Human Trafficking Scenario in Nepal –An empirical study on the

Contributing Factors and Anti Human Trafficking Interventions

(A Seminar Paper)

Submitted to

National Law College (NaLC)

Affiliated To- Tribhuvan University

Sanepa, Lalitpur

(For Partial Fulfillment of the Requirement for BALLB Degree)

Submitted by

Sudarshan Gyawali

BALLB 7TH SEMESTER

TU Registration No: 8-2-1012-59-2016

Exam Roll No.:

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 Acknowledgement

This Research work entitled Human Trafficking Scenario in Nepal –An empirical study on

the Contributing Factors and Anti Human Trafficking Interventions has been carried out to
meet the partial requirements of the fulfillment for B.A.L.L.B Degree. I would like to extend my
immense gratitude to respected Seminar Convener Mr. Rastra Bimochan Timilsena for her
valuable supervision and guidance in completing this study. I am highly indebted and very
thankful for his continuous support and constructive suggestions that have enabled this research
work to achieve its present form. 
I remain thankful to different NGOs, Human Trafficking Bureau, NHRC for their immense help
for collection of data relating to Human Trafficking in Nepal. I also remain thankful to my friends
for their immense help for collection of data relating to Human Trafficking in Nepal and case
laws. Without their great effort, I would remain helpless for getting data which is indispensable
part of this research. 
Last but not the least, I would like to remember all lecturers, staffs of library whose continued
support helped me to accomplish this research work.

Sudarshan Gyawali

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 Statutes

Child Labor (Prohibition and Regulation) Act, 2000

Human Trafficking and Transportation (Control) Act, 2064
Human Trafficking and Transportation (Control) Rules, 2065
The Act Relating to Children, 2075 B.S.
The Foreign Employment Act 2064

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 Cases

Bhagirath Dahal (Rajesh) vs The Government of Nepal

His Majesty’s Government on the FIR of TDD vs Durga Dhimal

Government of Nepal vs Bajir Singh Tamang

Dambar Bahadur Chettri vs His Majesty’s Government

Kamal Prasad Shrestha vs His Majesty’s Government

Uttam Lama vs. HMG In Report of Charimaya Moktan

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 List of Tables

Table 1 Changing forms and types of trafficking vis-à-vis politico-economic situation of in Nepal

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Abbreviations

AHTB Anti-Human Trafficking Bureau

Art Article

BS Bikram Sambat

CATW Coalition Against Trafficking in Women

CBS Central Bureau of Statistics

CCWB Center Child Welfare Board

CEDAW The Convention on the Elimination of All Forms of Discrimination against

Women

CERD Committee on the Elimination of Racial Discrimination

CeLRRD Center for Legal Research and Resource Development

CoN Constitution of Nepal

CRC Convention on the Rights of the Child

CSTP Convention for Suppression of the Traffic in Persons and of the

Exploitation of the Prostitution of Others

DG Director General

FIR First Information Report

FY Fiscal Year

GAATW Global Alliance against Traffic in Women

GBV Gender Bases Violence

GoN Government of Nepal

HIV/AIDS Human Immunodeficiency Virus/ Acquired Immunodeficiency Syndrome

HMG His Majesty Government

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HTTC Human Trafficking and Transportation (Control)

HTTCA Human Trafficking and Transportation (Control) Act

Id.

ICCPR International Covenant on Civil and Political Rights

IIDS Institute for Integrated Development Studies

ILO International Labor Organization

INGOs International Non-Governmental Organizations

NGOs Non-Governmental Organizations

NHRC National Human Rights Commission

NKP Nepal Kanoon Patrika

OAG Office of Attorney General

OAU Organization of African Unity

SAARC South Asian Association of Regional Cooperation

SSB Border Security Force of India

TIP Trafficking in Persons

UDHR Universal Declaration of Human Rights

UN United Nations

UNFPA United Nations Population Fund

UNIFEM United Nations Development Fund for Women

UNSCR United Nations Security Council Resolution

US United States

WTO World Trade Organization

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Contents

Acknowledgement.....................................................................................................................................2
Statutes.......................................................................................................................................................3
Cases...........................................................................................................................................................4
List of Tables..............................................................................................................................................5
Abbreviations.............................................................................................................................................6
Chapter I..................................................................................................................................................11
Introduction of the Study........................................................................................................................11
1.1 Background of the study...............................................................................................................11
1.2 Statement of the problems............................................................................................................13
1.3 Objectives of the study..................................................................................................................13
1.4 Significance of the Study...............................................................................................................14
1.5 Limitation of the Study.................................................................................................................15
1.6 Research Methodology..................................................................................................................16
1.7 Review of Literature......................................................................................................................16
1.8 Organization of the Study.............................................................................................................16
Chapter II................................................................................................................................................18
Conceptual Framework of Human Trafficking....................................................................................18
2.1 Introduction on Human Trafficking............................................................................................18
2.2. Nature of Offences of human trafficking....................................................................................22
2.3 Approach of Human Trafficking..................................................................................................23
2.3.1 The Moralist Approach..........................................................................................................24
2.3.2 The Crime Control Approach................................................................................................25
2.3.3 The Illegal Migration Approach............................................................................................25
2.3.4 The Labor Approach..............................................................................................................26
2.3.5 Right Based Approaches........................................................................................................27
2.4 Classification of Offence of Human Trafficking..........................................................................27
2.5 Justifications behind the Criminalization of Human Trafficking..............................................28
Chapter III...............................................................................................................................................30
National and International Instruments on Human Trafficking.....................................................30
3.1 National Legal Framework.....................................................................................................30
3.1.1 Constitutional Mandate..........................................................................................................30
3.1.2 The Human Trafficking and Transportation (Control) Act, 2064......................................31

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 3.1.3 Human Trafficking and Transportation (Control) Rules, 2065..........................................39
3.1.4 The Act Relating to Children, 2075 B.S................................................................................39
3.1.5 The Foreign Employment Act 2064.......................................................................................39
3.1.6 Child Labor (Prohibition and Regulation) Act, 2000...........................................................40
3.2 International Legal Framework.............................................................................................40
3.2.1 Global Legal Framework....................................................................................................41
3.2.1.1 The UN Charter 1945..........................................................................................................41
3.2.1.2 Universal Declaration of Human Rights 1948...................................................................41
3.2.1.3 International Convention on the Elimination of all Forms of Racial Discrimination 1965
...........................................................................................................................................................42
3.2.1.4 The Slavery Convention 1926.............................................................................................42
3.2.1.5 International Labor Organization (ILO) Conventions.....................................................42
3.2.1.6 Convention for Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others (1949)..........................................................................................................43
3.2.1.7 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, 1956.......................................................................43
3.2.1.8 The International Covenant on Civil and Political Rights (1966)....................................44
3.2.1.9 The Convention on the Elimination of All Forms of Discrimination against Women
(1979)................................................................................................................................................44
3.2.1.10 Tourism Bill of Rights and the Tourist Code 1985..........................................................45
3.2.1.11 The Convention on the Rights of the Child (1989)..........................................................45
3.2.1.11 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children 2000.............................................................................................................45
3.2.1.12 The Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography 2000.........................................................46
3.2.2 Regional Legal Instruments.......................................................................................................47
3.2.2.1 The African Charter on the Rights and Welfare of the Child 1999.................................47
3.2.2.2 South Asian Association for Regional Cooperation (SAARC).........................................47
3.2.2.3 SAARC Convention on Preventing and Combating Trafficking in Women and Children
for Prostitution 2002........................................................................................................................47
Chapter IV...............................................................................................................................................50
Contributing factors of human trafficking in Nepal.............................................................................50
4.1 Historical development of Human trafficking in Nepal..............................................................50
4.2 Contributing factors of human trafficking in Nepal...................................................................52
Chapter V.................................................................................................................................................59

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Menace and Status of Human Trafficking in Nepal.............................................................................59
5.1 Empirical Study : Menace and Status of Human Trafficking in Nepal.....................................59
5.2 Interview with ABC Nepal............................................................................................................60
5.3 Interview with Shakti Samuha.....................................................................................................62
5.4 Interview with Anti Human Trafficking Bureau, Nepal.............................................................63
5.5 Interview with Joint Government Attorney Lok Raj Parajuli, Nepal.......................................65
5.6 Trafficked Victim Case Study: 1..................................................................................................67
5.7 Available Data on Human Trafficking in Nepal..........................................................................67
5.7.1 Anti-Human Trafficking Bureau (AHTB)............................................................................67
5.7.2 Department of Foreign Employment.....................................................................................68
5.7.3 Border Security Force of India- SSB.....................................................................................68
5.8 Available Data from Questionnaire..............................................................................................68
Judicial View on Human Trafficking.....................................................................................................75
6.1 Bhagirath Dahal (Rajesh) vs. The Government of Nepal...........................................................75
Chapter VII..............................................................................................................................................81
Findings, Conclusion and Recommendations........................................................................................81
7.1 Findings....................................................................................................................................81
7.2 Conclusion................................................................................................................................81
7.3 Recommendations....................................................................................................................82
ANNEXES............................................................................................................................................83

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 Chapter I

Introduction of the Study

1.1 Background of the study

Human trafficking and transportation are some of the serious traditional crimes against
humans. Although, due to the development of various forms of transportation,
communication and technology the world shrinks to the global village and along with the
new method and purpose, new forms and dimensions of the victims have also been seen in
this serious crime. This is not just a crime in any society or nation but has developed into a
global crime. Therefore, this crime has become a matter of concern not only for one nation
but for the entire world community.

Human trafficking is a multidimensional form of exploitation that violates the basic and
inalienable rights of the trafficked victims. Having a glance at trafficking in persons, it is a
serious issue of human rights without any suspicion and exception. Hence, Human
Trafficking is a violation of the Right to life and liberty where victims could be men, women
and children.

It is not easy to measure the impact of an organized criminal group; however, we can know
their significance. Trafficking in women and children in today’s context is recognized
acknowledged by the international community as a global problem. Millions of women and
children are said to be trafficked within countries and across borders, and the profits
emanating from this trade are alleged to be phenomenal gains made from underground trade
in arms and narcotics. And thus, it is recognized as the 3rd largest profit- making
international crime.

Regardless of whether the trafficking in persons especially women and children are countries
of origin, transit, or destination human trafficking has become one of the fastest-growing
areas of international criminal activity which has become a serious concern almost for all
countries. Human Trafficking evolves as a growing phenomenon involving syndicates of

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 transnational organized crime. Women and children have been trafficked for commercial
sexual exploitation, forced marriages, illegal adoptions, organ trade, sex tourism and
pornography, as domestic workers, laborer on construction sites, etc.

Human trafficking is a curse for humanity and it is one of the biggest problems for
developing and under developing countries, especially for Nepal and India. It is the modern
shape of servitude since it comes about in debt bondage and sex slavery sort of circumstance
for the trafficked victims. It is called the slave exchange since human beings are treated as
commodities in a well-organized way, so it is additionally named organized crime. Human
Trafficking crime includes distinctive measures of people groups at every next level so able
to say that it may be a huge chain/syndicate of offenders doing such crimes as it were for
making enormous profits.

The trend of Trafficking in person has been seen in different forms. Some of the categories of
human trafficking on the different forms of the trend are as follows:
a) Trafficking for Sexual Exploitation
b) Trafficking for Labour Exploitation
c) Trafficking for Human Organ Trade Including Forced Surrogacy

Trafficking in people may be a serious issue in Nepal, characterized by cross-border,

universal and internal trafficking of women, men, and children for different purposes
including commercial sexual misuse and forced labour. As is the case universally, be that as
it may, there's a basic hole in solid predominance estimates of the trafficking of young
women in Nepal and to date, most estimates rely on case information, authoritative
information or overviews. Whereas there's not one, comprehensive estimation of the number
of Nepalese women trafficked from and inside Nepal, research shows that it's going to be an
unpreventable issue of human rights.

To counter, control and eliminate human trafficking crimes, Human Trafficking and
Transportation (Control) Act, 2064 has been brought up. Nepal has criminalized human
trafficking and transportation in Human Trafficking and Transportation (Control) Act, 2064.

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 Nepal is a member of UN Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, Supplementing the UN Convention Against Transnational
Organized Crime, as Palermo Convention 2000, and has adopted Recommended Principles
and Guidelines on Human Rights and Human Trafficking which later helped in developing
Human Trafficking and Transportation (Control) Act, 2064 to counter, control eliminate
human trafficking and transportation.

1.2 Statement of the problems

Trafficking is a universal phenomenon. Several contributing factors helps in increasing
the threat of human trafficking and transportations. Trafficking mainly of women and children
has been a serious concern for developing countries like Nepal as well as some parts of the
developed world. Human trafficking is the worst form of human rights violation and it is also a
criminal act where people are forced to do what they do not want to do, it is against the dignity
and rights of the an individual.

In the context of the ever-increasing threat of human trafficking and transportation in Nepal;

What are the underlying contributing factors and consequences of women/girls and child
trafficking in Nepal?
What are the perspectives of governmental and non-governmental organizations on human
trafficking issues in Nepal?
Does the combating of trafficking require a special law that will cover all the dimensions of the
problem?
Is Nepalese Legislation adequate to combat and intervene in Human Trafficking in Nepal?
What impact has Human Trafficking and Transportation (Control) Act, 2064 shown to counter,
control eliminate human trafficking and transportation?

1.3 Objectives of the study

The objectives of this research paper are as follows: -
To determine the contributing factors of human trafficking in Nepal .
To study the anti-human trafficking interventions in Nepal

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To find out the implementation status of law related to the prohibition of Human trafficking in
Nepal.
To study the new trend and dimensions of various forms of human trafficking.
To focus on the magnitude of child trafficking in Nepal and try to find out every possible reason
behind it and also try to find out a desirable solution to the problem.
To make recommendations to improve the effectiveness of the legal framework and institutional
mechanisms to control trafficking in person and rehabilitate victims of trafficking.
1.4 Significance of the Study
This research is reflecting contributing factors regarding the changing trend of the commission of
the crime of trafficking in women and children. The research papers sort out the trend of
committing crimes of trafficking in women and children on various factors. Further, the research
paper has analyzed the trend of committing crimes. This research paper has ultimately provided a
hint for the concerned stakeholders for further steps needed to be undertaken against trafficking
in women and children and special steps to be forwarded.

This study is considered a significant undertaking from the following viewpoints:

This study is of incredible incentive for lawmakers, judges, lawyers, academicians to
encourage their insight in regards to human trafficking.
This study attempts to take care of the issues which may help the policymaker as well as
concern government office.
It attempts to discover the effects regions on Human trafficking, which may assist with creating
an instrument for the compelling usage of Anti-Human Trafficking and Transportation Act.
This study will provide another perspective and will be of enormous worth to all those who are
concerned in the anti-trafficking association like NGOs, civic societies, etc in their perception
towards Human Trafficking in Nepal
More importantly, it will raise awareness among the stakeholder and among the masses about the
issue and encourage public participation.
It will also help to ascertain possible reasons for the vulnerability of victims of human trafficking
and to address the same.
By this study, legal officers, an investigative officers will get useful help.
for their investigation.

