Trafficking-THE TIMES OF INDIA

India is a source, transit, and destination country for women, men, and children trafficked for the purposes of sexual and labor exploitation. Indian men and women are trafficked into situations of involuntary servitude in countries in the Middle East and children may be forced to work as beggars or camel jockeys. Bangladeshi women and children are trafficked to India or trafficked through India en route to Pakistan and the Middle East for purposes of sexual exploitation, domestic servitude, and forced labor. Nepalese women and girls are trafficked to India for sexual exploitation, domestic servitude, and forced labor. India is also a growing destination for sex tourists from Europe, the United States, and other Western countries. Internal trafficking of women, men, and children for the purposes of sexual exploitation, domestic servitude, bonded labor, and indentured servitude is widespread. Numerous studies show that the vast majority of females in the Indian commercial sex industry are currently victims of sexual servitude or were originally trafficked into the sex trade. India is also home to millions of victims of forced or bonded labor.

The Government of India does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The quality and magnitude of the government’s anti-trafficking response, particularly in the law enforcement area, are seriously insufficient relative to India’s huge trafficking in persons problem. Some important improvements were observed in the efforts of the new government that came into power in June 2004. The Congress-led government has made efforts to consolidate and coordinate central government anti-trafficking efforts through the empowerment of the Secretary for Women and Child Development, who serves as the government’s "nodal officer" for anti-trafficking programs and policies. Modest but uneven improvements in anti-trafficking law enforcement efforts were seen in some localities, most notably the cities of Mumbai and Chennai and the states of Maharashtra and Tamil Nadu. The use of fast-track courts was the key to greater prosecutions and convictions in Tamil Nadu while sustaining a high number of trafficking convictions in New Delhi. The March 2005 order by the Home Minister of Maharashtra state to close down "dance bars" — many of which served as prostitution and trafficking outlets — may check a new trend of traffickers favoring this more sophisticated and concealed format for selling victims trafficked for the purpose of sexual exploitation over more blatant brothel-based trafficking.

India is placed on Tier 2 Watch List for a second consecutive year for its inability to show evidence of increased efforts to address trafficking in persons, particularly its lack of progress in forming a national law enforcement response to inter-state and transnational trafficking crimes. The government also lacked a meaningful response to the significant problem of trafficking-related complicity of law enforcement officials. The central government needs to designate and empower a national law enforcement entity to carry out investigations and law enforcement operations against trafficking crimes with nation-wide jurisdiction. This major deficiency was highlighted by state-level law enforcement officials who, at a 2004 conference, pointed to the difficulty in investigating trafficking crimes across state lines and coordinating with other states’ police forces in accounting for the low level of trafficking-related prosecutions and convictions in India.

Overall, Indian anti-trafficking law enforcement efforts remained weak, though notable progress was seen in particular localities. Comprehensive statistics on trafficking-related investigations, prosecutions, convictions, and sentences were not available, though statistics obtained from several key cities and states showed 195 prosecutions and 82 convictions obtained for offenses related to trafficking for sexual exploitation in 2004. An estimated 2,058 prosecutions and 1,051 convictions for child labor offenses were obtained in 2004 throughout India.

India has adequate laws to address trafficking for sexual exploitation of adults and children. The Immoral Trafficking Prevention Act (ITPA) criminalizes the offenses of selling, procuring, and exploiting any person for commercial sex as well as profiting from prostitution. However, Section 8 of the ITPA also criminalizes the act of solicitation for prostitution, which has been used in the past to arrest and punish women and girls who are victims of trafficking. The Inter-Ministerial Committee on Trafficking in Persons has drafted revisions to the ITPA, in consultation with civil society groups, and has submitted these revisions to Parliament for consideration. The revisions would eliminate Section 8, thereby affording victims of trafficking greater protections.

The Juvenile Justice Act of 1986, amended in 2001, provides modest criminal penalties for sexual offenses committed against minors, including the prostitution of children, but provides strong protections for child victims of trafficking through the oversight of Child Welfare Committees in each state and mandatory care provided in state-approved protection homes.

