CHAPTER-I INTRODUCTION

1.1 Brief Overview of the Project: This research project aims at analyzing the various aspects of women trafficking and its impact on the Indian society. Trafficking in women is a matter of great concern all over the world. In South Asia, cross-border trafficking and transit to destination is a big problem. In order to define women trafficking, the researcher would first like to define trafficking. The dictionary meaning of trafficking is to pass goods and commodities from one person to another for an equivalent in goods or money; to buy or sell goods; to barter; to trade. 1 The Oxford English Dictionary defines traffic as trade, especially illegal (as in drugs). Now, the researcher would like to define the term trafficking of human beings. Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or of receiving of payments or benefits to achieve the consent of a person having control over another persons, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour services, slavery or practices similar to slavery, servitude or the removal of organs;2 The Trafficking in Women is a crime committed in order to target, lead or drive a woman into an exploitative situation with the aim to make profits. Such exploitation may take many forms, for example commercial sexual exploitation, child labour, forced labour, bonded labour or illegal organ removal etc.3

The previous United Nations Secretary Kofi Annan once stated in an international conference
1 2

http://www.webster-dictionary.net/definition/trafficking, visited on 2 nd July, 2010 Article 3, UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 3 Report of the Govt. of India, Ministry of Home Affairs, Office Memorandum, F.No.- 15011/6/2009- ATC

that: The trafficking of persons, particularly women and children, for forced and exploitative labor, including sexual exploitation, is one of the most egregious violations of human rights which the United Nations now confronts.4 The crime of trafficking involves the violation of a whole gamut of laws and human rights. It becomes a threat to society because traffickers operate across borders with impunity, with the growing involvement of organised criminals and by generally undermining the rule of law. Trafficking threatens the very fabric of society because it involves not only criminals but also law enforcers. It manifests and perpetuates patriarchal attitudes and behaviour, which undermine the efforts to promote gender equality and eradicate discrimination against women and children.5 Children, particularly girl children, are at greater risk of being trafficked than adults. A central characteristic of human trafficking is that victims are held under the control of the perpetrator in order to facilitate their exploitation.6 1.2 Research Scheme: In the second chapter, the researcher will discuss the causes and reasons for women trafficking; then in the third chapter, the researcher will be discussing the legal provisions against women trafficking. The fourth chapter will deal with the burning issue of whether prostitution should be legalized or not and the final chapter will deal with the measures which can be undertaken to eradicate this social evil. 1.3 Research Methodology: For the purpose of completion of this research project, the researcher has followed the doctrinal research technique. The starting point for the analysis was a desk review of relevant literature. The researcher visited the Faculty of Law, Delhi University and also used the library of National Law University, Delhi. The researcher also referred to the online databases like jstor.

4 5

December 12, 2000, Palermo Italy P.M. Nair IPS, A Report on Trafficking in Women and Children in India, (2002), p.20 6 http://timesofindia.indiatimes.com/india/Legalize-prostitution-if-you-cant-curb-it-SC-togovt/articleshow5322127.cms, visted on 24.7.10

CHAPTER-II CAUSES FOR WOMEN TRAFFICKING IN INDIA There are many factors that influence trafficking in India. Although the strongest factor appears to be harsh economic conditions, other factors include romanticized views of work abroad, domestic violence, perceived marriage opportunities and coercion from parents, colleagues, friends and acquaintances. The population of women and children in sex work in India is stated to be between 70,000 and 1 million. Of these, 30 per cent are 20 years of age. 7 In the upcoming sections, the researcher will try to give some causes which are the basic roots of this problem. 2.1 Feminization of Poverty: Worldwide, poverty is increasingly and disproportionately affecting women. Of the 1.3 billion absolute poor in the world today, 70 percent are women and their minor dependents.8 In India, near about 80 percent of the total population still lives in the rural area and 50 percent subsists below poverty line.9 This poverty is due, in part, to womens lack of access to formal education and job opportunities in their countries of origin. Further, women fail to fully benefit from market reforms of todays world economic regime due to the lack of economic power in their communities and families.10 The internal uprooting, lack of a support network, and increased financial responsibility adds to the vulnerability of women to be recruited by a trafficker, in the hopes of improving her family or personal economic situation.11 2.2 The Trafficking Triangle: The notion of trafficking triangle refers to the space created by the demand, supply and impunity with which trafficking occurs. According to it, sex trafficking is driven by a demand for womens and childrens bodies in the sex industry, fuelled by a supply of women