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At long last, this research is a focal point to peep into this issue to pick up information and have
legitimate comprehension about anti-human trafficking law to the individuals who have a distinct
interest in this subject.
1.5 Limitation of the Study
This paper focuses more on the study of trafficking of human and the major contributing factors.
The paper is limited to the general study of human Trafficking; the paper is limited to the cause
of human trafficking in general in Nepal. This paper is limited to have an overview of human
trafficking in women and children in Nepal and examine the situation of human trafficking in the
present scenario.
The available data and statistics on the problem of human trafficking in our country
reflect how much work has been done and how many honest efforts have been made to give a
clear picture of this problem. There is a lack of data based on primary research. Very little
academic research, particularly empirical-based research has been conducted on trafficking in
human beings in Nepal and published in academic outlets. Thus, the data available is inadequate
to present a true picture of the menace of human trafficking in Nepal.
The literature on human trafficking reflects the dilemma of writing on a subject that is not
easy to research. The data presented by most reports is valuable because of this very scarcity
considering the hidden and criminal nature of the problem.
Foremost among these is the fact that an interview was conducted with known victims of
trafficking for this study. Victim interviews was not done wholly for reasons of access.
Interviews were not carried out among traffickers. The reason for this has mostly to do with the
issue of security. While the definition, perspective, and approaches to the problem of trafficking
may vary the concern to find an effective solution is common to all these studies.

1.6 Research Methodology

Research is a continuous process and takes a long time to get completed. There are
multiple ways to conduct research depending on which field the research is carried out. Further,
research varies according to the method used in conducting the research and the data involved.
As far as this research is concerned; the researcher has used the non-doctrinal method. Likewise,
the research will be empirical research; data will be retrieved from both primary and secondary
sources.

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 In preparing this research work, researcher has conducted field interviews and
discussions with stakeholders of human trafficking, which included, police personnel, personnel
of AHTB, NGOs, civic society currently working for trafficked persons as primary sources of
data. For the purpose of interviews of different stakeholder, the researcher has used a common
interview script but varied the questions asked for the particular interviews according to the
interviewee and substance of the answers. Interviews were conducted in the Nepali and English
languages. Apart from field interviews, the researcher collected some data relating to the number
of human trafficking victims from agencies like National Human Rights Commission, NGOs,
civic societies, police, etc. For the purpose of questionnaire, researcher has prepared set of
question for academicians, lawyers, law students and general public. NGOs in Nepal are
reluctant to allow even researchers to meet with women and children who have been the victims
of human trafficking. Secondary sources of data consist of published and unpublished books,
reports, articles, magazines, journals, websites and newspapers, and monographs.
Researcher has also followed Bluebook rules of citation.

1.7 Review of Literature

1.8 Organization of the Study

To make the study more systematic, scientific, and fruitful response the whole report is
divided into the followings order:
Chapter I- deals with the introduction of the study focusing on the background, statement of the
problem, objectives of the study, significance of the study, limitation of the study, methodology,
review of literature and Organization of study.
Chapter II - deals with the conceptual framework on human trafficking
Chapter III- deals with national and international instruments on human trafficking.
Chapter IV- deals with contributing factors of human trafficking in Nepal
Chapter V- deals with Anti-human trafficking initiatives in Nepal
This chapter discusses the anti-human trafficking initiatives undertaken by different actors
involved in counter-trafficking activities in Nepal. Also, in this chapter an attempt has been made
to collect information by way of an interview various stakeholders like the Police, NGO’s, civic

16
societies, questionnaire from academicians, students, and the general public to examine the
causes, implications and responses of the problem of human trafficking.
Chapter VI- deals with Judicial view regarding human trafficking.
Chapter VII- deals with Findings, conclusion and recommendations

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 Chapter II

Conceptual Framework of Human Trafficking

2.1 Introduction on Human Trafficking

Human trafficking is an illegal activity, which is against the society, state and whole
human civilization. It affects all human society as an immoral crime and also a serious crime. It
has crossed a long history, and therefore human trafficking is not new offence. It was originated
in Nepal many centuries back. Women had taken place in the ancient days as well as now a day
for mainly prostitution and others, male and children are also trafficked for various purposes,
such as slavery, labor, organ transplantation and camel jockeying, unlawful marriage, adoption
etc.
Trafficking in human beings is a very complex process involving many victim actors,
survivors, their families, communities, and third parties that recruit, transport, harbor, and use the
labour of trafficked victims. Given its complex nature it has generally been found that trafficking
is essentially a gender and age-specific phenomenon affecting mostly women and children rather
than men. There are undoubtedly instances of trafficking of men as well. However, trafficking in
men in no way approximates the dimensions of trafficking in women and children. Men are
generally smuggled or illegally transported, whereas, women and children are trafficked. Further
trafficking has to be seen as part of the process of international migration as trafficking involves
movement of people. Trafficking also poses serious public health concerns. The victims of
trafficking are most vulnerable to HIV/AIDS leading many organizations to address human
trafficking issue while working on prevention of HIV/AIDS.1
Trafficking is also a serious violence of human rights of the trafficked persons.
Trafficked of human being is a worldwide problem either big or small. It is an organized crime.
In this way, in general term, sale and purchase or transportation of any person from one place to
another place by use of force, threat, deception, coercion etc., is called human trafficking. In this
time, there is serious violence of human right by trafficking in person. So, both the nationals as
well as international law define human trafficking as a heinous and grave offence against
humanity and human right of trafficked persons.

18
There are so many authorities they have tried to give their definitions of human trafficking.
Among them some definitions are as following: -
According to Black’s Law Dictionary, Ninth Edition, the illegal recruitment, transportation,
transfer, harboring, or receipt of a person, one from another country, with the intent to hold the
person captive or exploit the person for labor, services, or body parts. Human trafficking
offences include forced prostitution, forced marriages, sweat-shop labor, slavery, and harvesting
organs from unwilling donors.
The United Nation General Assembly, 1994, defines trafficking as the "illicit and clandestine
movement of persons across national and international borders, largely from 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 the
profit of recruiters, traffickers, crime syndicates, as well as other illegal activities related to
trafficking, such as forced domestic labor, false marriages, clandestine employment and false
adoption. National and international legal structures are inadequate to deal with the trafficking in
human beings. While there are different patterns of exploitation in different parts of the world,
children are trafficked for a number of purposes, including: Sexual exploitation; adoption; child
labor (e.g., domestic work, begging, criminal work like selling drugs); participation in armed
conflicts; marriage.2
Coalition Against Trafficking in Women ( CATW), defines trafficking as “ Trafficking is the
recruitment and or the transportation of persons by others using violence or the threat of
violence, abuse of authority of dominant position, deception or other forms of coercion for the
purpose of exploiting them sexually or economically for the profit or advantage of others. Such
as recruiters, procurers, traffickers, intermediaries, brothel owner and other employers,
customers or crime syndicates.
According to this definition, there are following components in the crime of child trafficking:-
Recruitment or transportation of person by other.
Used violence or threat of violence, abuse of authority or dominant position, deception or other
forms of coercion to do that act.
Purpose of that act is exploiting them sexually or economically for the profit of others.

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UN- Special Rapporteur on Violence against Women has defined trafficking by Ms.
Radhika Coomaraswamy as follows:-
“Trafficking in person means the recruitment, transportation, purchase and sale, transfer,
harboring or receipt of persons; by threat or use of violence, abduction, force, fraud, deception or
coercion (including the abuse of authority), or debt bondage for the purpose of placing or holding
such person, whether for pay or not, in forced labor or slavery like practices in a community
other than the one which such person lived at time for the original act described.”
According to this definition in the crime of human trafficking, there are following components:-
a. Recruitment, transportation, purchase, sale, transfer, harboring or receipt of person.
b. By used of violence, threat, abduction, force fraud, deception coercion (including the abuse of
authority), or debt bondage to do those acts.
c. Purpose of that act is placing or holding such person, whether for pay or not, in forced labor or
slavery like practices, in a community other than the one in which such person lived at the time
of the original act described.
European Convention on Human Rights defines trafficking as: Trafficking in human beings
means subjection of a person to the real and illegal way of other person by using violence or
menaces or by abuse of authority or intrigue especially with a view to the exploitation of
prostitution, homes of sexual exploitation also include the production, sale or distribution of
child pornography material.3
According to this definition in the crime of human trafficking, there should be following
components: -
i. Subjection of a person to the real and illegal way of other person.
ii. There is used violence or menaces or abuse of authority of intrigue to subjection of a person.
iii. The purpose of subjection of person is exploitation of prostitution, homes or sexual
exploitation and assault or minors or trade in abandoned children, production, sale or distribution
of child pornography material.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Person Especially Women
and Children, Supplementing the United Nations Convention Against transnational

20
Organized Crime, 2000 define trafficking as “ recurrent, transportation, transfer, harboring 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, for the purpose of
exploitation.4
This protocol also defines what must be considered exploitation, specifying the types of illicit
market into which a person may be forced and then exploited: “Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery or practices similar to slavery, servitude or the removal of
organs.”5
According to this definition, following acts are included under the crime of human trafficking:
a. Recurrent, transportation, transfer, harboring or receipt of persons.
b. By 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.
c. Purpose of those acts is to achieve the consent of a person for the purpose of exploitation.
d. Under the exploitation, there shall include at a minimum, the exploitation of the
prostitution of others, or other forms of sexual exploitation, forced labor or services,
slavery or practices similar to slavery servitude or the removal organs.

The definition proposed in the SAARC Convention on Suppression and Elimination of

Trafficking, defines Trafficking as:
“All acts involved in the recruitment, transportation, forced movement, selling and buying of
women and children within and \ or across borders by fraudulent means, deception, coercion,
direct and\ or indirect threats, abuse of authority, for the purpose of placing a women and\ or
child against her will with or without her consent in exploitative and abusive situations such as
forced prostitution, marriages, bonded labor, begging organ trade etc.”6
The Human Trafficking and Transportation (Control) Act, 2064 defined trafficking as:
Following acts are known as human trafficking offences.7

21
a. To sell or purchase a person for any purpose,
b. To use someone into prostitution, with or without any benefit,
c. To extract human organ except otherwise determined by law,
d. To go for in prostitution.

2.2. Nature of Offences of human trafficking

Human trafficking is a serious crime. It is not only limited in one country, community, or
society. It is not new problem and not a new problem of only one country, but a worldwide
problem. It is universal problem having a serious challenge to the area of human right. So it is
found with its nature and extent. The main natures are as follows:
a) Traditional Crime:
It is not a crime. From the ancient period this offence was committed in the society. The system
of slavery, prostitution, force labor etc. was exercised in ancient period in the society. And there
was sale, purchase, transfer as well as transportation of human being to the purpose of slavery,
prostitution etc. So trafficking is the developed figure of those kinds of system. Therefore, it is
not a new crime but a traditional crime.
b) Organized Crime:
It has been developing as an organized crime. There are many purpose of this crime. So there is a
network to do this crime. Transportation, transfer, sale and purchase of human being are done by
the involvement of many persons. Only one person cannot do this crime. Now a day the network
of this crime is increasing in the world.
c) Changing Nature:
The modes and process of this crime is changeable. The criminal of this crime has been changed
the old modes and process to protect them from punishment. Now a day they commit this crime
from various new modes and processes. If the current ones fail, it constantly develops new forms
and processes.
d) Serious violence of human right:

22
Trafficking persons cannot do anything according to their will. They compel to do everything
according to their will of those persons who take or trafficking them. Their freedom is totally
violated, so this is a great violence of human right of trafficking person.
e) Global Problem:
Human Trafficking is not limited in only one country and society. It has been become a global
problem. The development of transportation and communication has been made easy that one
country’s man can be trafficked easily in other country of the world and other organization take
human trafficking as a global problem.
f) Commit more in poor and uneducated area:
Human trafficker’s access is much more in poor and uneducated area. They can show various
entice to the poor and uneducated persons and trafficked them easily. So this offence has been
committed more in poor and uneducated area.
g) Numerousness of fear bragging, threat etc:
The traffickers show various kinds of fear, bragging, threat etc. and made oblige the trafficked
person to trafficking. Therefore, numerousness of bragging, threat etc. is also a nature of this
crime.

2.3 Approach of Human Trafficking

The analytical framework that an organization or an individual applies to solve the problem of
human trafficking indicates how that organization or that individual perceives and defines it. The
initiatives taken over the years have adopted different approaches and strategies to address the
issue of human trafficking as it is a multifaceted issue of growing international concern. The
Global Alliance against Traffic in Women (GAATW) Handbook on Human Rights and
trafficking in persons (2001)8 indicates a growing need to shift from the working criminal
sanction paradigm to human rights promotion paradigm.
The GAATW Handbook examines the four distinct approaches so for practiced from the human
rights perspective: the moralist, crime control, Migration and labor approaches. Each of these

23
approaches has a two dimensional (repressive and empowering) strategy within it. 9 These
approaches are discussed below.
The repressive strategies practiced so far are geared at suppressing all undesirable and dangerous
behavior in society. They aim to control the situation by punishing the wrongdoer. On the other
hand, the empowering strategies seek to respect, protect and restore the human rights of those
affected and more so of the trafficked persons. There is an open gesture of helping, supporting,
enabling and facilitating to empower the victim. Besides, an effort is made for applying the
principles of self-determination and self representation to the victim. Deep down these strategies
attempt to reach and eliminate the roots of human trafficking. So, when individuals or
organizations follow one or all of these approaches in their anti- trafficking initiatives, they need
to ensure that their strategies empower victims by protecting and promoting their human rights.
The section below discusses the four major approaches and their strategies concerning human
trafficking.
2.3.1 The Moralist Approach
In this approach, trafficking is equated with prostitution, leading to sex industry and is therefore
socially immoral, which should be abolished by all means 10. Trafficked women are considered
fallen, bad and misguided. Prostitution is considered as a social evil. The approach maintains that
women are forced into prostitution because of poverty or other factors, with least focus on
trafficking agents and their networks.
The moralist’s repressive strategies over the years basically sought to suppress prostitution, deny
the right to self- determination to women, criminalized all those who are involved, including men
visiting prostitute, carry out raids on brothels, formulates strict anti- trafficking laws and
unilaterally carry out rescue and rehabilitation programmer. The results of these efforts are
marginalization and greater dependence of women on third party protectors, more violence and
abuse against them and corruption by law enforcers.
On the other hand, there is enough scope for one to adopt the empowering strategies by
recognizing the associations of sex workers, increasing job choices for sex workers, and
mobilizing sex workers for enabling them to participate in policy formulation for their groups
benefit. The empowering strategies are expected to bring self- esteem and more autonomy in

24
victims, provide them safer working conditions and encourage community level participation,
de-marginalization and thus breakdown of the victims’ social stigmatization.
2.3.2 The Crime Control Approach
This approach criminalizes the woman victim. It is based on the belief that we could drastically
curb trafficking in women and girls by adopting strong legislation and inflecting heavy
punishments. The prime motive here is stopping the crime, not the violation and exploitation of
the victim’s human rights. The repressive strategies over the years focused on applying criminal
laws to combat crime and prosecuting the victim’s interest as secondary, re-victimizing them and
creating fear of detection among them, forcing them to live underground lives.
On the other hand, the repressive strategies could be changed into empowering strategies, which
seek to help women to understand their rights in civil and criminal law suits; set up
comprehensive victim assistance programs and help them to organize for self- protection and
carry out class action lawsuits. These strategic activities are geared towards supporting the
victims interests, increasing their self- confidence by bringing them out of their individual sphere
and informing and making them aware of their political rights.
2.3.3 The Illegal Migration Approach
The illegal migration approach focuses on the problem created by illegal or irregular migration
either for work or for other purposes and aims to regulate migration by criminalizing trafficked
persons as illegal workers. In this approach, the repressive strategies always sought to stop illegal
migration, ban agencies or traffickers, control women and girl’s mobility, have strict border
controls, have strict visa regulations, and punish and deport illegal migrants. These activities
have made women more vulnerable to traffickers, strengthened the role of brokers, encouraged
corruption and abuse of victims by border police and immigration officials.
As in other approaches, one could adopt effective empowering strategies by legislation women’s
migration for different jobs, making immigration procedure simpler and more transparent.
Respecting the human rights of migrants, acknowledging work done by migrant women and
giving just remuneration for it; and according independent residence status to partners of
nationals.Such measures could widen women’s job choices, strengthen women migrant’s rights
and reduce the power of brokers and traffickers.