Indian laws against trafficking for labor purposes, however, are inadequate as they do not offer sufficient criminal penalties for those who are responsible for forced or bonded labor, child labor, and domestic servitude. The Child Labor Act of 1986 has adequate provisions for the freeing and rehabilitation of children found in forced labor conditions, but carries provisions for criminal sentences of a maximum of only three years. Moreover, the enforcement mechanism for this Act appears insufficient – giving the mandate to local Magistrates who are overburdened and ill-trained to carry out the law’s requirements. Similarly, the Abolition of Bonded Labor Act of 1976 provides adequate protections for victims of bonded labor but carries only a maximum sentence of three years’ imprisonment. Few prison sentences have been handed down under this Act. Moreover, the enforcement of this Act is left in the hands of local magistrates who are over-worked and ill-trained to enforce the Act fully and who are charged with the competing mandate of collecting state taxes from the businesses that employ bonded laborers.

Endemic corruption among law enforcement officials impedes Indian efforts to effectively combat trafficking in persons crimes. Many low-level border guards accept bribes or turn a blind eye to cross-border trafficking. Some police officers have been implicated in tipping off brothels to impending raids and profiting from the proceeds of brothels that enslave trafficking victims. As noted, efforts to curb this trafficking-related corruption have been minimal, usually amounting to officers’ transfers or, at best, forced retirement. During the reporting period only two cases of ongoing prosecutions of law enforcement officers for complicity in trafficking were noted. There are also, however, committed police in Chennai, Mumbai, and New Delhi who have worked actively with NGOs to target traffickers and to safeguard victims after their rescue.

In 2004, courts in Mumbai prosecuted 53 persons for trafficking-related offenses, handing down 11 convictions. While this is an increase over 2003, the level of prosecution remains inadequate relative to Mumbai’s role as the largest center for sex trafficking in India. Mumbai lacks special "fast-track" courts for trafficking crimes; consequently, trafficking prosecutions can take as long as eight years, often resulting in acquittals due to lost evidence and unavailable witnesses.

The central government continues to show inadequate and uneven efforts to protect victims of trafficking, challenged by the decentralized nature of Indian Government social support programs and limited resources. The Department of Women and Child Development (DWCD) – the central government’s nodal anti-trafficking office – improved coordination of support services delivery through greater coordination with states’ departments of women and child development and civil society organizations. Government-run shelters in some localities, like Mumbai, improved significantly over the last year. Other areas lack government-provided shelters dedicated for trafficking victims. During the reporting period, efforts by state governments to develop formal referral systems — through which police regularly refer victims of trafficking to qualified NGO service providers — improved in some areas, but remained woefully inadequate in other localities. In New Delhi, an innovative program was launched, requiring police to provide trafficking victims with counseling from a qualified NGO within 24 hours. This assured level of protection has led to greater victim cooperation with police in investigating and prosecuting traffickers.

In Mumbai, the state-run "Deonar" home for underage trafficking victims has improved its collaboration with U.S. Government-funded NGOs and, as a result, improved the level of care provided to victims it shelters. Police in Mumbai have adopted policies that show greater care for trafficking victims; the police commissioner has instructed police not to arrest women involved in prostitution for solicitation under India’s anti-trafficking and anti-prostitution law — a punishment that often re-victimized trafficking victims in the past.

In 2004, the new central government made significant progress in improving a coordinated approach to preventing trafficking in persons. A newly installed Secretary for Women and Child Development was designated the nodal officer to coordinate and oversee all anti-trafficking programs and policies. Since her appointment in mid-2004, the Secretary has reinvigorated the National Central Advisory Committee on Trafficking Persons, including civil society organizations and state-level agencies in frank and productive consultations. Under the Secretary’s leadership, the Committee has introduced much-needed revisions to the ITPA and has begun drafting changes to the 1998 national plan of action on trafficking. Through the Committee, the government coordinated more closely with NGOs, on which it relies for the bulk of anti-trafficking prevention activity in India. The Secretary and her staff have traveled widely, training hundreds of state and police officials in over 20 training sessions.

In late 2004, India’s National Human Rights Commission released a lengthy two-year assessment of the trafficking situation in India, including recommended actions for the government to take in preventing future trafficking. The Human Rights Commission also undertook a study of the sex tourism phenomenon in Goa, a popular international tourist destination. The National Commission for Women joined with the Maharashtra State Commission for Women in holding a workshop on sex tourism in that state.

