CHAPTER I

1. INTRODUCTION

Women have been an integral part of man since the time immemorial in every part of
the world. She has contributed to the society and the family to great extent. She plays
manifold roles in the society as a daughter, mother, sister and a wife. She is
considered to be the foundation of the family in particular and the society in general.
Progress of a country can be easily assessed on the basis of the status and the freedom
a woman enjoys in the society. Women are human beings and they also should have
the same opportunity as to right to enjoy the life and attain development as men. But
it has been the practice or tendency of man to use women as an object of amusement
and pleasure. As the practice of child marriage was in existence women were deprived
of the opportunity to lead a life of studentship and also the higher education, this was
the main cause for women being treated as slaves or person with no rights. The
position of widow was worst as the custom of sati (self-immolation) of the wife on
her husband’s funeral pyre became very prominent as the male dominant society
believed that the widow should follow the departed soul by dying after him.1 There is
wrong perception especially in third world countries that women are born to be
subservient to men and at no point of time they can raise a voice against the atrocities
inflicted to them. Today number of International Conventions and National laws has
come into force to protect the vulnerable sections of society especially women but
there is no tremendous changes found in the status of women. Women have been
subjected to all sorts of exploitations like assaults, molestation, trafficked for
domestic servitude, organ transplantation, beggary, and prostitution, bonded labour,
forced labour among these trafficking has been considered as serious challenge across
the world. The criminal act of trafficking women which was in vogue from long time
has recently become a global concern as the number of women trafficked is growing
at an alarming rate and every country has been affected as origin, transit or
destination place for trafficking activities. Need of the hour is to identify the
traffickers, the criminal network to be traced and the lacunae in the legislations or the
law enforcement authorities and other causes contributing to failure of the efforts to
curb this menace has to ascertain and steps to be taken to plug in the loopholes.
1
H.N.Ranga Swami, Valmiki Ramayana,II,29.7, (Bharat Darshan Press, Bangalore, 1987)

1
1.1 Meaning of human trafficking

Trafficking-“Illicit and clandestine movement of persons across national borders,

largely from the developing countries and some countries with economies in
transition, with the end goal of forcing women and girl children into sexually or
economically oppressive and exploitative situations for profit of recruiters, traffickers
and crime syndicates, as well as other illegal activities related to trafficking, such as
forced domestic labour, false marriages, clandestine employment and false
adoption….”2

General meaning of trafficking denotes a trade activities in certain things which is

prohibited is traded, for instance arms trafficking, drug trafficking and human
trafficking.3

The terms ‘trafficking’ and ‘prostitution is usually used as synonyms but they are not.

Human Trafficking- Human being are trafficked for many purposes like domestic
servitude, organ transplantation, beggary, prostitution, false promise of marriage, job
opportunities etc. in this women voluntarily give consent to the false offer made by
the traffickers unknown about the evil consequences. Women are treated as
commodity and they are bought and sold without their consent this leads to
dehumanization of womanhood as destiny is decided by the traffickers.

Prostitution- In this trade it involves procurers, pimps, brothel-keepers, and the

victims. The income is shared by others who are involved in these illegal activities.
All prostitution need not be the outcome of trafficking. Prostitution is one of the
forms of exploitation of trafficking it may be that women would have voluntarily
accepted this profession where she cannot be considered as trafficked victim, only
when her consent was obtained by fraud, undue influence or threat she can be
considered as victim of human trafficking.4

United Nations consider trafficking of human beings as movement of people across

borders accompanied by coercion and subjected to considerable human rights
violations. UN Palermo Protocol Article 3(a) defines trafficking in persons shall mean
the recruitment, transportation transfer, harboring or receipt of persons, by means of

2
United Nations General Assembly 1994
3
http://www.merriam-webster.com, visited on 5/12/16 @9.40 a.m
4
K.K.Mukherjee, Flesh Trade A Report, (The Gram Niyojan Kendra, UP, 1989), at 6

2
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 of payments or
benefits to achieve the consent of a person having control over another person, for the
purpose of exploitation.5

….(I)t is the market – the trafficking in women- that creates the

demand, not the customers. If there is a plentiful supply of vulnerable
women and girls, a profitable business plan follows: offer the services
of young women that cater to any customer at a competitive price and
pay the women little or nothing.6

Definition of human trafficking It is considered as an organized criminal activity in

which human being are treated as possessions to be subjected to exploitation.7

Human trafficking is considered as illegal practice where human beings are procured
or traded for the purpose of prostitution, forced labour, or other forms of
exploitation.8Human trafficking is a crime against humanity as it involves an act of
criminal practice of exploiting human beings by trading them in the market for a price
as a commodity.

Elements of Human Trafficking

Human trafficking involves certain elements in the commission of offence. They are:

a. There must be an act which includes recruitment, transportation, transfer,

harboring or receipt of the persons(victims)

b. The means adapted to accomplice the task may be threat or use of force,
coercion, abduction, fraud, deception, abuse of power or vulnerability or
giving payments or benefits to a person in control of the victims.

c. The purpose or the forms of exploitation includes forced labour, bonded

labour, domestic servitude, prostitution, slavery, or organ transplantation

5
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children,2000
6
G.Newman, The Exploitation of Trafficked Women, (U.S.Department of Justice Office of
Community Oriental Policing Services 2006), at 16
7
http://www.merriam-webster.com, visited on 5/12/16, @9.40a.m
8
http://www.merriam-webster.com, visited on 5/12/16, @9.25 a.m

3
 When above specified elements are present in an act then it can be concluded
human trafficking offence has been committed and victims human rights has
been infringed.9

Meaning of Traffickers

People who illegally entice the vulnerable section of society and exploit them for
different purpose and make a huge profit out of it is called as traffickers. It includes
both men and women acting as traffickers for commission of this criminal act.

Profile of traffickers

Traffickers do not isolate themselves from the society but they are present and live
within our surroundings or area as our neighbor, friends, relatives etc. They act as
intermediaries who have link within and outside the country. They are usually young
men and middle aged women who are usually elder than the persons whom they are
going to traffic. They might have been victims themselves, or they are trying to
escape from the abusers and are forced to do an act unwillingly. The criminal network
may consists of procurers or recruiters, organizers, document forgers, financiers, auto
rickshaw drivers or rickshaw pullers, visa/passport officials, doctors, police, corrupt
public officials or protectors, brothel operators, owners and managers of brothel,
travel companies etc. thus it is very difficult to ascertain the modus operandi of the
traffickers as the traffickers involved in the criminal act does not have full
information of plan of action. Thus even if one of the trafficker in the network is
caught it will be difficult to crack the criminal activities network

Individual Traffickers

Individual traffickers exploit victims for different purposes. They supply the victims
as domestic servants for the purpose of doing various kinds of domestic works which
includes to do household jobs, or to take care of the babies or for cooking both within
and outside the country. Some may make false promise of marriage and luxurious life,
job opportunities and force them into various unlawful activities. Individual trafficker
may traffic single victim or many victims depending on the demand and supply
availability in the market. Women also act as solo traffickers and play a predominant
role in human trafficking offence.

9
Supra Note 5

4
Victims

They are vulnerable sections of society who become easy prey to the traffickers. They
are men women/girls, children. They are trafficked for different purposes and
exploited but most vulnerable are the women/girls. Victims can be again classified
into:

a) Co-operative victims: victims consent to the traffickers in order to escape

from the problems in her family or out of fear their family members would be
killed or believing false promise of marriage made by the trafficker.

b) Accidental victims: A woman becomes a victim when she lost track of her
family members during public events or festivals. Who are in turn trafficked
with an assurance of re-uniting them with her family members

c) Misled Victims: Where victims are trafficked on false information as to the

status of the family members for instance girls are trafficked by the
neighbours’ or friends of the family from the school on the pretext that one of
their parents met with an accident or seriously ill.

d) Corrupt victims: Where a woman voluntarily accepts to go with traffickers in

spite of knowing fully the consequence of her act. For instance a married
woman fled from the family and starts living with the traffickers.

e) Forced Victims: In this case the women are forced to become victims of
traffickers against her wishes. For instance women promised lucrative job
opportunity is later on forced into domestic servitude, prostitution, or organ
transplantation.10

Criminal Network

Traffickers have an organized criminal network which functions in a systematic

manner it becomes very difficult to identify them even though they are present within
our circle. They are involved in trafficking activities where each trafficker is assigned
with specific task to be performed. As the traffickers committing the crime has only
partial information as to the trafficking activities even if they are tracked by the law

10
Rashmi Sharma, Women Law and Judicial System,( Regal Publication, New Delhi 2009), at
175&176

5
enforcement authorities complete information as the criminal network cannot be
cracked.