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2.3.4 The Labor Approach
The labor approach focuses on labor market, the domestic unemployment problems and policies
on migrant workers. It aims to protest worker’s rights and provide them proper working
conditions. But it does not recognize informal sector labor and provide legal protection for it.
One observes this gap in the repressive strategies the approach has employed, such as, protection
home on labor market; restriction on some work sectors to migrant women, application of strict
recruitment regulations even in permitted work areas and so on. Non- recognition of the informal
work sectors- domestic as well as sew work, absence of legal protection for these workers, and
criminalization of undocumented migrant workers and their employers constitute additional
problems in this area.
These repressive strategies tend to perpetuate illegality, corruption and exploitation of
informal sector workers- domestic and sex work, empowering the traffickers, weakening the
trafficked and driving them to depend on third parties for mediation.Certainly, repressive
activities cannot raise the socio- economic status of women very far. Timely adoption of
empowering strategies, along with empowering activities, has become all the more necessary.
The empowering strategies must recognize the need for and contribution of migrant workers,
especially women, in the global economy, including in the sex and domestic service industries.
They must regularize worker status and the rights of migrant women in all sectors and
organizations, enforce legal protection, ensure safe and just working conditions in all sectors,
carry out civil and workers right, education to migrant women in all sectors, and facilitate
women migrant workers in all sectors to organize for self-protection and advocacy.
2.3.5 Right Based Approaches
Human Rights:- An approach has been the most prominent feature for addressing the problem.
The criminal sanction paradigm has moreover suppressed and adversely affected the victims of
trafficking than the traffickers.
The focus here is on the protection of the rights of the trafficked victims in all forms of anti-
trafficking activities such as prevention of deception, coercion or violence against trafficking
person and violation of their human rights.
However, they must not be prevented from leaving their places or migration from their villages
or towns or countries for job or other opportunities. Therefore, the activities of rescue,

26
rehabilitation of deportation of victims need to be so designed that nowhere in the process all
victims lose their human rights in the countries of origin or destination.11
The right based approach demand that the rights of the victim from all prospective are respected
and protected will not being subjected to trafficking retaliation and re-victimization by agencies
by agencies in the process of rehabilitation and also from the judicial system itself.

2.4 Classification of Offence of Human Trafficking

There are no specific basic criteria for classification of human trafficking. We may be classified
trafficking on the basis of various criteria. They are follows.
On the Basis of Consent of Trafficking Victim or Their Relatives:
Involuntary Trafficking: It is known as hard model of trafficking, it is coercive from of
trafficking in which traffickers uses force or false promises to the victim (trafficked person).
Voluntary Trafficking: It also known as the model trafficking or non- coercive trafficking.
Family member or relatives played the role of trafficked or and they do this types of crime.
On the basis of purpose of trafficking:
There are some purposes of trafficking which are given bellow.
Trafficking for sexual exploitation.
a) Trafficking for exploitation of labor
b) Trafficking for other purposes
On the basis of Geography of trafficking
Geographical condition also became the basis of the classification of the trafficking those are
given bellow.
Internal Trafficking: It denotes the trafficking activities under the state territory.
External Trafficking: It denotes the trafficking activities out of the state territory.
On the Basis of Gender and Age Factor of trafficking
From the gender basis, we divide into three kinds. They are given as follow.
Women Trafficking
a) Men Trafficking
b) Trafficking of the Children and Minors.

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2.5 Justifications behind the Criminalization of Human Trafficking
There are some justifications behind the criminalization of human trafficking and some
justifications also. According to the helps on international conventions and other philosophical
aspects the rationales or justification behind the criminalization of human trafficking can be
listed as following.
(a) To protect basic human right of human being:
Undoubtedly human being has basic right by birth. It is gifted by nature by humanistic approach
therefore basic human right should be made guaranteed however it can be executed as mentioned
in the constitution of own country and it differs from one country to another. Anyway the most
nearest thing of human being is own body, each and every country protects and have to have
protect the basic human right of human beings.
(b) To protect the sanctity and value of human being:
Not only protecting the body of human being, its sanctity and value ought to be protected. In
fact, sanctity and value, these two things are sprit of human beings that is always respectable
after the death of human beings too consequently that’s why many country formulate laws
regarding person’s dignity and values. In nutshell, sanctity is that thing that makes person
continually in purity abstaining from any kinds of impurity happened before human beings.
(c) To protect the right against exploitation :
Exploitation is that fact which is likely to happen in various forms whether be seen or unseen. It
does not making any differences in that exploitation is exploitation committed against human
being by human beings. In the concept of welfare state, the term exploitation is not suitable at all
so to avoid it, states have inclined to remove this word in human trafficking. As every person has
right by birth to be emancipated from other human beings, the rationality of protecting the right
against exploitation has been placed in human trafficking.
(d) To elimination of this human crime for the society:
Even though, society never free from crimes to be done by human being, the crime committed
against over human body cannot be excusable at any rate. By birth human being is superior to
other beings and should be respected from any angle since He\she has rationality and wisdom.

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 Chapter III
National and International Instruments on Human Trafficking

The legal instruments have defined the human trafficking as a monstrous crime and also
dishonest crime. The Constitution and other various statutory laws are enacted to face and
control the offence of human trafficking as national laws in Nepal. Likewise, there are so many
treaties and conventions that have ratified by Nepal. Nepal has been given the commitment with
the treaty act to apply various regional and international anti-human trafficking laws as national
laws one hand and international laws on the other.

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3.1 National Legal Framework
3.1.1 Constitutional Mandate
Constitution of Nepal 2072 under its fundamental right has provided the right against
exploitation, right of women and right of children explicitly, under Article 29, 38 and 39
respectively. Article 29(3) has guaranteed that no person shall be subjected to human trafficking
or bonded labor, and such an act shall be punished by law. Similarly, Sub-Article 4 of same
Article has restricted forced labor. Article 38(3) of the constitution shall punish the act of
physical, mental, sexual or psychological or any other kind of violence against women, or any
kind of oppression. Article 39(5) under right of children has restricted to child marriage, illegal
trafficking, kidnapping or being hostage.
The Constitution has stepped forward towards gender equality legal frameworks in Nepal. In the
preamble it makes promises to solve all problems related to gender discrimination and violence.
Constitution has put ban on selling of human being and to place any one on condition of ‘bonded
labor’ and slavery or servitude.12 Similarly, the act to engaging anyone in forced labor is
prohibited too.13 These guarantees together with right to equality to sexes and freedoms to
inviolability of personal liberty provide the constitutional framework against the ‘exploitation of
person for any purpose’ and such it can be said that, article provides a guarantee against
trafficking of person.
The above provisions in the constitution provide constitutional protection to women and children
by providing separate fundamental rights against them for any purpose and against the
exploitation and trafficking of persons.

3.1.2 The Human Trafficking and Transportation (Control) Act, 2064

A new law has recently been enacted to combat trafficking in human beings by repealing
Human trafficking (Control) Act, 2043; this law has provided many new provisions. They are
mentioned as below.
1. Definition of Human Trafficking Offences: - According to this Act the following acts
are known as human trafficking offences.14
(a) To sell or purchase a person for any purpose,
(b) To use someone into prostitution, with or without any benefit,

30
 (c) To extract human organ except otherwise determined by law,
(d) To go for in prostitution.
2. Human beings not to be trafficked and transported:15
(a) No one shall commit or cause to commit human trafficking and transportation.
(b) If anyone commits an act under Subsection (1), that shall be deemed to have
committed an offence under this Act.
3. If anyone commits any of the following acts, that shall be deemed to have
committed human transportation:16
a) To take a person out of the country for the purpose of buying and selling,
b) To take anyone from his /her home, place of residence or from a person by any
means such as enticement, inducement, misinformation, forgery, tricks, coercion,
abduction, hostage, allurement, influence, threat, abuse of power and by means of
inducement, fear, threat or coercion to the guardian or custodian and keep him/her
into ones custody or take to any place within Nepal or abroad or handover him/her
to somebody else for the purpose of prostitution and exploitation.
4. Arrest and investigation:17
(1) If any act considered to be an offence under this Act is being committed or may be
committed or attempted in a house, land, place or a vehicle, and if there is a chance the
offender will escape or evidence relating to the offence will disappear or be destroyed if
immediate action is not taken; notwithstanding anything contained in the existing law, a
police officer of the rank Sub-inspector or higher may prepare a report and carry out
any of the activities listed below at any time:
a) To enter, search or seize such house, land, place or vehicle.
b) To break or open windows or doors in order to carry out the necessary
activities in case he/she faces obstruction and opposition in performing the
duties,
c) To arrest or take body search of a person engaged in such activity without an
arrest warrant,

31
 d) To seize and take in custody of the evidence found in such house, land, place
or vehicle.
(2) While carrying out such activity under Sub-section (1), police Personnel shall, if
possible, identify representatives of local bodies or otherwise those present at the time
of activity as witnesses and provide
5. Prosecution in custody18:
Notwithstanding anything contained in the prevailing law, and except to the offence under
Clause (d) of Sub-section (1) of Section 4, the court shall keep the accused in custody while
prosecuting cases on other offences that fall under Section 4.
6. Provision of Translator and Interpreter19:
If the working language used by the concerned court and office in dealing with an offence under
this Act is not understandable by the victim, he/she may manage for the translator or interpreter
with the permission of the court.
7. Rehabilitation Center:20
1) Nepal government shall establish necessary rehabilitation centers for physical
and mental treatment, social rehabilitation and family reconciliation of the
victim.
2) Any organization can obtain permission as prescribed to establish and run
rehabilitation center to address the objectives under Sub-section (1).Nepal
government shall make regular and effective monitoring of that organization
and rehabilitation center established by it.
3) Nepal government may provide economic support as well as other assistance,
as prescribed, to the center run under Sub-section (2).
4) Center shall manage for the social rehabilitation and family reconciliation of
the person stationed at the Center.
5) Center shall manage for the medical treatment and consultation service and
facility to the victims.
6) No one shall make the victim in the Center engage in any work against
this/her wish.

32
 7) Management, operation standard, monitoring of the rehabilitation center,
skillful training and employment, rehabilitation, family reconciliation shall be
carried out as prescribed.
8. Rehabilitation Fund21:
(1) Nepal government shall establish a rehabilitation fund for operation of the rehabilitation
center established under Sub-section (1) of Section 13.
(2) The fund established under the Sub-section (1) shall receive contributions as follows:
a) Funding received from Government of Nepal,
b) Funding received from national and international organizations, and
individuals,
c) Half of the amount received as fines under Section 15.
(3) Management and operation of the rehabilitation fund shall be as prescribed.
9. Compensation22:
1) A court shall issue order to provide compensation to the victim which shall not be less
than half of the fine levied as punishment to the offender
2) If the victim dies before receiving the compensation under Sub-Section (1) and if
he/she does have children below the age of 18, the children shall receive the
compensation. If the victim does not have any children, the dependent parents shall
receive the compensation.
3) If there are no dependent parents and minor children to receive compensation under
Sub-Section (2), the amount should be accrued in the Rehabilitation Fund.
10. Exemption from Punishment23:
If a person knows or there is reasonable ground to believe that he/she is being bought, sold or
engaged in prostitution or taken for the same and he/she does not get help to get rid of from those
acts or somebody creates obstacle or stops or takes into control or uses force, in such case, if he
or she believes that it is impossible to get rid of from such control and on such faith the
perpetrator happens to be killed or injured in the course of release, such person shall not be
liable for any punishment notwithstanding anything in the prevailing law.
11. Punishment:24

33
 (1) Any person who commits an offence as prescribed under Section 3 shall be punished as
follows:
(a) Twenty years imprisonment and a fine of Two Hundred Thousand Rupees for
selling or buying a human being,
(b) Ten years to Five years imprisonment and a fine of Fifty Thousand Rupees to
One Hundred Thousand Rupees for forcing into prostitution, with or without
financial benefit,
(c) 10 years imprisonment and a fine of Rs Two Hundred Thousand to Five
Hundred Thousand Rupees for extracting human organ except otherwise
determined by law,
(d) One month to three months imprisonment and a fine of Two Thousand Rupees
to Five Thousand Rupees for a person engaged in prostitution.
(e) For a person who is involved in transportation of human being for the purpose
of buying, selling and engaging someone in prostitution
(1) Ten years to Fifteen years imprisonment and a fine of Fifty Thousand Rupees to One
Hundred Thousand Rupees for taking a person out of the country. Fifteen years to
Twenty years imprisonment and a fine of One Hundred Thousand Rupees to Two
Hundred Thousand Rupees for taking a child out of the country
(2) Ten years of prison and a fine of Fifty Thousand Rupees to One Hundred Thousand Rupees
for taking a person from one place to another place within the country. Ten years to Twelve
years imprisonment and a fine of One Hundred Thousand Rupees for taking a child from one
place to another place within the country.
(f) One years to two years of imprisonment for taking a person from one place to
another place within the country, and two years to five years of prison for taking
out of the country for the purpose of exploitation under Clause (b) of Sub-
section (2) of Section 4.
(g) (g) Except otherwise written in clause (e) and (f), seven years to ten years of
prison for a person committing an offence under clause (b) of Subsection (2) of
Section 4.

