WASHINGTON William Wilberforce Trafficking Victims

Protection Reauthorization Act of 2008 was one of the final

pieces of legislation signed into law by PresidentGeorge W. Bush,
effective to stop trafficking around the world.
This bill by prohibiting the children who were not from Mexico or
Canada, being quickly sent back to their country of origin gave
substantial new protection

Instead, it required that they be given an opportunity to appear at

an immigration hearing and consult with an advocate, and it
recommended that they have access to counsel. It also required
that they be turned over to the care of the Department of Health
and Human Services, and the agency was directed to place the
minor in the least restrictive setting that is in the best interest of
the child and to explore reuniting those children with family
members.
. About 52,000 minors without their parents have been caught at
the Southwest border since October.
On Capitol Hill, Democrats said they expected that the
administrations initial request for border money would not push
for changes in the trafficking law but that the White House would
try to work with relevant congressional committees to eventually
win revisions.

Analysis of immoral traffic

(amendment) bill
HIGHLIGHTS
(Read this section in detail)

OF

THE

BILL

The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic (Prevention) Act,
1956 to combat trafficking and sexual exploitation for commercial purposes.

The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting
a brothel for the purpose of sexual exploitation of trafficked victims.

All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending
the trial.

The term "trafficking in persons" has been defined with a provision for punishing any person who is
guilty of the offence of trafficking in persons for the purpose of prostitution.

The Bill constitutes authorities at the centre and state level to combat trafficking.

KEY
(Read this section in detail)

ISSUES

AND

ANALYSIS

While prostitution is not an offence, practicing it in a brothel or within 200 m of any public place is illegal.
There seems to be a lack of clarity on whether prostitution ought to be a legitimate way of earning a living if
entered into by choice.

Penalising clients who visit prostitutes could drive this sector underground, preventing legal channels of
support to victims of trafficking.

This Bill punishes trafficking for the purpose of prostitution. Trafficking for other purposes (such as
bonded labour and domestic work) are not covered by the Bill.

The rank of special police officer, who would enforce the Act, is lowered from Inspector to Sub-Inspector.
Such powers delegated to junior officers could lead to greater harassment.

The Bill constitutes authorities at the centre and state level to combat trafficking. However, it does not
elaborate on the role, function and composition of these authorities.

PART A: HIGHLIGHTS OF THE BILL

Context
The Immoral Traffic (Prevention) Act, 1956 [2] makes trafficking and sexual exploitation of persons for
commercial purpose a punishable offence. The Act was passed in line with the International Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, signed by India on May
9, 1950. Although the Act was amended twice (1978 and 1986), it did not prove to be an effective deterrent to
trafficking or sexual exploitation for commercial purposes. The Immoral Traffic (Prevention) Amendment Bill, 2006
aims to punish traffickers and provide for stringent punishment to offenders.
Key features
This Bill has five main features. First, it deletes the provisions related to prosecution of prostitutes soliciting for
customers. Second, it provides for prosecution of clients. Third it defines the term "trafficking in persons" and
provides for penalties. Fourth, it increases penalties for some offences. Fifth, it constitutes authorities at the
central and state level to combat trafficking. The proposed amendments in the Bill are compared with the
provisions of the Immoral Traffic (Prevention) Act, 1956 in Table 1.
PART B: KEY ISSUES AND ANALYSIS
Objective of the Bill: The Bill aims to combat trafficking in persons for sexual exploitation. It does not prohibit
prostitution. It addresses the issue of trafficking through both supply side (by measures to punish traffickers) and
demand side (penalties for clients) mechanisms. There are three issues that need to be considered. First,
whether prostitution ought to be a legitimate way of earning a living if the person enters or stays in the profession
out of choice. Second, whether the demand side mechanism of punishing clients would be the best way to tackle
trafficking. Third, whether trafficking in persons for purposes other than sexual exploitation would be penalised.
These issues are discussed below.

Legality of Prostitution: The Bill defines "prostitution" as sexual exploitation or abuse of persons for
commercial purposes and a "brothel" as any house or place which is used for purposes of sexual
exploitation for the gain of another person or for the mutual gain of two or more prostitutes. Although the Bill
does not penalise an individual if he is in prostitution for his own profit, it penalises prostitution if carried on in
a brothel or from any public place within 200 metres of an educational institution, place of religious worship,
hotel, hospital, nursing home or any public place notified by the Commissioner of Police or Magistrate. Such
clauses, while technically not prohibiting prostitution, make it almost impossible for a person to operate as a

prostitute. Thus, the Bill lacks clarity on whether prostitution ought to be a legitimate way of earning a living if
the person enters or stays in the profession out of choice.