Facilitators

There are number of persons performing different roles within these criminal
organizations. They are investors, recruiters, transporters, corrupt public officials or
informers, money launderers etc. who are called as facilitators of the crime. Not all
facilitators are traffickers because corrupt official is not a trafficker, security guard
appointed to prevent the victims from escaping cannot be considered as traffickers.

Modus operandi

Recruitment

Human trafficking is a well planned and premeditated procedure where it requires the
traffickers to be very efficient in brainwashing the girls and take them into their
confidence. In this process the traffickers first identify the victims and seduce the
victims, now-a-days recruitment is mainly through internet. The method adopted is
use of employment agencies, false promises as to job and payments, fake romantic
relationship and adoption. Central Government in order to check illegal emigration
and also to protect the vulnerable sections from being exploited and also those
persons who have become victims of trafficking has come out with number of
programmes especially to protect the women and girls.

Indian government since 2016 has made it mandatory to get the emigration clearance
of all female works having ECR passport, for employment in 18 ECR countries. This
has to be made through six state-run recruiting agencies only. They are Overseas
Manpower Corporation Ltd.(OMCL) of Tamil Nadu, Uttar Pradesh Financial
Corporation (UPFC) of UP, Overseas Manpower Company Andhra Pradesh Limited
(OMCAP) of AP, Telangana Overseas Manpower Company Limited (TOMCOM) of
Telengana, NORKA Roots and Overseas Development and Employment Promotion
Consultants (ODEPC) of Kerala. It is mandatory for the foreign employer to deposit
US $ 2500 for recruiting the workers directly. Registration of foreign employee in the
e-migrate system has been made mandatory from June 2015.11

11
http://mea.gov.in/rajya-sabha.htm?dtl/27853/question+no3226+indian+migrant+domestic+workers
+in+gulf+countries visited on 1-1-2017 @ 6.15 a.m

6
Transportation

Once consent is obtained victim is transported from place of origin to the destination
where they are sold at the prevailing market price to next trafficker in the chain of
network or to the buyer directly. Traffickers chose the routes where corrupt officials
are posted this may be within or outside the country. Government of India has made
age restriction to women emigrants as 30 years (except nurses) emigrating on ECR
passports for overseas employment in Gulf Countries.

Documentation

In case of smuggling of traffickers into another country documents are forged like
visas and identification of documents, fraud involved in buying of passports through
corrupt officials in the embassies.

Exploitation

Exploitation of victims differs from place to place and country to country on the basis
of demand. Victims may be subjected to various kinds of human rights violations like
forced labour, bonded labour, domestic servitude, prostitution , surrogacy, organ
transplantation etc. Next step when the victim’s revolt they are either demoralized
which have various degrees like persuasive method, mental torture, physical torture
etc. Final stage the victims are forced to accept the conditions and obey it. The
victims are unable to revolt to this situation as they are incompetent to fight back the
traffickers. The traffickers keep shifting the victims from one place to another which
is one of the reason it is difficult to trace the victims. The network cannot be easily
cracked down as the trafficker will be one among us pursuing some other occupation
along with this illegal trade.12 As per the report submitted to Rajya Sabha from the
Indian Mission in Gulf countries the number of Indian migrant domestic workers in
the Gulf countries are as follows Bahrain 19,214,13 Kuwait 2,80,854,14 Omen 438, ,
UAE is not available as Domestic workers do not register with the Mission, Qatar 65
and Kingdom of Saudi 300 this statistic is on the basis of security deposit made in the
Indian Mission. Ministry by the Indian Mission/Posts in six GCC countries they have
reported that they have received number of complaints alleging physical abuse, non-

12
K.K. Mukhejee, Flesh Trade A Report, (Published by The Gram Niyojan Kendra, UP, 1989),at 41
13
Bahrain Labour Market Regulatory Authority’s data,2016
14
General Department of Immigration, Kuwait, 2016

7
payment of salary, wages and other grievances. Complaints were addressed by Indian
Mission in coordination with concerned foreign authorities. As for as complaints in
relation to employment, Indian Mission had contacted the concerned foreign
employer/Labour officials in that country , or the concerned recruiting agents in India
for immediate redressal and also for follow up action to be taken by the Protection
General of Emigrants in the Ministry of External Affairs, All measures were taken to
provide necessary assistance to the victims with respect to shelter, travel documents,
air tickets and legal assistance and they were in constant touch with victims.15

The Protector-General of Emigrants at the Ministry of Overseas Indian Affairs

monitors migrant welfare by checking the migrants preparations before they leave the
country, licensing of agents and brokers are controlled and monitored, it safeguards
migrants rights as to temporary residence in those countries by facilitating ,
reintegrating when they return to India. Government has introduced in 2003
Compulsory Insurance system called as “Pravasi Bharatiya Bima Yojana”, to benefit
the Indian workers moving overseas. A bilateral agreement has been negotiated by the
government and established a Welfare Fund for overseas workers and for
transferability of their social security contribution. This fund covers for boarding and
lodging for distressed overseas Indians in the domestic sectors and unskilled
labourers.16

Control of Victims

Traffickers control the victims either by use of force, threats of violence. In some
cases the victims passports are confiscated on reaching the destination, or constant
vigilance maintained, place of destination and the language is unknown, imposing
debt on the victim, imprisonment, creating a drug dependency of the victim.
Frequently they are moved from one destination to another to disorient them and
prevent them from any attempt to escape. In certain cases not only the victims are
subjected to threat, their family members are also under constant fear preventing them
from reporting to the law enforcement authorities.

15
http://mea.gov.in/rajya-sabha.html?dtl/26517/question+no1456+indian+workers+in+gulf+countries
visited on 1-1-2017 @ 6.25 a.m
16
http://www.migrationpolicy.org/article/emigration-immigration-and-diaspora-relations-india/
visited on 1-1-2017 @ 6.25 a.m

8
Macro level factors enabling trafficking

Factors contributing to the increase in the magnitude of trafficking are illiteracy,

unemployment, poverty, desire for luxurious life, crisis in family situation, domestic
violence, gender inequality, and economic uncertainty, conflicts and natural disaster.
High rate of smuggling and human trafficking is also due to high labour cost which
has created a demand for cheap labour.

Impact of human trafficking

a) Social Impacts-The women survivor of trafficking are not easily accepted by

the society. Many women who are unable to share their suffering or
exploitation and with no means or source of income to lead a life may be
compelled to voluntarily accept to be trafficked.

b) Economic Impacts-Human trafficking is a secret act which generates huge

profits to the traffickers but these amounts are unaccounted and escape the tax
liability. This result in huge amounts of income remains hidden and it does not
freely circulate for productive purposes. At the same time the expenses
incurred by the government in the rescue operation of trafficking victims adds
to the burden of limited government resources.

c) Health Impacts-Trafficked victims (women) undergo psychological trauma

and depression and in some cases they are most prone to get STD’s,
HIV/AIDs, and other diseases. In such cases it becomes difficult to rehabilitate
the HIV/AIDs survivors of trafficking as they cannot be completely cured.

d) Custom Impact-Our society even in the 21st century is bound by various

customs in the name of values and cannot easily accept the survivors (women)
of human trafficking. Society always expects a girl to be virgin and a woman
to be sincere and honest to her husband in her body and soul. This expectation
is not permitted from men this mental attitude or mind set of society has to
change. The possibility women or girls being victims of trafficking have to be
taken into consideration before branding the survivors as offenders or violators
of our rigid customary practices.

9
Human rights and Women's rights

Human rights are considered as inherent, inseparable and inalienable rights. It is also
called as fundamental rights which are necessary for survival or essential for life.
Human Rights have become significant because there is increase in abuse than
enjoyment. Women do not enjoy the same status in the society as that of men. There
is need for enhancing women’s status and providing her with the equal rights on the
basis of rights enjoyed by men. Empowerment of women is need of the hour as they
are subjected to exploitation and subjugation. There is a gross violation of human
rights which has to be seriously taken into consideration by the law enforcement
authorities.