34
 (h) (h) The person engaged in provocation, conspiracy and attempt of an offence of
human trafficking or transportation or an abettor of that offence shall get half out
of full punishment envisioned for that offence
(2) Notwithstanding anything written in Sub-section (1), the punishment in the following
matters shall be as follows:
(a) If same person is involved in buying or selling and forcing into
prostitution, with or without any benefit; he/she shall be liable for
punishment under both offences,
(b) If same person is involved in buying or selling or forcing into
prostitution, with or without any benefit, and in an offence under
Clause (b) of Sub-section (2) of Section 4, he/she shall be liable for
punishment under both offences,
(c) Notwithstanding anything mentioned in Clause (b), if same person is
involved in an offence under Clause (b) of Sub-Section (2) of Section4
and in transporting a human being from one place to another place
within Nepal or outside the country for the purpose of buying, selling
or forcing into prostitution, with or without any benefits; he/she shall
be liable for separate punishment for each offence.
(3) If an offence under Section 3 is committed by person holding a public post; in addition
to the regular punishment for that offence, he/she shall be liable for Twenty-five 25
percentage additional punishments.
(4) If anyone commits an offence under Section 3 with a person under protection or
guardianship or if the victim is relative of the offender as incorporated in the Chapter of
Incest in civil code, he/she is shall be liable for ten percentage additional punishments
besides regular punishment under this Act.
(5) If anyone commits an offence under Section 3 repeatedly, for every offence he/she shall
be liable for it additional one-fourth punishment in addition to the regular punishment.
(6) If, in the course of proceeding of the case, a person involved in reporting the offence
under Section 5 of this Act gives contrary statement to that of the statement giver earlier

35
 or if he/she does not appear before the court on its notice orders not assist to the court,
shall be liable for three months to one year of imprisonment.
12. Seizure of Property25:
1) Any movable or immovable property acquired as a result of an offence under this Act
shall be seized.
2) If it is proved that anyone uses or provides to use any house, land or vehicle for any
offence under this Act, that house, land or vehicle shall be seized.

13. Confidentiality of the informant:26

The name and address of the informant and the details provided by the informant under Sub-
Section (1) of Section 19 shall be kept confidential.
Claim of offence against moral turpitude27:
While framing a charge sheet before the court for an offence under this Act, the concerned public
prosecutor may claim that accused have committed an offence against moral turpitude.
14. Punishment for obstruction:28
Anyone obstructing an investigation of an offence under this Act shall be fined up to Ten
Thousand Rupees.
15. Prohibition against disseminating confidential information:29
(1) Without the consent of the victim, no one shall publish or broadcast the real name,
photograph or any information which is detrimental to his/her character.
(2) Any person who publishes or broadcasts the name, photograph or other information
pursuant to Sub-Section (1) shall be subjected to a fine of Rupees Ten Thousand to
Twenty-Five Thousand Rupees.
16. Security:30
If a person provides reasonable ground and requests the nearest police office for security against
any type of retaliation for reporting to the police under Section 5 or providing statement on court
or remaining as a witness, that police office should provide any or all of the following protection
measures to him/her:

36
 a. To provide security during traveling in course of attending case
proceeding in the court,
b. To keep or cause to keep under police protection for a certain period,
c. To keep at rehabilitation center.

17. In camera court proceedings:31

(1) Court proceeding and hearing of an offence under this Act shall be conducted in In-
Camera.
(2) Only parties to the proceeding, their attorneys or other non-parties permitted by the
court may enter to the court during the proceeding and hearing under Sub-section (1).
18. Government to be the Plaintiff:32
Government of Nepal shall be the plaintiff in all cases filed under this Act, and such case shall be
deemed to be included in Schedule 1 of the Government Cases Act, 2049.

3.1.3 Human Trafficking and Transportation (Control) Rules, 2065

This regulation includes the formation of national and district committees to control
human trafficking and trafficking and the protection of victims, including the rehabilitation of
victims. This regulation also envisaged the provisions of interpreters for effective
communication. Since there is an arrangement for the National Committee to have Deputy
Attorney General from the Office of the Attorney General and the District Committee to have a
District Attorney from the District Public Prosecutor's Office, so the representation of the public
prosecutor in those committees should be made effective.

3.1.4 The Act Relating to Children, 2075 B.S.

The primary objectives of the Act are to protect the rights and best interests of the
children. These rights cover child’s physical, mental and intellectual development. In order to
provide the child an atmosphere of healthy physical and mental development, the act prohibits on
engaging them on prostitution or other sexual work 33. Similarly, the act provides that no one
shall remove any organ of child in contravention of the prevailing law 34 As the Act provides for

37
the care, protection, development and welfare of the child, state has obligation to safeguard the
child from any form of exploitation. Violation of these provisions by specially engaging children
in immoral activities such as pornography and sexual activities will attract the application of the
Human Trafficking and Transportation (Control) Act, 2064. The Act Relating to Children, 2075
is thus an additional statute to the scope of anti- trafficking legal regime

3.1.5 The Foreign Employment Act 2064

Section 12 of the Foreign Employment Act restricts license holder agencies to provide foreign
employment to the minors and women. Pursuant to the section, a person who has not attained the
age of eighteen years is defined as minor. While the restriction on women to seek employment
abroad violates the fight to equality of sex guaranteed by the Constitution, the objective of the
restriction was to reduce vulnerability of trafficking of women for sexual exploitation. The
provision tried to protect women as vulnerable class through protectionist approach. However,
the section is absolutely restrictive to women as it prohibits employment of women in foreign
countries without prior approval of Government. This provision is therefore it violate the
personal identity of women. Under the Act the ‘guardian’ means father or mother in respect of
unmarried woman and husband in respect of a married woman.

3.1.6 Child Labor (Prohibition and Regulation) Act, 2000

The Child Labor (Prohibition and Regulation) Act, 2000 has prohibited engaging a child below
the age of fourteen years in work.35 Similarly, it has prohibited engaging a child in any of the
hazardous business referred to in the schedule of the Act. 36 The Act also prohibits engaging a
child as a labor against his/her will in a way of persuasion, misrepresentation, false promise or
fear of undue influence.37 Taking of child across the border for such purpose falls within the
definition of trafficking. This Act, in addition to Human Trafficking and Transportation
(Control) Act, provides a mechanism to prevent trafficking of children.
3.2 International Legal Framework
Trafficking in human being is a global phenomenon of large-scale magnitude. Human trafficking
has been reported in all over the world. However, it is impossible to determine the actual number
of persons trafficked each year around the world. Trafficking cuts across all the nations, states,

38
and regional boundary and borders. Trafficking in person as a global phenomenon has drawn the
attention of all the countries of the world. Since 1990 various countries and international
organizations have taken note of this human rights violation and efforts are undergoing in
domestic, regional and international level for redress the problem and to define appropriate state
response.

3.2.1 Global Legal Framework

3.2.1.1 The UN Charter 1945

This charter is a seminal document of human rights. This has reaffirmed in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and women 38…
UN charter recognizes human rights through its preamble and several articles. The Charter calls
on the member states to respect for the other principle of equal rights and self-determination of
the peoples. Here children are included into the human person. A child as a person poses the
same rights that deserve by the human person.
3.2.1.2 Universal Declaration of Human Rights 1948
On December 10, 1948 the UDHR was adopted and proclaimed by the General Assembly of the
United Nation. UDHR clearly defined in its first article that all human beings are born free and
equal in dignity and rights. They are endowed with reason and conscience and should act toward
one another in a spirit of brotherhood. 39 It is not necessary to explain that all human beings are
born free and equal in dignity and worth. No one on earth is higher than the other person, no one
possesses higher rights that any other person and no one is the master and no one is slave. All
human beings are equal and free. Article 25(2) of the UDHR has stated that Motherhood and
Childhood are entitled to special care and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection. 40 Special care and assistance for children is
addressed in this article as rights of the child, including non-discrimination, equality and equal
protection of law.41 Its article 26 states that free education, at least at the elementary level is
fundamental for the full development of the human personality and is necessary to strengthen
respect for human rights and fundamental freedoms.42

39
3.2.1.3 International Convention on the Elimination of all Forms of Racial Discrimination
1965
The phenomenon of racial discrimination was one of the concerns behind the establishment of
the UN and has therefore been one of its major areas of attention. The CERD was adopted by the
General Assembly in 1965 and entered in to force in 1969.
3.2.1.4 The Slavery Convention 1926
Slavery and slavery like practices are prohibited under a number of international conventions.
The United Nations Slavery Convention of 192643 defines slavery as “possessing ownership over
another person for the purpose of exploitation” and slave trade as “an act that acquires, disposes
or exchange an individual for the purpose of slavery.”44 Parties to this convention are required to
provide all necessary assistance to other state parties to accomplish the objectives of the
convention and are required to discourage all forms of forced labor.
3.2.1.5 International Labor Organization (ILO) Conventions
The ILO Forced Labor Convention No. 29(1930) requires parties to suppress trafficking in
women and children and the consequent forced labor. According to this convention, each
member of the ILO ratifying the convention must suppress the use of forced or compulsory labor
in all its forms within the shortest possible period.45 Similarly, the Abolition of Forced Labor
Convention No. 105 (1957) requires each ratifying member country to implement measures to
secure the immediate and complete abolition of forced labor.46 ILO Convention on Worst Forms
of Child Labor No. 182(1999) defines worst form of child labor as all forms of slavery or
practices similar to slavery, such as the sale and trafficking of children, debt bondage and
serfdom and forced or compulsory labor47 similarly ILO minimum age convention 1973 is
the Convention concerning Minimum Age for Admission to Employment, is
an convention adopted in 1973 by the Organization urges the state party to take immediate and
effective measures to secure the prohibition and elimination of the worst forms of child labor as a
matter of urgency.48
3.2.1.6 Convention for Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others (1949)49
Prior to the 1949 Convention for Suppression of the Traffic in Persons and of the Exploitation of
the Prostitution of Others (CSTP), there were several international initiatives to suppress human

40
trafficking. These include, International Agreement for Suppression of the White Slave Trade
1904, International Convention for Suppression of Traffic in Women and Children 1921 and
International Convention for Suppression of Traffic in Women of Full Age 1933. Article 4 of the
Universal Declaration of Human Rights (UDHR), adopted by the General Assembly of the
United Nations in 1948, provides that. “No one shall be held in slavery or servitude; slavery and
the slave trade shall be prohibited in all their forms.”
CSTP requires that the offences of trafficking elaborated in Article 1 and 2 be regarded as
extraditable offenses in any current or future extradition treaty between any of the parties to the
convention.50 The convention provides that a previous conviction in a foreign state for offences
described in the convention be taken into an account when establishing recidivism and
disqualifying the offender from the exercise of civil rights.51
3.2.1.7 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, 1956
The Supplementary Convention on Slavery 195652 forbids a variety form of slavery as such debt-
bondage and forced marriage. The State parties are to undertake suitable minimum age of
marriage and also encourage the registration of marriage. Debt bondage is defined as the status
or condition arising from a pledge by a debtor of his personal service or security for a debt, if the
value of those services as assessed is not applied towards to the liquidation of the debt or the
length of those services are not respectively limited and defined.
3.2.1.8 The International Covenant on Civil and Political Rights (1966)
The International Covenant on Civil and Political Rights (ICCPR) prohibits all forms of
slavery.53 As most victims of trafficking do not freely consent to being taken across the border
and put to work, trafficking would be considered a form of slavery and prohibited under the
ICCPR. Moreover, Article 23(3) of the covenant prohibits any marriage that is concluded
without the full consent of both parties. Forced marriages lack the consent of both parties and
violate Article 23(3). Forced marriages may also be considered a form of trafficking and thus, a
prohibited form of slavery.

41
3.2.1.9 The Convention on the Elimination of All Forms of Discrimination against Women
(1979)
Article 1 of the CEDAW defines discrimination as “...any act of restriction, exclusion or
distinction which has the effect or purpose of denying women the exercise of any right.”
However, we must first establish the rights denied to women who are trafficked in order to show
that the process of trafficking leads to the denial of a range of rights and to help us seek a wide
range of remedies. For example, trafficked women are denied the right to free choice of
profession and employment, Article 11(c), the right to protection of their health and safety in
working condition, Article 12 and the right to an education, Article 10.
The comprehensiveness of CEDAW makes it an effective instrument to address the wide range
of issues involved in trafficking. For example, Article 6, requires member parties to “…take all
appropriate measures, including legislation, to suppress all forms of traffic in women and
exploitation of prostitution of women.” In including this directive, CEDAW concludes that
trafficking in women is one of the convention’s prohibited forms of sex discrimination. By
extension, Article 6 also obligates state parties to confront the additional forms of sexual
exploitation described in General Recommendation No. 19. These include sex tourism,
recruitment of domestic labor from developing countries to work in developed countries and
organized marriages between women from developing countries and foreign nationals.54
3.2.1.10 Tourism Bill of Rights and the Tourist Code 1985
Tourism Bill of Rights and the Tourist Code, adopted by the WTO, The Code enjoins that the
state should preclude any possibility of the use of tourism to exploit others for the purpose of
prostitution.
3.2.1.11 The Convention on the Rights of the Child (1989)55
In order to prevent trafficking of children, the Convention on the Rights of the Child (CRC)
requires states to implement measures that prevent the illegal transfer of children abroad. 56 In
addition, the CRC explicitly requires state parties to take measures to prevent all forms of
abduction, sale or traffic of children and to create or to improve existing bilateral and multi-
lateral agreements.57

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3.2.1.11 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children 2000
The United Nations adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons.
Especially Women and Children to supplement the Convention against Transnational Organized
Crime. Transnational Organized Crime Convention establishes a link between trafficking in
persons and the obligation of the State Parties to prevent and combat organized crime across
borders through its Protocol on Trafficking. The protocol reflects the United Nations view that
trafficking in persons is a form of organized crime. It is a wide ranging international agreement
addressing the crime of trafficking in human beings, specially women and children, on a
transnational level. It creates universal languages to define trafficking in persons, suggests
mechanisms to assist victims of trafficking and requires states to create legislation and
administrative measures to prevent trafficking. The protocol establishes the parameters of
judicial cooperation and exchanges of information among countries
3.2.1.12 The Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography 2000
The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography (2000) prohibit and penalize the sale of children for
the purpose of sexual exploitation, transfer of organs of children for profit and engagement of
children in forced labor; child prostitution and child pornography, as well as the activities, which
facilitate the exploitation of children. It also aims to protect the rights and interests of child
victims of the prohibited practices and give appropriate assistance to the victims of prohibited
practices including their social reintegration and full physical and psychological recovery.
The Protocol specifies the nature of activities punishable in relation to the sale of children and
describes the activities related to child prostitution that are punishable, including offering,
procuring or providing a child for prostitution and penalizes the offences, whether such offences
are committed in the country or transnational or on an individual or organized basis.58
The Protocol states that the state adopt measures to protect the rights and interests of child
victims of the offenses stated in the Protocol at all stages of the criminal justice system. The
Protocol provides that the states should take all possible measures to help the child victims

43
overcome the trauma they have faced and also help in their full physical and psychological
recovery as well as social reintegration.59
The Protocol requires the State Parties to take all necessary steps to strengthen international
cooperation by multilateral, bilateral and regional agreements for the prevention, detection,
investigation, prosecution and punishment of those responsible for the acts involving sale of
children, child prostitution and child pornography and sex tourism. 60 Such international
cooperation shall be to assist child victims in their physical and psychological recovery, social
reintegration and repatriation.61
3.2.2 Regional Legal Instruments

3.2.2.1 The African Charter on the Rights and Welfare of the Child 1999
The African Charter on the Rights and Welfare of the Child 62 recognizes that the child occupies
a unique position in African society and for the fullest development he should live in a family
environment. Further the charter recognizes that the child due to the needs of special care which
requires special legal protection in condition of freedom, dignity and security. States Parties to
the present Charter relating to Sale, Trafficking and Abduction shall take appropriate measures to
prevent:(a) the abduction, the sale of, or traffic in children for any purpose or in any form, by any
person including parents or guardians; (b) the use of children in all forms of begging.63
3.2.2.2 South Asian Association for Regional Cooperation (SAARC)
64
The South Asian Association for Regional Cooperation has adopted regional conventions
relating to commercial sexual exploitation of children and child rights matters. In advance of the
Second World Congress Against Commercial Sexual Exploitation of Children the SAARC
countries like India, Bangladesh, Pakistan, Bhutan, Nepal, Maldives, and Sri Lanka has
developed a strategy against commercial sexual exploitation of children. The SAARC countries
committed for implementation of the following strategies: (1) Necessary reform in laws to
defined child as a person below 18 years of age (2) To ratify the Optional Protocol to the
Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child
Pornography and ILO Convention No. 182 (3) National laws should be with international
standards to protect substantive and procedural legal rights of children.

