Victims of human trafficking face immense hurdles in the criminal justice system. The laws and legal systems need to take into account their interest in its pursuit of justice, writes AMRITA NAIR.
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“A problem cannot be solved unless it is acknowledged. It is high time that we as a society realise that human trafficking is an economic crime that is a far more prevalent offense than we can imagine, affecting millions of people, subjecting them to extreme forms of violence every single day. Our response to it so far is nowhere near proportional to its brutality.”
-Tanima Kishore, Advocate-on-Record, Supreme Court of India
INDIA has been named the most dangerous country for women in terms of human trafficking according to the Thomson Reuters Foundation survey of 550 experts on women’s issues.
The survey encompassed instances of domestic servitude, forced labour, bonded labour, forced marriage, and sexual slavery. Despite the alarming situation in the country, a discourse on the need for a codified law and its urgent enactment hasn’t gained any traction.
The Lok Sabha had passed the Trafficking in Persons (Prevention, Protection and Rehabilitation) Bill with an objective of strengthening investigations and coordination mechanisms.
The Bill now remains dormant in the Rajya Sabha.
In a study conducted by the US Department of State, it was found that the government of India did not meet the minimum standards in several key areas. Though attempts were made to take action on reports of government complicity in trafficking rings, the systemic failure to address forced labour and sex trafficking in government-run and government-funded shelters remains a huge problem that warrants the attention of the masses. In most cases, the survivors or victims were penalised for the acts they committed under the orders of their traffickers, making them skeptical about reaching out to law enforcement authorities.
Since the people involved hold positions of power, the ones caught are usually the middlemen and the marionettes actually pulling the strings are never revealed.
Is the legal framework adequate?
The present legal framework is scattered and wholly inadequate to tackle rampant human trafficking. Article 23 of the Constitution of India provides for protection against exploitation and prohibits traffic in humans and beggars, making the practice punishable under law. The primary legislation for the prevention of trafficking is the Immoral Traffic (Prevention) Act of 1956, which only extends the protection of the law to women and girls. Though it is the primary legislation, it does not define what constitutes the crime of trafficking, making it ambiguous and difficult to establish or convict.
Additionally, Section 370 of the IPC prescribes the punishment for buying or disposing of any person as a slave. The exploitation as understood under this provision is inclusive of all forms of sexual exploitation, forced labour, slavery, servitude, and forced removal of organs. This particular provision, though not a bad law, is not watertight either. The New Bill, in addition to these provisions, would have been a comprehensive one focussing on the rehabilitation of victims of trafficking. Rehabilitation of victims forms a major part of preventing future instances of trafficking since in most cases, victims are prone to get re-trafficked. With no obligation on the State to provide shelter and the lack of any kind of an arrangement with our neighbouring countries, this risk runs very high.
A codified law which speaks about the entire process from prevention to aftercare is the need of the hour.
What are the challenges in prosecuting cases of Human Trafficking?
One of the major issues faced by prosecutors in human trafficking cases is the involvement of people in positions of power and the government. In 2019, various media houses reported that government-run and government-funded shelter homes were complicit in and active members of several human trafficking rings. Identifying trafficking cases is very difficult since it is not apparent at first glance, often leading to it being recorded as another offence. Even if a case is reported, the investigation and prosecution are poorly implemented due to a severe lack of knowledge on how to deal with such cases. It usually culminates in the authorities being incapable of collecting and recording evidence to prove the essential facts of the case. There are a number of guidelines on how to deal with human trafficking cases, which provide clarity and are comprehensive. The problem ultimately boils down to a lack of execution.
There are specialised units known as Anti-Human Trafficking Units (AHTUs) established to cater to the investigation and prosecution process. However, due to the limited number of AHTUs they are unable to tackle the problem effectively. They are known to be proactive in cases where they have good support from civil society and NGOs. There is a lot of scope for improvement in the functioning of the AHTUs, and the State needs to be willing to spend resources on the dissemination of reports that educate people at grass-root levels.
There are a number of guidelines on how to deal with human trafficking cases, which provide clarity and are comprehensive. The problem ultimately boils down to a lack of execution.
These units should be given specialised training which is practical and inclusive of activities such as the role-play technique in order to equip people with the requisite skill sets.
In most human trafficking cases, the presence of the trafficker in the courthouse during the proceedings subjects the victim to unnecessary trauma that hampers the ability of the victim to testify effectively. They become incapable of narrating the entire incident in a coherent manner. Their testimonies often end up getting rejected because of internal contradictions.
In-camera sessions, though an option, rarely work due to the lack of implementation of guidelines governing them. Adding on to this is the insensitivity on the judge’s part and the lack of training on how to handle cases of this nature delicately. Tanima Kishore recalls a case wherein the judge accepted the plea for an in-camera session to ensure that a nine-year-old boy testifies without any fear. There was a screen placed in front of the child so that the boy would not see the trafficker present and the trafficker would not see the boy.
