Inadequate educational, gender disparities in access  to opportunities and lack of social safety-nets. Women engaged in other low-status work or service not enough to run family gets victimized.
• Status of violence against women in their households or in society.
• Women who are unaware of their legal rights and remedies.
• Economic disparities within countries accelerate trafficking from low income to high income areas.
• Natural disasters make women more vulnerable
• Prevalence of evil traditional and religious practices in some communities.
• Patriarchal system of society is largely responsible where males claim  to  be  superior  in  position  than  women  and  treat  them as commodity.
• Lack of strong political will and weak law enforcement mechanisms
• An expanding commercial sex entertainment industry employing large number of minor girls.
• Obscure beliefs like 'sex with virgin' will cure Sexually Transmitted Diseases, increases the vulnerability of the girl child because of the belief that they have lesser chances of being HIV/STD carriers.
• Impoverished parents selling off their daughters to get economic benefit.

Legal Framework:

To combat this social menace, India does not lag behind. It has taken various steps to eradicate this problem. There are a number of enactments  which  refer  to  protection  of  women  from   exploitation. In the Constitution of India [17], there are quite a many provisions for the protection of the rights of women and improvement of their conditions.

1. Under Art.15(3), the state is empowered to make special provisions for women and children
2. Art.23 prohibits trafficking in human being and forced labour. It states: Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
3. Art.39 provides for certain principle of policy to be followed by the state which among others includes that state should direct its policy towards securing that men and women equally, have the right to adequate means of livelihood, that the health and strength of workers, including men and women are not abused.

1. Art. 51A (e) imposes duty on every citizen of India in mandatory form which says that: It shall be the duty of every citizen of India, to renounce practices derogatory to the dignity of women.

In People's Union for Democratic Rights v. Union of India[18] the Supreme Court(SC) while considering a PIL for emancipation of bonded labour defined the meaning of forced labour w.r.t Art.23 of the Constitution of India. This judgment finds relevance in order with the increase in labour trafficking across the country.

The Indian Penal Code, 1860[19] also lends a helping hand to curb trafficking    and    prostitution. The    provisions    are     as    follows: The Amendment of 2013 after the Delhi gang-rape case brought major changes in relation to trafficking in S.370 of IPC and a new S.370A was added. The key changes introduced by these provisions are the specific criminalization of recruitment, transfer, transport, harboring a person for the purpose of prostitution, forced labor, organ removal by use of threats or inducement; conduct which had previously been covered by general provisions dealing with slavery and abduction. It also provides for enhanced punishment of 7 to 10 years imprisonment.

The first substantive law enacted to deal with the problem of traffick ing was The Suppression of Immoral Traffic in Women and Girls Act (1956) Act (SITA) which was passed on December 31, 1956 in pursuance of UN Convention for Suppression of Traffic in Persons and of Exploitation of the Prostitution of Others. But as the name suggests, it only attempted to reduce this practice instead of eradicating it completely and it only talked about females. It also didn't conform fully to the international convention. The definition of prostitution was also unsatisfactory and lesser sentence was prescribed compared to that in IPC to offenders who induct women into prostitution. Thus, this Act remained ineffective due to above mentioned drawbacks and traffickers who even if caught escaped through such loopholes. Hence, Parliament amended this Act twice, in 1970 and 1986. Accordingly the Act was renamed as The Immoral Traffic (Prevention) Act 1956. [20] (ITPA). In this Act, definition of prostitution was amended. The definition was given a wider scope. The purpose of this enactment was to abolish commercialized sexual abuse and exploitation and traffic in persons as an organized means of living. This Act provides for punishment of offence of procuring, inducing or taking person for the sake of prostitution.

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018:

• Creates a law for investigation of all types of trafficking, and rescue, protection and rehabilitation of trafficked victims.
• Provides    for   establishment    of   investigation    and   rehabilitation authorities at the district, state and national level.