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3.2.2.3 SAARC Convention on Preventing and Combating Trafficking in Women and
Children for Prostitution 2002
Recently the SAARC convention65 on Preventing and Combating Trafficking in Women and
Children for Prostitution was held in Jan 2002. All the member countries have a national plan of
action to combat trafficking. The scope and object of the Convention is to promote cooperation
amongst member states to effectively deal with the aspects of prevention, eradication and
suppression of trafficking in women and children, repatriation and rehabilitation of victims of
trafficking and preventing the use of women and children in international prostitution networks,
particularly where the SAARC member countries are of origin, transit and destination points.

The SAARC convention 2002 defines child,66 prostitution,67 trafficking,68 traffickers69 and
'persons subjected to trafficking.70 Article 1 of the convention provides for aggravating
71
circumstances that enhance the gravity of the offence. It also provides for the protection of
victims,72 mutual legal assistance,73training and sensitization of enforcement officials 74 and the
rehabilitation of victims.75 Offences under the convention are extraditable.76 Article 8(3) requires
the states parties to establish a regional task force comprising officials from the member states
for the implementation of the provisions of this Convention and for periodic reviews.

The main criticism against the SAARC Convention is its narrow definition of trafficking, which
focuses only on prostitution. The Convention does not address trafficking in its broader forms.
Further, the Convention lacks a strong treaty on the rights of victims and also does not clarify the
recipient country's accountability in rescue, rehabilitation, reparation of victim. The Convention
is also criticized for making no distinction between women and children. Trafficking has been
defined to include the moving, selling or buying of a person, but does not include their
recruitment, labour transfer or receipts that does not form part of the buying or selling process. In
this context, the Convention is reviewed to bringing necessary reformations for proper
implementation against the crime against humanity and establish regional mechanism to fight the
crime.
Nepal has signed and ratified several international human rights instruments, including the
Conventions and Protocols related to combating Trafficking in persons. And Nepal has yet to
ratify few conventions.

45
Regarding National Instrument, The Constitution of Nepal 2072 provides the legal Framework
for the protection and promotion of human rights of Nepalese citizens. Article 38 of the
Constitution 2072 states that,“No person shall be subject to human trafficking, slavery or bonded
labor”. The Human Transportation and Trafficking (Control) Act 2007 and Regulation 2008 are
two sets of legal framework that sanction prosecution of traffickers as well as protection of the
human rights of trafficking survivors.
The Trafficking offences encompass multiple forms of trafficking and exploitation, including the
sale or purchase of persons, enforced prostitution, illicit removal of human organs, and engaging
in prostitution for internal and cross border trafficking. The definition of human trafficking and
transportation offences is at par with the requirements of the UN Protocol to Prevent, Suppress
and punish Trafficking in Persons, 2000. The Act also establishes extraterritorial jurisdiction in
case of the offences that are committed outside of Nepal.
The Act does not differentiate between adults and children, it provisions for different levels
punishment for adult and child trafficking. Nowadays Prosecution of trafficking perpetrators due
to increasing impunity and increasing political interference. And there is no ensuring the privacy
of victims and witness during the court proceedings, security of victims and witness and reduces
the duration and complexity of court proceedings.

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 Chapter IV

Contributing factors of human trafficking in Nepal

4.1 Historical development of Human trafficking in Nepal

The practice of buying and selling people within the slavery system is well documented
in the history of Nepal. The Slavery system continued to exist until 1925 when Prime Minister
Chandra Shamser promulgated a law to ban a slavery system and sale of girls as slaves. Various
studies have indicated that the tradition of keeping Tamang girls from the periphery areas of
Kathmandu (mainly Sindhupalchowk and Nuwakot) among ruling classes as servants and
entertainers gave impetus to the tradition of taking and involving Nepalese girls into prostitution
in India.77 After the downfall of Rana regime in 1951, the Rana class could not support hundreds
of women servants, so many women left the service of Rana Palaces. Because of downfall of
Rana regime, the market for girls decreased in Kathmandu.
There is a consensus among the sources shows after the downfall of Rana regime in 1951,
many Rana rulers escaped to India with their servants and girls who are used as entertainers. The
Ranas kept them as long as they were affluent like in India. Besides that the traders involved in
supplying young girls to Rana Palaces subsequently established connections with brothels in
Indian cities. Indian brothels have a high demand for Nepalese girls for many reasons. Firstly,
there have long been many Nepalese workers in India, providing a source of ‘buyers of sex’.
Secondly the fairer complexion of the Nepalese girls has safer than selling local Indian girls into
prostitution. Ignorance of local customs, procedures and languages makes Nepalese girls less
likely to complain to the police.78 The sources also indicate that many Nepalese girls started
going to India for work after 1951, the year of democracy. Because the Ranas flew away to India
after their downfall in 1950\1951. They kept women and concubines also flow with them to
India. The decline economic prosperity of Rana living in India was not able to absorb these
women into their Palaces in exile.79

47
Hence the kept women and concubines were also out of these so called palaces without
economic security and social prestige. These women were being used as sex slaves in those
palaces and they started selling sex outside the palaces for economic security and livelihood.
Some of the reports have focused on them as initiators of the trafficking in women and girls in
Nepal.80 In the context of trafficking history in Nepal, prostitution has a long history. One of the
leading oriental scriptures describing the state rule, Manuscript, has also mentioned the existence
of Garnikas, the prostitutes. It is not uncommon to keep house maids in palaces. Gradually house
maids become kept and tradition of keeping young and beautiful girls for sexual pleasure in the
palaces emerged. The Malla Kings in historic period exploited the resource poor hill girls.81
Trafficking in Nepalese girls and women to the Indian brothels became fully established
in 1960’s and increased tremendously in 1980’s. By the 1970’s criminal links between Indian
traders and the Nepalese pimps were well established. A segment of pimps also grew out of the
Nepalese work force in India. An ineffective law enforcement system in Nepal and the high
demand of Nepalese girls in India attracted a number of migrant Nepalese workers to engage in
smuggling of girls from Nepal.
Prostitution an illegal activity but in Nepal some of the traditional practices like Badi,
Deuki, Jhuma which directly\indirectly contributing it. Until recently, under Deuki system young
girls were offered to temples by parents or wealthy people who purchased virgins from poor
disadvantaged families. This practice was similar to the tradition-offering animals to encourage
the Gods to grant the donor wishes. In fact, the girls were being introduced to prostitution.
Though the system is in the client and illegal there are still about 19000 girls estimated to be
involved in prostitution or forced sacrifice.
In the context of Nepal and India, both countries share open borders and there are so
many such checkpoints where there is no nay security force. Cross border trafficking is not the
main problem of Nepal but now Nepal is also facing the problem of Internal Trafficking.
4.2 Contributing factors of human trafficking in Nepal
Causes of human trafficking are multiple and complex. However, some of the common causes
are poverty, lack of employment opportunities, low social status of the girl child, a general lack
of education and awareness, inadequate legislation, and weak law enforcement agencies. Nepal
is facing the problem of Human Trafficking since ancient’s times.

48
Frequently mentioned factors contributing to trafficking
Poverty and unemployment
Feudal, politico-economic social structure
Natural disaster
Armed conflict situation
Gender-based violence
Prostitution and traditional practices
Entertainment Sector/ Tourism Nepal
Corruption of authorities
Lack of Education
Internal Trafficking
Involvement of organized crime
Unsafe Migration
Here we will discuss some of the contributing factors or driving forces for human trafficking in
Nepal

Poverty
Poverty is one of the main causes of Human trafficking. Poor families sometimes have no
choice but to abandon their children, leaving them in the hands of traffickers. Economic
Incentives and financial loans to parents also binds their children into sex slavery and other
form of exploitation. Poverty also causes a large increase in the number of street
children and orphans. Vulnerable and fending for themselves, they become the ideal victims
for traffickers who don’t hesitate in their promise of better living and working conditions in
another place. Unfortunately, the reality is entirely different. In Nepal, 17.4% of the
population lives below the national poverty line in 202182.

Unemployment
Due to a lack of employment opportunities in the public and private sectors, unemployed
graduates are also associated with different political parties, and these political parties
mobilize such students for strikes, bandhs, and protests during their election times. This is
also a big problem with this country. As per CBS Unemployment Rate in Nepal increased to

49
 4.44 percent in 2020 from 2.85 percent in 2019. 83So due to the problem of unemployment,
these unemployed youths are mobilized in the unproductive sectors.84

Lack of Education
Illiteracy and the lack of education make families more vulnerable to trafficker. According to
the most recent Nepal Standard Survey, Nepal has an adult literacy rate of 56.6 percent, with a huge
variation between males and females. 85 for e.g. an adolescent who is out of school and does not
find employment decides to go abroad to work at more or less at any cost which may lend to
trafficking.
Gender-based violence
Violence done on any woman is termed as GBV. According to (UNFPA — because everyone counts
2016)86 Domestic violence, marital rape, dowry-related violence, child marriage, polygamy, female
infanticide, witchcraft accusations, Chhaupadi, and trafficking of women and girls for sexual
exploitation are common GBV issues in Nepal. women had experienced violence at some time in
their lives. This is also a very big problem for trafficking of the Nepalese to nearby countries or
maybe within the countries.

Prostituition and traditional practices

Prostitution an illegal activity but in Nepal some of the traditional practices like Badi, Deuki,
Jhuma which directly\indirectly contributing it. Until recently, under Deuki system young
girls were offered to temples by parents or wealthy people who purchased virgins from poor
disadvantaged families. This practice was similar to the tradition-offering animals to
encourage the Gods to grant the donor wishes. In fact, the girls were being introduced to
prostitution. Though the system is in the client and illegal there are still about 19000 girls
estimated to be involved in prostitution or forced sacrifice.

Entertainment Sector/ Tourism Nepal

Entertainment Sector/ Tourism Nepal is also facing the problem of internal trafficking. There
are new trends that are emerging in Nepal. Entertainment Sector is one of them which is
booming day by day. If we see the data of the tourism department, the annual visit of tourists
in Nepal in the last 25 years is raising from 293,567 to 1,197,191 foreign tourists visiting
Nepal87. This is a very big change in the number of tourist visit to Nepal. In all tourist sites,

50
 there is no restriction of the Nepal government in any type of work. For example, in Thamel
and Pokhara many of the tourists take all type of drugs in clubs and dance bar and after
taking all these things they become unconscious. Many pimps offer them sex and pleasure
type of things and these tourists easily agree for it. In return, the pimp will get money and out
of that money, he will give some of the money to those Nepalese girls. Since Tourist lives
free life and by seeing these tourists the culture of Nepalese youth is also changing day by
day. For earning more and more money most of the girls become the victim of call girls in a
tourist place. Nepal is getting lots of money from the tourist visit but on the name of tourist,
Nepal is also degrading its own rich culture. Growth of entertainment sex industry, the
promotion of sex tourism as a development strategy is also a contributing factor to trafficking
for the purposes of prostitution.

Feudal, politico-economic social structure

Trafficking in girls and women in Nepal is associated with the Nepalese feudal and patriarchal social
structure. However, the forms of trafficking are being changed with the changing socio-political
context of Nepal Historically, during the Rana regime (1847-1951) girls were recruited in Kathmandu
palaces for the purpose of labour & entertainment and these girls were brought from the surrounding
Kathmandu valley. They worked as housemaid, dancer, and singer. This is the example of internal
trafficking. In the post Rana regime and panchayat period (1960-1990) the cross- border trafficking
has started for the purpose of sexual exploitation. In mid 1990s-2006 Nepal has faced violent armed
conflict and during the period of conflict both internal and cross-border trafficking has been occurred
for the purpose of foreign labour and sexual exploitation.

Changing forms and types of trafficking vis-à-vis politico-economic situation of in Nepal 88

Period Socio-economic Survivors of Forms of Types of

context trafficking trafficking or trafficking
exploitation
During Rana Feudal social Girls and women Servitude, slavery Internal
Regime (1846- structure Servitude, slavery and sexual
1950) and sexual exploitation
exploitation
Post Rana period Multi-party but Girls and women sexual Cross-border
and feudal social who were exploitation (India)
structure servitude of Rana

51
 families
Panchayat Regime Party less political Girls and women sexual Cross-border
(1960-1990) system, but feudal from the exploitation (India)
social structure surrounding hills Circus
of the Kathmandu performance
valley
Late 1980s- Growth of carpet Girls and women Labor and sexual Internal
mid-1990s industry and other exploitation
industries Boys Labor Internal & cross
exploitation border (India)
Increase in rural– Girls and women sexual Cross-border
urban migration exploitation (India)
Mid-1990s - 2006 Internal armed Children Labor and sexual Internal (dance,
conflict, exploitation bars, beauty
displacement parlors)
Adolescent girls sexual Cross-border
and women exploitation (India and
beyond)
2000> Foreign labor Girls, women and Labor and sexual Cross-border
migration men exploitation (Middle East and
other developed
countries)

Armed Conflict
It is well known that the armed conflict in Nepal is leading to serious threats in the lives of
women and girls. They face various kinds of violence, discrimination and exploitation not
only during the armed conflict but also during the post conflict and transition period.89

In situations of armed conflict, although children are rarely engaged in active combat, they
suffer from other effects of the conflict. Children are especially vulnerable to sexual abuse
and forced domestic service by armed forces.