Punishing Clients: The Bill seeks to penalise any person who visits a brothel for the purpose of sexual
exploitation of a trafficked victim. The issues that arise out of such a provision are as follows. It would be
difficult for a person visiting a brothel to distinguish between a trafficked person and a non-trafficked person.
A person is penalised only if he sexually exploits a trafficked victim. If the victim is not trafficked, the client
would not be penalised. Any person visiting or found in a brothel can be penalised if the purpose of the visit
is sexual exploitation of a trafficked victim. However, as the term 'sexual exploitation' is not defined in the
Bill, it could lead to harassment of every person who visits a brothel irrespective of the object of his visit.
International experience suggests that the provision to penalise clients may not be an effective way to curb
sexual exploitation. For example, Sweden views prostitution as an aspect of male violence against women
and children and penalises the act of purchasing sexual services. [3] There is a view that this provision has
moved the trade underground. [4]

Trafficking Limited to Prostitution: India is a signatory to the UN Protocol to Prevent, Suppress and
Punish Trafficking in Persons Especially Women and Children, supplementing the UN Convention against
Transnational Organized Crime. This Protocol defines 'trafficking in persons' as 'the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force'. Exploitation
shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation,
forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs." [5]
While the UN Protocol covers trafficking for situations other than prostitution, the Bill only penalises the
offence of trafficking if the victim is used for the purpose of prostitution. Trafficking in persons for other
purposes such as domestic labour, bonded labour, begging, camel jockeying, and organ trade do not fall
under the purview of the Bill. While there are a number of laws [6] that penalise certain offences such as
slavery, unlawful compulsory labour, and begging, it does not cover every situation where trafficked victims
can be exploited. There could be a case for a comprehensive law on trafficking in persons rather than one
linked only to prostitution.

Enforcement: The Bill lowers the minimum rank of the special police officer, authorised to enforce the provisions
of this Act, from Inspector to Sub-Inspector. A shortage in the number of Inspectors in an area to deal with a case
of prostitution might necessitate the need to broaden the pool of trained officers. However, power to search
premises suspected of serving as brothels or remove persons from such premises without warrants in the hands
of a junior officer could lead to greater harassment of prostitutes. Indeed, cases of police harassment have been
reported earlier. [7]
Establishment of authority: The central government and each state government may establish an authority to
combat the offence of trafficking in persons. The Bill leaves it to the rules to specify the role, function and
composition of the authority.

Immoral trafficking prevention act

In 1950 the Government of India ratified the International Convention for the Suppression of
Immoral Traffic in Persons and the Exploitation of the Prostitution of others. In 1956 India passed
the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA). The act was further
amended and changed in 1986, resulting in the Immoral Traffic Prevention Act also know as
PITA.
PITA only discusses trafficking in relation to prostitution and not in relation to other

purposes of trafficking such as domestic work, child labour, organ harvesting, etc. The following
is an outline of the provisions in this law that pertains to children below the age of 18.
The act defines child as any person who has completed eighteen years of age. The first section
of the act has provisions that outline the illegality of prostitution and the punishment for owning a
brothel or a similar establishment, or for living of earnings of prostitution as is in the case of a
pimp. Section five of the act states that if a person procures, induces or takes a child for the
purpose of prostitution then the prison sentence is a minimum of seven years but can be
extended to life. To ensure that the people in the chain of trafficking are also held responsible the
act has a provision that states that any person involved in the recruiting, transporting,
transferring, harbouring, or receiving of persons for the purpose of prostitution if guilty of
trafficking. In addition any person attempting to commit trafficking or found in the brothel or
visiting the brothel is punishable under this law.
If a person if found with a child it is assumed that he has detained that child there for the purpose
of sexual intercourse and hence shall be punishable to seven year in prison up to life
imprisonment, or a term which may extend to ten year and also a maximum fine of one lakh
rupees. If a child is found in a brothel and after medical examination has been found to have
been sexually abused, it is assumed that the child has been detained for the purpose of
prostitution.
Any person committing prostitution in public with a child shall be punishable to seven year in
prison up to life imprisonment, or a term which may extend to ten year and also a maximum fine
of one lakh rupees. If prostitution of a child is being committed with knowledge of an
establishment owner such as a hotel the license of the hotel is likely to be cancelled along with
the given prison sentence and/or fines.
Any child found in a brothel or being abused for the purpose of prostitution can be placed in an
institution for their safety by a magistrate. Landlords, leasers, owner, agent of the owner who
unknowingly previously rented their property to a person found guilty of prostituting a child, must
get approval from a magistrate before re-leasing their property for three years after the order is
passed.
In 2006, the Ministry of Women and Child Development proposed an amendment bill that has yet
to be passed. The amendment does not really concern any of the provisions related to the child
but has many important consequences for the right of women sex workers.
. Implementation of Immoral Traffic (Prevention) Act (ITPA), 1956.
2.1. Since ITPA is the main Act that can be used to book trafficking for
commercial sexual exploitation, its implementation is essential for countertrafficking. Under Section 23, the State Government may, by notification in
the Official Gazette, make rules for
carrying out the purposes of the Act. Such rules may be formulated,
notified and