1.2. Historical Background of women trafficking

Vedic Age

The society that emerged during the composition of Sanskrit texts is called as Vedic
Age or Vedic Period, this Vedic civilization prevailed during 1500 B.C to 500 B.C.
Patriarchal family system was followed during this period, birth of son was preferred
to girls.17 Women were always under control and supervision of men throughout
their life. As child father’s control, as a wife husband’s and as widow son’s control.18
Women were not sent to gurukula for education but they were given sufficient
instructions as to rituals, scriptures namely puranas and smritis by their parents and
priests imparted knowledge at their place of residence, girls on their marriage the
custody is transferred from father to her husband. It was impressed order that a
woman she has to be subservient to him and without him she simply could not
survive.19 Widows either took to self immolation after their husband’s death in the
war fearing they may be forced to become slaves in the hands of the winner in the
battle.20 Manu the earliest exponent of law, stated a wife, a son, and a slave shall
have no right to own or possess any property and even if they possess it belongs to
whom they belong.21The violation of human rights has been in existence from Vedic

17
http://www.culturalindia.net/indian-history/ancient-india/vedic-civilization.html visited on 1-1-17 @
7.00a.m
18
R.M.Das, Women in Manu and his seven commentaries (Kanchan Publications, , Varanasi,1961,
Manu, IX,3)
19
Supra Note 1
20
R.P.Dutt, The Economic History of India ( ed, 7th London, 1950,)
21
Ibid Manu,VIII,416

10
period. It is said that trafficking in women was mainly for the purpose of flesh trade in
Vedic period. They are considered to be two sides of same coin which are inseparable.
Therefore trafficking and flesh trade had become integral part of Indian Civilization.22
During Epic Age Women were considered as a commodity which can be traded in the
market for a suitable price. Men had the right to put a women on bet, can be given as
prize or reward to the victor and also she was subjected to humiliation in the public
and women had no right to revolt.23 Yudhistra placing his wife Drupadi as the subject
matter of bet for gambling and in turn losing in the game, this instance of
Mahabharata shows values of woman was that of a non-living things which can be
transacted as per the master’s wishes. The practice of swayamvara where the winner
in the competition conducted by the bride’s father(King) example in Ramayana
where Rama breaks bow of Lord Shiva to marry Sita and also in Mahabharata
Arjuna marries Drupadi after winning the competition by shooting the revolving fish
seeing only the image in water are some of the instances which shows women had no
right to choose their life partner but the father selects the bridegroom by conducting
the test. Consent of girls in marriage became insignificant.

Chastity and modesty of women was insisted upon and that was not common to men-
folk, during this period. Men could suspect fidelity and righteousness of women
without properly analyzing the pros and cons of women‘s sincerity in daily life. A
case in point would be noticed in Ramayana when Rama after killing Ravana the
abductor of his wife Sita suspected her chastity. Rama refused to accept Sita as his
wife, on the ground that she was in the custody of Ravana for long. In this case,
according to Ramayana the modesty of Sita like women was outraged and she had to
restore to fire ordeal. She had no right to revolt against the decision of Rama but to
accept the injustice as order of the king.24 During the Age of Mauryas the status of
women in this age has been described by a scholar teacher called Kautilya in his well-
known Sanskrit treatise on economics and government in Arthashastra. This was
written between 300 B.C and 500 B.C. In his work he mentions that women were
considered as prostitutes if they were born as prostitute’s daughter, or they were

22
S.D.Punekar and Kanta Rao, A Study of Prostitution in Bombay, (Allied Publishers Private Ltd,
Bombay,1962), at 1
23
Sri.K.M.K.Murthy, Mahabharata Saram, The Cultural Heritage of India, (Sri. Ramakrishna Mutt,
Chennai, 2002), at 364
24
H.N.Ranga Swami, Valmiki Ramayana“Yuddha Canta”, Sarga 115, Sloka 1-2 (Bharat Darshan
Press, Bangalore, 1987), at 2537

11
purchased, or they were captured in war, or they were women who had been punished
for adultery.25 Collection of taxes from the prostitutes shows that the state was
concerned only with the modes of accrual of revenue to the treasury rather than
protecting the interest of vulnerable section of society. All these instances mentioned
in the Arthashastra highlights that women were slaves or puppets in the hands of men,
who were subjected to exploitation and human rights violations right from birth to
death. A study of epigraphic records shows that by the ninth-centuries the evil
practice of dedicating girls to the temple called as devadasi had become deep rooted
and it was found practiced in different parts of the country with different names .the
Tejpur copper plate inscription dated back to ninth century records the dedication of
the dancing girls to a Shiva temple.26 During Medieval Period the Custom of
dedicating the first child (girl) to the temple to fulfill the vow taken by the childless
couples was one of the main causes for increasing in the dedication of girls as
devadasis. Dedication was voluntary when girls were dedicated to the temple out of
religious motives and spiritual feelings. But in most of the dedication it was
involuntary as it was done in order to overcome economic situations and domestic
problems. But unfortunately the innocent girls got trapped into the clutches of
merciless men who exploited them in all possible forms and treated them as slaves.27

King Shivaji completely restricted female slaves or dancing girls from accompanying
his army on active services. If any soldiers were found violating this order were liable
for a severe punishment in the nature of the violators head was beheaded.28

During British rule it is reported that when the Portuguese, French and English traders
invaded India, the magnitude of exploitation of women increased. Women were
mainly exploited for prostitution in the sea ports of Bombay, Calcutta, Cochin and
Madras. Some foreign traders had kept Indian women belonging to lower caste as
their concubines.29 In 1770, in Bengal there was severe famine and more than one
third of the population died. This resulted in the survivors to sell their children. It is
reported that the first generation of sex workers in the market economy of colonial
25
N.Rangarajan Kautilya, Arthashastra Book II, Chapter 27,X. 1.3 “Superintendent of Prostitutes”
(Ganic Adyaksha),( Published by Penguin Books, India 1992)
26
B.N.Sharma, ‘Social and Cultural History of Northern India’ (c100-1200, New Delhi) at 75
27
C.M.Agarwal, “Nari”- Facets of Indian Womanhood” ( ed, 1st 2000 Indian Publishers, Distributors,
Delhi,Vol-II, 2000) at169
28
S.K.Ghosh, “Women in a Changing Society”, ( ed,1st Ashish Publishing House, New Delhi,
1984),@141
29
Ibid

12
Bengal was composed of rural self-employed women fallen on evil days, victims of
seduction and abduction, widows and daughters from Kulin Brahmin families, female
slaves seeking escape from captivity and the girls sold off by their families stricken
parents.30

The other offences like trafficking for sale of organs, surrogacy has developed
recently. Trafficking of women always does not result in exploitation in the form of
prostitution. It is one of the kinds of exploitation women are forced into by the
traffickers for their financial gain.

Post Independence Period

India ratified International Convention for the Suppression of Immoral Traffic in

Persons and the exploitation of others in 1950 and the provisions of the Convention is
incorporated in The Suppression of the Immoral Traffic Act, 1956 (SITA) this Act
was amended and renamed as Immoral Traffic (Prevention) Act, 1986 (ITPA). Our
Constitution upholds principles of humanism, social, and economic justice, equality
before law and equal opportunity to all, Article 21 guarantees right to life which has
been interpreted by the Supreme Court in Cases relating to protection of women’s
rights and Article 23 prohibits all forms of trafficking and Supreme Court has given
directions to the law enforcement authorities that trafficked women to be treated as
victims and not as a criminals. In spite of all these measures taken the offences
relating to trafficking is seen growing in an alarming rate.

1.3. Magnitude of the Human Trafficking

Human trafficking has become global concern as every country has been affected by
this menace either as country of origin, transit or destination. Human Trafficking
affects every country around the world, regardless of socio-economic status, history,
or political structure. Human traffickers have created an international market for the
trade in human being based on the high profits and demand for commercial sex and
cheap labor. Trafficking has affected 161 countries worldwide. Human trafficking can
be for the trade in humans, most commonly for the purpose of sexual slavery, forced

30
Moni Nag “Sex Workers of India-Diversity in Practice of Prostitution and Ways of Life” (Allied
Publishers Pvt. Ltd, New Delhi,2007), @25

13
labour or for the extraction of organs or tissues, including surrogacy and ova removal.
It is a very risky job but the traffickers have established such a strong network
throughout the world that the global police are finding it very difficult to curb these
activities. Human trafficking is driven by demand and supply, if there is a demand for
forced sexual services or forced labour, traffickers use all means to meet those
demands by targeting vulnerable people who are unaware of the harm and false
representation under which they are recruited.