Maoist conflict of Nepal increases prostitution in army barracks and police posts. During the time of
conflict in Nepal women and girls are kidnapped and enslaved by government and rebel forces. They
are used as military sexual slaves. The kidnapped women face lots of social, economic and health

52
 problem after their release from the camps. The abduction and sale of women and girls has become an
important source of income during conflict for war lords so they get lots of profit from women
trafficking.90

Internal Trafficking
Trafficking victims often are taken to locations within Nepal, often from rural areas to the
urban centers. Mainly young girls and women are trafficked for sexual exploitation in places
such as cabin/dance restaurants, massage parlors, and other places within tourism
sector.91However, these spaces also host many women who entered sex work voluntarily, and
those who might have entered voluntarily but were later not allowed to leave and end up in
slave-like conditions.92Within Nepal, labor trafficking is also common: victims often end up
in carpet and garment factories, embroidering sweatshops, brick-kilns, and others.93

Unsafe-migration
In search of a good job and better opportunities so many Nepalese crosses the border without
having the information of the destination. Only for earning money that individuals are
trapped by the trafficker. So unsafe migration is also one of the big reasons for the trafficking

Natural disaster
It's easy to see how a natural disaster can amplify the conditions that enable and attract
traffickers. The immediate disruption of state and civil society institutions, particularly
schools, means the usual child protection systems aren't in place. Regulatory mechanisms and
border controls are also in chaos. A large number of children have turned to be vulnerable for
trafficking and exploitation as they ended up as orphans or children without parental or
guardian care. According to the Center Child Welfare Board, CCWB (2015), 176 children
had become orphans, 865 children’s mother died, and 972 children’s father died. And a total
of 2,107 children are reported to be injured. 94
Under the cover of rescue efforts, traffickers (often women) can pose as religious leaders,
relief workers or representatives of government-accredited employment agencies promising
jobs. Sometimes these tricks are mere opportunism, but sometimes they are the well-
organized work of national and transnational criminal groups. During post natural disaster
trafficker get a chance to grab the opportunity to meet their aim of trafficking for those who

53
 are vulnerable easily. And children are the most vulnerable group and more prone to
trafficking.

The incidence of child trafficking and exploitation in Nepal reached alarming proportions in
post Natural Disaster as per Records of Nepal Police indicate that a total of 1,233 women and
children were reported to be missing after the earthquake of April 25, 2015 to the end of
September 2015 from across the country. Maiti Nepal’s data on the number of women and
children intercepted before and after three-months of the earthquake reveal that the risk of
trafficking increased after the earthquake by at least 15 percent. It is mostly Thori – a
bordering area in Parsa district, and Jhapa, Illam and Mahendranagar have experienced the
surge of number intercepted women and children.95

Chapter V

Menace and Status of Human Trafficking in Nepal

54
5.1 Empirical Study : Menace and Status of Human Trafficking in Nepal
The Constitution of Nepal 2015 forbids human trafficking, and considers it as a
punishable act. Provisions of fundamental rights such as rights of women, right to employment,
right against exploitation, right to justice, right against torture, right to freedom and rights of
children also forbid human trafficking. Nepal has formulated the Human Trafficking and
Transportation (Control) Act 2007 and implemented it.

Nepal is a state party to seven out of nine core human rights conventions of the United Nations
and to nine ILO conventions. It is also a state party to United Nations Convention against
Transnational Organised Crime (2000). The Cabinet meeting on June 27, 2019 also decided to be
a part of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons
Especially Women and Children (Palermo Protocol, 2000). The Nepal Treaty Act 1990 has
provisioned that, provisions of international treaties and conventions that Nepal is a state party to
are recognized as good as Nepali law.

Constitution of Nepal and HTTCA forbids human trafficking and considers it as a punishable
act, different agencies have been set up to combating human trafficking in Nepal like AHTB and
different NGOs and INGOs has put up efforts on controlling human trafficking. Human
trafficking in Nepal is diverse, internal and transnational. The latest report on Trafficking in
Persons from Nepal's Human Rights Commission estimates that around 35,000 people, including
15,000 women and 5,000 girls, were victims of this crime in 2018. 96With these efforts and
implementation, the status of human trafficking in Nepal has been same if we look from last
decade, forms of trafficking and routes of trafficking has been changed and still victims have
problems in restitution and rehabilitation in society. Through this research the researcher has
been trying to put efforts on showing the menace and status of human trafficking through
interview and questionnaires along with analysis of scenario obtained from the available data
from different agencies working in that field and field interview and questionnaires.

During our excessive field interviews and discussions with stakeholders of human
trafficking, which included, police personnel, personnel of AHTB, NGOs, civic society currently
working for trafficked persons and for the purpose of questionnaire, researcher has prepared set
of question for academicians, lawyers, law students and general public. We came to know that

55
there are many problems responsible for the trafficking of the Nepalese to India. The case study
of the victims also explains the reasons behind their trafficking. For the purpose of interviews of
different stakeholder, the researcher has used a common interview script but varied the questions
asked for the particular interviews according to the interviewee and substance of the answers.

5.2 Interview with ABC Nepal

ABC Nepal is a non-profit, non-governmental organization based in Nepal that promotes
women's rights and fights human trafficking. It is one of the leading organizations working in the
field of anti-human trafficking interventions, having been founded in 1991. ABC Nepal's
combined efforts with those of other organizations have resulted in the creation and
implementation of various laws concerning women's rights and human trafficking.

Question: How your NGOs is helping in combating cross-border trafficking?

Durga Ghimire: ABC Nepal has worked to prevent women and children from being trafficked
by raising social awareness, particularly among rural communities, and undertaking border
surveillance and cross-border activities. In Kathmandu, Bhairahawa, and Biratnagar, ABC Nepal
has run rehabilitation centers for victims of human trafficking and abuse against women. ABC
Nepal has helped to promote awareness about the need of safe migration. The organization, for
example, kept an surveillances  on the Tribhuvan International Airport and set up help desk  in a
major border transit of Biratnagar, Bhairahawa, Nepalgunj,etc.

Our surveillance team keeps on visiting the border checkpoints and we had also made so many
checkpoint in different villages that are near to Indian border and also at the border. We have a
scholarship for the rescued victims for their higher studies. Lots of challenges are there in this
work but we have well-trained staff and we are doing it well. We also work in the field of
advocacy and policymaking. We also go during the trial if any victims have against the owner or
any traffickers. There have been about 2500 children that have been rescued by ABC Nepal till
now.

After rescuing any individuals we also do the counseling of the girls and their parents also and
try to find out the reason behind it. For rehabilitation, we also provide skill development
programs according to the victim's interest and after that, we encourage them to do their own job

56
or work in that sector in which they got training from ABC Nepal. We have a number of skill
development centers and also shelter home for the girls

Question: Since you are working past 30 years in the field of combating cross-border trafficking
so what you analyzed is that the rate of trafficking is increasing or decreasing?

Answer: It is not easy to answer this question but in earlier human trafficking means girls
trafficking but nowadays it is human trafficking. From earlier to the present the dimension of
human trafficking has been changed. Earlier only for the sex, girls are trafficked but now small
children, boys, and men have also been trafficked for different types of work in different sectors.
At the present rate of labor, trafficking has been increasing more. Organ trafficking is also
increasing at an alarming rate and it is mostly in India for kidney trafficking. But I can say that
the number of Nepalese girls in Indian Brothels has been decreasing.

But due to changes in the dimensions of trafficking, everything is going in other ways like in
massage parlors, the supply of girls, dance club, etc have been increasing.

Question: As we all know that many organizations and civic societies are working in combating
cross-border trafficking but the result remains the same. So why the problem remains the same?

Answer: Only a few organizations are working in reality and on the ground level. But there is a
gap of coordination among the people who are working on this issue. An open border is also a
big change for us. Indian Government and Nepalese Government should work on the model of G
to G, it means that there should be a quick response in such types of cases. Other challenges are
most of the traffickers are hidden in India and due to lack of coordination with the government
and police department; we can’t able to trace them.

5.3 Interview with Shakti Samuha

Shakti Samuha is the world's first organization founded and administered entirely by human
trafficking survivors. Shakti Samuha has been fighting human trafficking informally since 1996,
but it wasn't until 2000 AD that it was officially registered and began operating legally.
1027 trafficking survivors have got the shelter support from Shakti Samuha till this date. Shakti
Samuha is running five shelter homes (three shelters in Kathmandu among them 1 is Transit
home, Women Rehabilitation Center in Sindhupalchowk and Emergency Shelter Home in Kaski)
for the trafficking survivors and the girls at the high risk of trafficking.

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Shakti Samuha has fought to provide social justice for individuals who have been victims of
human trafficking or who are at high risk of becoming victims by empowering, educating, and
organizing women and girls at the community level since its inception. It has run a number of
programs and activities aimed at empowering the victims. This group has collaborated with a
variety of national and international organizations and networks to bring justice to people who
have been victims of human trafficking.

Question: How does your organization address the needs of migrants and those who have been
trafficked?

Sunita Gahatraj (Secretary of Shakti Samuha): We collaborate with a huge network of NGOs
and government agencies to locate trafficked Nepali women in other countries and assist them in
returning home. We promptly alert the Nepali embassy, police, or a service provider in that
nation when we get information about someone who may be trafficking. When they come upon a
trafficked Nepalese woman or girl, they contact us to arrange for her repatriation and treatment.
We also collaborate with local law enforcement to track down and apprehend human traffickers,
who in some cases pay for the women's repatriation to Nepal.

We have a shelter for trafficked women and girls in Nepal where they may stay till they
recuperate, and we give them with medical care, legal assistance, psychological counseling, and
we talk to them about their future plans and help them find jobs. If they desire to return to their
family, we undertake a risk assessment to ensure that it is safe to do so, and we also give family
counseling. We've also assisted in the formation of a number of self-organized group of
survivors in various parts of the nation, and we continue to support them.

Question: What is the present state of migration and human trafficking in our country - why do
individuals migrate, and what circumstances render them vulnerable to human trafficking and
other forms of exploitation?

Answer: The economic situation in our country is precarious; there are limited options for
people to work and earn a livelihood. Many peoples try to find  overseas jobs, but are
deceived by labor agencies and traffickers who offer them good positions and reasonable pay.
People are suddenly forced to labor long hours for little or no pay in deplorable conditions. Many
people are subjected to sexual harassment or physical abuse at work.

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The majority of Nepalese move to India for employment, and it is here that they are trafficked.
However, in the Gulf area, as well as other nations such as South Africa and Thailand, we
observe many people who are exploited. The majority of the women and girls we help are
exploited in domestic or sex employment

Question: what are the challenges you are facing in combating cross border trafficking?

Answer: One of the biggest problems we are facing is that the returns of the rescued Nepalese
from India to Nepal. If any Nepalese is rescued in India then she has to be in homes of India.
Why did Nepalese keep in homes in India? The government of India should return those girls to
Nepal immediately but the reality is different. The process of return takes almost one to two
years. For that one to two years who will take care of the family’s members who are in Nepal.
This should be changed. Both countries' Governments should have some common law in case of
trafficking. Donors should also have to pay some attention to their funding. NGOs are sending
the data and donors are happy with that data. All the NGOs are showing their own data but what
about the Trafficking data of Nepal. No one has an answer. There is no authentic data of the
government of Nepal; this is the biggest problem because one trafficked victim can be counted
by many organizations.

5.4 Interview with Anti Human Trafficking Bureau, Nepal

As the number of occurrences of human trafficking has increased, the Nepal Police  has
established a specialized department to investigate and prevent the crime. Earlier, human
trafficking cases were dealt by the Central Investigation Bureau and the Women and Children
Service Directorate of the Nepal Police headquarters.The Anti-Human Trafficking Bureau has
more than 50 employees who are responsible for preventing human trafficking, investigating
criminal offenses related to human trafficking, rescuing victims of trafficking and providing
emergency protection to them, supervising other police units, maintaining central data on human
trafficking, and performing other tasks as required by law.

Question : What different role has been played by this bureau than of Nepal Police for
controlling Human Trafficking and Transportation?

Ishwar Bahadur Karki ( Director of Anti Human Trafficking Bureau) : This bureau has
been set up as specialized department under Nepal police specially for preventing human

59
trafficking, investigating criminal offenses related to human trafficking, rescuing victims of
trafficking and providing emergency protection to them, supervising other police units,
maintaining central data on human trafficking. Nepal Police is an umbrella organization and due
to workload and lack of specialized unit there has been slowness in executing the human
trafficking interventions so this agency has been set up to boost the anti- trafficking interventions
through special mechanism like under-cover operation.

Question : What is the present state of human trafficking in our country – which age group are
more vulnerable to human trafficking at present ?

Answer: The dimension of human trafficking has been changed. Earlier only for the sex, girls
are trafficked but now small children, boys, and men have also been trafficked for different types
of work in different sectors. At present, trafficking has been increasing more from entertainment
sectors like casino, bar, dohori saajh. Organ trafficking is also increasing at an alarming rate.
After Covid numbers of cases has been registered under human trafficking for prostituition and
numbers of disappeared child cases has been registered more. At present context, more
vulnerable age for human trafficking is women because of post covid scenario but if we look for
past 3-4 years numbers of trafficking cases has been registered in trafficking of child.

Question: What are the forms of human trafficking in seen in Nepal?

Answer: Human Trafficking is burning issue. Many peoples have been trafficked and in Nepal
women, child as well as men are trafficked for sex trafficking, exploitation of labor, modern day
slavery organ transplantation, forced marriage, exploitation of labor in course of foreign
employment, massage parlors restaurants established for entertainment purpose.

Question: What are the anti-human trafficking interventions carried out by this bureau regarding
Human Trafficking?

Answer: This specialized bureau has carried out many investigations, missions, under cover
operations to control and prevent Human Trafficking and transportation. In the last 6 years more
than 70 case has been registered more than 80 accused have been arrested and more than 150
accused has been absconded. In collaboration of state’s security agencies, international
organization this agency has been carrying out seminars, facts sharing meetings and has been
making recommendation to state to formulate strict policies and laws regarding human

60
trafficking and transportation. Recently we have arrested accused of human trafficking after 28
years. And we have also arrested woman who have been operating brothel in G.B Road, New
Delhi.

5.5 Interview with Joint Government Attorney Lok Raj Parajuli97, Nepal

Question 1: How Nepal’s law is working in combating Cross border trafficking?

Answer 1: Nepal's legal system is doing an excellent job of combatting Nepalese trafficking. I've
been working in this subject for a long time and have suggested several modifications to Nepal's
trafficking legislation.   As a government attorney, I recommended a strict punishment for human
traffickers and adequate recompense for victims of human trafficking. The majority of the things
have been accepted, and the majority of the things are in the works. In the issue of human
trafficking, Nepalese legislation is far stricter than Indian law. 

Question 2: How many Nepalese get trafficked from Nepal every year?