• Set   up   higher   penalties    for   several    offences   connected    with trafficking.[21]

Role of Judiciary:

In Vishal Jeet v. Union of India [22], SC issued directions that all State Governments must direct their law enforcing authorities to take appropriate speedy steps against the evil and directed to set up advisory committees with experts from all fields to make suggestions regarding measures for eradicating child prostitution, for care and rehabilitation of rescued girls, for setting up of rehabilitative homes, and for a survey of the devadasi and jogin traditions.

In Gaurav Jain v. Union of India [23] SC ordered to constitute a committee to make an in depth study into problems and evolve such suitable schemes for rehabilitation of trafficked women. The court taking a proactive view believe and hoped that directions would relieve human problem by rehabilitation of the unfortunate fallen woman caught in the trap of prostitution; their children would be brought into the mainstream of social order; these directions would enable them to avail of the equality of opportunity and status, with dignity of person which are the arc of the Constitution.

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

In Budhadev Karmaskar v. State of West Bengal , SC stated that the Central and State Governments should, through Social Welfare Boards across the country, create rehabilitation programs for women commonly known as "prostitutes" and for physically abused women. The court instructed the Central and State governments to prepare schemes for providing technical and vocational training for sex workers and sexually abused women in all cities of India.

Conclusion and Recommendations:

Inspite of a desperate try from all spheres to combat this racket, we are far from achieving success. The rescue operations could only save a negligible proportion of the victims; the courts could provide justice only to a fraction of the million sex workers who are exploited everyday. But according to my point of view, if there is no general awareness amongst every citizen of the country, nothing can be achieved. We all have to work

together to make this mission a success so that no women of tomorrow is found in a brothel but is seen in an educational institution and hence some concrete measures must be taken as soon as possible. They are as follows:

• Prevention of poverty and equitable distribution of national income among all classes of society
• Proper employment facilities must be given.
• The loopholes in ITPA 1956 must be filled up by a subsequent amendment.
• The ITPA must provide for a rehabilitation of the children of the sex workers who are badly affected by the environment in the brothels.
• The media should be used more effectively to create awareness among the people about the trafficking business.
• Regular programs and campaigns should be conducted in every region of the country to raise awareness.
• The legislature must enact laws to prohibit all forms of prostitution rather than banning prostitution only in public areas listed in S.7 of ITPA.

Thus, if initiatives are taken, problems can be combated; the menace can be eradicated from our society. If this mission can be accomplished, only then our country can prosper and we must not stop till we reach our object following the great words of Swami Vivekananda, arise, awake and stop not till the goal is reached. If the goal can be achieved, in near future, India will become a nation where the mind is without fear and the head is held high.

References:

1. Available at : https://www.ohchr.org/Documents/Publications/FS36_en.pdf
2. Available        at:        https://www.unodc.org/documents/data-and-analysis/glotip/Annex_II_-_Definition_and_mandate.pdf.
3. Elaine Pearson, Human Rights and Trafficking in Persons: A Handbook 20 (Indochina Publishing, 2000)
4. Available at:http://jajharkhand.in/wp/wp-content/uploads/2017/01/05_human_trafficking.pdf
5. G.S. Janani, Human Trafficking In India 120(5) International Journal of Pure and Applied Mathematics 44 (2018)
6. Dr. Nirmal Kanti Chakrabarti, Prof. Dr. Manabendra Kumar Nag, et al., Law and Child 155 (R. Cambray & Co. Private Ltd., Kolkata, 2004) Id at 201
7. Available at: http://www.ohchr.org/Documents/Issues/Women/WRGS/OnePagers/IntInstrumentsconcer ningTraffickingpersons_Aug2014.pdf.
8. Convention on the Elimination of All Forms of Discrimination against Women, 1981, Art. 6,
9. Available at: https://www.ohchr.org/documents/professionalinterest/CEDAW.pdf . 10. (1996) 5 SCC 125