Worldwide Statistics

The number of adults and children currently in forced labour, bonded labour and
forced prostitution is 12.3 million. Worldwide, 1.8 per 1,000 persons is a victim of
human trafficking, increasing to 3 persons per 1,000 in Asia and the Pacific. Women
make up 56 percent of the 12.3 million trafficked adults and children. Sixty-two
countries have yet to convict a trafficker under the U.N. Protocol to Prevent,
Suppress and Punish Trafficking in Persons, 2000 and 104 countries have yet to
establish laws or regulations regarding human trafficking. Victims are trafficked both
within and across international borders. Migrants as well as internally displaced
persons are particularly vulnerable.31

It is estimated that human trafficking internationally generates 32 billion dollars a

year. That is 32 billion dollars being illicitly traded in the world with no taxes each
year (over 15 million coming from industrialized countries). With this many people
being exploited and this much money being illegally used, of course this issue affects
us all.32

According to the report there is increase of 25.8 percent cases of human trafficking. In
the year 2014 total 5,466 cases were reported but in the year 2015 it is increased to
6,877 cases. The following states together form over 56 percent of India’s trafficking
cases are; Assam-21.7 percent, West Bengal- 18.2 percent, Tamil Nadu-8.4 percent,
Telangana-8.2 percent.33

31
http:www.polaris project.org/human-trafficking /international-trafficking visited on 2-11-2013 @
2.10 p.m
32
http:renewqlforum.org/abcs-of-human-trafficking-who-it-affects-and-what-now/ visited on 2-11-
2013 @ 11.05 a.m
33
National Crime Records Bureau Report,2016, Ministry of Home Affairs

14
Major causes for trafficking in women

a. Poverty

Poverty plays a major role in driving the poor people into the trap laid by the
traffickers. Both men and women migrate to other parts of the State/country with a
hope of leading a better life. In this process girls and women are vulnerable to
trafficking who is treated as commodities in this crime

b. Migration

People with an ambition to earn more money in other parts of their State / country or
abroad invest their hard earned money or borrow money at high interest rate with the
hope of repayment after they get the desired job. With this hope they migrate to other
country but only after they reach the promised destination of job they realize that they
are trafficked by the agents or the moneylender who willingly lent the amount to the
victim. Victim’s passport and all other documents are taken away by the traffickers,
which prevents them from escaping from the clutches of the traffickers.

c. Organ trafficking

In India around 200,000 people need a kidney every year, but only around 3 % of the
demand is met this is the main cause for the traffickers to illegally remove the organs
of the trafficked victims to make huge profit without much pain and investment.34
‘Transplant tourism’ has become a flourishing business as there is growing demand
for organs on the local, regional and international levels. This has resulted in
exploitation of the poor and weaker section of society and violation of their basic
human rights mainly the right to life and right to health

d. Forced Labour

Workers are forced to work for long duration for lesser wages by the employer. Some
are kept in captive as bonded labourers. Due to high rates of unemployment, illiteracy
and poverty these vulnerable sections of society do not revolt in spite of being aware
that they have been exploited by their employers. The employers take advantage of
this situation and continue exploiting the poor people.

34
http://www.livemint.com/Politics/pxj4YasmivrvAhanv6OOCJ/Why-organ-trafficking-thrives-in-
India.html visited on 10-9-2016 @ 8-00 am

15
e. Involuntary Domestic Servitude

A unique form of forced labour is that of involuntary domestic workers, whose

workplace is informal, connected to their off-duty living quarters and often shared
with other workers. Such an environment is conducive to exploitation since
authorities cannot inspect private property as easily as they can inspect formal
workplaces. As there is lot of demand for domestic servants abroad and the wages
offered by the placement agencies are attractive the vulnerable sections of society
easily fall prey into the clutches of the traffickers.

f. Refugee women

Women who have fled their country during armed conflict and taken shelter in the
refugee camps are vulnerable to exploitation from the person’s in charge of refugee
camps and also the militia. Same threat exists to women when they are internally
displaced either on account of internal strife or due to development projects in their
area.

g. Debt Bondage

Persons who have taken loan for high interest when they are not in a position to repay
it, they are compelled to work for the creditor as labourer. The duration of their work
and the time is not fixed and debt is never cleared as the work done by the debtor is
deducted only for the interest and not for the Principal amount. Parents are compelled
to sell their children due to debt and girls are subjected to exploitation .This has
resulted in the debt bondage from which they can never be released. However various
laws have been enacted yet, debt bondage is continued in rural areas.

h. Governance Issues

At the time of ethnic conflict people are forced to move away from their place of
residence. In this situation there is all possibility the family members may be
separated from their protectors and become easy prey to the traffickers. Women may
be forced to enter into prostitution for their survival.

i. Corruption and in action

Corruption among the police officials and the civil servants in protecting the
traffickers is the main hurdle in checking the trafficking problems. Corruption is

16
nothing but a compromise with the traffickers. The Political authorities are more
concerned about their position in the government and ignore the responsibility to
protect the vulnerable population of the society.

j. Conflicts/Natural disasters

People in the post conflict areas and natural disaster area become easy prey to the
traffickers as they become destitute without shelter and loss of their family members.
It was reported that after severe cyclone in Orissa in the year 1999 trafficking of
especially children was very high in these areas. Deadly earthquake in Nepal, on April
25th 2015 has created a fear that traffickers may take advantage of this situation and
traffic women and children. Shakti Vahini an NGO reports that the women and girls
are more vulnerable for human trafficking during natural disaster or natural
calamities, it has reported West Bengal has been a trafficking hub since Aila hit the
shores, recurrent floods in Assam are major cause were women are forced to abject
poverty and to overcome or escape from this disaster they become easy prey to the
traffickers.35

India stands in the fifth position in the world in the seriously affected list of top 10
human trafficking countries in the world. Human trafficking is a major problem in
India. (Trafficking in Persons Report 2015) Many Indian women trafficked out end up
either in the Middle East for sexual exploitation or in Europe, the USA.36

According to International Organization for Migration; there are 32.5 million

international migrants in Asia out of which India has the maximum number of 5.4
million in the year 2010. India is home to more than 14 million victims of human
trafficking.37 Trafficking of minor girls the second-most prevalent trafficking crime
surged 14 times over the last decade and increased 65% in 2014, according to new
data released by the National Crime Records Bureau. Girls and women are the main
targets of immoral trafficking in India, making up 76% of human trafficking cases
nationwide over a decade, reveal NCRB data. Even though India has taken initiative

35
Supra Note 32
36
Sadika Hameed, Sandile Hlatshwayo and ors.Human Trafficking in India: Dynamics, current efforts,
and Intervention opportunities for the Asia Foundation, 2010
37
UNODC, Global Survey Report 2014

17
to curb the menace trafficking report has placed India under Tier 2 from Tier 2 Watch
List which position India was continuously rated for 7years.38

Karnataka Scenario

Since 2009, 22,410 girls and women have gone missing in the state, and 90% of them
remained untraced. The number of missing women and girls has been increasing by
the year as per the combined data collected by the Karnataka police and the women
and child welfare department. In 2009, 6,756 women went missing, and in 2010, the
figure went up to 7,576, alarmingly, the number in 2012 went up significantly to
8,084 with over 70% of them girls, according to the statistics. Most of the victims are
from the backward districts of North Karnataka according to the source given by
Women and Child Welfare Department.39

1.4. International and National Efforts for prevention of human trafficking

In order to deal with the menace of human trafficking several International

Instruments were brought into force

b. International agreement for the Suppression of White Slave Traffic,1904

c. International Convention for the Suppression of White Slave Traffic,1910

d. International Convention for the Suppression of White Slave Traffic,1923

e. Slavery Convention,1926

f. International Labour Organization Forced Labour Convention, 1930

g. International Convention for the Suppression of Traffic in Women of Full

Age,1933

h. The Geneva Convention of 1949 for the Suppression of the Traffic in Persons
and of the Exploitation of Others (1949 Anti Human Trafficking Convention)

i. Universal Declaration of Human Rights,1948

The seven core international human rights treaties expand upon the rights included in
the Universal Declaration of Human Right are:

38
US Department of State, Trafficking in Persons Report 2015
39
The Times of India January 21, 2013 p.1

18
 i) International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) 1965

ii) International Covenants on Economic, Social and Cultural Rights

(ICESCR), 1966

iii) International Covenants on Civil and Political Rights (ICCPR),1966

iv) Convention on the Elimination of Discrimination against

Women(CEDAW),1979

v) Convention against Torture and Other Forms of Cruel, Inhumane or

Degrading Treatment or Punishment (CAT),1984

vi) Convention on the Rights of the Child (CRC),1989

vii) International Convention on the Protection of the Rights of All Migrants

Workers and Members of Their Families ( ICRMW),1990

j. Convention for the Suppression of the Traffic in Persons and of the

Exploitation of the Prostitution of others was signed at New York in 1950

k. Supplementary Convention on the Abolition of Slavery, Slave Trade and

Institutions and Practices of Slavery,1956-this Convention condemned a
variety of slavery-like practices, including debt bondage and forced marriage

l. Abolition of Forced Labour Convention, ILO, 1957,-State Parties undertook

to suppress any form of forced or compulsory labour as a means of political
coercion, economic development, labour discipline, or racial, social, national
or religious discrimination.

m. Tourism Bill Rights and the Tourist Code, 1985-Adopted by WTO, the Code
enjoins that the State should preclude any possibility of the use of tourism to
exploit others for purposes of prostitution.

n. United Nations Protocol to Prevent, Suppress and Punish Trafficking in

Persons, Especially Women and Children, Supplementing the United Nations
Convention Against Transnational Organized Crime 2000( UN Anti Human
Trafficking Protocol 2000)

19
Recommended Principles and Guidelines on Human Rights and Human Trafficking
2002- These Standards were developed by UN High Commission for Human Rights
in 2002, so as to strengthen the human rights principles and perspective of the
trafficking Protocol. It has 17 principles and 11 guidelines, which are meant to
facilitate the effective implementation of the key provisions.

National and State Laws on prevention of trafficking

Constitutional provisions relating to immoral trafficking

The Constitution of India, the fundamental law of the land, forbids trafficking in
persons. Article 23 of the constitution specifically prohibits “traffic in human beings
and beggar and other similar forms of forced labour”. Other fundamental rights
enshrined in the Constitution relevant to trafficking are Article 14 which provides for
equality before law and equal protection of law, Article 15 states that there shall be no
discrimination on grounds of religion, race, caste, sex place of birth, Article 21
guarantees right to life and personal liberty, Article 39(e) gives a direction as to
protection of women and children’s rights and states that the health and strength of
women and also the tender age of children not be abused and should not be forced to
do any work or enter any avocations which is unsuited to their age and strength due to
their economic necessity. Article 30(f) gives a direction that children should be
protected from being exploited and especially the youth should be provided with
opportunities and facilities which would assist them to develop in a healthy and
dignified manner. Article 51 A It imposes a duty on every citizen of India that they
should strive for eradicating the derogatory practices which violates the dignity of
women, and develop humanism and practice compassion.40

Indian Penal Code,1860

Trafficking of women and children for sexual exploitation is covered under several
other sections of the Indian Penal Code (IPC) as there is no specific section to deal
with trafficking of women and children. Some of the provisions are Section 366A
(Procuration of Minor Girls under 18 years of age), Section 366B (Importation of
Girls under 21 years of age from foreign country), Section 367(Kidnapping and
Abduction for slavery, unnatural lust, etc) Section 372 (Selling of Minor Girls for

40
Jain M.P, ‘Indian Constitution Law’, (vol 1&2 Wadhwa & Co.,Nagpur,2003)

20
Prostitution), Section 373 (Buying of Minor Girls for Prostitution). There are some
other offences under IPC that have direct bearing on the problem of trafficking. Thus,
for instance, trafficked women/girls very often are raped (an offence under Section
376) before being sold to the brothel.41

The Indian Evidence Act, 1872

Section 114 A – provides for presumption as to absence of consent in certain

prosecution for rape and Section 151 forbids the putting of any question which is
indecent or scandalous, unless it relates to facts in issue or is necessarily connected
with them are relevant in this context. This section is applicable to human trafficking
cases where women have become victims of trafficking, innocently given consent to
the offer made by the trafficker believing it to be true. The statistics proves that in
most of the cases women trafficked are subjected to sexual exploitation. 42

Criminal Procedure Code, 1973 with Section 98 empowers a District Magistrate, a

Sub-divisional Magistrate of First Class to restore a woman or female under eighteen
years who have been abducted or unlawfully detained for unlawful purposes to her
lawful custodian or guardian.

The main purpose of this Section is to protect girls and women from detention for
immoral purposes, although the section is wide enough to cover detention which is
clearly unlawful. Section 327 (2) Empowers the presiding Judge of Magistrate, if he
thinks fit, order for conducting in camera proceedings in matters related to trial of
rape or an offence under section 376, Section 376A, 376 B, 376C and 376D of the
Indian Penal Code.43

Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) This was
the first comprehensive legislation to tackle the problem of immoral trafficking of
human beings which was later amended and renamed as Immoral traffic (Prevention)
Act, 1986. This Act was the result of India ratifying the International Convention for
the Suppression of Immoral Traffic in Persons and the Exploitation of others in
1950.The purpose of the enactment was to inhibit or to abolish commercialized vice,
namely the traffic in women and girls for the purpose of prostitution as an organized

41
Ratanlal & Dhirajlal, Indian Penal Code,1860, ( ed, 18th Wadhwa & Company ,Nagpur, 1992)
42
Ratanla & Dhirajlal, Law of Evidence,1872, ( ed.25th Wadhwa & Company , Nagpur, 2013)
43
Ratanla & Dhirajlal, Criminal Procedure Code,1973, ( ed, 18th Wadhwa & Company ,Nagpur,2006)

21
means of living. The amended law emphasis on prevention rather than suppression of
human trafficking, it has taken into consideration the international conventions and
protocols and provided severe penalties for different types of exploitative conditions.

The Bonded Labour System (Abolition) Act, 1976 this act aims at protecting
debtor from the clutches of creditors who exploit the poor and the innocent section of
society by treating them as bonded labourers for non-payment of debts. It provides for
declaring the debt agreement as void and legal action against the exploiters.

Tourism Bill of Rights and the Tourist Code 1985- Adopted by WTO, the Code
enjoins that the State should preclude any possibility of the use of tourism to exploit
others for purposes of prostitution.

The Child Labour (Prohibition and Regulation) Act, 1986 Children are employed
in the factories and various establishments irrespective of the tender age and
compelled to do hard labour with not even minimum wages being paid. In order to
save the innocent children from being exploited by the employers and protect them
from hazardous occupation this Act came into force. This act prohibits employment of
children in the specific occupations set forth in Part A of the Schedule of the Act.
Children below 14 years are prohibited from being employed in any factories or
establishment’s non-compliance is considered as a punishable offence.

Indecent Representation of Women (Prohibition) Act, 1986 Women being

considered as a commodity and source of income they are depicted in obscene manner
or indecently portrayed to advertise the manufacturer's goods or products or to get a
saleable market. This Act puts restriction on depiction of women in any manner of the
figure of a woman, her form of body or any part thereof in such a way as to have the
effect of being indecent, or derogatory to or denigrating of women, or is likely to
deprave, or corrupt or injure public morality.

Human Rights Act, 1993, In India vulnerable sections of society has been subjected
to various kinds of exploitation and violation of their basic or fundamental rights from
time in immemorial. The victims had never raised their voice as they had no
protection or support from government or the law enforcement authorities. This Act
was enacted to enforce the basic rights of human beings which is enshrined in the
International Covenants like Universal Declarations of Human Rights, International
Covenant on Civil and Political Rights, International Covenant on Economic, Social

22
and Cultural Rights, 1948, it emphasis on the protection of life, liberty, equality and
dignity of individual guaranteed by the Constitution and enforceable by the courts in
India.