Answer 2: The latest report on Trafficking in Persons from Nepal’s Human Rights Commission
estimates that around 35,000 people, including 15,000 women and 5,000 girls, were victims of
this crime in 2018

Question 3: Do you agree with this data?

Answer 3: No I do not agree with this data because how they are calculating the data of
trafficking, it is difficult to know for me because the different organizations are saying different
data of trafficking.

Question 4: What is your opinion in respect of NGOs who are working in combating cross
border trafficking?

Answer 4: NGOs of Nepal are working at ground level in combating trafficking. Today we are
in a position to say that Nepal is doing something for the safety of Nepalese only due to the work
of these NGOs.

Question 5: According to you is there any gap in working of the NGOs or in your law?

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Answer 5: Everywhere loophole is available. In respect of law, I had already told you and in
respect of NGOs, there is a big gap in coordination.

Question 6: In respect of India and Nepal what you think about combating cross border
trafficking?

Answer 6: There should be a clear-cut law and coordination between the departments of both
countries. In the case of cross border trafficking, both countries should work on that law with
cooperation. Because the Government of India is thinking that only Nepalese are trafficked to
India but now the reality is different, now Indian girls are also being trafficked to Nepal.

Question 7: What are the anti-Human Trafficking interventions from the prosecution side?

Answer 7: During the fiscal year, police conducted 258 investigations involving 524 suspects,
the Office of the Attorney General initiated prosecution in 407 cases, and district courts
convicted 231 traffickers in 110 cases, all under the HTTCA. This is compared to initiating 313
investigations involving 546 suspects, initiating 303 prosecutions and continuing 190 from
previous years, and convicting 213 traffickers the previous reporting period. OAG has played
important role in implementing HTTCA in a well-mannered in controlling human trafficking and
transportation.

5.6 Trafficked Victim Case Study: 1

Reeya Karki (name changed) was working in the dance bar of the Thamel because of her
financial condition. One day she meets a person named Ritesh Gurung and he assured me that he
will take me to Mumbai to provide job in Dance Bar which pays me more. He told me that he
will help me in getting work. She agreed to go with Ritesh. One day I along with Ritesh cross the
border and we reached Delhi. I know a little bit Hindi that’s why I came to know that I am in
Delhi. We stay in a hotel for two days. He told me that he is trying to get a reservation on the
train and as we get reservation we will move for Mumbai. One day after taking my dinner I fell
asleep and now I am sure that something was in the food which makes me unconscious. On that
day something wrong work (forced sex) was done with me. The next morning he told me that
now we have a ticket for Mumbai. Ritesh , l and his friend hired a car and took me to another
place in Delhi. In the way again I was unconscious by drinking water because they mix some
drugs in the water. When I get conscious I found myself in one locked room. Letter I came to

62
know that, this was the red-light area of New Delhi. I was there for one and a half years. But I
keep on trying to go out of this place but there are so many private securities. Like me, there are
so many other girls from Nepal who are also present at that place. But one day some of the
peoples and police officials came and took me and other girls to the police station. And after a
few months, I came back to Nepal. Now I have been staying at hostel of Shakti Samuha and have
been engaging in making handicrafts items.

5.7 Available Data on Human Trafficking in Nepal

5.7.1 Anti-Human Trafficking Bureau (AHTB)

Anti-Human Trafficking Bureau (AHTB) of Nepal Police, there were 305 complaints filed
against human trafficking in the previous fiscal year (2017/18). Based on the data generated by
the end of March of FY 2018/19 and the previous year, Province 5 recorded the highest number
of cases (122), followed by Province 1 (87). Similarly, 69 cases have been filed in the
Kathmandu Valley and 35 in the rest of the districts within Province 3. As per the data from last
five years, the total number of registered complaints is 1,489, out of which 640 survivors (42.98
percent) have been allured; and 502 (33.71 percent) have been persuaded for the purpose of
trafficking. The mediums adopted by the traffickers include fake marriage (3.16 percent),
employment (3.90 percent), and international visits (2.35 percent).

5.7.2 Department of Foreign Employment

Department of Foreign Employment informs that it received total 12,090 complaints between
2013 and 2016/17; out of which 4,627 were filed against individuals and 7,463 against
recruitment agencies. Total 2,383 complaints were filed in the FY 2016/17 alone, of which 317
were forwarded for prosecution in the court and remained have been settled by the Department.
The Department oversees complaints of 30 natures, but most of the complaints have at least more
than one element of trafficking, hence, making them the criminal offences. Between 20 and 25
February 2019, 179 victims, including 147 women and 32 men, were rescued in leadership and
coordination of the government with suspected human trafficking cases. However, owing to lack
of adequate evidence and the survivors’ reluctance to file their complaints, the prosecution could
not be furthered even in one case. In light of the incident, several news media have published
reports about the existing organised crime of transporting people from Nepal via India with

63
assurances of taking them to their desired destinations such as the Gulf countries, Iraq, Libya,
Africa, Syria, Oman, Tajikistan and European countries. Nepali embassies in different countries
have prepared a list of the recruitment companies and individuals that are involved in human
trafficking, and made available to the Ministry of Foreign Affairs, according to the government.

5.7.3 Border Security Force of India- SSB

The Times of India published a news report about the increase in Nepal India cross-border
trafficking of women and girls by five times.98 The report is produced based on the data of Indian
Seema Suraksha Bal (Border Security Force of India- SSB) in past five years (2013-2018
February). According to the news, 607 were rescued and repatriated from border in 2017; 94
were rescued from 28 cases of trafficking and 49 traffickers were arrested by February 2018.

5.8 Available Data from Questionnaire

In spite of three decades of activism against human trafficking, it is still being widely linked with
traditional forms of flesh trade and human transportation across the borders. Different studies on
human trafficking suggest that more than 17,000 Nepali men, women and children are being
trafficked. However, merely 175 complaints have been filed in the first nine months of fiscal
year 2018/19.

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 Chart 1: Main causes of Human Trafficking in Nepal
2
10
20

10

5 10

5
20

Internal Trafficking poverty

Illiteracy Involvement of organized Crime
Lack Of Employment Opportunities Tourism and Entertianment Sector
Prostituition Others

From the questionnaire from the different stakeholders, the above data in chart 1 reveals that
main causes of Human Trafficking in Nepal are internal trafficking (24%) and involvement of
organized crime in Nepal (24%). Similarly, Tourism and entertainment sector (12%),
poverty(12%), prostitution (12%) lack of employment opportunities( 6%),etc. Trafficking
victims often are taken sto locations within Nepal, often from rural areas to the urban centers.
Mainly young girls and women are trafficked for sexual exploitation in places such as
cabin/dance restaurants, massage parlors, and other places within tourism sector. The major
causes behind this situation are a lack of legal provisions addressing the issues, social stigmas
attached with the survivors, and limited understanding on the human trafficking among the
general people.

65
 Chart 2 :Criminalize Commercial Sex Work
90

80

70

60

50

40

30

20

10

0
Law Students General Public Sex Workers Academician

Yes No

From the questionnaire of different stakeholders, the above data in chart 2 reveals that 60% law
students opinioned on decriminalizing commercial sex work while 40% reveals that commercial
sex work should be criminalized in Nepal. The result of questionnaire from Academicians shows
that 80% academicians believes that commercial sex work should be criminalized while 20%
opinioned on decriminalization. The data from general public shows that 80% general public
believes that commercial sex work should be criminalized while 20% opinioned on
decriminalization. The data from sex workers shows that 70% sex workers opinioned on
commercializing sex work while 20% opinioned on decriminalization. So, from the above details
there is division of opinions regarding criminalizing and decriminalizing commercial sex work as
being debatable issue.

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 Chart 3: Causes for minimal reporting of the cases of trafficking of
person

5 15
20
15
10
5
10
20

Fear of social stigma Lack of confidence towards implementing agencies

Harrasment on the process of case Lack of Victim protection policy
Lack of Family support Not to be rescued from brothels
Frightened Others

From the questionnaire of different stakeholders, the above data in chart 3 reveals that major
causes for minimal reporting of the cases of trafficking of person are frightening of victim to
complain and lack of victim protection policy both by 20%. 15% opinioned on lack of
confidence towards implementing agencies and harassment on the process of case causes for
minimal reporting of the cases of trafficking of person. While 10% reveals that victims not be be
rescued from brothels and lack of family support causes reduction in reporting human trafficking
cases in Nepal. Very few (5%) opinioned on fear of social stigma as cause for less report of
human trafficking cases in Nepal. So, from the above obtained data relating to major causes for
less report of cases shows the true aspect of social structure, lack of victim protection, less belief
in implementing agencies, lack of family support, etc. leads the voice of victim as well as person
who are ready to report case are unspoken. This data shows the true menace of society, state as
well as family factors on minimal reporting of human trafficking cases.

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 Chart 4: Effects of trafficking on victims in Nepal

10
15

10

20

30

Sexually transmitted diseases Health Effect Psychological effect

Social Stigma Effects on Family and Married Life Others

From the questionnaire of different stakeholders, the above data in chart 4 reveals that major
effects of trafficking on victims in Nepal is psychological effect by 35%. Human trafficking
victims typically suffer from severe guilt, posttraumatic stress disorder, depression, anxiety, drug
misuse (alcohol or narcotics), fear from family acceptance as a result of the physical and
psychological violence they endure. Psychological trauma from daily mental abuse and torture,
including depression, stress related disorders, disorientation, confusion, phobias and panic
attacks. 24% opinioned on social stigma as the effect seen on victims of human trafficking. After
returning home, a survivor of human trafficking often faces humiliation both in the public and
the private space. In the private space, the stigmatizer is family members. In public spaces,
stigma primarily comes from the community and the institutions. Many survivors, in their battle
for justice, are also seen to be standing unflinchingly against humiliation and harassment. They
have borne the brunt of social stigma and eventually overcome it through relentless struggle.
While 18% reveals that victims of human trafficking has faced disturbance in their marriage ,
isolated by family. As the act of prostitution violates the socially legitimized institution of
marriage, the victims of trafficking are labelled ‘home wreckers' by married men and women in
the community. 12% opinioned on victim of human trafficking suffered from swxually

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transmitted diseases and heath effects on their body. Trafficking victims suffers from sexually
transmitted diseases like HIV/AIDS, gonorrhea from working in the sex industry. Others health
effects like Pregnancy, resulting from rape or prostitution, Infertility from chronic untreated
sexually transmitted infections or botched or unsafe abortions. Bruises, scars and other signs of
physical abuse and torture. Sex-industry victims are often beaten in areas that won’t damage
their outward appearance, like their lower back.

So, from the above obtained data relating to effects seen on victims of human trafficking it can
analyzed that victims suffered from physical, psychological fears as well as they have fear of
being isolated by society as well as family members.

Chart 5: Causes that impede control of trafficking in person in Nepal

30

2
5

10
10

15

Lack of Laws Lack of Effective Implementation

Political Criminalization Lack of Bilateral or/and regional assistances
Flourishing sex market Open Border
Others

From the questionnaire of different stakeholders, the above data in chart 5 reveals that major
causes that impede control of trafficking in person in Nepal are open border and lack of

69
effective implementation of HTTCA, rules and regulations made to combat human trafficking by
39% and 19% respectively. 13% opinioned on political criminalization as well as lack of
effective laws causes impede to control of trafficking in person in Nepal .While 6% reveals that
lack of bilateral or/and regional assistance to combat human trafficking and flourishing sex
market in Thamel and Bar areas causes to impede control of trafficking in person in Nepal. Very
few (3%) opinioned on other causes. So, from the above obtained data relating to major causes
that impede control of human trafficking in Nepal are open border with India , those acts and
rules made to combat human trafficking are not implemented, political criminalization in Nepal,
sex market has been flourished for commercial purpose etc. leads the voice of victim as well as
person who are ready to report case are unspoken and these causes pull back the controlling
mechanism and ways for human trafficking in Nepal.

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 Chapter VI
Judicial View on Human Trafficking

Looking at the legal history of Nepal, many efforts have been made to prevent and control
human trafficking and transportation crime since 1982 BS. After the Rana regime, i.e. 2007 B.S.
various changes have been done into different field. Legal field also has been changed, like New
Muluki Ain came into 2020 and was enforced in the same year. The provision related to the
human trafficking is provided in chapter 11. In 2043 BS, the Human Trafficking (Control) Act
2043 was brought as a special act. The Human Trafficking and Transportation (Control) Act,
2064 BS has been implemented since 2064 BS. In regard to above-mentioned legal provisions,
many cases have been filed in the courts in connection with this crime as well as different
principles has been derived from the Supreme Court of Nepal. The following are some landmark
decision on trafficking cases. The cases are extracted on the basis of elements of the crime,
sentencing trend, worth evidence, procedures and the legal provision regarding the participation
of the victims in the criminal proceedings.

6.1 Bhagirath Dahal (Rajesh) vs. The Government of Nepal99

The Appellant, Mr. Bhagirath Dahal, sent the victim,…to Saudi Arabia instead of promised
destination, Kuwait for foreign employment. The Appellant promised the victim that he will send
her in Kuwait for baby care job with monthly salary NRs. 20,000/. Instead of sending Kuwait he
sent her Saudi Arabia and she was forcibly employed in prostitution. Sometimes later, she
escaped and returned in Nepal and filed a First Information Report against the Appellant in
human trafficking. District Court convicted Mr. Dahal for human trafficking and sentenced 12
years imprisonment with NRs. 2,00,000.00. Appellate Court also upheld the decision of District
Court. Mr. Dahal filed appeal in the Supreme Court. The Supreme Court, in its final judgment
cited Article 6 of the Convention on Elimination of all forms of Discrimination Against Women,
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, 1949, Article 6(1) of the International Covenant on the Civil and Political
Rights, 1966 to which Nepal is a Party and soft law instruments UN Declaration of Basic
Principle of Justice for Victims of Crime and Abuse of Power (1985), and Draft Convention of
Justice and Support for Victims of Crime and Abuse of Power, and to the large extent upheld the

71
decision of District and Appellate Courts but the the Supreme Court decided to provide
compensation to the victim NRs. 2,00,000/–, based on the above mentioned instruments and
principle on victims justice, even though prevailing law at the time of commission of offence had
no such compensatory provision.

6.2 His Majesty’s Government on the FIR of TDD v. Durga Dhimal 100: Burden of proof in
trafficking cases is on the accused and that victims’ statements should be considered trustworthy
until proven otherwise by the defendant.

The plaintiff stated that she met the defendants in a market and Babu Ram Chaudhary proposed
to marry her and urged her to accompany him and Durga Dhimal to Hajipur, India. The day after
arriving she was taken to a house, where she was sold to a woman for 16,000 Indian Rupees. She
was able to complain to the police and lodge a complaint at the customs office.