KK Mukherjee and Deepa Das, Prostitution in Six Metropolitian Cities of India. New Delhi: Central Social Welfare Board.(1996), p. 34 8 Brussels, Migration, trafficking and social development -What is at stake for women, European Womens Lobby (2001), p.23 9 Majid Abdul, LEGAL PROTECTION TO UNORGANISED LABOUR,1 st ed. 2000, p. 88 10 UNIFEM, Gender and Macroeconomics, 2002 11 Jenna Shearer Demir, Trafficking of women for sexual exploitation: A gender -based well-founded fear?, University of Pavia ESAS-CS(2003), p.7

denied equal rights and opportunities for education and economic advancement and perpetuated by traffickers who are able to exploit human misfortune with near impunity.12 Some of the supply and demand factors which increase women trafficking are: 2.2.1 Supply Factors: The social customs and obligations like births, marriages and death in the families compel the poor to resort to borrowing. Those of the debtors who cannot take themselves out of the vicious circle of poverty and clear off the debts sometimes sell off their daughters in order to pay their debts. Harmful cultural practices like child marriage are sometimes the route for a child to be trafficked for sexual purposes. The stigma attached to single, widowed, and abandoned women, or second wives through bigamous marriages, causes such women to be abandoned by society and they become easy targets for traffickers.13 Female illiteracy and lack of access to education by girls further make their lives problematic as illiteracy leads to lack of awareness Male unemployment and loss of family income sometimes puts pressure on women to earn and support the family.14 Traditional practices give social legitimacy to trafficking. These include the Devadasi and Jogin traditions where Devadasis are often trafficked and sexually exploited. This is equally applicable to other communities such as the Nats and Kanjars where traditionally girls are made to earn through prostitution. Weak law enforcement and inefficient and corrupt policing of the borders ensure that women from neighbouring countries are brought into India and forced into prostitution in different towns. The crime does not come to light very often because of its clandestine nature. Victims are unable to access justice and even when they attempt to do so, weak law enforcement enables the traffickers to escape.15 Finally, sometimes the dreams of living in an urban area become the reason for women getting trafficked. Many women are either lured by false promises of jobs in urban areas or they voluntarily migrate to urban areas on hearing about the opportunities in cities from their neighbours and friends.
12

Phinney, Alison,Trafficking of Women and Children for Sexual Exploitation in the Americas, Women, Health and Development Programme, World Health Organisation, p .123 13 Veena S. Rao,Judicial Handbook On Combating Trafficking Of Women And Children For Commercial Sexual Exploitation, Centre For Women And The Law, (2004), p.2 EXUAL EXPLOITATION 14 Ibid 15 Ibid

2.2.2 Demand Factors: Rising male migration to urban areas and demand for commercial sex leads to increase in demand for sex-workers and hence women and young girls are migrated to cities under false pretence for turning them into sex-workers. Growth of tourism, which sometimes indirectly encourages sex tourism, is also one of the factors which leads to increased demand of women employed in sex-industry. Scare of HIV/AIDS and prevalent myths on sexuality and STDs leads to greater demand for newer and younger girls. The number of trafficked girls thus increases and their age decreases. 2.3 Pornography A lot of young girls are migrated from rural areas by traffickers in order to force them into the illegal business of pornography. In 1996 the Report on the Working Party on the Legal and Judicial Process for Victims of Sexual and Other Crimes of Violence Against Women and Children (NWCI, 1996) defined pornography as: Pornography is the graphic sexually explicit subordination of women through pictures and/or words which includes one or more of the following - women presented as dehumanised objects; enjoying humiliation and pain; tied up, cut, or mutilated; shown with severed body parts; penetrated by object or animal. Pornography is a billion dollar industry as money is made through the selling of pornography magazines and movies. Plus the internet is a huge money maker for the porn industry. There are thousands of websites that offer pornographic videos, pictures and even stream live web-cams. Documented evidence on the scale of the production, use, downloading and distribution of child pornography is insufficient. Nevertheless, in many cities of India, child pornography materials, such as videos, are openly sold in designated areas.16 Given the increase in low cost Internet access throughout the country, exposure to online pornography is very likely to be augmented. A recent study by the NHRC 17 found that traffickers are using women and children for pornography and prefer teenage girls for this purpose.

16

Renata Cocarro, Global Report on the status of action against commercial sexual exploitation of children, Swedish International Development Cooperation Agency (2006), pp. 13-14 17 Sen, Sankar. Trafficking in Women and Children in India, National Human Rights Commission (2005). New Delhi, India.

CHAPTER-III SHOULD PROSTITUTION BE LEGALISED?