intimated to MWCD with a copy to MHA.

2.2. Under Section 13, the State Government may appoint Special Police
Officers
(SPOs) and the Non-official advisory bodies to advise the SPOs for
dealing with
offences under the Act.
2.3. Under Section 21, the State Governments may set-up Protective
homes and
Corrective institutions
provisions of the

for

ensuring

proper

implementation

of

the

Act. The information regarding these homes may be circulated to all Police
Stations and officers dealing with the trafficking cases.
2.4. Under Section 22-A, the State Government may, by notification in the
Official Gazette,
and after consultation with the High Court, establish one or more Courts
for
providing speedy trial of the offences under the Act.
2.5. It is generally noticed that sections 8 and 20 of ITPA, which focuses on
the victims, are
more often invoked as a result of which the victim is re-victimized and the
exploiters
are not punished. It is, therefore, advised that sections 3, 6 and 7 which
pertains to
pimps, brothel owners, clients who are actual perpetrators of the crimes
need to be
invoked rather than sections 8 and 20. Law enforcement agencies need to
adopt a
victim centric approach in the investigations.

Footnote: http://www.legalservicesindia.com/article/article/extent-to-whichimmoral-trafficking-is-addressed-595-1.html
The
Immoral
Traffic
(Prevention)
Amendment
Bill,
2006
The Immoral Traffic (Prevention) Act, 1956 [2] makes trafficking and sexual
exploitation of persons for commercial purpose a punishable offence. The Act was
passed in line with the International Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others, signed by India on May
9, 1950. Although the Act was amended twice (1978 and 1986), it did not prove to
be an effective deterrent to trafficking or sexual exploitation for commercial
purposes. The Immoral Traffic (Prevention) Amendment Bill, 2006 aims to punish
traffickers
and
provide
for
stringent
punishment
to
offenders.
Key
features
This Bill has five main features. First, it deletes the provisions related to prosecution
of prostitutes soliciting for customers. Second, it provides for prosecution of clients.
Third it defines the term "trafficking in persons" and provides for penalties. Fourth, it
increases penalties for some offences. Fifth, it constitutes authorities at the central
and state level to combat trafficking. The proposed amendments in the Bill are
compared with the provisions of the Immoral Traffic (Prevention) Act, 1956 in Table 1.

Table 1: Comparison of the Bill with the existing law

Definitions

Immoral Traffic (Prevention)

Amendment Bill, 2006

Immoral Traffic (Prevention) Act, 1956

Child means a person who has not

completed 18 years.

Child means a person who has not completed

16 years of age. Any person below 18 years but
above 16 years is a minor.

Prostitution means the sexual

exploitation of persons for commercial
purposes or for consideration in
money or any other kind.

Prostitution means the sexual exploitation or

abuse of persons for commercial purposes.

Anyone who recruits or transfers a

person for the purpose of prostitution
by means such as threat, coercion or
abuse of power commits the offence of
trafficking in persons.

Not defined.

Offences

In-camera
Trial

Any person found in a brothel for

sexual exploitation of any victim of
trafficking shall, on first conviction,
be punishable with imprisonment for
up to 3 months or fined up to Rs
20,000 or with both. On subsequent
conviction, he can be imprisoned for a
maximum period of six months and
fined up to Rs 50,000.

No provision.

On first conviction, punishment for

keeping or allowing premises to be
used as a brothel is one to three years
rigorous imprisonment and a fine of
up to Rs 10,000. Subsequent
convictions are punishable with three
to seven years imprisonment and a
fine of up to Rs 2 lakh.