Applicable Indian and Nepali Law

Trafficking in human beings and the abuses associated with it are explicitly prohibited under many of India's domestic laws, including the IndianConstitution, specific anti-trafficking acts, the Indian Penal Code, and in state and local ordinances. The problem, therefore, lies not in absence of legal sanctions but in the lack of consistent enforcement.

The Indian Constitution specifically bans the traffic in persons. Article 23, in the Fundamental Rights section of the constitution, prohibits "traffic in human beings . . . and other similar forms of forced labour." Article 39 guarantees equal treatment of men and women and obligates the state to ensure "that the health and strength of workers, men and women . . . and children are not abused . . . and that children and youth are protected against exploitation . . ." Article 42 protects against inhumane working conditions.

The two principal Indian laws that address trafficking and prostitution in particular are the Suppression of Immoral Traffic in Women and Girls Act of 1956 (SITA) and the Immoral Traffic (Prevention) Act of 1986 (ITPA), colloquially called PITA, an amendment to SITA. Neither law prohibits prostitution per se, but both forbid commercialized vice and soliciting.84 Aside from lack of enforcement, SITA is problematic in several ways. One of its chief drawbacks is that the prescribed penalties discriminate on the basis of sex: a prostitute, defined under SITA as always a woman, who is arrested for soliciting under SITA could be imprisoned for up to a year, but a pimp faces only three months.85 SITA allowed prosecution of persons other than the prostitutes only if the persons involved "knowingly" or "willingly" made women engage in prostitution. Accordingly, pimps, brothel owners, madams,and procurers could feign ignorance of prostitution and escape punishment. The client, moreover, was not viewed as an offender and could not be sanctioned under SITA.86 Finally, SITA only addressed street prostitution; prostitution behind closed doors was left alone—a loophole that actually promoted the establishment of brothels.

The Immoral Traffic (Prevention) Act of 1986 (ITPA)87 amended the 1956 SITA in important ways. However, its basic goals and premises remain much the same as those of SITA.88 Although prostitution as such is not prohibited under ITPA, this statute contains nine punishable offenses, including operating a brothel, abetting in brothel keeping, living off brothel earnings, procuring, detaining, activity in vicinity of public places, seducing or soliciting.89 Ironically, ITPA does not authorize the police actually to closebrothels.90 Unlike SITA, ITPA recognizes that men and children can also be sexually exploited for commercial purposes, and introduces stiff penalties against those who profit from the prostitution of minors and children.91

ITPA also expands police power to prevent trafficking, but at the same time attempts to curb the potential abuse of power by the police during raids—such as verbal, physical and sexual harassment. Whereas SITA empowered a special police officer to conduct a search of any premises without a warrant, ITPA extends these powers to the accompanying trafficking police officers who enter the premises. However, ITPA prohibits male police officers from conducting a search unless accompanied by two female police officers. Interrogation of women and girls also has to be undertaken by female police officers. If this is not possible, the women and girls can be questioned only in the presence of a female member of a recognized welfare organization. Additionally, the act mandates rehabilitation of prostitutes in "protective homes," shelters or reformatories where education and living facilities are to be provided.92

Aside from statutes that address the traffic in persons particularly, other existing legislation, including the Bonded Labour System (Abolition) Act and Article 376 of the Indian Penal Code (IPC), explicitly forbid the purchase and sale of human beings, forced labor and all forms of bonded labor. The IPC also prohibits the trafficking and sale of minors.93 In addition, existing rape, assault, and abduction laws can be used to address the systematic abuse of women and girls in brothels described in previous sections.94 Article 375 of the IPC defines rape as the act of engaging in sexual intercourse with a woman when the act is against her will; without her consent; with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or injury; with her consent when she is incapable of understanding the consequence of her consent; or when she is under sixteen years of age. Rape laws are applicable to both brothel staff and customers.95

The Indian Ministry of Human Resources Development's (HRD) Central Advisory Committee on Prostitution96 released a report in May 1994 that acknowledged the organized and international nature of the trafficking industry and the use of coercion and force in procuring women and girls for prostitution. The report called for paramilitary forces to check the entry of females from abroad and advocated implementation of Section 13(4) of the ITPA which authorizes the appointment of a centralized anti-trafficking force with interstate jurisdiction. In June 1994 the Central Bureau of Investigation (CBI) responded to the HRD Ministry's invitation and agreed to assume responsibility for trafficking enforcement, pending additional funding.97