The Transplantation of Human Organs Act, 1994 there is a great demand for
organs and innocent people are trafficked or lured to sell their organs and the
middlemen or the traffickers make huge profit and the victims is given meager
amount or no amount is given. This business is growing in alarming rate to check this
illegal trade this Act has been enacted. The two fold objectives of this Act are i)
provide for the regulation of removal, storage and transplantation of human organs for
therapeutic purposes ii ) to prevent commercial dealings in human organs. The Act
also provides for regulation and registration of hospitals engaged in removal, storage
and transplantation of human organs.

The Information Technology Act, 2000, Women are trafficked or lured to expose
themselves, represent themselves in an indecent manner for money. This would
corrupt the minds of the viewers or the reader of the book or magazine or hear it, in
order protect the dignity of women this Act provides under Section 66A (introduced
vide ITAA 2008) for penalizing the person who publishes or transmits any material
either in electronic form which would affect or corrupt the minds of the persons who
are likely to comes across those materials. Trafficked women or girls are subjected to
various kinds of exploitation and mainly they are sexually abused and there are all
possibilities trafficked victims obscene pictures may be utilized for indecent
representation like morphing or for unlawful earning by selling those pictures. This
Act punishes the offender with an imprisonment which shall extend to 3 years term
and fine.

Karnataka State Measures to prohibit trafficking of women

The Karnataka Devadasi (Prohibition of Dedication) Act, 1982 In Karnataka there

has been practice of dedicating girls to the temple to serve the god and they were
called as devadasi. Though the intention of dedication was for religious purpose and
had sanctity but gradually it was found the girls (devadasi) were subjected to sexual
exploitation by the temple priest and the landlords and resulted in growth of
prostitution. There are number of instances where women were sold for price. This
was accepted by the community as a valid custom. In order to eradicate this evil

23
practice of dedication the Karnataka government enacted this legislation completely
prohibiting this dedication and declared it as punishable offence.

The Karnataka government has formulated the Karnataka Immoral Traffic

(Prevention) Rules-1989. Karnataka State Government has appointed Special Police
Officers as mandated by the Immoral Traffic (Prevention) Act. The Director General
of Police of Karnataka has issued a circular for a victim centric approach in dealing
with cases specified in Immoral Traffic Prevention Act. In this regard it is important
to state that Karnataka Police is one of the first police across the country which issued
such orders with relation to victim protection.

1.5. Role of Judiciary in combating Human Trafficking

The Hon’ble Supreme Court has interpreted this provision to give justice to
vulnerable sections of society by directing the state governments to enact suitable
legislations to protect the rights of women and children and especially women who
are subjected to various forms of exploitation.

In fact Indian Judiciary has significantly contributed for combating human trafficking.

With regard to trafficking of women Supreme Court has given landmark judgments in
People’s Union for Democratic Rights v. Union of India44 it was held that Article
23 was intended to strike “at every form of forced labour even if it has its origin in a
contract voluntarily entered into by the person obligated to provide labour or service”.
Supreme Court has upheld the basic human rights of bonded labourers receiving
minimum wages by passing an order that full wages to be paid directly to the
labourers instead of the contractors. Directions to the government were given to take
necessary steps for punishing the violations of fundamental rights of citizens
guaranteed by Article 23 by private individuals. This direction imposes a duty on the
concerned State Government to take the responsibility of protecting the vulnerable
sections of the society from being exploited by the employers. This decision has
highlighted on the issues which are most prevalent in Indian labour market were
labourers are made to work for long hours but they are not paid equivalent wages for
their hard labour. The intention of the Supreme Court in this decision clearly provides

44
AIR 1982 SC 1473

24
the actual scenario of labour exploitation and the conditions which the court intends to
address.

In Bandhua Mukti Morcha v. Union of India45there were large numbers of workers

in the stone quarries of Haryana who were bonded laborers, in violation of the
Bonded Labour System (Abolition) Act, 1976 and that in addition to being held in
bondage they were working in inhumane conditions. The Supreme Court directed the
State Government to act as a Welfare State and ensure that workers are continuing in
work with improved conditions. In this case the court has directed that the
Government had the responsibility of protecting the basic human rights of the weaker
sections of the society

In Laxmi Kant Pandey v. Union of India46 It was alleged that in the guise of
adoption Indian children of tender age were not only exposed to the long dreadful
journey to distant foreign countries at great risk to their lives but in case they survive
they were not provided any shelter and relief homes and in course of time they
become beggars or prostitutes for want of proper care.

Supreme Court gave directions to all State Governments and the Governments of
Union Territories to direct their concerned law enforcing authorities to take
appropriate and speedy action under the existing laws in eradicating child prostitution
without giving room for any complaint of remissness or culpable indifference.

In Vishal Jeet v. Union of India and others47This case is considered to be one of

the landmark decision, where the Supreme Court took it upon itself to give directions
for the protection and rehabilitation of those who had been dedicated as devadasis by
their families or communities for cultural reasons were currently in prostitution The
court called for stringent and speedy legal action against the exploiters such as pimps,
brokers and brothel owners. The Court has given certain directions to the Central
Bureau of Investigation (CBI) to bring all inmates of the red light areas and also those
who are engaged in the flesh trade to protective homes of the respective States to
provide them with proper medical aid, shelter, education and training in various

45
AIR 1984, S.C. 820
46
(1987) 1 SCC 67
47
1989 3 SCC 318

25
disciplines of life so as to enable them to choose a dignified life and bring up their
children along with the other children in the society.

Supreme Court has given life to the letters of the Constitution of India by rendering an
effective judgment on the issues of human rights violation and specifically on human
trafficking.

2. IMPORTANCE OF THE STUDY

Increasing incidence of trafficking has threatened the social fabric of the country. A
large number of girls and women are reported missing in India. Out of them highest
cases reported is from the metropolitan cities. This research on trafficking of girls and
women highlights the vulnerable sections of the society who become victims of
trafficking, to ascertain the causes for weak law enforcement and to help provide data
for the creation of proper programmes and policies to check trafficking effectively.
There are very few studies available on the subject and whatever is available is
limited in terms of their area of coverage, issues, and population involved. In the
absence of a comprehensive study of the subject it is difficult to formulate
programmes and policies for its effective control and prevention.

The Research is conducted with the object to highlight the lacunae in the existing
laws, the actual problems faced by the survivors of trafficking, reason for low
conviction rate of traffickers, causes for increase in the magnitude of trafficking of
women and failure of laws in effectively tackling the issue. Actual scenario prevailing
in the society to curb the problem of trafficking is ascertained, findings during
research is presented with suggestions to be adopted is provided with.

3. RESEARCH HYPOTHESIS

1. Women are most vulnerable section of the society as a result they are
subjected to sexual exploitation.

2. Law enforcing authorities have failed due to which traffickers go scot free,
and women are subjected to sexual exploitation

3. A trafficked person is subjected to social stigma and due which some of their
family members and the society abandon them.

26
 4. In the name of god, women are dedicated to the deity as devadasis and are
compelled to lead life of a prostitute with religious sanctions.

5. The law enforcement authorities are not considering magnitude of the

trafficking issue seriously as a result it is increasing at alarming rate.

6. Women associations are reluctant to tackle this problem in the present day due
to lack of cooperation from law enforcement authorities.

7. The present laws are not adequate to meet the problems of women trafficking.

4. RESEARCH QUESTIONS

1. In What ways do the laws related to trafficking in girls/women in India

address the issue of prevention of trafficking in girls/women from the
perspective of the rights of women?

2. What are the objectives, scope and content of Immoral Traffic (Prevention)
Act, 1986 and other legislative provisions on the Immoral Trafficking in
India?

3. What are the factors within the legal system which facilitates or hinder the
process of preventing the trafficking in girls/women?

4. What are the changes required to be made in the legal framework for
preventing the trafficking in girls/women from the perspective of the rights of
women?
5. OBJECTIVES OF STUDY

1. To know to what extent India is successful in combating human

trafficking.

2. To study the Central and State government policies and programmes

related to the welfare of the trafficked persons.

3. To study the position of women under Indian laws.

4. The study of prostitution has been inhibited by fear that a social stigma
will be placed to one who conducts research on prostitution. To overcome
such fear this study is conducted.

27
 5. To identify and examine the violation of human rights in perspective of
women.

6. To study the causative factors for trafficking in girls/women.

7. To analyze the strategies adopted by Courts in India to protect the interest

of the victims.