Prostitution means the sexual exploitation or abuse of persons for commercial purposes, and the expression prostitute shall be construed accordingly. 18 During the course of almost any discussion on the subject of prostitution and trafficking in women, one or more of those involved argues that the solution is to legalize prostitution. Those who support this approach claim that legalization will enable criminal elements to be identified and removed from the sex industry; will protect womens rights; and will prevent a public nuisance. It is also claimed that the state will benefit from the taxation of the sex industry. 19 Prostitution over the years has been shaped by economic, demographic, social, and ideological changes, all of which have contributed to what is now more frequently referred to as the sex industry.20 Accompanying these changes have been developments in the legal approach to prostitution adopted by different countries. There has been a significant shift in the balance away from prohibition, towards legalisation and decriminalization.21 The shift has come from a variety of fronts, including wanting to control associated criminal activity, the spread of HIV / AIDS, and recognition of the human rights of sex workers. There are various countries which have legalized prostitution. Prostitution has been legalised in countries such as the Netherlands, Germany, Iceland, Switzerland, Austria, Denmark, Greece, Turkey, Senegal, the USA state of Nevada, and many Australian states (Victoria, Queensland, ACT and Northern Territory). A lot of people think that making prostitution legal and passing suitable legislations to control this trade will have a good impact on the nations crime rate and economy. 3.1 Impacts of legislation: Some States have adopted the legalization of sex-work as a protection measure. Advocates for legalization argue that if prostitution were legal, women would be able to more

18 19

Section 2(f), The Immoral Traffic (Prevention) Act, 1956 Ella Keren (ed.), The Legalization Of Prostitution: Myth And Reality, The Hotline for Migrant Workers (2007), p.5 20 Dr Elaine Mossman, International Approaches to Decriminalising or Legalising Prostitution, Victoria University of Wellington (2007), p.9 21 West, J., Prostitution: collectives and politics of regulation, Gender, Work and Organization (2000), pp.106 118.

freely organize themselves into cooperatives or other work systems that would allow them to control their work on their own terms, reducing or eliminating the need for pimps. Further, legalization would enable sex-workers to participate in a work-based health system, reducing some professional health hazards. Finally, the State would benefit from legalization, due to increased tax revenues from the now recognized laborers.22 3.1.1 Economic Aspect: Every jurisdiction that has legalized prostitution has imposed taxation on the legal sex industry. Prostitution in the Netherlands was legalized at the turn of the twentieth century. In October 2000 a legal amendment was adopted in the Netherlands removing the prohibition against the operation of brothels. This effectively marked the introduction of legalized prostitution in the Netherlands in accordance with the democratic model, focusing on the rights of women. But this legalization also brought about tax liability on the brothels all over the country. The existence of the red light district in Amsterdam as a tourist attraction has constituted a major source of income for the Netherlands for many years. This income has now been supplemented by license fees and taxes on brothels, in addition to the taxes imposed on self-employed women working in prostitution. Profit from prostitution in Germany is believed to be extremely high; estimates range from the relatively modest figure of some six million euros a year to an astonishing 14.5 billion euros.23 The method and level of tax on prostitution various from region to region.24 In Stuttgart, women pay a fixed tax of 20 euros a day; it has been proposed that this figure be raised to 30 euros. Since the introduction of the new law in 2002, the tax authorities have launched campaigns to collect tax from the women.25 3.1.2 Promoting the rights of women as workers: Democratic legalization decriminalizes brothels and pimps and focuses on the rights of women involved in prostitution. The goal of this model is to ensure that women enjoy rights such as health insurance, dismissal compensation, and pensions. It is based on the
22

Jenna Shearer Demir, Trafficking of women for sexual exploitation: A gender -based well-founded fear?, University of Pavia ESAS-CS(2003), p.28 23 Mitrovic, E., "Social Change in Dealing with Prostitution Since the New Legislation Entry into Force, (2004), p.3 24 Ibid 25 Ella Keren (ed.), The Legalization Of Prostitution: Myth And Reality, The Hotline for Migrant Workers (2007), p.52