Nepal's 1990 Constitution, its civil code and several specific laws forbid the trafficking and sale of women and children and other forms of slavery-like practices. Article 20 of the Nepali Constitution states, "Traffic in human beings, slavery, serfdom or forced labour in any form is prohibited. Any contravention of this provision shall be punishable by law . . . "

The constitution is supplemented by a national legal code called the Muluki Ain, which contains provisions against interstate and domestic trafficking in human beings.98 Section 1 of the law governs "traffic in human beings," while Section 3 forbids slavery and all other "transactions in human beings."99

Article 4 of the Traffic in Human Beings (Control) Act of 2043 (1986/1987) expressly forbids the sale of "human beings with any motive; the transport of "any person abroad with intent of sale," the act of "compel[ling] any woman to take to prostitution through allurement or enticement, deceit,threats, intimidation, pressures or otherwise; and "conspiracy for committing any of the acts mentioned." The act applies the same penalties to these offenses regardless of whether they are committed inside or outside Nepal's territorial boundaries and makes no distinction between crimes committed by Nepalis and by foreigners. The law dictates prison terms of ten to twenty years for trafficking in human beings and, disturbingly, reverses the burden of proof, requiring the accused in a trafficking case to disprove the charges.100

With regard to minors, Section 2 of the Muluki Ain prohibits the enticement and separation of children under sixteen from their legal guardians. Pimping and solicitation of prostitutes is forbidden under Section 5 of a law titled "Intention to Commit Adultery."101 Intercourse with a child under fourteen is considered rape, regardless of consent.102

In May 1992, two years after Nepal ratified the U.N. Convention on the Rights of the Child, it passed the Children's Act 2048. This law, which defines a child as any person under sixteen years of age, prohibits torture and cruel treatment, the use or involvement of any child in an "immoral profession," child pornography, the sale of girl children as religious offerings to temple deities, and child labor.103

84 SITA, a penal law, was passed in 1956 and enforced in 1958 as a consequence of India's signing the Trafficking Convention, rather than as a result of any mass social welfare movement. SITA did not seek the "abolition of prostitutes and prostitution as such and to make it per se a criminal offence or punish a person because one prostitutes oneself." Its stated goal was "to inhibit or abolish commercialised vice, namely the traffic in persons for the purpose of prostitution as an organised means of living." Prostitution was defined as the act of a female who offers her body for promiscuous sexual intercourse for hire. Accordingly, the engagement by a woman in individual, voluntary, and independent prostitution was not an offense.

85 The law permitted penalization of a woman found to be engaged in prostitution under certain conditions. For example, Section 7(i) penalized a woman found engaged in prostitution in or near a public place. Section 8(b) did the same for a woman found seducing or soliciting for purposes of prostitution. The law also permitted a magistrate to order the removal of a person engaged in prostitution from any place and to punish the person upon refusal. Offenses under SITA were bailable, but a woman picked up from the street by the police usually did not have either the money or the influence to keep herself out of custody or free from fines.

86 Indeed, clients sometimes were called as witnesses against women accused of prostitution. Police could arrest clients only by applying the indecent behavior and obscenity sections of local laws, or the Indian Penal Code. For example, Section 110B of the Bombay Police Act penalizes indecent behavior and allows for the arrest of pimps and prostitutes.

87 The changes in the title of the act represented important conceptual as well as policy shifts, most importantly, the recognition of the range of victims was extended from women and girls to persons. Various other definitions were reworked in the 1986 act. Prostitution, which had been "the act of a female offering her body for promiscuous sexual intercourse for hire," became "the sexual exploitation or abuse of persons for commercial purposes." The shift in emphasis from promiscuity to exploitation was particularly significant, especially for Nepali women whose abuse was justified on the basis of their reputed "promiscuity."