8. To study what protection and assistance is given to victims of trafficking,

the problems and difficulties faced by them and their children.

6. RESEARCH METHODOLOGY

The methodology adopted in this research work covers both ‘Doctrinal’ and ‘Non-
Doctrinal’ method. For doctrinal method authoritative textbooks, magazines, journals,
periodicals and reported cases are relied upon.

For non-doctrinal method original information would be collected from the field study
in which the respondents, government officials, NGOs will be consulted by pre-
structured set of open ended and closed ended questions.

Research work is confined to Bangalore city as trafficking instances reported are more
from Bangalore.

7. SOURCES OF DATA COLLECTION

For the purpose of research work the following sources and tools are used;

Primary Sources

It includes interview, enquiry, ancient scripts, judicial pronouncement of Supreme

Court of India and High Courts, Statistics recorded by police.

Secondary Sources

It includes data collected from the Journals, Newspaper’s report, statistics provided by
various NGO’s, periodicals, e-book, internet.

28
8. REVIEW OF LITERATURE

1. Jayanta Choudhury & Purbita Gupta “Trafficking in Women and Children

Tripura Perspective” 48 the author discusses on the different forms of trafficking
and also the geographical magnitude of trafficking in India and other regions. It
highlights the efforts taken by various international organization and UN agencies
like UNIFEM, UNICEF, ILO, UNDP, UNODC etc. towards prevention and
combating of trafficking in women and children. It also points out various steps
taken by the Government and Non-Government Organization (NGO’s) in India.
An empirical investigation on trafficking in women and children in Tripura has
been conducted. The authors have opined that the end purpose of trafficking is
prostitution which is not true in all cases. The purpose may differ from cases to
case.
49
2. P.M.Nair, IPS “Trafficking in Women and Children in India” this book is
based on the research project commissioned by the National Human Rights
Commission (NHRC) and the study carried out with UNIFEM support and
conducted by the Institute of Social Science (ISS). In this research trafficker,
victims are interviewed; it gives the multidimensional nature of the problem,
loopholes in the law, the gaps in the law enforcement, the involvement of
organized mafia and the agonies of the victims. It reveals that India serves as a
source, transit and destination country where thousands of women and children
are exploited every day. The study has illustrated a strong link between migration
and trafficking and has established that addressing the vulnerability of the
migrants is an important tool for preventing trafficking. The report states that the
law enforcement has a critical role to play in combating trafficking, but it is
unfortunate that in India, the numbers of law enforcement officials who fully
comprehend the human dimension and practice a right approach to the problem
are few.
50
3. S.K.Ghosh “The World of Prostitutes” the author begins with the status of
prostitution in ancient civilizations and recounting its historical evolution, the

48
Trafficking in Women and Children” Tripura perspective,1 st edn., NABA Chandana Prakashani,
Kolkata, . 2012
49
Orient Longman Private Limited Hyderabad , 2005
50
A.P.H .Publishing Corporation , New Delhi,1996

29
 author’s survey of prostitution appropriately focuses on its modern manifestations
and confronts us with the rude reality that the story of prostitution is not simply
the life history of “fallen angels” but an intricate and worldwide deprivation,
exploitation and persistent violation of human dignity. Various International
Conventions brought into force for combating evils associated with prostitution is
also discussed in detail. The author gives the statistics about the inter-country
adoption of child, in some third world countries, unscrupulous intermediaries
persuade to sell their child claiming that it will be adopted by well-off couples
from rich country, when the child is really intended for exploitation.

The author states that in the world today, there have been three different trends
with regard to state involvement with prostitution since the second half of the 20th
century. The first deals towards complete ban, declaring prostitution as illegal.
The second is towards regulation, which involves government control of
prostitution through procedures such as registration and licensing of prostitutes,
their mandatory medical checks, fingerprinting and carrying of identification cards
issued by the police. The third has been towards decriminalization which consists
of freedom from the police and court actions and ending of degrading system
under which prostitutes are repeatedly arrested, fined and released to go back to
work.

Some recommendation given by the author is the suppression of forced

prostitution and international traffic in women and children for the purpose of
prostitution, media can play a most effective role by increasing the public
awareness and knowledge of prostitution and its exploitation.

The author has explained the concept of prostitution and trafficking as one and the
same. In fact prostitution is one of the consequences of trafficking all trafficking
offences do not result in prostitution.

4. K.C. Tarachand “Devadasi Custom Rural Social Structure and Flesh Market” 51
the author has attempted to study many problems such as origin of the Devadasi
custom, its working, factors which influence its working, role of political situation
in the society. The author has thrown out many questions which may open space

51
Reliance Publishing House, New Delhi,1992

30
 for many more research studies especially in the field of scared complex studies,
sanskritization and allied areas. The author has studied commercial prostitutes in
city located in the ritual region of the shrine. It was found that as many as 35% of
the commercial prostitutes in his sample were devadasi. His probing further into
the matter also revealed that some of these girls were victims of rape and
abduction and were later dedicated to devadasihood untraditionally, to save their
family’s honour and to bring a legitimate status to their children.

Ritual tradition and the deity are abused and misused. The authors concludes
stating that the same type of situation is bound to prevail in the shrine in future
also and till the devotees are educated to change the rural structure by improving
their financial and educational position. This is not sufficient the persons involved
should be punished. The victims should be rehabilitated so that they are not forced
to re-enter the profession.

5. Jean D’Cunha “ The Legalization of Prostitution” 52 this author makes a modest

attempt at evaluating the desirability of legislation of prostitution from the
ideological point of view, its feasibility in implementation and whether or not
prostitutes will be benefited from the system. The experience of western countries
that have legalized prostitution has also been drawn upon to assess the feasibility
to legalization. The author presents a comparison of the data for arrests and
release on bail of brothel keepers and procurer. The statistics reveal that all brothel
keepers and procurers arrested were released on bail.

The Statistics shows failure of proper implementation has resulted in the accused
escaping from the clutches of law. By legalization of prostitution will not solve
the problem of trafficking of women and girls. It will only increase the number of
women and girls being trafficked.

6. Paola Monzini , translated by Patrick Camiller” Sex Traffic-Prostitution, Crime

and Exploitation”53 the author presents the trauma the survivors of trafficking
undergo after being rescued from the traffickers the approach of the society and
their family members psychologically affects them. The causes for growth of
human trafficking and the steps or measures taken by the origin, transit and

52
Joint Women’s Programme Research Centre, New Delhi, 1990
53
Books for Change Publishers, Bangalore,2006

31
 destination countries is discussed and also the reason for its failure is also clearly
identified. It discusses about the situation prevailing in Europe, Italy, Germany,
Japan and states that lack of proper coordination among the government bodies,
NGOs is one of the main cause for failure of trafficking laws. The author has
identified the trafficking issues and the causes for failure and the status of women
as survivor of trafficking but fails to give proper recommendation or suggestions
to resolve this issue.

7. K.K.Mukherjee “Flesh Trade” A Report54 gives a clear picture of the flesh trade
prone areas, nature of the trade, victims of socio-economic background, and
factors contributions to the occurrence, perpetuation and continuation of flesh
trade. He also suggests some rehabilitative measures for victims of flesh trade/
trafficking and how NGOs involving could control and prevent this.

8. William W. Sanger “The History of Prostitution its extent, causes and effects
throughout the world”55author of this book gives a detailed explanation about the
practice of prostitution in parts of the world and the pathetic condition during their
old age.

9. KumKum Roy “Women in Early Indian Societies”56 the author explains about
the status of women from Vedic period to the present. The prostitutes were
required to pay taxes regularly. They were considered as a commodity or chattel
thus she was a part of dakshina fees to sacrificial priest. They had scant provision
for old age and infirm persons.

10. B.Joddar in his book “Prostitution in Nineteenth and Early Twentieth Century
Calcutta”57 discusses about the district wise distribution of the prostitute of Bengal
origin in Calcutta and suburbs, number of women prostitutes in Calcutta region-
wise. Inter alia showing region wise population, number of women engaged in
various different occupations.

11. Laxmi Devi “Crime, Atrocities and Violence Against Women and Related Laws
and Justice”58 Encyclopedia of women development and family welfare series.