assumption that prostitution can be combated and reduced, but not eradicated. This form of legalization does not regard prostitution as equivalent to any other job willingly undertaken; at the same time, it seeks to respect the decisions of the women involved and to protect their rights. The goal of democratic legalization is to improve the working conditions of women in prostitution and improve their rights. Due to legalization of prostitution in Australia, labor organizations in Australia have begun to represent women employed in prostitution and to negotiate on their behalf over such issues as delays in paying salaries, fines, coercive sex with brothel owners, and dismissal.26 3.1.3 Eliminating the social stigma: It is felt that if a legal status is granted to prostitution, then the social stigma attached to the sex workers will be eliminated and they will be able to lead their lives more respectfully. 3.1.4 Public health: Legalization grants women working in prostitution the power to demand that their clients engage in safe sex. In some states of Australia, the use of condoms is compulsory, including in the case of oral sex.27 In a state which has legalized prostitution like Australia, Women working in prostitution have the right to refuse to have sex with a client. 3.2 The Harm in Legalising Prostitution: Mahatma Gandhi once said: It is a matter of bitter shame and sorrow and deep humiliation that a number of women have to sell their chastity for mens lust. Prostitution is a very degrading business because women have to sell their bodies to complete strangers in order to earn their livelihood. Prohibition is a necessary step toward abolishing an inherently coercive, violent, and misogynistic sex trade. Prostitution is an industry that arises from womens low social status and the relegation of women to the role of sex objects. Legalising prostitution maintains that low status and makes it much harder for women to assert that they should be treated with dignity and respect. Whilst women in this state strive to improve their status, the sex industry provides a constantly expanding obstacle.

26 27

Gall G., SEX WORKER UNION ORGANIZING, 1st ed., 2006, pp. 124-32. Sullivan M. L., Can Prostitution be safe? Applying Occupational Health and Safety Codes to Australia's Legalized Brothel Prostitution, C. Stark and R. Whisnant eds. (2004), pp. 252 -268.

The legalisation of brothel prostitution effectively means that women are forced to work in situations where third parties make profits from offering them for sale. It is almost impossible for the exploited women to set up in business for themselves. Legal parlours tend to be expensive, capital intensive buildings, allowing for the monopolisation of the industry by more wealthy owners. The countries like Australia and Netherlands legalized prostitution with a view to provide greater safety to prostituted women. Legalised brothels were supposed to provide women with protection from the rapes, beatings and murders that are the hazards of street prostitution. Street prostituted women still suffer extreme violence on the streets of Victoria. The acts that men buy the right to perform on prostituted women include all the forms of sexual violence that feminists are seeking to eliminate from womens beds, homes, workplaces, streets and the women are not able to refuse because these acts are necessary for them to survive in the market of prostitution.28 Once prostitution is legitimised as an acceptable commercial practice, few ethical barriers exist to prevent newly brutal forms of exploitation. Street prostituted women, because of the illicit nature of their work, are doubly vulnerable to rape, battery and murder from the men who use them and from male passers by. The reality is that prostitution cannot be made respectable. Legalisation does not make it so. Prostitution is an industry that arises from the historical subordination of women and the historical right of men to buy and exchange women simply as objects for sexual use. It thrives on poverty, drug abuse, the trafficking in vulnerable women and children. 29 Prostitution teaches men how to mistreat women and damages the lives of both the women who are used, the women whose partners, sons, brothers and workmates are the abusers, and the status of all women in the state. Legalisation causes the business of sexual exploitation to flourish. As more and more women and children are drawn into the industry, and more and more men become abusers, the profits from the abuse become an indispensable part of the states revenue.30

28

Mary Sullivan and Sheila Jeffreys, Legalising Prostitution Is Not The Answer: The Example Of Victoria, Australia, Coalition Against Trafficking In Women (Australia) (2008), pp. 7-8 29 Ibid 30 Joshua Bailey, Freedom or Slavery? The Harm in Legalizing Prostitution, North Central College (2000), p.201

CHAPTER-IV LEGAL PROVISIONS AGAINST WOMEN TRAFFICKING In this chapter, the researcher will discuss the legal provisions which are in force in order to check the social evil of women trafficking. 4.1 Constitutional Safeguards: Article 21 provides for protection of life and personal liberty : No person shall be deprived of his life or personal liberty except according to procedure established by law.31 Article 23 of the Constitution guarantees right against exploitation; prohibits traffic in human beings and forced labour and makes their practice punishable under law. Article 24 of the Constitution Prohibits employment of children below 14 years of age in factories, mines or other hazardous employment. Article 51 (e) states that: It shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.32 4.2 Indian Penal Code: Some significant provisions related to trafficking in IPC are: The procuration of a minor girl (below 18 years of age) from one part of the country to another is punishable.33 Also, importation of a girl below 21 years of age is punishable.34 Indian Penal code also provides punishment for selling a minor girl for prostitution.35 There are also punitive measures for compelling any person to labour against his will.36 4.3 The Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA): This Act was passed in pursuance of the International Convention signed at New York on the 9th day of May, 1950, for the prevention of immoral traffic across India.
31 32