88 Many of the amendments ITPA made to the 1956 law endeavored to broaden the act to include both men and women as the exploited parties, and all parties involved in prostitution. But in some cases the amendments actually served to further discriminate against women in prostitution. For example, according to ITPA, whoever attempts to solicit "by words, gestures, wilful exposure of her person . . . for the purpose of prostitution," shall be subject to up to one year imprisonment (six months for a first offense) and a fine of up to Rs. 500 (US$16). But a 1986 amendment to the law adds that if the offense is committed by a man, the mandatory sentence ranges from only seven days to three months.

89 In the case of soliciting, women are subject to much longer terms of imprisonment than men found guilty of the same offense. Procurers of prostitutes or those found guilty of inducing someone to undertake prostitution are subject to a prison sentence of three to seven years and a fine of Rs.2,000 (US$66); a second conviction carries a mandatory prison sentence of seven to fourteen years. A first conviction forbrothel keeping under ITPA carries a mandatory prison term of one to three years and a fine of Rs.2,000 (US$66). A second conviction is punishable by two to five years' rigorous imprisonment and a Rs.2,000 fine. Anyone convicted of living on the earnings of a prostitute is subject to seven-year imprisonment and a fine of Rs.1,000 (US$33) or ten years if the prostitute is a child. Any person who engages in prostitution in a public place and any customer with whom the prostitution is carried out are subject to up to three months in prison. If the offense involves a minor, the prison term can range from seven years to life.

90 Under ITPA a brothel was redefined broadly as any place where sexual exploitation or abuse occurred. Accordingly, under Section 3 of ITPA, the keepers of any place where sexual abuse occurred could be prosecuted. In the case of trafficked women, this would now cover the houses and room where the newly-trafficked girls and women were physically and psychologically broken, in the process called "training." ITPA also attempts to eliminate the loophole of lack of knowledge which SITA afforded brothel keepers and owners by placing the burden of proof on the landlord conditionally. However, the primary condition under which ITPA can presume that a landlord has knowledge of the illegalities on his premises is extremely unlikely to be met and therefore effectively useless: that a newspaper report names his premises as used for prostitution.

91 Girls and women are treated differently under SITA, although their exploiters are not. SITA had defined adulthood as twenty-one years. Accordingly, an adult woman prosecuted for soliciting or prostituting in a public place would be tried in court and, if convicted, sent to a protective home or institution, whereas a girl was immediately referred for rehabilitation. However, the punishments for exploiters of women and girls were the same. Now, ITPA makes distinctions between "major," "minor," and "child." The act defines as a "child" anyone who is under sixteen years of age. Persons between sixteen and eighteen years are considered "minors," and anyone eighteen or older is an adult or "major." Those who exploit minors or children are subject to prison terms of not less than seven years and not more than ten years.

Contrary to the internationally recognized right to equal protection of the law, ITPA reverses the burden of proof for adults. While children and minors arrested under the act are presumed innocent, those over eighteen are required to prove their innocence. ITPA's additional clause addressing the offense of procuring carries rigorous imprisonment of seven to fourteen years in the case of a minor and seven years to life in the case of a child. Similarly, prostitution of a minor or child in a public place is punishable with seven years to life, or up to ten years along with a fine. However,these measures are effectively weakened by the discretionary powers given by the ITPA to the court to reduce the term of imprisonment to below the seven-year minimum for offenses such as detaining a person for prostitution or seduction of a person in custody.

The implications of this provisions are particularly serious for women and girls trafficked over long distances, as in the case of Nepali women and girls. Not only does the exercise of the court's discretionary power dilute the general legal threat to persons who traffic women from abroad, but it also reduces the effective impact of laws against other abductors and kidnappers who imprison women and girls in brothels far from their homes. Women and girls transported over long distances and detained for prostitution face greater obstacles in attempting to escape from the brothel system, due to distance and differences of language and culture. Even if they manage to escape from their original captors they risk falling prey to other abductors and kidnappers who do not fear long jail sentences for their actions. ITPA introduces another clause whereby if a person is found with a child in a brothel it is presumed, unless proved to the contrary, that the child has been detained for prostitution.