54
A Report, Publisher The Gram Niyojan Kendra, Uttar Pradesh, India, 1989
55
Inter-India Publications, New Delhi,1986
56
Manohar Publishers, New Delhi, 2001
57
Inter-India Publications, New Delhi,1985
58
Anmol Publications Pvt. Ltd, New Delhi,1992

32
 The author states the reason for the flourishing of prostitution trade in India. SITA
and its limitations are also discussed. Rehabilitation procedures are also
suggested.

12. Roger Matthews, ‘Prostitution, Politics and Policy’59 deals with why prostitution
has become an issue. The HIV/AIDs panic during 1980’s in U.K the fear that
there was no Known cure, and claims in the media that the spread of HIV/AIDS
could be more devastating heightened the anxieties. During the 1990’s the issue of
young people involved in prostitution came to the fore, both nationally and
internationally. Various legislations passed are also discussed.

13. B.R.Beotra’s “The Immoral Traffic (Prevention) Act, (With State Rule)60 the
present revised edition of this commentary makes a thorough probe into the
various aspects of the Act, bringing out the loopholes and the success achieved in
seeking to eliminate the evil of prostitution. It is an analytical, critical and
comparative study of the totality of the case-law bringing it up-to-date in a lucid
systematic presentation.

14. Davesh Soneji, “Unfinished Gestures, Devadasis, Memory and Modernity in

South India”.61 The author has efficiently depicted the devadasis role and the life
they led in the society and it address the position they held during 200 years .It
also clearly proves that devadasis system prevailed in South India and the
suffering they had undergone.
62
15. Dr. Shamsuddin Shams, “Women, Law and Social Change” The author
discusses on the status of women who are subjected to discrimination and
exploitation in spite of Constitution guarantees equality before law and equal
protection of law. The author has critically analyzed the Immoral Traffic
(Prevention) Act, 1956 and highlights the lacunae in the International Conventions
and National laws by stating that the legislators had no intention to ban
prostitution but only prevention, Children of victims of trafficking are not
considered in the Act and they remain unaddressed section of society. Valuable

59
Routledge-Cavendish,Bungay,Suffolk,2008
60
ed, 5th The Law Book Company(P) Ltd, Allahabad,1996
61
Permanent Black Publication, 2010
62
Ashish Publishing House, New Delhi, 1991

33
 suggestions are given by the author in order to overcome the failures in
implementation of law.

16. S.K.Ghosh, “Women in Changing Society”63, the author provides with the
details of the position of women in different parts of the world during ancient
times and violation of human rights in the form of dedication of girls to the
temples, in Greece, in Great Britain prostitutes were arrested and treated as
criminals, Indian Scenario from Vedic period, Mauryan period, British ruling and
the laws enacted till date to tackle the problem of trafficking is discussed by the
author. The author highlights the defects in the Trafficking laws and also the main
factor which is contributing for the failure of this law.

17. Dr. S. Ram “Women through Ages”,64 the deplorable conditions of women
through the ages has been discussed by the author. The author discusses the
devadasi system that was prevailing in South India by elaborately explaining on
the origin, development and the evidence available on record in the form of
inscriptions, literary works, and the obstacles in weeding out the system.

18. Dr.Surinder Khanna, “Violence Against Women and Human Rights”65 the
author states the type of violence women are subjected to and the loopholes in the
legislation to protect the women from violence inflicted against them. Child
trafficking, prevalence of traditional and religious practices in some communities
is highlighted. The statistics of NGOs and National Crime Record Bureau on
human trafficking has been analyzed by the author. The author insists on
ratification of trafficking convention to all the countries and also to add a new
protocol to the Convention by making the country accountable for non-
compliance.

19. Mita Bhandra, “Girl Child in Indian Society”66 the author presents the scenario
of girl child be subjected to sexual exploitation and the factors contributing to the
dehumanizing act which is going to be detrimental to the future generation. The
ambiguity that prevails as to age of child to be classified as child prostitute is
stated and suggests that in spite of age difference the author insists on special

63
Ashish Publishing House, New Delhi, 1984
64
Commonwealth Publishers, New Delhi, 2004
65
Swastik Publishers and Distributor ed, 1 st New Delhi, 2009
66
Rawat Publications,Jaipur,1999

34
 attention on this offence as it is children who are deprived of their childhood. The
author imposes equal responsibility on the society to initiate action against this
social evil, and to change their attitude towards prostitutes and consider them as a
suppressed section and not as a stigmatized section, contribute in bringing these
victims into the mainstream.

20. Dr. D.K. Bansal “Gender Violence”67 The author provides with the statistics as to
the traffickers targeting children as there is increase in demand, there is increase
in child trafficking to meet the same. Inter-provincial and cross-border
trafficking are becoming increasingly common as there is corruption, lack of
initiative to consider as a serious offence by law enforcement authorities.

9. SCHEME OF THE STUDY AND ITS PRESENTATION

This research work entitled “LEGAL REGIME OF HUMAN TRAFFICKING OF

WOMEN IN INDIA”- A CRITICAL ANALYSIS is divided into seven chapters.

First Chapter deals with the introduction, definition and meaning of trafficking, the
problem, hypothesis, the objectives of the study, importance of the study, importance
of the study, methodology adopted, scheme of the study and presentation and
limitation of the study as well as definitions of some terms. In this chapter magnitude
of the problem is discussed. India serves as a source, transit and destination, where
thousands of women and children are exploited every day.

Second Chapter is devoted to historical background and the evolution of trafficking

of women during Vedic period, Post Vedic period, medieval period, Mughal and
British period and the present scenario. The status of Women in the above period is
discussed in detail. It has been established that the dedication of young girls to divine
service was a universal practice, practiced under various nomenclatures, for various
purposes and in many forms it has developed into exploitation of women.

Third Chapter contains discussion on magnitude of the problem of trafficking in the

world and also in India. The major causes for trafficking and the various purposes for
which they are exploited are discussed in detail. The modus operandi of the
trafficking network is discussed in detail and also lacunae in the implementation
process is analysed to suggest recommendations.

67
Mahaveer &Sons Publishers, New Delhi, 2006

35
Fourth Chapter deals with International efforts in eradication of trafficking.
International Convention for the Suppression of Traffic in Person and Exploitation,
1950, UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, 2000 were brought into force by the countries facing the
problem of trafficking, India being a signatory to this convention the steps adopted to
incorporate those provisions and its compliance are discussed in this chapter. These
conventions bind the signatory countries but there is no proper compliance, the reason
being defects in the legislation of that country or the weak law enforcement
authorities which is the main cause for growth of trafficking in alarming rate.

This chapter also deals with existing legislative mechanisms; this chapter has been
devoted exclusively to the role played by the legislature. Various legislative measures
have been discussed in detail to see how far they are successful in preventing
trafficking of girls/women. Very often trafficking is equated with prostitution and this
is one of the prime reasons why the human rights violation inherent in trafficking is
not correctly understood, while the traffickers who are the actual ‘criminal’ go scot-
free. The Immoral Traffic (Prevention) Act, 1956 on careful scrutiny clearly reveals
that the Act was aimed at the suppression of commercialized vice of prostitution.

Fifth Chapter discusses on the judicial response on the trafficking of girls/women,

various landmark decisions of Supreme Court and High court and also assesses how
far judiciary is successful in this direction. Supreme Court has given decisions on all
forms of violation of human rights relating to trafficking of human beings and it has
also given suitable directions to the Central and State government to be implemented.
This chapter also discusses on the role of NGOs and their contribution in dealing with
trafficking issues and to what extent they are successful in rescuing, rehabilitation of
the survivors of trafficking and the obstacles they come across in this endeavor.

Sixth Chapter deals with empirical research which includes the interviewing the law
enforcement authorities, advocates, NGOs and the victims. The data for the research
will be collected with help of pre-structured set of open ended and closed ended
questions. Collected information will be analyzed to arrive at the conclusion at to
ascertain the magnitude of the problem, major causes for alarming rate of growth of
trafficking in women, drawbacks in the legislation, cause for failure to tackle the
problem in spite of sufficient laws enacted to check the problems will be ascertained.

36
Seventh Chapter deals with Conclusion and Suggestions. In this chapter findings of
the researcher during the study of trafficking of women issue and also to overcome or
successfully resolve or eradicate the problem some suggestions are given to be
incorporated in the existing laws and also suggest how this research work is going to
help or contribute to resolve the problem of trafficking of women.

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