The plaintiff accused the defendants of taking her to India under false pretenses, where they then
sold her for 16,000 Indian Rupees. Defendant Durga Dhimal’s confession to the police supported
the plaintiff’s accusations. The plaintiff accused the defendants of selling her in India. Babu Ram
Chaudhary and his co-defendant Durga Dhimal were sentenced to 10 years imprisonment by
District court. The Appellate Court of Biratnagar upheld the sentence of 10 years imprisonment,
as imposed by the district court. The defendant appealed to the Supreme Court, arguing that his
statement to the police could not be taken as evidence in accordance with 9(2) of the Evidence
Act as it was made after the police used physical force. The Supreme Court upheld the decision
of the Appellate Court.

But the defendant later testified that he had been tortured by the police in order to sign his
confession. The Supreme Court upheld the use of the confession because accusations in human
trafficking cases are considered truthful until proven otherwise, and the defendant did not
demonstrate that he was tortured or that his confession was obtained through physical force.

6.3 GON Vs. Bajir Singh Tamang: Trafficking, Sindhupalchok District Court. Bajir Singh
Tamang Convicted for Trafficking, sentenced to 170 years imprisonment

Bajir Singh, culprit for trafficking of 6 women/girls, was nabbed in Kathmandu district by the
police in 2012. He was accused of selling girls from Sindupalchowk district, an area prone to
trafficking. He was sent to Sindupalchowk to initiate the trial . During his interrogation, he

72
confessed that he sold 6 women/girls to Indian brothels. Accordingly, a case was filed against
him at the Sindupalchowk District Court, where later he made a statement confessing all his
crimes. Consequently, the court found him guilty in all 6 cases and sentenced 170 years of
imprisonment. This is a landmark decision in the history of Nepal where the perpetrator was
sentenced to imprisonment based on the aggregate crime.

6.4 Dambar Bahadur Chettri Vs. HMG: Burden of proof. The Supreme Court upheld the
decisions of the lower court stating defendant had failed to provide the precise and adequate
evidences to prove his innocence.101

Dambar Bahadur married Ms. Tara Kumari B.K. and promised a good life. She left home with
Dambar Bahadur for Krishna Nagar, a border town of western Nepal. After four days, she knew
that she had arrived in Bombay City, and found that so-called husband had sold her to Suni
Tamang's brothel for IC 20,000. In the brothel, she was forced to entertain customers.
Fortunately, she was able to contact the Indian Police Force, which rescued her and made
arrangements for her return. On her return to Nepal, she filed a complaint in the police office at
Rupendehi district and the accused Dambar Bahadur on his return after selling Tara Kumari was
arrested by the police and prosecuted for committing crime under Clause 1 of the Section of
Human Trafficking of the Muluki Ain. The case was filed in Rupendehi District Police Office
where Tara Kumari accused Dambar Bahadur of deceitfully marrying to her with an intention of
trafficking for prostitution. Dambar Bahadur confessed the crime and gave a voluntary
confession. The prosecution was accordingly made only on the basis of the confession of the
defendant. The Rupendehi District Court found the defendant guilty thereof and as such
announced 20 years of imprisonment as punishment. Finally, the Supreme Court reviewed the
judgment and held that “since the defendant had failed to provide with precise and adequate
evidences to prove his innocence, the punishment declared by Rupendehi District Court needs
not to be altered.” In this case, the Supreme Court held the legitimacy of law holding the
suspect's presumption of guilt. Supreme Court in this case held that the onus of proof lies on the
defendant to prove that he had not sold Tara Kumari for prostitution. Although, the Supreme
Court did not elaborate the principle in detail, it was the first case in which the Supreme Court

101
NKP (Supreme Court Reporter), 1988, Issue No. 12, Page 1313.

73
deviated from Section 25 of the Evidence Act, 1975 that stipulates the prosecutor to prove the
guilt of defendant beyond reasonable doubt. This case had lasting bearing in the subsequent
cases relating to trafficking in women and girls prostitution. As an outcome, Trafficking of
Persons (Control and Punishment) Act is enacted, fully influenced by this judgment.

6.5 Kamal Prasad Shrestha Vs. HMG: Corroboration in the facts. The Supreme Court
acquitted the defendant on the grounds of the uncorroborated facts of FIR and the reconfirmed
statement of victim given in the court. No eye witness of the incident is present. The burden of
proof lies on the victim and failed to prove the crime.102

In this case, Mathuri Sharma reported that she with her friend was sold in Bombay. Punishment
Article 4 of the existing Act was demanded Accused denied the accusation. The Baghmati
Special Court convicted the case for abetting and provided 10 years imprisonment Appellate
Court prescribed for 11 years imprisonment but in Supreme Court it was argued that victim's
statement was inconsistent, on one hand, she said that she was taken for job as per the fact of
presented in the FIR, however, at the time of reconfirmation of the statement, she said that she
was made unconscious and sold out. The victim's friend went hostile. No of the incident is
present. Also, the family members did not come looking for her. The burden of proof lies on the
victim and failed to prove the crime. Therefore, finally, the accused was acquitted from Supreme
Court. There are lots of holes or inconsistencies found in the investigation, prosecution and
judgments of courts. It can be questioned that the accused was found guilty by the lower courts
and acquittal for the apex as all court had to analyze the same facts and the evidences The
judicial trend shows the lack of competency in applying the principle of objective satisfaction of
the case from the perspectives of the rights of accused and the victims.

6.6 Uttam Lama vs. HMG In Report of Charimaya Moktan: Application of ex-post facto
law. The majority judgment of the full bench of the Supreme Court rejected the appeal of
defendant by stating that the crime of trafficking was already in existence before the enactment
of the said Act.103

In this case, after working as prostitute for 10 years in Indian brothel, the brothel owner, Mala
Tamang let victim Charimaya Moktan to go home country Nepal after the debt being cleared.
102
NKP (Supreme Court Reporter), 1992, Decision No. 4553, Page 535
103
NKP (Supreme Court Reporter), 2061, Decision No. 7473, full bench.

74
Upon her return, she filed the case against the defendants for taking her in India in the name of
providing better job. Both District and Appellate Courts convicted the defendants and held liable
for 10 years of imprisonment and Rs. 56,000 as fine. The Supreme Court, division bench
observed the issue of application of ex-post facto laws that was adopted three months later of the
commission of the crime and thus acquitted the defendants. But the full bench of the Supreme
Court quashed the decision of division bench and upheld the decisions of the District and
Appellate Courts. In this decision, the full bench laid the ratio that "the crime of trafficking
human was already a defined crime by Muluki Ain, including more penalty than the referred
Human Trafficking (Control and Punishment) Act 1986 (2043), therefore, the questioned act
cannot be considered as ex-post facto."

In reaching to this judgment, the Supreme Court has referred the practice of other jurisdiction.
The decision was made by the majority Justice Balaram K.C. has dissented on the judgment from
the level and angle of fundamental rights and human rights considering the fact that the alleged
act was committed before the promulgation of Human Trafficking (Control and Punishment) Act
1986. In this context, the punishment Such application would be cannot be prescribed using ex-
post facto law inconsistent with Article 14(1) of the 1990 Constitution. The case is landmark in
terms of analyzing the case from lowering the punishment however, has left a debate over the
application of substantive nature of expost facto laws in criminal offence prosecuted by state
Moreover, such application of retrospective law that has introduced an exceptional provision of
shifting burden of proof over the accused which was not existed at the time of alleged
commission of crime. The majority judgment is not seen sensitive enough in considering the
serious likely consequences in the criminal justice system

Some other landmark cases on human trafficking are:

Goma Pachkoti vs Government of Nepal104

GoN in Report of Devendra Prasad Kesari Vs. Rajdev Hajara Dusad, et. al.105

GoN In Report of Ka. Kumari Vs. Shanti Oli Sharki, et. al.106

104
NKP ,2072, Decision No.9333
105
NKP, 2067, Decision No. 8421, Division Bench
106
NKP, 2070, Decision No. 2947, Division Bench

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 Chapter VII
Findings, Conclusion and Recommendations

7.1 Findings

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K

7.2 Conclusion

Nepal is primarily a transit country for men, women, and children trafficking. Broadly, three
forms of trafficking have emerged: cross-border (to India), cross-border (to outside of India,
mostly the Gulf countries), and internal trafficking. Different forms of trafficking have been seen
in Nepal, including sexual exploitation, labor exploitation, organ removal, marriage, circus
performance, and child labor. However, because to a lack of integrated data, estimating the scale
of any type of trafficking is challenging. In addition to the well-known traditional causes of TIP
like as poverty, unemployment, gender, and caste discrimination, the mid-2015 earthquakes in
Nepal have posed new hurdles in the fight against human trafficking. The quakes have destroyed
a large amount of private property, compelled hundreds of thousands of people into poverty, and
deprived them of their well-being and employment opportunities, making them vulnerable to
human trafficking and exploitation, particularly among already marginalized social groups such
as women and children.

The Nepalese criminal justice framework is based on the view on the control of crime through
harder punishment. The punishment of offender’s is the single most important issues it has dealt
with. It has seriously failed to address the interest or concerns of victim. Nepal has ratified a
number of international human rights treaties. But it has still ignored to ratify the trafficking
protocol for no reasons. This shows the political willingness is less on the part of state while the
Constitution 2072 has stepped forward towards gender equality legal frameworks.
The effectiveness of the Human Trafficking Act/Regulation appears to be low,
particularly in the areas of investigation and prosecution, conducting rescue operations,
providing compensation to survivors, maintaining confidentiality, and providing security to
survivors and witnesses during the investigation and court proceedings.

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 Nepal's economic dependency on India is one of the contributing causes to the country's
heightened vulnerability to sex trafficking. India is known as a sex trafficking hotspot, and the
Nepal government's anti-sex trafficking campaign has backfired. As a result, there is a significant
danger of women being trafficked into brothels. After analyzing the vulnerable situation of
Nepalese trafficked women, the policy papers that has been prepared to combat sex trafficking in
Nepal is weak and ineffective. Moreover, the international and national policy also has not been
able to address the challenges of sex trafficking in Nepal.

However, the Government of Nepal has built an institutional structure for managing TIP
in Nepal. TIP has been recognized as a multi-faceted issue that necessitates the involvement of a
variety of line agencies, constitutional and political entities, as well as civil society groups. It is
also believed that the function of multi-layered organizations is equally vital in tackling TIP
challenges. In this regard, the assessment shows that the Government of Nepal has implemented
a variety of policies and initiatives to combat TIP in Nepal, with the help of a number of
international development partners and civil society groups. However, such measures are
insufficient to address Nepal's expanding human trafficking problem. Preventing trafficking,
protecting trafficked survivors and vulnerable parts of the community, and prosecuting
traffickers will take a lot of effort.

Human Trafficking is a serious issue of human rights without any suspicion and exception.
Problem of trafficking in Nepal has deep rooted political and social background that was founded
of patriarchal values. However, it is yet to be recognized as a phenomenal organized crime
subjecting thousands of people in to a condition of slavery and such one can argue that the anti-
trafficking legal framework in Nepal lacks human right dimension. Nowadays trend of
commission of human trafficking is changed. And to tackle these changing scenario lots of
effort is needed to be done. Prevent trafficking, protect the trafficked survivor and vulnerable
section are more to be focus to combat trafficking.
Human trafficking in Nepal is a growing criminal industry affecting multiple other countries
beyond Nepal, primarily across Asia and the Middle East. Nepal is mainly a source country for
men, women and children subjected to forced labor and sex trafficking.

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7.3 Recommendations

ANNEXES
Annexure I

Questionnaire
This questionnaire is developed for the study on ‘Human Trafficking Scenario in Nepal –An
empirical study on the Contributing Factors and Anti Human Trafficking Interventions’
Name: …………………….......…………………………………………….
Address: ………………………...…………...……………………………….
Date: ………………………….…………... ……………………………….
1. What are the main causes of Human Trafficking in Nepal ?
More than one option could be marked () as needed.

a) Internal Trafficking
b) Involvement of organized crime
c) Poverty
d) Illiteracy

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 e) Lack of employment opportunity
f) Not to take women as a family member
g) Racial discrimination
h) Others: …………….……………….……………….………

2. What are the modes of trafficking in person in Nepal?

More than one option could be marked () as needed.

a) In the pretext of marriage

b) In the pretext of employment
c) In the pretext to visit others places
d) Sold by family
e) After making the victim unconscious
f) Voluntarily By police and Pimp’s nexus
g) Others: …………….……………….……………….………

3. What are the effects of trafficking on victims?

More than one option could be marked () as needed.

a) Sexually transmitted diseases

b) Effect on health
c) Physiological effect
d) Deprivation from educational opportunity
e) Social stigma
f) Effects on married and family life
g) Others: ……….……………………………………………

4. What are the effects of trafficking on the victim’s family and society?
More than one option could be marked () as needed.

a) Sexually transmitted diseases

b) Socially betrayed
c) Physiological effect
d) Family disintegration
e) Extra financial burden
f) Statelessness of victim’s children
g) Others: ……….……………………………………………

5. What are the Causes that impede control of trafficking in person?

More than one option could be marked () as needed.

a) Lack of laws
b) Lack of effective implementation

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 c) Political criminalization
d) Lack of bilateral or/and regional assistance
e) Lack of gender awareness
f) Flourishing sex market
g) Geographical reason (open border)
h) Others ……………………………………………

6. What are the policies and programs against trafficking?

…………………………………………………………………………………………

7. Is the existing law adequate to control trafficking in person?

…………………………………………………………………………………………
If not, how should be the laws to control trafficking in women and children?
…………………………………………………………………………………………
8. In your opinion, is the role of police to control trafficking in person effective?
Yes/No
…………………………………………………………………………………………
…………………………………………………………………………………………
9. What are the causes for minimal reporting of the cases of trafficking of person?
More than one option can be marked () as needed.

a) Fear of social stigma

b) Lack of confidence towards implementing agencies
c) Harassment on the process of case
d) Lack of victim’s protection policy
e) No provision of compensation
f) Lack of family support
g) Not to be rescued from brothels
h) Lack of encouragement from related agencies to report the case
i) Frightened or scared Lack of awareness/ ignorance
j) Others ……………………………………………

10. Is it necessary to criminalize commercial sex work?

a) Yes
b) No
c) Don’t know

11. What strategies need to be developed in the areas given below to control trafficking
of women and children?

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 a) On Policymaking level
…………………………………………………………………………………………
b) On Program implementation level
…………………………………………………………………………………………
c) On the role of police
………………………………………………………………………………………
d) On the role of public attorney
………………………………………………………………………………………
e) On the role of court
………………………………………………………………………………………
f) On the role of media
…………………………………………………………………………………………
g) On bilateral relationship between India and Nepal
………………………………………………………………………………………
h) On the program to rescue the victims of trafficking
………………………………………………………………………………………
i) On rescue program to rehabilitate the victims of trafficking
………………………………………………………………………………………

Bibliography

National Documents
International Documents

Charter of the United Nations, 1945

Universal Declaration of Human Rights, 1948

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

International Covenant on Elimination of All Forms of Racial Discrimination, 1966

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
1985

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Convention on Elimination of All Forms of Discrimination against Women, 1979

African Charter on Human and People’s Rights, 1979

Nepali Cases

Books

Articles

Reports

Websites

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