92 However, a Supreme Court review of one such facility in Delhi between 1979 and 1981, and subsequent independent studies conducted in 1990 of the same home and of the Liluah home in Calcutta, found that inmates of "protective homes," including former brothel inmates, women charged with criminal offenses and "non-criminal lunatics," were housed together in appalling conditions, denied adequate food and clothing and provided with no vocational training. There were also reports of forced prostitution and bonded labor. In the Liluah Home for Destitute Women, in Calcutta, a survey by university students found the institution to be severely overcrowded. Inmates complained of grave mistreatment, including branding with hot irons, rapes, and sexual assaults. Almost all inmates were suffering from malnutrition. Many also had chronicskin diseases and tuberculosis. See, Telegraph, "House of Horror; The Liluah Home: Where inmates are starved, assaulted, degraded, molested and humiliated," July 29, 1990. See also Arun Bhandari et al., Women and AIDS: Denial and Blame; A Citizen's Report (New Delhi: Saraswati Art Press, November-December 1990), pp. 46-49.

93 In addition, Sections 372 and 373 of the IPC state that anyone who buys, sells or obtains possession of any person under the age of eighteen for prostitution, illicit intercourse, unlawful or immoral purposes, or knowing that such use at any age is likely, is subject to up to ten years' imprisonment. The IPC also contains prohibitions against indecent assaults on women (Section 354), kidnapping, abduction, and wrongful confinement (Sections 359-368), and mandates imprisonment of up to ten years for the procurement or import of minors for the purposes of illicit intercourse, kidnapping and abduction leading to grievous hurt, slavery or subjection to "unnatural lust" (Section 367).

94 In the case of sexual assault by police or police complicity in sexual abuse of trafficking victims, the Criminal Law (Amendment) Act of 1983, enacted as a result of a 1983 case of custodial violence against women in police lockups in Mathura, provides for the offense of custodial rape and prescribes a mandatory ten years' imprisonment for any police officer who rapes a woman in custody. Custody is customarily understood to include situations where the victim is effectively under the control of the police or security forces; it is not limited to conditions of detention in a prison or lockup.

95 Male brothel staff who use rape to "break in" new girls are clearly subject to these laws. Under the IPC a minimum term of seven years' imprisonment may be imposed for rape. In addition, Section 376 of the IPC states: "Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention,each of the persons shall be deemed to have committed gang rape within the meaning of this subsection."

96 Part of the Human Resources Ministry's Department of Women and Child Development.

97 Pioneer (Delhi), June 28, 1994.

98 The Muluki Ain was first codified in 1854. It was promulgated anew after the adoption of the 1962 Constitution, has been amended many times since then, and remains in effect today.

99 The Muluki Ain decrees prison sentences of twenty years for international trafficking cases where the victim has already been sold, and sentences of ten years' imprisonment for attempted sale, plus fines equivalent to the amount of the transaction. In cases where the purchaser is found within Nepal's borders, he or she is subject to the same punishment as the seller. Muluki Ain (Jiu Masne Ko), amended October 2, 1964, and December 19, 1975.

100 The presumption of innocence is a fundamental principle laid down in Article 14(2) of the ICCPR. Reversing the burden of proof in trafficking cases is therefore a breach of international law. Note: Trafficking cases are prosecuted by a government prosecutor, and traffickers retain private defense. This has meant that activists and human rights lawyers who follow trafficking as an issue of concern have had little access to court documents or information about the process of ongoing legal cases. Likewise, women who have made complaints against traffickers, assert that they were not kept informed about the progress of these cases.

101 Muluki Ain, "Intention to Commit Adultery" (Asaya Karani Ko), amended December 19, 1975. Section 5 states: "In cases where a person entices a woman with the intention of arranging sexual intercourse with himself or with any other person, or arranges contacts and affairs with prostitutes, he shall be punished with imprisonment for a term ranging from six months to two years, or with a fine ranging from Rs. 500 to Rs. 6000, or both."

102 Muluki Ain, "On Rape," (Jabarjasti Kavani Ko), Section 1, amended December 19, 1975.

103 The Children's Act 2048; A Bill to Provide for Safeguarding the Interests of Children, was signed by the king on May 20, 1992. Section 15 states: "Children [shall] not be made involved in immoral professions"; Section 13 prohibits "offering of girl child in the name of God or Goddess"; Section 5 prohibits discrimination between sons and daughters; and Section 7 forbids torture and cruel treatment.

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