On first conviction, punishment for keeping or

allowing premises to be used as a brothel is one
to three years rigorous imprisonment and a fine
of up to Rs 2,000. Subsequent convictions are
punishable with two to five years imprisonment
and a fine of up to Rs 2,000.

Trafficking in persons is punishable on

first conviction with rigorous
imprisonment for a minimum of seven
years. On subsequent conviction, the
offender would be imprisoned for life.

Procuring or inducing a person for prostitution

would be punishable on conviction with
rigorous imprisonment for three to seven years
and a fine of up to Rs 2,000. If the offence is
committed against a persons will, the penalty
would be imprisonment for 7-14 years.

The offence of procuring or inducing a

child for the sake of prostitution is
punishable by rigorous imprisonment
for seven years to life.

The offence of procuring or inducing a child for

the sake of prostitution is punishable by rigorous
imprisonment for seven years to life. In case of
a minor, it would be rigorous imprisonment for
7 to14 years.

No provision.

Seducing and soliciting for the purpose of

prostitution is a punishable offence.

No provision.

Prostitutes can be removed from local

jurisdiction of a Magistrate and be prohibited
from re-entering the place.

All offences under the Bill shall be

tried in-camera, i.e. the public would

No provision.

be excluded from attending the trial.

Enforcement

A special police officer, not below the

rank of Sub-Inspector, shall be
appointed to deal with offences under
the Act.

A special police officer, not below the rank of

Inspector, to be appointed to deal with offences
under the Act.

Authority

The central and state governments

may establish authorities to combat
the offence of trafficking in persons.

No provision.

Money
Laundering

Trafficking in persons added to the

offences listed in the Money
Laundering Act, 2002.

No provision.

Objective of the Bill: The Bill aims to combat trafficking in persons for sexual
exploitation. It does not prohibit prostitution. It addresses the issue of trafficking
through both supply side (by measures to punish traffickers) and demand side
(penalties for clients) mechanisms. There are three issues that need to be
considered. First, whether prostitution ought to be a legitimate way of earning a
living if the person enters or stays in the profession out of choice. Second, whether
the demand side mechanism of punishing clients would be the best way to tackle
trafficking. Third, whether trafficking in persons for purposes other than sexual
exploitation would be penalised. These issues are discussed below.
Legality of Prostitution: The Bill defines "prostitution" as sexual exploitation or
abuse of persons for commercial purposes and a "brothel" as any house or place
which is used for purposes of sexual exploitation for the gain of another person or for
the mutual gain of two or more prostitutes. Although the Bill does not penalise an
individual if he is in prostitution for his own profit, it penalises prostitution if carried
on in a brothel or from any public place within 200 metres of an educational
institution, place of religious worship, hotel, hospital, nursing home or any public
place notified by the Commissioner of Police or Magistrate. Such clauses, while
technically not prohibiting prostitution, make it almost impossible for a person to
operate as a prostitute. Thus, the Bill lacks clarity on whether prostitution ought to
be a legitimate way of earning a living if the person enters or stays in the profession
out
of
choice.
Punishing Clients: The Bill seeks to penalise any person who visits a brothel for the
purpose of sexual exploitation of a trafficked victim. The issues that arise out of such
a provision are as follows. It would be difficult for a person visiting a brothel to
distinguish between a trafficked person and a non-trafficked person. A person is
penalised only if he sexually exploits a trafficked victim. If the victim is not trafficked,
the client would not be penalised. Any person visiting or found in a brothel can be
penalised if the purpose of the visit is sexual exploitation of a trafficked victim.
However, as the term 'sexual exploitation' is not defined in the Bill, it could lead to
harassment of every person who visits a brothel irrespective of the object of his visit.
International experience suggests that the provision to penalise clients may not be