However, the boy could see his trafficker and got intimidated. When Tanima raised this issue, the judge refused to consider it and was non-cooperative. This is just one instance of the kind of insensitivity that plague a system meant to dispense justice and protect victims.
In most human trafficking cases, the presence of the trafficker in the courthouse during the proceedings subjects the victim to unnecessary trauma that hampers the ability of the victim to testify effectively. They become incapable of narrating the entire incident in a coherent manner.
Moreover, the understanding of the term “consent” as used under Section 370 of the IPC is skewed which causes another hindrance in the prosecution of such cases.
Though the explanation to Section 370 makes it clear that the consent of the victim is immaterial in the determination of the offense of trafficking, in the cases of adult victims, courts have considered the consent provided to be valid.
Lack of a proper Witness Protection Programme in India has also caused a huge impediment in the entire process of prosecuting the perpetrators of the crime.
Since the people involved hold positions of power, the ones caught are usually the middlemen and the marionettes actually pulling the strings are never revealed. This defeats the purpose of the hearing since the ring continues to remain in existence and perpetuates fear for the victims who may wish to speak against them as they are easily accessible during and post the trial.
What are the other problems that plague the mechanisms and institutions in place?
There are a plethora of issues in the current system. A very worrisome fact is that there are no separate institutions that have been established to cater to the needs of the victims of human trafficking. A human trafficking victim needs special care and protection; one cannot simply make these victims stay at shelter homes or juvenile justice institutions where they interact with other delinquents.
A very worrisome fact is that there are no separate institutions that have been established to cater to the needs of the victims of human trafficking.
The Supreme Court of India, in the case of Exploitation of Children in Orphanages in the State of Tamil Nadu, held that all institutions that provide shelter to the children in need of care and protection must be registered under the Juvenile Justice Act and must abide by the law and bye-laws governing them. It also asked for mandatory social auditing on a regular basis, aimed at revealing the dark underbelly of a dubious child care institution, if any. The court also emphasised on the need for observing minimum standards of care and if not followed, the institution must be held responsible for negligence.
The One Stop Centres (OSCs), which were established to cater for providing all the necessary resources to the victims, haven’t been functioning the way they’re supposed to. The employees working in these centres lack the expertise and skills to deal with sensitive cases of human trafficking. Furthermore, the fund allocated for these Centres (Nirbhaya Fund) has continued to remain under-utilised over the years. The shortfall of trained counsellors, failure to link centres with women helpline numbers in various states, and a lack of awareness among women have all meant that the OSCs’ reach has remained limited.
Such faulty functioning has ended up creating more problems for the victims of trafficking instead of resolving them.
Lastly, the migration bans on women of a certain age do not protect their rights; they only push them to take a more risky route, which includes consenting to be trafficked to destinations abroad.
What are the changes that need to be made in the current system to make it more efficient and effective?
The various changes to be made to the current system are:
- Increase investigations, prosecutions, and convictions of all forms of trafficking, including bonded labour.
- Vigorously investigate allegations of official complicity in human trafficking and sentence perpetrators to significant prison terms.
- Develop and immediately implement regular monitoring mechanisms of government-run and government-funded shelters to ensure appropriate quality of care and promptly disburse funding to shelters that meet official standards for care.
- Improve Central and State government implementation of protection programs and compensation schemes for trafficking victims to ensure they receive benefits, release certificates, and compensation in a timely manner.
- Establish more AHTUs in all districts with clear mandates, dedicated funding, and specially trained staff.
- Increase efforts to proactively identify victims by dissemination and implementation of standard operating procedures (SOPs) for victim identification and referral, and train officials on their use.
- Cease inappropriate penalisation of trafficking victims.
- Amend the definition of trafficking in Section 370 of the IPC to include forced labour trafficking and ensure that force, fraud, or coercion are not required to prove a child sex trafficking offense.
- Cease forcible detention of adult trafficking victims in government-run and government-funded shelters.
- Increase oversight of, and protections for, workers in the informal sector, including home-based workers.
- Develop a national action plan to combat trafficking. Come up with a codified law and enforce it on an urgent basis.
- Focus on providing specialised training to the law enforcement authorities, counsellors, judges, lawyers etc.
- Provide rehabilitation services for all victims of human trafficking and specifically to child soldiers associated with non-state armed groups.
- Provide anti-trafficking training for diplomatic personnel.
India must show the political will to bring about these much-needed changes if it wants to get a grip on this malice that haunts our society.
(Amrita Nair is a final year student at the School of Law, CHRIST. Views are personal.)