Article 21, The Constitution of India, 1949 Ibid, Article 51(e) 33 Section 366(A), Indian Penal Code, 1860 34 Ibid, section 366(B) 35 Ibid, section 372 36 Ibid, section 374

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Under this Act, any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand.37 Section 4 of the Act states that: Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.38 Section 5 of this Act prohibits procuring or inducing any person into the trade of prostitution. 4.4 Information Technology Act, 2000: This Act penalizes publication or transmission in electronic form of any material which is lascivious or appeals to prurient interest or if its effect is such as to tend to deprive and corrupt persons to read, see or hear the matter contained or embodied therein. The law has relevance to addressing the problem of pornography. 4.4 Judicial Safeguards Apart from the above legal instruments there have been various directives of High Courts and Supreme Court making provisions for administrative machinery and infrastructure to protect women, combat trafficking, rescue and rehabilitation of the victims. In the cases of Vishakha v. State of Rajasthan, Vishal Jeet v. Union of India39 and Gaurav Jain v. Union of India40 courts gave landmark Judgements. In consequence to Gaurav Jain case Union Government came up a National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children in1998. According to the Supreme Court order dated 2/05/09 (Vishal Jeet v. Union of India), every State Government should set-up a State Advisory Committee for Preventing and Combating Trafficking of Women and Children for Commercial Sexual Exploitation.

37 38

Section 3, The Immoral Traffic (Prevention) Act, 1956 Ibid, Section 4 39 AIR 1990 SC 1412 40 AIR 1990 SC 292

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CHAPTER-V CONCLUSION
Being a complex phenomenon, trafficking can be viewed from different perspectives. Thus, it is important to acknowledge the standpoint from which it is being approached from. The problem is deeply rooted in the socio-economic, political and cultural reality of the context in which it occurs, although this may not be its immediate cause. It is a fundamental violation of the rights of human beings and shows a blatant disregard for the dignity of a person. Regarding the point of legalization of prostitution, the researcher is against the idea of legalization of prostitution. Trafficking and prostitution are so interlinked that legalizing one will ultimately lead to an increase in trafficking (particularly of women). Professor Hughes has stated that: Trafficking is a modern form of slavery. To not understand the relationship between prostitution and trafficking is like not understanding the relationship between slavery in the Old South and the kidnapping of victims in Africa and the transatlantic shipment of them to our shores.41 Legalisation of Prostitution will lead to further exploitation of young girls and women and their plight will become unbearable. The people who argue in support of legalization should first listen to the opinion of the prostitutes themselves and what kind of life they are living. A young prostitute, Sita, had this to say about her life as a sex worker: I would not wish that life on an enemy. It is pure hell. It would be better to hang yourself and die.42 Regarding the point of legal safeguards against trafficking, there is a clear gap between the enacting law and its execution. This gap should be overcome in order to curb trafficking in India. Aside from lack of enforcement, SITA, 1956 is problematic in several ways. One of its drawbacks is that the prescribed penalties discriminate on the basis of sex: a prostitute,
41

Hughes, Donna M. Foreign Government Complicity in Human Trafficking: A Review of the State Departments 2002 Trafficking in Persons Report, Testimony before the U.S. House Co mmittee on International Relations (2002), Washington, D.C., June 19. <http://commdocs.house.gov/committees/intlrel/hfa80288.000/ hfa80288_0f.htm>, visited on October 9, 2010 42 From the documentary The Day My God Died

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defined under SITA is always a woman, who if arrested for soliciting under SITA could be imprisoned for up to a year, but a pimp faces only three months. SITA allows 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, is not viewed as an offender and cannot be sanctioned under SITA. Finally, SITA only addresses street prostitution; prostitution behind closed doors is left alone -- a loophole that actually promotes the establishment of brothels. National legislation should guarantee that the trafficked woman has access to justice, including police protection, legal representation and compensation. Governments and the United Nations should establish mechanisms for implementing specific anti-trafficking regulations and codes of conduct for all international personnel of peacekeeping, peace building, civilian police, humanitarian and diplomatic missions, and for systematic investigation of all allegations of trafficking concerning such personnel. Trafficking in human beings, especially women, is a form of modern day slavery and requires a holistic, multi-sectoral approach to address the complex dimension of the problem. It is a problem that violates the rights and dignity of the victim. Therefore, women, and especially young girls, should be prevented from trafficking. Young girls are the future asset of our country and they have a very important role to play in shaping the future of modern India. While much has been accomplished to combat trafficking of women in India, there is realization that more needs to be done to eradicate this menace from our midst.

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