an effective way to curb sexual exploitation. For example, Sweden views prostitution
as an aspect of male violence against women and children and penalises the act of
purchasing sexual services. There is a view that this provision has moved the trade
underground.
Trafficking Limited to Prostitution: India is a signatory to the UN Protocol to Prevent,
Suppress and Punish Trafficking in Persons Especially Women and Children,
supplementing the UN Convention against Transnational Organized Crime. This
Protocol defines 'trafficking in persons' as 'the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force'. Exploitation
shall include, at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labour or services, slavery or practices similar to
slavery,
servitude
or
the
removal
of
organs."
While the UN Protocol covers trafficking for situations other than prostitution, the Bill
only penalises the offence of trafficking if the victim is used for the purpose of
prostitution. Trafficking in persons for other purposes such as domestic labour,
bonded labour, begging, camel jockeying, and organ trade do not fall under the
purview of the Bill. While there are a number of laws that penalise certain offences
such as slavery, unlawful compulsory labour, and begging, it does not cover every
situation where trafficked victims can be exploited. There could be a case for a
comprehensive law on trafficking in persons rather than one linked only to
prostitution.
Steps have been taken to raise awareness in society about this evil, the minister
said, adding that a number of schemes have been launched like Short Stay Homes,
Swadhar and Pilot Project for rescue and rehabilitation of such exploited women and
children. She said the Department of Women and Child Development has initiated a
number of schemes like Kishori Shakti Yojana, Swa Shakti, Swayamsidha,
Swavlambvan and STEP for economic empowerment of women

Introduction (Role of UN)

UNICEF is the United Nations primaryagency focusing on the rights of children
and approaches trafficking as a serious violation of these rights. UNICEFs work in
the area of child protection is based on the need to create a protective
environment that will reduce childrens vulnerability to being trafficked, as well
as increasing their protection from other threats to the full enjoyment of all their
rights. Work within the framework of the protective environment emphasizes
the importance of prevention. By working to reinforce the protective environment
for all children, UNICEFs approach strives to reduce the vulnerability of children
to abuse, violence and exploitation of all kinds.
O-IPEC and UNICEF work together at many levels, including through field
operations and at the level of policy. They work with governments, workers and
employers organizations, non-government organizations (NGOs), researchers
and academics and a range of other anti-trafficking actors. Through them, they
work with families and communities, and with children themselves, in grassroots
initiatives that strengthen resilience and mobilize strong community forces. ILO
and UNICEF both support the Global Initiative to Fight Human Trafficking
(UN.GIFT).

Find more on:

http://www.nspcc.org.uk/Inform/resourcesforprofessionals/childtrafficking/childtrafficking-introduction_wda96894.html
http://www.unodc.org/documents/human-trafficking/Toolkit-files/08-58296_tool_92.pdf
http://www.unicef.org/nigeria/children_1939.html
http://www.humanium.org/en/child-trafficking/
http://www.humanium.org/en/child-trafficking/

http://freeholdarea-nj.aauw.net/files/2014/01/z-Human+Trafficking+Statistics.pdf
http://www.childrights.in/2013/05/laws-related-to-children-in-india-ipc_15.html
http://nlrd.org/resources-womens-rights/anti-trafficking/anti-traffickinggovernment-notificationsadvisories/human-trafficking-and-law-understandingcriminal-law-amendment-ordinance-2013

http://ncw.nic.in/pdfFiles/Advisory-on-HTrafficking-150909.pdf
http://nlrd.org/womens-rights-initiative/legislations-laws-related-towomen/constitutional-and-legal-provisions-for-women-in-india

. Implementation of Immoral Traffic (Prevention) Act (ITPA), 1956.

2.1. Since ITPA is the main Act that can be used to book trafficking for
commercial sexual exploitation, its implementation is essential for countertrafficking. Under Section 23, the State Government may, by notification in the
Official Gazette, make rules for carrying out the purposes of the Act. Such rules
may be formulated, notified and intimated to MWCD with a copy to MHA.
2.2. Under Section 13, the State Government may appoint Special Police Officers
(SPOs) and the Non-official advisory bodies to advise the SPOs for dealing with
offences under the Act.
2.3. Under Section 21, the State Governments may set-up Protective homes and
Corrective institutions for ensuring proper implementation of the provisions of
the Act. The information regarding these homes may be circulated to all Police
Stations and officers dealing with the trafficking cases.
2.4. Under Section 22-A, the State Government may, by notification in the Official
Gazette, and after consultation with the High Court, establish one or more Courts
for providing speedy trial of the offences under the Act.
2.5. It is generally noticed that sections 8 and 20 of ITPA, which focuses on the
victims, are more often invoked as a result of which the victim is re-victimized
and the exploiters are not punished. It is, therefore, advised that sections 3, 6

and 7 which pertains to pimps, brothel owners, clients who are actual
perpetrators of the crimes need to be invoked rather than sections 8 and 20. Law
enforcement agencies need to adopt a victim centric approach in the
investigations.